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United India Insurance Vs. Ajmer Singh Cotton & General Mills

R.P. Sethi, J. 1. Whether the insured is estopped from making any further claim from the insurer after accepting the insurance claim amount in full and final settlement of all the claims by executing the discharge voucher willingly and voluntarily without any protest or objections ?2. Whether inspite of the acceptance of the claim amount and execution of discharge voucher voluntarily, the insured is entitled to the grant of any interest ?3. Whether the Consumer Disputes Redressal Commissions constituted under the Consumer Protection Act, 1986 are entitled to fasten liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance ? are the main questions of law required to be adjudicated in all these appeals. 4. In Civil Appeal No. 535 of 1994 the respondent No. 1 had procured two policies Nos. 201202-11-43-11-01234-90 from the appellant-insurance company. Similarly in Civil Appeal No. 723 of 1994 respondent No. 1 had procured two insurance covers operative from 20th October, 1989 to 19th June, 1990 to the extent of Rs. 1,00,000/- and from 3rd April 1990 to 29th June, 1990 to the extent of Rs. 10,00,000/- respectively. Respondent No. 1 had also procured insurance cover to the tune of Rs. 27 lakhs from respondents 2 to 4. The respondent suffered losses on account of fire regarding which the surveyors are appointed and upon submission of their reports the payments were made which were accepted by the insured with declaration of receipt of the "sum in full and final discharge of claims upon them." After the payments were made the respondents filed complaint petitions before the State Consumer Disputes Redressal Commission Punjab at Chandigarh claiming inter alia interest at the rate of 18 per cent per annum against the appellant. The State Commission dismissed the claims but the National Consumer Disputes Redressal Commission accepted the appeal of the respondent No. 1 and directed the appellant to pay the interest at the rate of 18 per cent.5. The facts in Civil Appeal No. 534 of 1994 are almost identical for determining the controversy and deciding the question of law noted hereinabove. 6. We have heard learned counsel for the parties and perused the record. It is true that the award of interest is not specifically authorised under the Consumer Protection Act, 1986 (hereinafter called the Act) but in view of our judgment in Sovintorg (India) Ltd. v. State Bank of India (Civil Appeal No. 823 of 1992) decided on 11th August, 1999, we are of the opinion that in appropriate cases the forum and the commissions under the Act are authorised to grant reasonable interest under the facts and circumstances of each case. The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed a fraudulent or exercise of undue influence or by mis-representation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However, where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act. 7. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, mis-representation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd., Original Petition No. 52 of 1991, decided on November 28, 1991 shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint.

1[ds]7. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, mis-representation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd., Original Petition No. 52 of 1991, decided on November 28, 1991 shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint.

### 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: R.P. Sethi, J. 1. Whether the insured is estopped from making any further claim from the insurer after accepting the insurance claim amount in full and final settlement of all the claims by executing the discharge voucher willingly and voluntarily without any protest or objections ?2. Whether inspite of the acceptance of the claim amount and execution of discharge voucher voluntarily, the insured is entitled to the grant of any interest ?3. Whether the Consumer Disputes Redressal Commissions constituted under the Consumer Protection Act, 1986 are entitled to fasten liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance ? are the main questions of law required to be adjudicated in all these appeals. 4. In Civil Appeal No. 535 of 1994 the respondent No. 1 had procured two policies Nos. 201202-11-43-11-01234-90 from the appellant-insurance company. Similarly in Civil Appeal No. 723 of 1994 respondent No. 1 had procured two insurance covers operative from 20th October, 1989 to 19th June, 1990 to the extent of Rs. 1,00,000/- and from 3rd April 1990 to 29th June, 1990 to the extent of Rs. 10,00,000/- respectively. Respondent No. 1 had also procured insurance cover to the tune of Rs. 27 lakhs from respondents 2 to 4. The respondent suffered losses on account of fire regarding which the surveyors are appointed and upon submission of their reports the payments were made which were accepted by the insured with declaration of receipt of the "sum in full and final discharge of claims upon them." After the payments were made the respondents filed complaint petitions before the State Consumer Disputes Redressal Commission Punjab at Chandigarh claiming inter alia interest at the rate of 18 per cent per annum against the appellant. The State Commission dismissed the claims but the National Consumer Disputes Redressal Commission accepted the appeal of the respondent No. 1 and directed the appellant to pay the interest at the rate of 18 per cent.5. The facts in Civil Appeal No. 534 of 1994 are almost identical for determining the controversy and deciding the question of law noted hereinabove. 6. We have heard learned counsel for the parties and perused the record. It is true that the award of interest is not specifically authorised under the Consumer Protection Act, 1986 (hereinafter called the Act) but in view of our judgment in Sovintorg (India) Ltd. v. State Bank of India (Civil Appeal No. 823 of 1992) decided on 11th August, 1999, we are of the opinion that in appropriate cases the forum and the commissions under the Act are authorised to grant reasonable interest under the facts and circumstances of each case. The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered. Despite execution of the discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed a fraudulent or exercise of undue influence or by mis-representation or the like. If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, mis-representation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief. However, where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the tribunal or the commission would be justified in granting the appropriate relief under the circumstances of each case. The mere execution of the discharge voucher and acceptance of the insurance claim would not estop the insured from making further claim from the insurer but only under the circumstances as noticed earlier. The Consumer Disputes Redressal Forums and Commissions constituted under the Act shall also have the power to fasten liability against the insurance companies notwithstanding the issuance of the discharge voucher. Such a claim cannot be termed to be fastening the liability against the insurance companies over and above the liabilities payable under the contract of insurance envisaged in the policy of insurance. The claim preferred regarding the deficiency of service shall be deemed to be based upon the insurance policy, being covered by the provisions of Section 14 of the Act. 7. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, mis-representation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd., Original Petition No. 52 of 1991, decided on November 28, 1991 shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint. ### Response: 1 ### Explanation: 7. In the instant cases the discharge vouchers were admittedly executed voluntarily and the complainants had not alleged their execution under fraud, undue influence, mis-representation or the like. In the absence of pleadings and evidence the State Commission was justified in dismissing their complaints. The National Commission however granted relief solely on the ground of delay in the settlement of claim under the policies. The mere delay of a couple of months would not have authorised the National Commission to grant relief particularly when the insurer had not complained of such a delay at the time of acceptance of the insurance amount under the policy. We are not satisfied with the reasoning of the National Commission and are of the view that the State Commission was justified in dismissing the complaints though on different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd., Original Petition No. 52 of 1991, decided on November 28, 1991 shall always be construed in the light of our findings in this judgment and the mere receipt of the amount without any protest would not always debar the claimant from filing the complaint.

Bhawanipore Banking Corpora-Tion, Ltd Vs. Gouri Shankar Sharma

Fazl Ali, J.1. The only question to be decided in this appeal, which arises out of an execution proceeding is whether the decree under execution is barred by limitation. The first Court held that the decree was not barred, but the High Court has come to the opposite conclusion, and the decree-holder has, after obtaining a certificate under S. 110, Code of Civil Procedure, 1908 appealed to this Court.2. The facts may be briefly stated as follows. On 21/08/1940, a preliminary mortgage decree was passed ex parte in a suit instituted by the appellant to enforce a mortgage. On 19/09/1940, the judgment-debtor made an application under Or.9R.13, Code of Civil Procedure, 1908 , for setting aside the ex parte decree, but this application was rejected on 7/06/1941. On 11/07/1941, the judgment-debtor filed an application under S. 36, Bengal Money-lenders Act. for reopening the preliminary decree, but this application was dismissed for default of appearance on 20/12/1941. Thereafter a final mortgage decree was passed in favour of the appellant, on 22nd December. The judgment, debtor then made an application under Or.9R.9, Code of Civil Procedure for the restoration of the proceedings under. S. 36, money-lenders Act. The application was, however, dismissed on 1/06/1942, both on the ground that no sufficient cause for the non-appearance of the applicant and his failure to take steps in the proceedings was shown and on the ground that no purpose would be served by reopening the preliminary decree after the final decree had been passed. The judgement- debtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under O. 9, R 9, but the appeal was dismissed for non-prosecution, on 3/07/1944. On 9/04/1945, the appellant filed an application for executing the decree against the original judgment-debtor, though he had died previously, and this application was dismissed for default on 11/05/1945. On 2/06/1945, the present application for execution was filed, and the question which we have to decide is whether this application is in time.3. It is quite clear that the application for execution having been made more than three years after the date of the final decree, it must be held to be time-barred, unless, as has been contended before us, the case falls under either cl. 2 or cl. 3 of Art. 182, Limitation Act. Under these clauses, time to make the application begins to run from- "(2) Where there has been an appeal the date of the final decree or order of the appellate Court, or the withdrawal of the appeal, or (3) Where there has been a review of judgment the date of the decision passed on the review . . ."4. It is contended that the case is covered by cl. 3, and the ground urged in support of this contention is that the application made by the judgment-debtor for re-opening the preliminary mortgage decree under S.36. Moneylenders Act, must be regarded as an application for review and time should be held to run from the date of the final order passed in the proceedings connected with that application. In our opinion, there is no substance in this contention. The important words in cl. 3 of Art.182 are: (1) "where there has been a review" and (2) "the decision passed on the review." These words show that before a case can be brought under Art.182, cl. 3, it must be shown firstly that the Court had undertaken to review the relevant decree or order and secondly that there has been a decision on the review. In the present case, even if it be assumed that the word "review" has been used in Art. 182 in a large sense and that the application for reopening the decree under S. 36, Bengal Money-lenders Act was an application for review, the appellant cannot succeed, because the Court never under look or purported to review the decree in question. What actually happened was that the application under S. 36 for reopening the preliminary decree (not the final decree which is the decree sought to be executed) was dismissed for default and the application under Or.9R.9, Code of Civil Procedure, 1908 for the restoration of the proceedings under S. 36, Money-lenders Act, was also dismissed. Even if the fact that the judgment debtors application under S. 36 was directed against the preliminary mortgage decree is overlooked, that application having been dismissed for default, the Court never had occasion to apply its mind to the question as to whether the decree could or should be reopened, and hence it cannot be said that "there has been a review" of the decree. The proceedings under Or.9R.9, Code of Civil Procedure are not material to the present discussion because they did not involve a review of the decree under execution but a review, if it is at all possible to call it a review, (which, in our opinion, it is not), of the order dismissing the judgment-debtors application under S. 36 for default.5. It was also suggested by the learned counsel for the appellant that the case might be held to be covered by cl. 2 of Art. 182 on the ground that, even though no appeal was preferred from the trial mortgage decree, the words "where there has been an appeal" are comprehensive enough to include in this case the appeal from the order dismissing the application under Or.9R.9, Code of Civil Procedure , made in connection with the proceedings under S. 36, Money-lenders Act. This argument also is a highly far-fetched one, because the expression "where there has been an appeal" must be read with the words in col. 1 of Art. 182, viz., "for the execution of a decree or order of any civil Court.. ...." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution.

0[ds]In our opinion, there is no substance in this contention. The important words in cl. 3 of Art.182 are: (1) "where there has been a review" and (2) "the decision passed on the review." These words show that before a case can be brought under Art.182, cl. 3, it must be shown firstly that the Court had undertaken to review the relevant decree or order and secondly that there has been a decision on the review. In the present case, even if it be assumed that the word "review" has been used in Art. 182 in a large sense and that the application for reopening the decree under S. 36, BengalAct was an application for review, the appellant cannot succeed, because the Court never under look or purported to review the decree in question. What actually happened was that the application under S. 36for reopening thedecree (not the final decree which is the decree sought to be executed) was dismissed for default and the application under Or.9R.9, Code of Civil Procedure, 1908 for the restoration of the proceedings under S. 36,Act, was also dismissed. Even if the fact that the judgment debtors application under S. 36 was directed against the preliminary mortgage decree is overlooked, that application having been dismissed for default, the Court never had occasion to apply its mind to the question as to whether the decree could or should be reopened, and hence it cannot be said that "there has been a review" of the decree. The proceedings under Or.9R.9, Code of Civil Procedure are not material to the present discussion because they did not involve a review of the decree under execution but a review, if it is at all possible to call it a review, (which, in our opinion, it is not), of the order dismissing theapplication under S. 36 forargument also is a highlyone, because the expression "where there has been an appeal" must be read with the words in col. 1 of Art. 182, viz., "for the execution of a decree or order of any civil Court.. ...." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution.

### 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: Fazl Ali, J.1. The only question to be decided in this appeal, which arises out of an execution proceeding is whether the decree under execution is barred by limitation. The first Court held that the decree was not barred, but the High Court has come to the opposite conclusion, and the decree-holder has, after obtaining a certificate under S. 110, Code of Civil Procedure, 1908 appealed to this Court.2. The facts may be briefly stated as follows. On 21/08/1940, a preliminary mortgage decree was passed ex parte in a suit instituted by the appellant to enforce a mortgage. On 19/09/1940, the judgment-debtor made an application under Or.9R.13, Code of Civil Procedure, 1908 , for setting aside the ex parte decree, but this application was rejected on 7/06/1941. On 11/07/1941, the judgment-debtor filed an application under S. 36, Bengal Money-lenders Act. for reopening the preliminary decree, but this application was dismissed for default of appearance on 20/12/1941. Thereafter a final mortgage decree was passed in favour of the appellant, on 22nd December. The judgment, debtor then made an application under Or.9R.9, Code of Civil Procedure for the restoration of the proceedings under. S. 36, money-lenders Act. The application was, however, dismissed on 1/06/1942, both on the ground that no sufficient cause for the non-appearance of the applicant and his failure to take steps in the proceedings was shown and on the ground that no purpose would be served by reopening the preliminary decree after the final decree had been passed. The judgement- debtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under O. 9, R 9, but the appeal was dismissed for non-prosecution, on 3/07/1944. On 9/04/1945, the appellant filed an application for executing the decree against the original judgment-debtor, though he had died previously, and this application was dismissed for default on 11/05/1945. On 2/06/1945, the present application for execution was filed, and the question which we have to decide is whether this application is in time.3. It is quite clear that the application for execution having been made more than three years after the date of the final decree, it must be held to be time-barred, unless, as has been contended before us, the case falls under either cl. 2 or cl. 3 of Art. 182, Limitation Act. Under these clauses, time to make the application begins to run from- "(2) Where there has been an appeal the date of the final decree or order of the appellate Court, or the withdrawal of the appeal, or (3) Where there has been a review of judgment the date of the decision passed on the review . . ."4. It is contended that the case is covered by cl. 3, and the ground urged in support of this contention is that the application made by the judgment-debtor for re-opening the preliminary mortgage decree under S.36. Moneylenders Act, must be regarded as an application for review and time should be held to run from the date of the final order passed in the proceedings connected with that application. In our opinion, there is no substance in this contention. The important words in cl. 3 of Art.182 are: (1) "where there has been a review" and (2) "the decision passed on the review." These words show that before a case can be brought under Art.182, cl. 3, it must be shown firstly that the Court had undertaken to review the relevant decree or order and secondly that there has been a decision on the review. In the present case, even if it be assumed that the word "review" has been used in Art. 182 in a large sense and that the application for reopening the decree under S. 36, Bengal Money-lenders Act was an application for review, the appellant cannot succeed, because the Court never under look or purported to review the decree in question. What actually happened was that the application under S. 36 for reopening the preliminary decree (not the final decree which is the decree sought to be executed) was dismissed for default and the application under Or.9R.9, Code of Civil Procedure, 1908 for the restoration of the proceedings under S. 36, Money-lenders Act, was also dismissed. Even if the fact that the judgment debtors application under S. 36 was directed against the preliminary mortgage decree is overlooked, that application having been dismissed for default, the Court never had occasion to apply its mind to the question as to whether the decree could or should be reopened, and hence it cannot be said that "there has been a review" of the decree. The proceedings under Or.9R.9, Code of Civil Procedure are not material to the present discussion because they did not involve a review of the decree under execution but a review, if it is at all possible to call it a review, (which, in our opinion, it is not), of the order dismissing the judgment-debtors application under S. 36 for default.5. It was also suggested by the learned counsel for the appellant that the case might be held to be covered by cl. 2 of Art. 182 on the ground that, even though no appeal was preferred from the trial mortgage decree, the words "where there has been an appeal" are comprehensive enough to include in this case the appeal from the order dismissing the application under Or.9R.9, Code of Civil Procedure , made in connection with the proceedings under S. 36, Money-lenders Act. This argument also is a highly far-fetched one, because the expression "where there has been an appeal" must be read with the words in col. 1 of Art. 182, viz., "for the execution of a decree or order of any civil Court.. ...." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution. ### Response: 0 ### Explanation: In our opinion, there is no substance in this contention. The important words in cl. 3 of Art.182 are: (1) "where there has been a review" and (2) "the decision passed on the review." These words show that before a case can be brought under Art.182, cl. 3, it must be shown firstly that the Court had undertaken to review the relevant decree or order and secondly that there has been a decision on the review. In the present case, even if it be assumed that the word "review" has been used in Art. 182 in a large sense and that the application for reopening the decree under S. 36, BengalAct was an application for review, the appellant cannot succeed, because the Court never under look or purported to review the decree in question. What actually happened was that the application under S. 36for reopening thedecree (not the final decree which is the decree sought to be executed) was dismissed for default and the application under Or.9R.9, Code of Civil Procedure, 1908 for the restoration of the proceedings under S. 36,Act, was also dismissed. Even if the fact that the judgment debtors application under S. 36 was directed against the preliminary mortgage decree is overlooked, that application having been dismissed for default, the Court never had occasion to apply its mind to the question as to whether the decree could or should be reopened, and hence it cannot be said that "there has been a review" of the decree. The proceedings under Or.9R.9, Code of Civil Procedure are not material to the present discussion because they did not involve a review of the decree under execution but a review, if it is at all possible to call it a review, (which, in our opinion, it is not), of the order dismissing theapplication under S. 36 forargument also is a highlyone, because the expression "where there has been an appeal" must be read with the words in col. 1 of Art. 182, viz., "for the execution of a decree or order of any civil Court.. ...." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution.

Nayagarh Co-Operative Central Bank Limited Vs. Shri Narayana Rath & Others

GUPTA, J.1. These three appeals by special leave arise out of three proceedings under Section 68 of the Orissa Co-operative Societies Act 1962 (hereinafter referred to as the act).2. The appellant in all these appeals, Nayagarh Co-operative Central Bank Ltd., is registered as a co-operative society under the Act and has among its objects, raising funds for financing co-operative societies registered under the Act and affiliated to it, besides carrying on the general business of a bank. Three such co-operative societies had applied to the appellant bank for loans and on the recommendation of the first respondent in these appeals, who at the relevant time was employed as Secretary of the Bank, various sums were advanced to these co-operative societies; Rs. 61, 420 to Krishna Prasad Co-operative Society, Rs. 3, 52, 490 to Singhapara Co-operative Society, Rs. 1, 35, 315 to Kaijhar Gram Panchayat Co-operative Grain Golla Credit and Society. Attempts to recover the loans advanced to the aforesaid societies having failed, the appellant bank referred the disputes concerning the said transactions to arbitration under Section 68 of the Act praying for an award in each case against the indebted society, its office-bearers and the first respondent in the appeals before us, jointly and severally.3. The allegations on which the first respondent was made a party to these proceedings under Section 68 of the Act are similar in all the three cases. It was said that :... It was the responsibility of the secretary to the bank to examine the loan application and recommend to the committee for consideration. He has misutilised his power and position of his office and mischievously recommended for sanction of the loan applied by the recalcitrant office-bearers of . . . (these societies). The plaintiff (appellant bank) has got sufficient reasons to believe that he (first respondent) has also connived with the management of funds so as to achieve his selfish motive.The first respondent filed three writ petitions before the Orissa High Court for quashing the proceedings against him on the ground that the appellant bank had no jurisdiction to initiate disputes against him under Section 68 of the Act and also alleged that the said proceedings were mala fide. The High Court found that the allegations against the first respondent could not from the subject-matter of a dispute under Section 68 of the Act, and on this view, quashed the three respondent. The validity of this decision is challenged before us by the appellant bank.4. Section 68 so far as it is relevant for the purpose of these appeals reads :68. Dispute which may be referred to arbitration. - (1) Notwithstanding anything contained in any law for the time being in force, any dispute touching the constitution, management or the business of society other than a dispute regarding disciplinary action taken by a society or its committee against paid servant of the society, shall be referred to the Register if the parties thereto are among the following namely -(a) the society, its committee, past committee, any past or present officer, any past or present agent, any past or present servant of the nominees, heir or legal representatives of any deceased officer, deceased agent or deceased servant of the society or the liquidator of the society; or(b) a member, past member of a person claiming through a member, past member or deceased member of the society or of a society which is a member of the society; or(c) a surety of a member, past member or a deceased member whether such surety is or is not a member of the society; or(d) any other society or the liquidator of such society.Explanation 1 : A claim in respect of any sum payable to or by a society by or to a person or society or a liquidator mentioned in clauses (a) to (d) shall be a dispute touching the business even in case such claim is admitted and the only point in issue is the ability to pay the manner of enforcement of payment.* * * *For the present purpose, Section 68 requires two conditions to be satisfied : (i) that the dispute must be one touching the business of a society other than a dispute regarding disciplinary action taken by the society against a paid servant and (ii) that the dispute must be one involving parties who are among those mentioned in the section. Here the parties concerned are among those listed in this section, and the dispute being as stated in Explanation 1. Prima facie therefore the requirements of Section 68 (1) are satisfied in these cases.5. The first respondent however contends that the disputes so far as he is concerned are not such as are contemplated in Section 68 (1). We do not propose to consider the merits of this contention because of sub-section (4) of Section 68 which says :(4) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.In view of the provisions of Section 68 (4) we think that this is a matter which the Registrar must decide before the writ jurisdiction of the High Court is allowed to be invoked.

1[ds]We do not propose to consider the merits of this contention because of(4) of Section 68 which says :(4) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.In view of the provisions of Section 68 (4) we think that this is a matter which the Registrar must decide before the writ jurisdiction of the High Court is allowed to be invoked.

### 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: GUPTA, J.1. These three appeals by special leave arise out of three proceedings under Section 68 of the Orissa Co-operative Societies Act 1962 (hereinafter referred to as the act).2. The appellant in all these appeals, Nayagarh Co-operative Central Bank Ltd., is registered as a co-operative society under the Act and has among its objects, raising funds for financing co-operative societies registered under the Act and affiliated to it, besides carrying on the general business of a bank. Three such co-operative societies had applied to the appellant bank for loans and on the recommendation of the first respondent in these appeals, who at the relevant time was employed as Secretary of the Bank, various sums were advanced to these co-operative societies; Rs. 61, 420 to Krishna Prasad Co-operative Society, Rs. 3, 52, 490 to Singhapara Co-operative Society, Rs. 1, 35, 315 to Kaijhar Gram Panchayat Co-operative Grain Golla Credit and Society. Attempts to recover the loans advanced to the aforesaid societies having failed, the appellant bank referred the disputes concerning the said transactions to arbitration under Section 68 of the Act praying for an award in each case against the indebted society, its office-bearers and the first respondent in the appeals before us, jointly and severally.3. The allegations on which the first respondent was made a party to these proceedings under Section 68 of the Act are similar in all the three cases. It was said that :... It was the responsibility of the secretary to the bank to examine the loan application and recommend to the committee for consideration. He has misutilised his power and position of his office and mischievously recommended for sanction of the loan applied by the recalcitrant office-bearers of . . . (these societies). The plaintiff (appellant bank) has got sufficient reasons to believe that he (first respondent) has also connived with the management of funds so as to achieve his selfish motive.The first respondent filed three writ petitions before the Orissa High Court for quashing the proceedings against him on the ground that the appellant bank had no jurisdiction to initiate disputes against him under Section 68 of the Act and also alleged that the said proceedings were mala fide. The High Court found that the allegations against the first respondent could not from the subject-matter of a dispute under Section 68 of the Act, and on this view, quashed the three respondent. The validity of this decision is challenged before us by the appellant bank.4. Section 68 so far as it is relevant for the purpose of these appeals reads :68. Dispute which may be referred to arbitration. - (1) Notwithstanding anything contained in any law for the time being in force, any dispute touching the constitution, management or the business of society other than a dispute regarding disciplinary action taken by a society or its committee against paid servant of the society, shall be referred to the Register if the parties thereto are among the following namely -(a) the society, its committee, past committee, any past or present officer, any past or present agent, any past or present servant of the nominees, heir or legal representatives of any deceased officer, deceased agent or deceased servant of the society or the liquidator of the society; or(b) a member, past member of a person claiming through a member, past member or deceased member of the society or of a society which is a member of the society; or(c) a surety of a member, past member or a deceased member whether such surety is or is not a member of the society; or(d) any other society or the liquidator of such society.Explanation 1 : A claim in respect of any sum payable to or by a society by or to a person or society or a liquidator mentioned in clauses (a) to (d) shall be a dispute touching the business even in case such claim is admitted and the only point in issue is the ability to pay the manner of enforcement of payment.* * * *For the present purpose, Section 68 requires two conditions to be satisfied : (i) that the dispute must be one touching the business of a society other than a dispute regarding disciplinary action taken by the society against a paid servant and (ii) that the dispute must be one involving parties who are among those mentioned in the section. Here the parties concerned are among those listed in this section, and the dispute being as stated in Explanation 1. Prima facie therefore the requirements of Section 68 (1) are satisfied in these cases.5. The first respondent however contends that the disputes so far as he is concerned are not such as are contemplated in Section 68 (1). We do not propose to consider the merits of this contention because of sub-section (4) of Section 68 which says :(4) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.In view of the provisions of Section 68 (4) we think that this is a matter which the Registrar must decide before the writ jurisdiction of the High Court is allowed to be invoked. ### Response: 1 ### Explanation: We do not propose to consider the merits of this contention because of(4) of Section 68 which says :(4) If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the constitution, management or the business of a society, the decision thereon of the Registrar shall be final and shall not be called in question in any court.In view of the provisions of Section 68 (4) we think that this is a matter which the Registrar must decide before the writ jurisdiction of the High Court is allowed to be invoked.

Justice P.D. Dinakaran Vs. Hon''ble Judges Inquiry Committee & Others

that he will be deemed to have waived the right to raise objection of bias. Some of the observations made in that case are extracted below: ...............The alleged bias in a member of the Tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the Tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R., has observed in Vyvyan v. Vyvyan waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim. If, in the present case, it appears that the appellant knew all the facts about the alleged disability of Shri Chhangani and was also aware that he could effectively request the learned Chief Justice to nominate some other member instead of Shri Chhangani and yet did not adopt that course, it may well be that he deliberately took a chance to obtain a report in his favour from the Tribunal and when he came to know that the report had gone against him he thought better of his rights and raised this point before the High Court for the first time. In other words, though the point of law raised by Shri Daphtary against the competence of the Tribunal be sound, it is still necessary for us to consider whether the appellant was precluded from raising this point before the High Court by waiver or acquiescence. From the record it is clear that the appellant never raised this point before the Tribunal and the manner in which this point was raised by him even before the High Court is somewhat significant. The first ground of objection filed by the appellant against the Tribunals report was that Shri Chhangani had pecuniary and personal interest in the complainant Dr Prem Chand. The learned Judges of the High Court have found that the allegations about the pecuniary interest of Shri Chhangani in the present proceedings are wholly unfounded and this finding has not been challenged before us by Shri Daphtary. The learned Judges of the High Court have also found that the objection was raised by the appellant before them only to obtain an order for a fresh enquiry and thus gain time. It may be conceded in favour of Shri Daphtary that the judgment of the High Court does not in terms find against the appellant on the ground of waiver though that no doubt appears to be the substance of their conclusion. We have, however, heard Shri Daphtarys case on the question of waiver and we have no hesitation in reaching the conclusion that the appellant waived his objection deliberately and cannot now be allowed to raise it. (emphasis supplied) 50. In Dhirendra Nath Gorai v. Sudhir Chandra AIR 1964 SC 1300 , a three Judge Bench of this Court considered the question whether the sale made without complying with Section 35 of the Code of the Bengal Money Lenders Act, 1940 was nullity and whether the objection against the violation of that section could be waived. After examining the relevant provisions, the Court held: A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book On the Interpretation of Statutes, 11th Edn., a p. 357, describes the rule thus: Another maxim which sanctions the non-observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. The same rule is restated in Craies on Statute Law, 6th Edn., at p. 269, thus: As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court. 51. In conclusion, we hold that belated raising of objection against inclusion of respondent No.3 in the Committee under Section 3(2) appears to be a calculated move on the petitioners part. He is an intelligent person and knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the Presiding Officer of the Committee is required to forward the report to the Chairman within a period of three months from the date the charges framed under Section 3(3) of the Act were served upon him. Therefore, he wants to adopt every possible tactic to delay the submission of report which may in all probability compel the Committee to make a request to the Chairman to extend the time in terms of proviso to Rule 9(2)(c). This Court or, for that reason, no Court can render assistance to the petitioner in a petition filed with the sole object of delaying finalisation of the inquiry.

0[ds]An analysis of the above reproduced provisions shows that Section 3(1) of the Act provides for admission of motion by the Speaker or, as the case may be, the Chairman provided it is supported by 100 members of the House of the People or 50 members of the Council of States, as the case may be. The Speaker or, as the case may be, the Chairman, is entitled to consult such person, if any, as he thinks fit and to consider such material, if any, as may be available to him. If the motion is admitted, the Speaker or, as the case may be, the Chairman has to keep the motion pending and to constitute a Committee for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for [Section 3(2)]. The Committee constituted for the purpose of investigation shall consist of three members of whom - (a) one shall be chosen from among the Chief Justice and other Judges of the Supreme Court, (b) one shall be chosen from among the Chief Justices of the High Courts and (c) one shall be a person who is in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist. In terms of Section 3(3), the Committee is required to frame definite charges against the Judge on the basis of which the investigation is proposed to be held. Section 3(4) requires that the charges together with a statement of the grounds on which each charge is based shall be communicated to the Judge and he shall be given a reasonable opportunity of presenting a written statement of defence. Section 3(8) deals with the situation where the Committee, after considering the written statement of the Judge, decides to amend the charges. In that event, the Judge is required to be given a reasonable opportunity of presenting a fresh written statement of defence. In terms of Section 3(9), the Central Government is empowered to appoint an advocate to conduct a case against the Judge. Section 4(1) declares that subject to any rules made in that behalf, the Committee shall have power to regulate its own procedure in making the investigation. It also lays down that the Committee shall give a reasonable opportunity to the Judge to cross-examine the witnesses, adduce evidence and be heard in his defence. Section 4(2) provides for submission of report by the Committee to the Speaker or, as the case may be, to the Chairman. It also provides for submission of report both to the Speaker and the Chairman where the Committee has been jointly constituted by them. In terms of Section 4(3), the report of the Committee is required to be placed before both the Houses of Parliament where the Committee has been constituted jointly by the Speaker and the Chairman. Section 5 lays down that for the purpose of making investigation under the Act, the Committee shall have powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in matters relating to summoning of witnesses etc. Section 6(1) lays down that if the Committee finds that the Judge is not guilty of any misbehaviour or does not suffer from any incapacity, no further steps should be taken in either House of Parliament. Section 6(2) provides that if the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then the motion together with the report shall be taken up for consideration by the House in which the motion is pending. Section 6(3) provides that if the motion is adopted by each House of Parliament in accordance with the provisions of Article 124(4) or, as the case may be, in accordance with that clause read with Article 218, then the misbehaviour or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted.Maneka Gandhi v. Union of India (supra), a larger Bench of seven Judges considered whether passport of the petitioner could be impounded without giving her notice and opportunity of hearing. Bhagwati, J, speaking for himself and for Untwalia and Fazal Ali, JJ, gave a new dimension to the rule of audi alteram partem and declared that an action taken in violation of that rule is arbitrary and violative of Articles 14 and 21 of the Constitution. The learned Judge referred to Ridge v. Baldwin (1964) AC 40, State of Orissa v. Dr.(Miss) Binapani Dei (supra), re H.K.(An Infant) (supra) and A.K. Kraipak v. Union of India (supra) and observed:The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances.e audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exerciseA fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure established by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article.In this case, we are concerned with the application of first of the two principles of natural justice recognized by the traditional English Law, i.e., Nemo debet esse judex in propria causa. This principle consists of the rule against bias or interest and is based on three maxims: (i) No man shall be a judge in his own cause; (ii) Justice should not only be done, but manifestly and undoubtedly be seen to be done; and (iii) Judges, like Caesars wife should be above suspicion. The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as Judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision-making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judiciallyThe principles which emerge from the aforesaid decisions are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but it must not be seen to be inclined. A person having interest in the subject matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the Court has to consider whether a fair minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the `real likelihood test has been preferred over the `reasonable suspicion test and the Courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries.It is not in dispute that respondent No.3 participated in the seminar organised by the Bar Association of India of which he was Vice-President. He demanded public inquiry into the charges levelled against the petitioner before his elevation as a Judge of this Court. During the seminar, many eminent advocates spoke against the proposed elevation of the petitioner on the ground that there were serious allegations against him. Thereafter, respondent No.3 drafted a resolution opposing elevation of the petitioner as a Judge of this Court. He along with other eminent lawyers met the then Chief Justice of India. These facts could give rise to reasonable apprehension in the mind of an intelligent person that respondent No.3 was likely to be biased. A reasonable, objective and informed person may say that respondent No.3 would not have opposed elevation of the petitioner if he was not satisfied that there was some substance in the allegations levelled against him. It is true that the Judges and lawyers are trained to be objective and have the capacity to decipher grain from the chaff, truth from the falsehood and we have no doubt that respondent No.3 possesses these qualities. We also agree with the Committee that objection by both sides perhaps alone apart from anything else is sufficient to confirm his impartiality. However, the issue of bias of respondent No.3 has not to be seen from the view point of this Court or for that matter the Committee. It has to be seen from the angle of a reasonable, objective and informed person. What opinion he would form! It is his apprehension which is of paramount importance. From the facts narrated in the earlier part of the judgment it can be said that petitioners apprehension of likelihood of bias against respondent No.3 is reasonable and not fanciful, though, in fact, he may not be biased.While deciding this issue, we have to keep in mind that the petitioner is not a layperson. He is well-versed in law and possesses a legally trained mind. Further, for the last 15 years, the petitioner has held constitutional posts of a Judge and then as Chief Justice of the High Court. It is not the pleaded case of the petitioner that he had no knowledge about the seminar organized by the Bar Association of India on 28.11.2009 which was attended by eminent advocates including two former Attorney Generals and in which respondent No.3 made a speech opposing his elevation to this Court and also drafted resolution for the said purpose. The proceedings of the seminar received wide publicity in the print and electronic media. Therefore, it can be said that much before constitution of the Committee, the petitioner had become aware of the fact that respondent No.3, who, as per the petitioners own version, had appreciated his work on the Bench and had sent congratulatory message when his name was cleared by the Collegium for elevation to this Court, had participated in the seminar and made speech opposing his elevation and also drafted resolution for the said purpose. The Chairman had appointed respondent No.3 as member of the Committee keeping in view his long experience as an eminent advocate and expertise in the field of constitutional law. The constitution of the Committee was notified in the Official Gazette dated 15.1.2010 and was widely publicised by almost all newspapers. Therefore, it can reasonably be presumed that the petitioner had become aware about the constitution of the Committee, which included respondent No.3, in the month of January, 2010. In his representation dated 12.5.2010, the petitioner claimed that he came to know about the constitution and composition of the Committee through the print and electronic media. Thus, at least on 12.5.2010 he was very much aware that respondent No.3 had been appointed as a member of the Committee. Notwithstanding this, he did not raise any objection apparently because after meeting respondent No.3 on 6.12.2009 at the latters residence, the petitioner felt satisfied that the said respondent had nothing against him. Therefore, belated plea taken by the petitioner that by virtue of his active participation in the meeting held by the Bar Association of India, respondent No.3 will be deemed to be biased against him does not merit acceptance. It is also significant to note that respondent No.3 had nothing personal against the petitioner. He had taken part in the seminar as Vice-President of the Association. The concern shown by senior members of the Bar including respondent No.3 in the matter of elevation of the petitioner, who is alleged to have misused his position as a Judge and as Chief Justice of the High Court for material gains was not actuated by ulterior motive. They genuinely felt that the allegations made against the petitioner need investigation. After the seminar, respondent No.3 is not shown to have done anything which may give slightest impression to any person of reasonable prudence that he was ill-disposed against the petitioner. Rather, as per the petitioners own statement, he had met respondent No.3 at the latters residence on 6.12.2009 and was convinced that the latter had nothing against him. This being the position, it is not possible to entertain the petitioners plea that constitution of the Committee should be declared nullity on the ground that respondent No.3 is biased against him and order dated 24.4.2011 be quashed47. The issue deserves to be considered from another angle. Admittedly, the petitioner raised the plea of bias only after receiving notice dated 16.3.2011 which was accompanied by statement of charges and the lists of documents and witnesses. The petitioners knowledgeful silence in this regard for a period of almost ten months militates against the bona fides of his objection to the appointment of respondent No.3 as member of the Committee. A person on the petitioners standing can be presumed to be aware of his right to raise an objection. If the petitioner had slightest apprehension that respondent No.3 had pre-judged his guilt or he was otherwise biased, then, he would have on the first available opportunity objected to his appointment as member of the Committee. The petitioner could have done so immediately after publication of notification dated 15.1.2010. He could have represented to the Chairman that investigation by a Committee of which respondent No.3 was a member will not be fair and impartial because the former had already presumed him to be guilty. We cannot predicate the result of the representation but such representation would have given an opportunity to the Chairman to consider the grievance made by the petitioner and take appropriate decision as he had done in March, 2010 when respondent No.3 had sought recusal from the Committee in the wake of demand made by a section of the Bar which had erroneously assumed that the petitioner had consulted respondent No.3. However, the fact of the matter is that the petitioner never thought that respondent No.3 was prejudiced or ill-disposed against him and this is the reason why he did not raise objection till April, 2011 against the inclusion of respondent No.3 in the Committee. This leads to an irresistible inference that the petitioner had waived his right to object to the appointment of respondent No.3 as member of the Committee. The right available to the petitioner to object to the appointment of respondent No.3 in the Committee was personal to him and it was always open to him to waive the same.50. In Dhirendra Nath Gorai v. Sudhir Chandra AIR 1964 SC 1300 , a three Judge Bench of this Court considered the question whether the sale made without complying with Section 35 of the Code of the Bengal Money Lenders Act, 1940 was nullity and whether the objection against the violation of that section could be waived. After examining the relevant provisions, the Court held:A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book On the Interpretation of Statutes, 11th Edn., a p. 357, describes the rule thus:Another maxim which sanctions the non-observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.e same rule is restated in Craies on Statute Law, 6th Edn., at p. 269, thus:As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court.. In conclusion, we hold that belated raising of objection against inclusion of respondent No.3 in the Committee under Section 3(2) appears to be a calculated move on the petitioners part. He is an intelligent person and knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the Presiding Officer of the Committee is required to forward the report to the Chairman within a period of three months from the date the charges framed under Section 3(3) of the Act were served upon him. Therefore, he wants to adopt every possible tactic to delay the submission of report which may in all probability compel the Committee to make a request to the Chairman to extend the time in terms of proviso to Rule 9(2)(c). This Court or, for that reason, no Court can render assistance to the petitioner in a petition filed with the sole object of delaying finalisation of the inquiry.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: that he will be deemed to have waived the right to raise objection of bias. Some of the observations made in that case are extracted below: ...............The alleged bias in a member of the Tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the Tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R., has observed in Vyvyan v. Vyvyan waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and, that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim. If, in the present case, it appears that the appellant knew all the facts about the alleged disability of Shri Chhangani and was also aware that he could effectively request the learned Chief Justice to nominate some other member instead of Shri Chhangani and yet did not adopt that course, it may well be that he deliberately took a chance to obtain a report in his favour from the Tribunal and when he came to know that the report had gone against him he thought better of his rights and raised this point before the High Court for the first time. In other words, though the point of law raised by Shri Daphtary against the competence of the Tribunal be sound, it is still necessary for us to consider whether the appellant was precluded from raising this point before the High Court by waiver or acquiescence. From the record it is clear that the appellant never raised this point before the Tribunal and the manner in which this point was raised by him even before the High Court is somewhat significant. The first ground of objection filed by the appellant against the Tribunals report was that Shri Chhangani had pecuniary and personal interest in the complainant Dr Prem Chand. The learned Judges of the High Court have found that the allegations about the pecuniary interest of Shri Chhangani in the present proceedings are wholly unfounded and this finding has not been challenged before us by Shri Daphtary. The learned Judges of the High Court have also found that the objection was raised by the appellant before them only to obtain an order for a fresh enquiry and thus gain time. It may be conceded in favour of Shri Daphtary that the judgment of the High Court does not in terms find against the appellant on the ground of waiver though that no doubt appears to be the substance of their conclusion. We have, however, heard Shri Daphtarys case on the question of waiver and we have no hesitation in reaching the conclusion that the appellant waived his objection deliberately and cannot now be allowed to raise it. (emphasis supplied) 50. In Dhirendra Nath Gorai v. Sudhir Chandra AIR 1964 SC 1300 , a three Judge Bench of this Court considered the question whether the sale made without complying with Section 35 of the Code of the Bengal Money Lenders Act, 1940 was nullity and whether the objection against the violation of that section could be waived. After examining the relevant provisions, the Court held: A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book On the Interpretation of Statutes, 11th Edn., a p. 357, describes the rule thus: Another maxim which sanctions the non-observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. The same rule is restated in Craies on Statute Law, 6th Edn., at p. 269, thus: As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court. 51. In conclusion, we hold that belated raising of objection against inclusion of respondent No.3 in the Committee under Section 3(2) appears to be a calculated move on the petitioners part. He is an intelligent person and knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the Presiding Officer of the Committee is required to forward the report to the Chairman within a period of three months from the date the charges framed under Section 3(3) of the Act were served upon him. Therefore, he wants to adopt every possible tactic to delay the submission of report which may in all probability compel the Committee to make a request to the Chairman to extend the time in terms of proviso to Rule 9(2)(c). This Court or, for that reason, no Court can render assistance to the petitioner in a petition filed with the sole object of delaying finalisation of the inquiry. ### Response: 0 ### Explanation: had nothing against him. Therefore, belated plea taken by the petitioner that by virtue of his active participation in the meeting held by the Bar Association of India, respondent No.3 will be deemed to be biased against him does not merit acceptance. It is also significant to note that respondent No.3 had nothing personal against the petitioner. He had taken part in the seminar as Vice-President of the Association. The concern shown by senior members of the Bar including respondent No.3 in the matter of elevation of the petitioner, who is alleged to have misused his position as a Judge and as Chief Justice of the High Court for material gains was not actuated by ulterior motive. They genuinely felt that the allegations made against the petitioner need investigation. After the seminar, respondent No.3 is not shown to have done anything which may give slightest impression to any person of reasonable prudence that he was ill-disposed against the petitioner. Rather, as per the petitioners own statement, he had met respondent No.3 at the latters residence on 6.12.2009 and was convinced that the latter had nothing against him. This being the position, it is not possible to entertain the petitioners plea that constitution of the Committee should be declared nullity on the ground that respondent No.3 is biased against him and order dated 24.4.2011 be quashed47. The issue deserves to be considered from another angle. Admittedly, the petitioner raised the plea of bias only after receiving notice dated 16.3.2011 which was accompanied by statement of charges and the lists of documents and witnesses. The petitioners knowledgeful silence in this regard for a period of almost ten months militates against the bona fides of his objection to the appointment of respondent No.3 as member of the Committee. A person on the petitioners standing can be presumed to be aware of his right to raise an objection. If the petitioner had slightest apprehension that respondent No.3 had pre-judged his guilt or he was otherwise biased, then, he would have on the first available opportunity objected to his appointment as member of the Committee. The petitioner could have done so immediately after publication of notification dated 15.1.2010. He could have represented to the Chairman that investigation by a Committee of which respondent No.3 was a member will not be fair and impartial because the former had already presumed him to be guilty. We cannot predicate the result of the representation but such representation would have given an opportunity to the Chairman to consider the grievance made by the petitioner and take appropriate decision as he had done in March, 2010 when respondent No.3 had sought recusal from the Committee in the wake of demand made by a section of the Bar which had erroneously assumed that the petitioner had consulted respondent No.3. However, the fact of the matter is that the petitioner never thought that respondent No.3 was prejudiced or ill-disposed against him and this is the reason why he did not raise objection till April, 2011 against the inclusion of respondent No.3 in the Committee. This leads to an irresistible inference that the petitioner had waived his right to object to the appointment of respondent No.3 as member of the Committee. The right available to the petitioner to object to the appointment of respondent No.3 in the Committee was personal to him and it was always open to him to waive the same.50. In Dhirendra Nath Gorai v. Sudhir Chandra AIR 1964 SC 1300 , a three Judge Bench of this Court considered the question whether the sale made without complying with Section 35 of the Code of the Bengal Money Lenders Act, 1940 was nullity and whether the objection against the violation of that section could be waived. After examining the relevant provisions, the Court held:A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for consent cannot give a court jurisdiction where there is none. Even if there is inherent jurisdiction, certain provisions cannot be waived. Maxwell in his book On the Interpretation of Statutes, 11th Edn., a p. 357, describes the rule thus:Another maxim which sanctions the non-observance of a statutory provision is that cuilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.e same rule is restated in Craies on Statute Law, 6th Edn., at p. 269, thus:As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court.. In conclusion, we hold that belated raising of objection against inclusion of respondent No.3 in the Committee under Section 3(2) appears to be a calculated move on the petitioners part. He is an intelligent person and knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the Presiding Officer of the Committee is required to forward the report to the Chairman within a period of three months from the date the charges framed under Section 3(3) of the Act were served upon him. Therefore, he wants to adopt every possible tactic to delay the submission of report which may in all probability compel the Committee to make a request to the Chairman to extend the time in terms of proviso to Rule 9(2)(c). This Court or, for that reason, no Court can render assistance to the petitioner in a petition filed with the sole object of delaying finalisation of the inquiry.

Commissioner Of Income-Tax, Madhya Pradesh Vs. Lady Kanchanbai

Officer assessed the assessee on the basis that the " previous year" in respect of the concerned sources ended on Diwali of 1949. That decision was affirmed by the Appellate Assistant Commissioner but the Income-tax Appellate Tribunal reversed the finding of the Income-tax Officer and the Appellate Assistant Commissioner and agreed with the stand taken by the assessee. Thereafter a reference was made to the High Court of Madhya Pradesh under Section 66 (1) of the Act at the instance of the Commissioner of Income-tax but the High Court agreed with the view taken by the tribunal. Hence this appeal.3. The question for our consideration is whether the view taken by the High Court is correct? In order to decide that question, it is necessary to find out the true scope of Section 2 (11) (i) (a) of the Act, which provision defines the term " previous year" thus:" " Previous year" means-(i) in respect of any separate source of income, profits and gains -(a) the twelve months ending on 31st day of March, next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then, at the option of the assessee, the year ending on the date to which his accounts have been so made up:Provided that where in respect of a particular source of income, profits and gains, an assessee has once been assessed . . . . . . . . . he shall not, in respect of that source or, as the case may be, business, profession or vocation, exercise the option given by this sub-clause so as to vary the meaning of the expression " previous year" as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose." (Emphasis herein is ours).4. From the above provision, it is clear that in respect of any separate source of income, profits or gains, unless the assessee had made a choice in accordance with 2nd part of Section 2 (11) (i) (a), the twelve months ending on 31st day of March next the preceding year for which the assessment is made is the " previous year".5. Therefore all that we have to see is whether the assessees income, profits or gains in respect of the businesses in Madhya Bharat had been assessed previously. If they had not been previously assessed then the assessees case comes within the first part of Sec. 2 (11) (i) (a). In that event his return was in accordance with law. Therefore we have first to see what is meant by source of income" in Section 2 (11) (i) (a) of the Act and then proceed to consider whether those sources of income had " once been assessed".6. It is necessary to note that Sec. 2 (11) (i) (a) does not refer to the income of the assessee generally but to his " separate sources of income, profits and gains". Hence it is possible for an assessee to have a different " previous year" for each " separate source of income, profits and gains" as held by the Madras High Court in Commr. of Income-tax. Savumiamurthy, (1946) 14 ITR 185 = (AIR 1947 Mad 147 ).In Rhodesia Metals Ltd. v. Commr. of Taxes, (1941) 9 ITR (Supp) 45, the Judicial Committee observed that " source" means not a legal concept but which a practical man would regard as a real source of income. There is hardly any room for doubt, nor was it contended otherwise - that the business of the assessee in Madhya Bharat constituted a separate source or sources. Hence all that we have to see is whether the income accuring from those businesses had " once been assessed under the Act.7. This takes us to the question what exactly is the meaning of the expressions "assessed and "assessee in the proviso to Section 2 (11) (i) (a).The words "assessed", "assessment" and "assessee" have different meaning in different contexts. As observed by Judicial Committee, in Commr. of Income-tax, Bombay v. Khemchand Ramdas, (1938) 6 ITR 414 = (AIR 1938 PC 175 ) the word "assessment" is used in the Act as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the procedure laid down in the Act for imposing liability upon the tax payer. Similarly the word "assessee connotes different meanings in different contexts - see Badridas Daga v. Commr. of Income-tax Central and United Provinces, (1949) 17 ITR 209 = (AIR 1949 PC 159 ).8. It is true that for the purpose of finding out the total "world income" of the assessee, the income derived by the assessee from its businesses outside the taxable territories had been taken into consideration in the past. That was done only for the purpose of determining the rate at which the assessees income should be assessed. No tax was imposed on the income from those businesses. In other words, the income derived by the assessee from the businesses carried on by it in territories outside the "taxable territories" was not brought to tax under the Act.The expression that "where in respect of a particular source of income, profits and gains" in the proviso to Section 2 (11) (i) (a) means the income from a particular source which has been brought to tax under the Act and not which has been taken into consideration for computing the total world income of the assessee. In the context the word "assessee in the proviso to Section 2 (11) (i) (a) refers to the person whose income, profits or gains, in respect of a particular source had been once assessed to tax. The word " assessed" in that proviso means subject to levy or imposition of tax not computed.

0[ds]4. From the above provision, it is clear that in respect of any separate source of income, profits or gains, unless the assessee had made a choice in accordance with 2nd part of Section 2 (11) (i) (a), the twelve months ending on 31st day of March next the preceding year for which the assessment is made is the " previous year".It is necessary to note that Sec. 2 (11) (i) (a) does not refer to the income of the assessee generally but to his " separate sources of income, profits and gains". Hence it is possible for an assessee to have a different " previous year" for each " separate source of income, profits and gains" as held by the Madras High Court in Commr. of Income-tax. Savumiamurthy, (1946) 14 ITR 185 = (AIR 1947 Mad 147 ).In Rhodesia Metals Ltd. v. Commr. of Taxes, (1941) 9 ITR (Supp) 45, the Judicial Committee observed that " source" means not a legal concept but which a practical man would regard as a real source of income. There is hardly any room for doubt, nor was it contended otherwise - that the business of the assessee in Madhya Bharat constituted a separate source or sources. Hence all that we have to see is whether the income accuring from those businesses had " once been assessed under the Act.7. This takes us to the question what exactly is the meaning of the expressions "assessed and "assessee in the proviso to Section 2 (11) (i) (a).The words "assessed", "assessment" and "assessee" have different meaning in different contexts. As observed by Judicial Committee, in Commr. of Income-tax, Bombay v. Khemchand Ramdas, (1938) 6 ITR 414 = (AIR 1938 PC 175 ) the word "assessment" is used in the Act as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the procedure laid down in the Act for imposing liability upon the tax payer. Similarly the word "assessee connotes different meanings in different contexts - see Badridas Daga v. Commr. of Income-tax Central and United Provinces, (1949) 17 ITR 209 = (AIR 1949 PC 159 ).8. It is true that for the purpose of finding out the total "world income" of the assessee, the income derived by the assessee from its businesses outside the taxable territories had been taken into consideration in the past. That was done only for the purpose of determining the rate at which the assessees income should be assessed. No tax was imposed on the income from those businesses. In other words, the income derived by the assessee from the businesses carried on by it in territories outside the "taxable territories" was not brought to tax under the Act.The expression that "where in respect of a particular source of income, profits and gains" in the proviso to Section 2 (11) (i) (a) means the income from a particular source which has been brought to tax under the Act and not which has been taken into consideration for computing the total world income of the assessee. In the context the word "assessee in the proviso to Section 2 (11) (i) (a) refers to the person whose income, profits or gains, in respect of a particular source had been once assessed to tax. The word " assessed" in that proviso means subject to levy or imposition of tax not computed.

### 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: Officer assessed the assessee on the basis that the " previous year" in respect of the concerned sources ended on Diwali of 1949. That decision was affirmed by the Appellate Assistant Commissioner but the Income-tax Appellate Tribunal reversed the finding of the Income-tax Officer and the Appellate Assistant Commissioner and agreed with the stand taken by the assessee. Thereafter a reference was made to the High Court of Madhya Pradesh under Section 66 (1) of the Act at the instance of the Commissioner of Income-tax but the High Court agreed with the view taken by the tribunal. Hence this appeal.3. The question for our consideration is whether the view taken by the High Court is correct? In order to decide that question, it is necessary to find out the true scope of Section 2 (11) (i) (a) of the Act, which provision defines the term " previous year" thus:" " Previous year" means-(i) in respect of any separate source of income, profits and gains -(a) the twelve months ending on 31st day of March, next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then, at the option of the assessee, the year ending on the date to which his accounts have been so made up:Provided that where in respect of a particular source of income, profits and gains, an assessee has once been assessed . . . . . . . . . he shall not, in respect of that source or, as the case may be, business, profession or vocation, exercise the option given by this sub-clause so as to vary the meaning of the expression " previous year" as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose." (Emphasis herein is ours).4. From the above provision, it is clear that in respect of any separate source of income, profits or gains, unless the assessee had made a choice in accordance with 2nd part of Section 2 (11) (i) (a), the twelve months ending on 31st day of March next the preceding year for which the assessment is made is the " previous year".5. Therefore all that we have to see is whether the assessees income, profits or gains in respect of the businesses in Madhya Bharat had been assessed previously. If they had not been previously assessed then the assessees case comes within the first part of Sec. 2 (11) (i) (a). In that event his return was in accordance with law. Therefore we have first to see what is meant by source of income" in Section 2 (11) (i) (a) of the Act and then proceed to consider whether those sources of income had " once been assessed".6. It is necessary to note that Sec. 2 (11) (i) (a) does not refer to the income of the assessee generally but to his " separate sources of income, profits and gains". Hence it is possible for an assessee to have a different " previous year" for each " separate source of income, profits and gains" as held by the Madras High Court in Commr. of Income-tax. Savumiamurthy, (1946) 14 ITR 185 = (AIR 1947 Mad 147 ).In Rhodesia Metals Ltd. v. Commr. of Taxes, (1941) 9 ITR (Supp) 45, the Judicial Committee observed that " source" means not a legal concept but which a practical man would regard as a real source of income. There is hardly any room for doubt, nor was it contended otherwise - that the business of the assessee in Madhya Bharat constituted a separate source or sources. Hence all that we have to see is whether the income accuring from those businesses had " once been assessed under the Act.7. This takes us to the question what exactly is the meaning of the expressions "assessed and "assessee in the proviso to Section 2 (11) (i) (a).The words "assessed", "assessment" and "assessee" have different meaning in different contexts. As observed by Judicial Committee, in Commr. of Income-tax, Bombay v. Khemchand Ramdas, (1938) 6 ITR 414 = (AIR 1938 PC 175 ) the word "assessment" is used in the Act as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the procedure laid down in the Act for imposing liability upon the tax payer. Similarly the word "assessee connotes different meanings in different contexts - see Badridas Daga v. Commr. of Income-tax Central and United Provinces, (1949) 17 ITR 209 = (AIR 1949 PC 159 ).8. It is true that for the purpose of finding out the total "world income" of the assessee, the income derived by the assessee from its businesses outside the taxable territories had been taken into consideration in the past. That was done only for the purpose of determining the rate at which the assessees income should be assessed. No tax was imposed on the income from those businesses. In other words, the income derived by the assessee from the businesses carried on by it in territories outside the "taxable territories" was not brought to tax under the Act.The expression that "where in respect of a particular source of income, profits and gains" in the proviso to Section 2 (11) (i) (a) means the income from a particular source which has been brought to tax under the Act and not which has been taken into consideration for computing the total world income of the assessee. In the context the word "assessee in the proviso to Section 2 (11) (i) (a) refers to the person whose income, profits or gains, in respect of a particular source had been once assessed to tax. The word " assessed" in that proviso means subject to levy or imposition of tax not computed. ### Response: 0 ### Explanation: 4. From the above provision, it is clear that in respect of any separate source of income, profits or gains, unless the assessee had made a choice in accordance with 2nd part of Section 2 (11) (i) (a), the twelve months ending on 31st day of March next the preceding year for which the assessment is made is the " previous year".It is necessary to note that Sec. 2 (11) (i) (a) does not refer to the income of the assessee generally but to his " separate sources of income, profits and gains". Hence it is possible for an assessee to have a different " previous year" for each " separate source of income, profits and gains" as held by the Madras High Court in Commr. of Income-tax. Savumiamurthy, (1946) 14 ITR 185 = (AIR 1947 Mad 147 ).In Rhodesia Metals Ltd. v. Commr. of Taxes, (1941) 9 ITR (Supp) 45, the Judicial Committee observed that " source" means not a legal concept but which a practical man would regard as a real source of income. There is hardly any room for doubt, nor was it contended otherwise - that the business of the assessee in Madhya Bharat constituted a separate source or sources. Hence all that we have to see is whether the income accuring from those businesses had " once been assessed under the Act.7. This takes us to the question what exactly is the meaning of the expressions "assessed and "assessee in the proviso to Section 2 (11) (i) (a).The words "assessed", "assessment" and "assessee" have different meaning in different contexts. As observed by Judicial Committee, in Commr. of Income-tax, Bombay v. Khemchand Ramdas, (1938) 6 ITR 414 = (AIR 1938 PC 175 ) the word "assessment" is used in the Act as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the procedure laid down in the Act for imposing liability upon the tax payer. Similarly the word "assessee connotes different meanings in different contexts - see Badridas Daga v. Commr. of Income-tax Central and United Provinces, (1949) 17 ITR 209 = (AIR 1949 PC 159 ).8. It is true that for the purpose of finding out the total "world income" of the assessee, the income derived by the assessee from its businesses outside the taxable territories had been taken into consideration in the past. That was done only for the purpose of determining the rate at which the assessees income should be assessed. No tax was imposed on the income from those businesses. In other words, the income derived by the assessee from the businesses carried on by it in territories outside the "taxable territories" was not brought to tax under the Act.The expression that "where in respect of a particular source of income, profits and gains" in the proviso to Section 2 (11) (i) (a) means the income from a particular source which has been brought to tax under the Act and not which has been taken into consideration for computing the total world income of the assessee. In the context the word "assessee in the proviso to Section 2 (11) (i) (a) refers to the person whose income, profits or gains, in respect of a particular source had been once assessed to tax. The word " assessed" in that proviso means subject to levy or imposition of tax not computed.

Lalji Haridas Vs. Income Tax Officer

question of jurisdiction raised by the appellant.8. That takes us to the appeal preferred by Chhotalal. As we have already mentioned Chhotalal is a resident of Bombay and respondent No. 1 is the Fourth Income-tax Officer, Ward G, at Bombay. It is common ground that respondent No. I had at the relevant time jurisdiction under the Act to assessee the appellant, Chhotalal. As ex parte order was passed against the appellant for the assessment year 1952-53, on March 30, 1957, by the Seventh Income-tax Officer, Ward G, Bombay, on the finding that the remittances in question constituted the income of the appellant from undisclosed business and other source during the assessment year. This ex parte order was challenged by the appellant by preferring an appeal before the Appellate Assistant Commissioner. The appellate authority allowed the appellants appeal and set aside the ex parte order on the ground that there was no service of notice on the appellant as required by law. The matter was accordingly remitted to the Income-tax Officer for a fresh assessment. Thereupon the impugned notice was served on the appellant under section 34 of the Act on February 25, 1959.9. The main argument which is urged by Mr. Nambiar in support of this appeal is that respondent No. 1, the Income-tax Officer, who has issued the impugned notice, has no jurisdiction to assess the appellant for the income in question, because he contends that even according to respondent No. 1 the said proposed assessment would be in the nature of a precautionary or protective assessment, and Mr. Nambiars case is that this concept of a precautionary or protective assessment is not recognized by the Act and as such any attempt to levy such assessment would be illegal. In support of this argument Mr. Nambiar strongly relied on the finding recorded against the appellants brother, Lalji, in the ex parte assessment order which had originally been passed against him. It is no doubt true that the said ex parte order had held that Lalji was liable to pay the tax on the amount of income in question; but the said order has been subsequently set aside, and, as we have already seen, fresh proceedings against Lalji have been commenced at Jamnagar. Mr. Nambiar also relied on the admission made by the respondent in his statement of the case before this court, and he contended that the respondent himself seems to concede that the assessment proposed to be made against the appellant is no more than precautionary. It is true that paragraph 3 of the statement avers that "steps are being taken against the appellant for taxation of income in his hands only as a precautionary measures against the eventuality of its being finally held that the income is not liable to be taxed in his brothers hands", and it was added that "the appellants contention that such a procedure is not warranted under the Act is entirely untenable"; but in appreciating the effect of this statement it would be necessary to consider the other relevant statements made by the respondent in his statement of the case. In paragraph 4, for instance, it is added that until the question of liability to pay tax in respect of the income in question is finally determined it may not be possible to safely predicate that it is the income of one and not of the other, and the respondents case appears to be that in such circumstances protective assessment have to be made so that the income may not escape taxation altogether. In other words, the respondents case clearly is that the notices issued against the two brothers by their respective Income-tax Officers are intended to determine who is responsible to pay tax for the income in question; now though Mr. Nambiar wanted to argue that protective or precautionary assessment of tax is not justified by any of the provisions of the Act he did not seriously contest the position that at the initial state it would be open to the income-tax authorities to determine by proper proceedings who is in fact responsible for the payment of tax, and that is all that is being done at the present stage. In cases where it appears to the income-tax authorities that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears that the income may have been received either by A or B or by both together, it would be open to the relevant income-tax authorities to determine the said question by taking appropriate proceedings both against A and B. That being so, we do not think that Mr. Nambiar would be justified in resisting the enquiry which is proposed to be held by respondent No. 1 in pursuance of the impugned notice issued by him against the appellant. Under these circumstances we do not propose to deal with the point of law sought to be raised by Mr. Nambiar.10. We would, however, like to add one direction in fairness to the appellants. The proceedings taken against both the appellants should continue and should be dealt with expeditiously having regard to the fact that the matter is fairly old. In the proceedings taken against Lalji the Income-tax Officer should make an exhaustive enquiry and determine the question as to whether Lalji is liable to pay the tax on the income in question. All objections which Lalji may have to raise against his alleged liability would undoubtedly have to be considered in the said proceedings. Proceedings against Chhotalal may also be taken by the Income-tax Officer and continued and concluded, but until the proceedings against Lalji are finally determined no assessment order should be passed in the proceedings taken against Chhotalal. If in the proceedings taken against Lalji it is finally decided that it is Lalji who is responsible to pay tax for the income in question it may not become necessary to make any order against Chhotalal.

0[ds]The question of limitation can and ought to be raised by the appellant before the Income-tax Officer; that is not a point which can be legitimately agitated in writ proceedings. We, therefore, do not propose to deal with this point. If the appellant is so advised he may raise this point before the first respondent, and we have no doubt that if it is so raised the first respondent will deal with it in accordance with law.The question of jurisdiction raised by the appellant is, in one opinion, not well founded. It is significant that the case for the appellant is that the order of transfer passed by the Central Board on September 30, 1953, was illegal and unauthorised. Indeed, in the proceedings before us the validity of the said order is not sought to be supported even by the respondent so that if the said order was invalid there can be no doubt that the subsequent order passed by the Commissioner of Income-tax (Central), Bombay, assigning the case to the Income-tax Officer, Section IV (Central), Bombay, would itself be invalid. It is obvious that this latter order has been passed by the Commissioner in pursuance of the authority conferred on him by the earlier order passed by the Central Board itself. The sequence of the orders leaves no doubt on the point. Besides, it is not disputed that the Commissioner of Income-tax (Central), Bombay, would otherwise have no jurisdiction to deal with income-tax proceedings pending again against the appellant at Jamnagar. Therefore, if the original order of the Central Board is invalid, the assignment of the appellants case to the Income-tax Officer, Section IV(Central), Bombay, is also invalid, and so the matter will have to be dealt with by the first respondent who under sectionof the Act has jurisdiction to deal withsuch notification has, however, been produced in the present proceedings and indeed the appellants case throughout has been that the Income-tax Officer, Ward B, Jamnagar, transferred the said papers, "without authority, illegally and without any intimation to the appellant and in contravention of section 64of the Act." It is unnecessary to enquiry why and how this case file was sent from Jamnagar to Bombay. It is patent that the transfer of the case file to Bombay by the Income-tax Officer, Ward B, Jamnagar, was in law wholly invalid and unauthorised. Therefore, it would be idle for the appellant to contend that the proceedings had been validly transferred to any Income-tax Officer in Bombay. That being so, it follows that the proceedings are properly pending before the first respondent and the notice issued by him is valid and legal. In our opinion, therefore, there is no substance in the question of jurisdiction raised by theis true that paragraph 3 of the statement avers that "steps are being taken against the appellant for taxation of income in his hands only as a precautionary measures against the eventuality of its being finally held that the income is not liable to be taxed in his brothers hands", and it was added that "the appellants contention that such a procedure is not warranted under the Act is entirely untenable"; but in appreciating the effect of this statement it would be necessary to consider the other relevant statements made by the respondent in his statement of the case. In paragraph 4, for instance, it is added that until the question of liability to pay tax in respect of the income in question is finally determined it may not be possible to safely predicate that it is the income of one and not of the other, and the respondents case appears to be that in such circumstances protective assessment have to be made so that the income may not escape taxation altogether. In other words, the respondents case clearly is that the notices issued against the two brothers by their respective Income-tax Officers are intended to determine who is responsible to pay tax for the income in question; now though Mr. Nambiar wanted to argue that protective or precautionary assessment of tax is not justified by any of the provisions of the Act he did not seriously contest the position that at the initial state it would be open to the income-tax authorities to determine by proper proceedings who is in fact responsible for the payment of tax, and that is all that is being done at the present stage. In cases where it appears to the income-tax authorities that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears that the income may have been received either by A or B or by both together, it would be open to the relevant income-tax authorities to determine the said question by taking appropriate proceedings both against A and B. That being so, we do not think that Mr. Nambiar would be justified in resisting the enquiry which is proposed to be held by respondent No. 1 in pursuance of the impugned notice issued by him against the appellant. Under these circumstances we do not propose to deal with the point of law sought to be raised by Mr. Nambiar.We would, however, like to add one direction in fairness to the appellants. The proceedings taken against both the appellants should continue and should be dealt with expeditiously having regard to the fact that the matter is fairly old. In the proceedings taken against Lalji the Income-tax Officer should make an exhaustive enquiry and determine the question as to whether Lalji is liable to pay the tax on the income in question. All objections which Lalji may have to raise against his alleged liability would undoubtedly have to be considered in the said proceedings. Proceedings against Chhotalal may also be taken by the Income-tax Officer and continued and concluded, but until the proceedings against Lalji are finally determined no assessment order should be passed in the proceedings taken against Chhotalal. If in the proceedings taken against Lalji it is finally decided that it is Lalji who is responsible to pay tax for the income in question it may not become necessary to make any order against Chhotalal.

### 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: question of jurisdiction raised by the appellant.8. That takes us to the appeal preferred by Chhotalal. As we have already mentioned Chhotalal is a resident of Bombay and respondent No. 1 is the Fourth Income-tax Officer, Ward G, at Bombay. It is common ground that respondent No. I had at the relevant time jurisdiction under the Act to assessee the appellant, Chhotalal. As ex parte order was passed against the appellant for the assessment year 1952-53, on March 30, 1957, by the Seventh Income-tax Officer, Ward G, Bombay, on the finding that the remittances in question constituted the income of the appellant from undisclosed business and other source during the assessment year. This ex parte order was challenged by the appellant by preferring an appeal before the Appellate Assistant Commissioner. The appellate authority allowed the appellants appeal and set aside the ex parte order on the ground that there was no service of notice on the appellant as required by law. The matter was accordingly remitted to the Income-tax Officer for a fresh assessment. Thereupon the impugned notice was served on the appellant under section 34 of the Act on February 25, 1959.9. The main argument which is urged by Mr. Nambiar in support of this appeal is that respondent No. 1, the Income-tax Officer, who has issued the impugned notice, has no jurisdiction to assess the appellant for the income in question, because he contends that even according to respondent No. 1 the said proposed assessment would be in the nature of a precautionary or protective assessment, and Mr. Nambiars case is that this concept of a precautionary or protective assessment is not recognized by the Act and as such any attempt to levy such assessment would be illegal. In support of this argument Mr. Nambiar strongly relied on the finding recorded against the appellants brother, Lalji, in the ex parte assessment order which had originally been passed against him. It is no doubt true that the said ex parte order had held that Lalji was liable to pay the tax on the amount of income in question; but the said order has been subsequently set aside, and, as we have already seen, fresh proceedings against Lalji have been commenced at Jamnagar. Mr. Nambiar also relied on the admission made by the respondent in his statement of the case before this court, and he contended that the respondent himself seems to concede that the assessment proposed to be made against the appellant is no more than precautionary. It is true that paragraph 3 of the statement avers that "steps are being taken against the appellant for taxation of income in his hands only as a precautionary measures against the eventuality of its being finally held that the income is not liable to be taxed in his brothers hands", and it was added that "the appellants contention that such a procedure is not warranted under the Act is entirely untenable"; but in appreciating the effect of this statement it would be necessary to consider the other relevant statements made by the respondent in his statement of the case. In paragraph 4, for instance, it is added that until the question of liability to pay tax in respect of the income in question is finally determined it may not be possible to safely predicate that it is the income of one and not of the other, and the respondents case appears to be that in such circumstances protective assessment have to be made so that the income may not escape taxation altogether. In other words, the respondents case clearly is that the notices issued against the two brothers by their respective Income-tax Officers are intended to determine who is responsible to pay tax for the income in question; now though Mr. Nambiar wanted to argue that protective or precautionary assessment of tax is not justified by any of the provisions of the Act he did not seriously contest the position that at the initial state it would be open to the income-tax authorities to determine by proper proceedings who is in fact responsible for the payment of tax, and that is all that is being done at the present stage. In cases where it appears to the income-tax authorities that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears that the income may have been received either by A or B or by both together, it would be open to the relevant income-tax authorities to determine the said question by taking appropriate proceedings both against A and B. That being so, we do not think that Mr. Nambiar would be justified in resisting the enquiry which is proposed to be held by respondent No. 1 in pursuance of the impugned notice issued by him against the appellant. Under these circumstances we do not propose to deal with the point of law sought to be raised by Mr. Nambiar.10. We would, however, like to add one direction in fairness to the appellants. The proceedings taken against both the appellants should continue and should be dealt with expeditiously having regard to the fact that the matter is fairly old. In the proceedings taken against Lalji the Income-tax Officer should make an exhaustive enquiry and determine the question as to whether Lalji is liable to pay the tax on the income in question. All objections which Lalji may have to raise against his alleged liability would undoubtedly have to be considered in the said proceedings. Proceedings against Chhotalal may also be taken by the Income-tax Officer and continued and concluded, but until the proceedings against Lalji are finally determined no assessment order should be passed in the proceedings taken against Chhotalal. If in the proceedings taken against Lalji it is finally decided that it is Lalji who is responsible to pay tax for the income in question it may not become necessary to make any order against Chhotalal. ### Response: 0 ### Explanation: to deal with this point. If the appellant is so advised he may raise this point before the first respondent, and we have no doubt that if it is so raised the first respondent will deal with it in accordance with law.The question of jurisdiction raised by the appellant is, in one opinion, not well founded. It is significant that the case for the appellant is that the order of transfer passed by the Central Board on September 30, 1953, was illegal and unauthorised. Indeed, in the proceedings before us the validity of the said order is not sought to be supported even by the respondent so that if the said order was invalid there can be no doubt that the subsequent order passed by the Commissioner of Income-tax (Central), Bombay, assigning the case to the Income-tax Officer, Section IV (Central), Bombay, would itself be invalid. It is obvious that this latter order has been passed by the Commissioner in pursuance of the authority conferred on him by the earlier order passed by the Central Board itself. The sequence of the orders leaves no doubt on the point. Besides, it is not disputed that the Commissioner of Income-tax (Central), Bombay, would otherwise have no jurisdiction to deal with income-tax proceedings pending again against the appellant at Jamnagar. Therefore, if the original order of the Central Board is invalid, the assignment of the appellants case to the Income-tax Officer, Section IV(Central), Bombay, is also invalid, and so the matter will have to be dealt with by the first respondent who under sectionof the Act has jurisdiction to deal withsuch notification has, however, been produced in the present proceedings and indeed the appellants case throughout has been that the Income-tax Officer, Ward B, Jamnagar, transferred the said papers, "without authority, illegally and without any intimation to the appellant and in contravention of section 64of the Act." It is unnecessary to enquiry why and how this case file was sent from Jamnagar to Bombay. It is patent that the transfer of the case file to Bombay by the Income-tax Officer, Ward B, Jamnagar, was in law wholly invalid and unauthorised. Therefore, it would be idle for the appellant to contend that the proceedings had been validly transferred to any Income-tax Officer in Bombay. That being so, it follows that the proceedings are properly pending before the first respondent and the notice issued by him is valid and legal. In our opinion, therefore, there is no substance in the question of jurisdiction raised by theis true that paragraph 3 of the statement avers that "steps are being taken against the appellant for taxation of income in his hands only as a precautionary measures against the eventuality of its being finally held that the income is not liable to be taxed in his brothers hands", and it was added that "the appellants contention that such a procedure is not warranted under the Act is entirely untenable"; but in appreciating the effect of this statement it would be necessary to consider the other relevant statements made by the respondent in his statement of the case. In paragraph 4, for instance, it is added that until the question of liability to pay tax in respect of the income in question is finally determined it may not be possible to safely predicate that it is the income of one and not of the other, and the respondents case appears to be that in such circumstances protective assessment have to be made so that the income may not escape taxation altogether. In other words, the respondents case clearly is that the notices issued against the two brothers by their respective Income-tax Officers are intended to determine who is responsible to pay tax for the income in question; now though Mr. Nambiar wanted to argue that protective or precautionary assessment of tax is not justified by any of the provisions of the Act he did not seriously contest the position that at the initial state it would be open to the income-tax authorities to determine by proper proceedings who is in fact responsible for the payment of tax, and that is all that is being done at the present stage. In cases where it appears to the income-tax authorities that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears that the income may have been received either by A or B or by both together, it would be open to the relevant income-tax authorities to determine the said question by taking appropriate proceedings both against A and B. That being so, we do not think that Mr. Nambiar would be justified in resisting the enquiry which is proposed to be held by respondent No. 1 in pursuance of the impugned notice issued by him against the appellant. Under these circumstances we do not propose to deal with the point of law sought to be raised by Mr. Nambiar.We would, however, like to add one direction in fairness to the appellants. The proceedings taken against both the appellants should continue and should be dealt with expeditiously having regard to the fact that the matter is fairly old. In the proceedings taken against Lalji the Income-tax Officer should make an exhaustive enquiry and determine the question as to whether Lalji is liable to pay the tax on the income in question. All objections which Lalji may have to raise against his alleged liability would undoubtedly have to be considered in the said proceedings. Proceedings against Chhotalal may also be taken by the Income-tax Officer and continued and concluded, but until the proceedings against Lalji are finally determined no assessment order should be passed in the proceedings taken against Chhotalal. If in the proceedings taken against Lalji it is finally decided that it is Lalji who is responsible to pay tax for the income in question it may not become necessary to make any order against Chhotalal.

M.D., M/s. Hindustan Fasteners Pvt. Ltd Vs. Nashik Workers Union

various allowances including travelling allowance, washing allowance and various other allowances as specified therein e.g., uniform, festival advance, etc. 14. Correspondences entered into by and between the parties were in relation to the aforementioned demands. It did not speak of the claim of wages, although when the settlement was arrived at, the industrial dispute was pending.15. Had, thus, the intention of the parties been to settle their disputes also in relation to legality or otherwise of the lock-out declared by the management, it was expected to have been stated so explicitly therein. It was also expected that the parties would file the said settlement before the Industrial Tribunal so that an award could be passed in terms thereof. Clause 20 of the said settlement provides for a package deal vis-à-vis all the demands raised by the Union. The package deal was in relation to the Charter of Demands dated 1.01.1993 and any other document including the letters exchanged between the parties pursuant thereto or in furtherance thereof. The subject matter of settlement was all demands of whatever nature in terms whereof the workmen might not have been able to make any other demand, but, on a bare perusal of the said settlement, it is apparent that the expression which has repeatedly been used was the Charter of Demands.16. While keeping the industrial dispute pending, Respondents had not raised any fresh demand.17. Clause 21 refers to the previous settlement also. The rights of the workmen under the existing settlement were not adversely affected. If they have worked, they would be entitled to wages. If they have reported for duties during the period of lock-out which was illegal, they were entitled to the wages for the said period.18. In furtherance of the said Charter of Demands, the parties entered into several other correspondences. In terms of the settlement, the parties settled their disputes in relation to the demands raised. The wages to be paid to the workmen which they had claimed as of right was not and could not have been the subject matter of any payment or settlement. Whereas the concept of a demand must be held to be relating to a right higher than the existing right, the workmen were entitled to raise a claim in relation to their existing right and in that view of the matter financial implication therefor cannot be a ground for refusal thereof. If a claim is to be withdrawn by reason of a settlement, the same must find a specific mention therein.19. Subject, of course, to the parties acting on the settlement, the workmen had promised that they would not go for work stoppage or go slow but then in terms of Paragraph 12 of Clause 23 of the said settlement, it had categorically been reiterated that the expression "wages" shall be given the same meaning as obtaining in the statute. The right to enforce the claim for wages both in the first settlement as also the second settlement was, therefore, not given up. It was further stated that no additional claims would be made for increase of benefits. Paragraph 13 of Clause 23 of the said settlement also refers to existing rights and obligations subject, of course, to the modification made therein. By reason of the said settlement, the workmen surrendered their rights of bonus. We have noticed hereinbefore that the management, although questioned the legality and/ or validity of the reference, but at the same time also welcomed the same stating that thereby they had got an opportunity to establish that the lock-out declared by them was not illegal. But, then no witness was examined to prove the said fact.20. The parties, therefore, made it clear that the claim of wages raised on behalf of the workmen on the premise that the lock-out was illegal was not the subject matter of the settlement. The Tribunal, in our opinion, is right in arriving at the finding that the intention of the parties must be gathered from the attending circumstances; one of them being that although the parties were aware that the industrial dispute was pending but no reference thereto was made in the settlement. 21. It is difficult to accept the contention of Mr. Naphade that in the facts and circumstances of this case, provisions of Section 92 of the Evidence Act would have any role to play. It is not the contention of Respondents that the settlement was not to be read as a full or final settlement between the parties but the same must be read as meaning that the settlement was only in respect of the Charter of Demands and other demands made by the Union from time to time in its various letters. 22. Construction of a document so as to ascertain the intention of the parties is in no way controlled by the provisions of Sections 91 or 92 of the Evidence Act. The document has to be interpreted applying the known principles of construction and/ or canons. 23. In fact, in the special leave petition, Appellant itself has contended: "(VI) That because the Honble High Court should have appreciated the fact that at the time of reference the contesting parties were negotiating the Settlement. So in view thereof it was the duty of the Conciliation Officer under Section 12(2) and 12(3) of the Industrial Disputes Act for bringing about a settlement of the dispute without delay and investigate the dispute and all such matters affecting the merits and the settlement thereof. Further, it is pertinent to state that the Conciliation Officer has enough powers to investigate the cause of dispute and enforce a settlement." 24. If that was the stand of Appellant before the Conciliation Officer, they could have asked him to close the conciliation proceedings. They did not do so. 25. Applying the principles of interpretation of a document and having regard to the circumstances attending thereto, we are of the opinion that the findings of the tribunal and the High Court cannot be faulted with.

0[ds]14. Correspondences entered into by and between the parties were in relation to the aforementioned demands. It did not speak of the claim of wages, although when the settlement was arrived at, the industrial dispute was pending.15. Had, thus, the intention of the parties been to settle their disputes also in relation to legality or otherwise of the lock-out declared by the management, it was expected to have been stated so explicitly therein. It was also expected that the parties would file the said settlement before the Industrial Tribunal so that an award could be passed in terms thereof. Clause 20 of the said settlement provides for a package deal vis-à-vis all the demands raised by the Union. The package deal was in relation to the Charter of Demands dated 1.01.1993 and any other document including the letters exchanged between the parties pursuant thereto or in furtherance thereof. The subject matter of settlement was all demands of whatever nature in terms whereof the workmen might not have been able to make any other demand, but, on a bare perusal of the said settlement, it is apparent that the expression which has repeatedly been used was the Charter of Demands.16. While keeping the industrial dispute pending, Respondents had not raised any fresh demand.17. Clause 21 refers to the previous settlement also. The rights of the workmen under the existing settlement were not adversely affected. If they have worked, they would be entitled to wages. If they have reported for duties during the period of lock-out which was illegal, they were entitled to the wages for the said period.18. In furtherance of the said Charter of Demands, the parties entered into several other correspondences. In terms of the settlement, the parties settled their disputes in relation to the demands raised. The wages to be paid to the workmen which they had claimed as of right was not and could not have been the subject matter of any payment or settlement. Whereas the concept of a demand must be held to be relating to a right higher than the existing right, the workmen were entitled to raise a claim in relation to their existing right and in that view of the matter financial implication therefor cannot be a ground for refusal thereof. If a claim is to be withdrawn by reason of a settlement, the same must find a specific mention therein.19. Subject, of course, to the parties acting on the settlement, the workmen had promised that they would not go for work stoppage or go slow but then in terms of Paragraph 12 of Clause 23 of the said settlement, it had categorically been reiterated that the expression "wages" shall be given the same meaning as obtaining in the statute. The right to enforce the claim for wages both in the first settlement as also the second settlement was, therefore, not given up. It was further stated that no additional claims would be made for increase of benefits. Paragraph 13 of Clause 23 of the said settlement also refers to existing rights and obligations subject, of course, to the modification made therein. By reason of the said settlement, the workmen surrendered their rights of bonus. We have noticed hereinbefore that the management, although questioned the legality and/ or validity of the reference, but at the same time also welcomed the same stating that thereby they had got an opportunity to establish that the lock-out declared by them was not illegal. But, then no witness was examined to prove the said fact.20. The parties, therefore, made it clear that the claim of wages raised on behalf of the workmen on the premise that the lock-out was illegal was not the subject matter of the settlement. The Tribunal, in our opinion, is right in arriving at the finding that the intention of the parties must be gathered from the attending circumstances; one of them being that although the parties were aware that the industrial dispute was pending but no reference thereto was made in the settlement.Applying the principles of interpretation of a document and having regard to the circumstances attending thereto, we are of the opinion that the findings of the tribunal and the High Court cannot be faulted with.

### 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: various allowances including travelling allowance, washing allowance and various other allowances as specified therein e.g., uniform, festival advance, etc. 14. Correspondences entered into by and between the parties were in relation to the aforementioned demands. It did not speak of the claim of wages, although when the settlement was arrived at, the industrial dispute was pending.15. Had, thus, the intention of the parties been to settle their disputes also in relation to legality or otherwise of the lock-out declared by the management, it was expected to have been stated so explicitly therein. It was also expected that the parties would file the said settlement before the Industrial Tribunal so that an award could be passed in terms thereof. Clause 20 of the said settlement provides for a package deal vis-à-vis all the demands raised by the Union. The package deal was in relation to the Charter of Demands dated 1.01.1993 and any other document including the letters exchanged between the parties pursuant thereto or in furtherance thereof. The subject matter of settlement was all demands of whatever nature in terms whereof the workmen might not have been able to make any other demand, but, on a bare perusal of the said settlement, it is apparent that the expression which has repeatedly been used was the Charter of Demands.16. While keeping the industrial dispute pending, Respondents had not raised any fresh demand.17. Clause 21 refers to the previous settlement also. The rights of the workmen under the existing settlement were not adversely affected. If they have worked, they would be entitled to wages. If they have reported for duties during the period of lock-out which was illegal, they were entitled to the wages for the said period.18. In furtherance of the said Charter of Demands, the parties entered into several other correspondences. In terms of the settlement, the parties settled their disputes in relation to the demands raised. The wages to be paid to the workmen which they had claimed as of right was not and could not have been the subject matter of any payment or settlement. Whereas the concept of a demand must be held to be relating to a right higher than the existing right, the workmen were entitled to raise a claim in relation to their existing right and in that view of the matter financial implication therefor cannot be a ground for refusal thereof. If a claim is to be withdrawn by reason of a settlement, the same must find a specific mention therein.19. Subject, of course, to the parties acting on the settlement, the workmen had promised that they would not go for work stoppage or go slow but then in terms of Paragraph 12 of Clause 23 of the said settlement, it had categorically been reiterated that the expression "wages" shall be given the same meaning as obtaining in the statute. The right to enforce the claim for wages both in the first settlement as also the second settlement was, therefore, not given up. It was further stated that no additional claims would be made for increase of benefits. Paragraph 13 of Clause 23 of the said settlement also refers to existing rights and obligations subject, of course, to the modification made therein. By reason of the said settlement, the workmen surrendered their rights of bonus. We have noticed hereinbefore that the management, although questioned the legality and/ or validity of the reference, but at the same time also welcomed the same stating that thereby they had got an opportunity to establish that the lock-out declared by them was not illegal. But, then no witness was examined to prove the said fact.20. The parties, therefore, made it clear that the claim of wages raised on behalf of the workmen on the premise that the lock-out was illegal was not the subject matter of the settlement. The Tribunal, in our opinion, is right in arriving at the finding that the intention of the parties must be gathered from the attending circumstances; one of them being that although the parties were aware that the industrial dispute was pending but no reference thereto was made in the settlement. 21. It is difficult to accept the contention of Mr. Naphade that in the facts and circumstances of this case, provisions of Section 92 of the Evidence Act would have any role to play. It is not the contention of Respondents that the settlement was not to be read as a full or final settlement between the parties but the same must be read as meaning that the settlement was only in respect of the Charter of Demands and other demands made by the Union from time to time in its various letters. 22. Construction of a document so as to ascertain the intention of the parties is in no way controlled by the provisions of Sections 91 or 92 of the Evidence Act. The document has to be interpreted applying the known principles of construction and/ or canons. 23. In fact, in the special leave petition, Appellant itself has contended: "(VI) That because the Honble High Court should have appreciated the fact that at the time of reference the contesting parties were negotiating the Settlement. So in view thereof it was the duty of the Conciliation Officer under Section 12(2) and 12(3) of the Industrial Disputes Act for bringing about a settlement of the dispute without delay and investigate the dispute and all such matters affecting the merits and the settlement thereof. Further, it is pertinent to state that the Conciliation Officer has enough powers to investigate the cause of dispute and enforce a settlement." 24. If that was the stand of Appellant before the Conciliation Officer, they could have asked him to close the conciliation proceedings. They did not do so. 25. Applying the principles of interpretation of a document and having regard to the circumstances attending thereto, we are of the opinion that the findings of the tribunal and the High Court cannot be faulted with. ### Response: 0 ### Explanation: 14. Correspondences entered into by and between the parties were in relation to the aforementioned demands. It did not speak of the claim of wages, although when the settlement was arrived at, the industrial dispute was pending.15. Had, thus, the intention of the parties been to settle their disputes also in relation to legality or otherwise of the lock-out declared by the management, it was expected to have been stated so explicitly therein. It was also expected that the parties would file the said settlement before the Industrial Tribunal so that an award could be passed in terms thereof. Clause 20 of the said settlement provides for a package deal vis-à-vis all the demands raised by the Union. The package deal was in relation to the Charter of Demands dated 1.01.1993 and any other document including the letters exchanged between the parties pursuant thereto or in furtherance thereof. The subject matter of settlement was all demands of whatever nature in terms whereof the workmen might not have been able to make any other demand, but, on a bare perusal of the said settlement, it is apparent that the expression which has repeatedly been used was the Charter of Demands.16. While keeping the industrial dispute pending, Respondents had not raised any fresh demand.17. Clause 21 refers to the previous settlement also. The rights of the workmen under the existing settlement were not adversely affected. If they have worked, they would be entitled to wages. If they have reported for duties during the period of lock-out which was illegal, they were entitled to the wages for the said period.18. In furtherance of the said Charter of Demands, the parties entered into several other correspondences. In terms of the settlement, the parties settled their disputes in relation to the demands raised. The wages to be paid to the workmen which they had claimed as of right was not and could not have been the subject matter of any payment or settlement. Whereas the concept of a demand must be held to be relating to a right higher than the existing right, the workmen were entitled to raise a claim in relation to their existing right and in that view of the matter financial implication therefor cannot be a ground for refusal thereof. If a claim is to be withdrawn by reason of a settlement, the same must find a specific mention therein.19. Subject, of course, to the parties acting on the settlement, the workmen had promised that they would not go for work stoppage or go slow but then in terms of Paragraph 12 of Clause 23 of the said settlement, it had categorically been reiterated that the expression "wages" shall be given the same meaning as obtaining in the statute. The right to enforce the claim for wages both in the first settlement as also the second settlement was, therefore, not given up. It was further stated that no additional claims would be made for increase of benefits. Paragraph 13 of Clause 23 of the said settlement also refers to existing rights and obligations subject, of course, to the modification made therein. By reason of the said settlement, the workmen surrendered their rights of bonus. We have noticed hereinbefore that the management, although questioned the legality and/ or validity of the reference, but at the same time also welcomed the same stating that thereby they had got an opportunity to establish that the lock-out declared by them was not illegal. But, then no witness was examined to prove the said fact.20. The parties, therefore, made it clear that the claim of wages raised on behalf of the workmen on the premise that the lock-out was illegal was not the subject matter of the settlement. The Tribunal, in our opinion, is right in arriving at the finding that the intention of the parties must be gathered from the attending circumstances; one of them being that although the parties were aware that the industrial dispute was pending but no reference thereto was made in the settlement.Applying the principles of interpretation of a document and having regard to the circumstances attending thereto, we are of the opinion that the findings of the tribunal and the High Court cannot be faulted with.

ADANI GAS LIMITED Vs. UNION OF INDIA

may be considered as adequate. Clauses (e) and (f) provide that the entity should have arranged and procured the necessary equipment for erecting the City Gas Distribution network before the appointed date. Clause (g) provides for the entity to satisfy the Board on the adequacy of its ability to meet the applicable technical standards, specifications and safety standards as specified in the relevant Regulations. Clause (h) provides for assessment of financial position of the entity and Clause (i) provides for supply of natural gas to meet the demand in the authorised area to be covered by City Gas Distribution network. The last clause (j) provides for the Board to consider any other relevant criteria based on the examination of the application. All the aforesaid clauses are relevant factors and the one which is put for consideration in the present case is Clause (d), on which ground, the Central Government has primarily rejected the application of the appellant.19. It is noteworthy that the language used in Regulation 18(2) is that ?the Board may take into consideration…………?. As such, the language in which the Regulation has been couched does not make the consideration in the said clauses, including Clause (d), to be mandatory, but no doubt the same would be relevant considerations. On a careful perusal of the order passed by the Board, we find that the application of the appellant has been rejected for reasons mentioned in para 5 of the impugned order dated 19.05.2011, which are extracted hereunder:?5. The committee found that you do not satisfy the conditions laid down under the Regulation 18(1) of the Petroleum and Natural Gas Regulatory Board (Authorizing Entities to Lay, Build, Operate or Expand City or Local Natural Gas Distribution Networks) Regulations 2008 on account of the following:a) Physical and financial progress achieved by M/s. Adani Gas Limited before the appointed day in the GA of Jaipur does not satisfy the proviso 18(2)(d) of the Regulation 18(1) of Petroleum and Natural Gas Regulatory Board (Authorizing Entities to Lay, Build, Operate or Expand City or Local Natural Gas Distribution Networks) Regulations 2008;b) Even After clear instructions of PNGRB vide Press Note Dated 30 th October, 2007 to stop all incremental activity M/s. Adani energy Limited had continued with laying of MDPE Pipeline and thus violating the directions of the Board.?20. From the above, it is clear that the application of the appellant has been rejected primarily on the ground of non¬compliance of clause (d) of Regulation 18(2) of the Regulations of 2008. It was incumbent on the Board to take into consideration various factors as specified in clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008, and the same has to be considered in the back drop of the fact that the press note was issued on 30.10.2007 to stop all incremental activities and as such it was necessary to consider whether the appellant could have been faulted for non-compliance of clause (d) of Regulation 18(2), and whether it was a mandatory requirement or merely one of the factors to be considered along with all the other factors. Other relevant aspects as contained in the other clauses have not been adverted to by the Board while deciding the application of the appellant, which were also equally significant. It was necessary to consider whether the appellant is compliant of various other factors as provided in clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008. The non¬ compliance, if any, of clause (d) ought to have been considered in the light of the press note dated 30.10.2007 which required stopping of all incremental activities. 21. The peculiar factual position is that the Act of 2006 had been notified on 03.04.2006 but came into force on 01.10.2007 and the NOC was issued on 27.03.2006, after the Government of Rajasthan had invited open bids on 19.11.2005 for laying of City Gas Distribution network in the cities of Udaipur and Jaipur, in which the appellant had been selected. Besides depositing the sum of Rs. 2 Crores immediately towards commitment fee, the appellant had thereafter incurred mammoth expenditure after it was successful in the bids, which aspect has not been considered by the Board while deciding the application of the appellant. In our considered view, the same should not have normally been over looked. Besides the same, in the factual circumstances of the present case, the provision of ‘deemed authorisation? contained in Proviso (ii) to Section 16 had also been enforced on 12.07.2010 and it was necessary for the Board to have considered whether it was a case where only certain safeguards were required to be observed in view of the ‘deemed authorisation?.22. We are of the firm view that it was also necessary for the Board to have considered all these aspects and thereafter to have decided the application relating to authorisation/conditions to be imposed under the Act, if any, required. Besides this, detailed replies had been submitted by the appellant before the Board, which also ought to have been considered. Further, the requirement under the Act/Regulations is for grant of personal hearing to the appellant before deciding its application and if personal hearing was given, to have discussed the same in the order, which aspect has also been ignored by the Board.23. In view of the aforesaid discussion, we are of the opinion that there was illegality committed by the Board in deciding the application of the appellant while passing the order dated 19.05.2011, and as such the same deserves to be quashed. We also hold that in the aforesaid factual background, the decision of the State Government to revoke the NOC vide order dated 18.05.2011 was also highly unfair and unjust in as much as the reply of the petitioner dated 16.03.2011 in response to the notice dated 26.02.2011 has not been dealt with by the Government of Rajasthan while passing the said impugned order dated 18.05.2011. As such, the same does not stand to reason, which also deserves to be quashed.

1[ds]14. It is not disputed that in pursuance to the Government of Rajasthan having, on 19.11.2005, invited bids for laying of Gas Distribution Network, the appellant had applied for the two cities of Udaipur and Jaipur and after acceptance of its application, the appellant was granted NOC by the Government of Rajasthan on 27.03.2006. It is also not disputed that pursuant thereto, the appellant has laid approximately 75 kms of pipeline in both the cities of Udaipur and Jaipur, and in the process, spent a huge amount of money relying on the NOC granted in its favour for such purpose.From the above, it is clear that the application of the appellant has been rejected primarily on the ground of non¬compliance of clause (d) of Regulation 18(2) of the Regulations of 2008. It was incumbent on the Board to take into consideration various factors as specified in clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008, and the same has to be considered in the back drop of the fact that the press note was issued on 30.10.2007 to stop all incremental activities and as such it was necessary to consider whether the appellant could have been faulted for non-compliance of clause (d) of Regulation 18(2), and whether it was a mandatory requirement or merely one of the factors to be considered along with all the other factors. Other relevant aspects as contained in the other clauses have not been adverted to by the Board while deciding the application of the appellant, which were also equally significant. It was necessary to consider whether the appellant is compliant of various other factors as provided in clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008. The non¬ compliance, if any, of clause (d) ought to have been considered in the light of the press note dated 30.10.2007 which required stopping of all incremental. The peculiar factual position is that the Act of 2006 had been notified on 03.04.2006 but came into force on 01.10.2007 and the NOC was issued on 27.03.2006, after the Government of Rajasthan had invited open bids on 19.11.2005 for laying of City Gas Distribution network in the cities of Udaipur and Jaipur, in which the appellant had been selected. Besides depositing the sum of Rs. 2 Crores immediately towards commitment fee, the appellant had thereafter incurred mammoth expenditure after it was successful in the bids, which aspect has not been considered by the Board while deciding the application of the appellant. In our considered view, the same should not have normally been over looked. Besides the same, in the factual circumstances of the present case, the provision of ‘deemed authorisation? contained in Proviso (ii) to Section 16 had also been enforced on 12.07.2010 and it was necessary for the Board to have considered whether it was a case where only certain safeguards were required to be observed in view of the ‘deemed authorisation?.22. We are of the firm view that it was also necessary for the Board to have considered all these aspects and thereafter to have decided the application relating to authorisation/conditions to be imposed under the Act, if any, required. Besides this, detailed replies had been submitted by the appellant before the Board, which also ought to have been considered. Further, the requirement under the Act/Regulations is for grant of personal hearing to the appellant before deciding its application and if personal hearing was given, to have discussed the same in the order, which aspect has also been ignored by the Board.23. In view of the aforesaid discussion, we are of the opinion that there was illegality committed by the Board in deciding the application of the appellant while passing the order dated 19.05.2011, and as such the same deserves to be quashed. We also hold that in the aforesaid factual background, the decision of the State Government to revoke the NOC vide order dated 18.05.2011 was also highly unfair and unjust in as much as the reply of the petitioner dated 16.03.2011 in response to the notice dated 26.02.2011 has not been dealt with by the Government of Rajasthan while passing the said impugned order dated 18.05.2011. As such, the same does not stand to reason, which also deserves to be quashed.

### 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: may be considered as adequate. Clauses (e) and (f) provide that the entity should have arranged and procured the necessary equipment for erecting the City Gas Distribution network before the appointed date. Clause (g) provides for the entity to satisfy the Board on the adequacy of its ability to meet the applicable technical standards, specifications and safety standards as specified in the relevant Regulations. Clause (h) provides for assessment of financial position of the entity and Clause (i) provides for supply of natural gas to meet the demand in the authorised area to be covered by City Gas Distribution network. The last clause (j) provides for the Board to consider any other relevant criteria based on the examination of the application. All the aforesaid clauses are relevant factors and the one which is put for consideration in the present case is Clause (d), on which ground, the Central Government has primarily rejected the application of the appellant.19. It is noteworthy that the language used in Regulation 18(2) is that ?the Board may take into consideration…………?. As such, the language in which the Regulation has been couched does not make the consideration in the said clauses, including Clause (d), to be mandatory, but no doubt the same would be relevant considerations. On a careful perusal of the order passed by the Board, we find that the application of the appellant has been rejected for reasons mentioned in para 5 of the impugned order dated 19.05.2011, which are extracted hereunder:?5. The committee found that you do not satisfy the conditions laid down under the Regulation 18(1) of the Petroleum and Natural Gas Regulatory Board (Authorizing Entities to Lay, Build, Operate or Expand City or Local Natural Gas Distribution Networks) Regulations 2008 on account of the following:a) Physical and financial progress achieved by M/s. Adani Gas Limited before the appointed day in the GA of Jaipur does not satisfy the proviso 18(2)(d) of the Regulation 18(1) of Petroleum and Natural Gas Regulatory Board (Authorizing Entities to Lay, Build, Operate or Expand City or Local Natural Gas Distribution Networks) Regulations 2008;b) Even After clear instructions of PNGRB vide Press Note Dated 30 th October, 2007 to stop all incremental activity M/s. Adani energy Limited had continued with laying of MDPE Pipeline and thus violating the directions of the Board.?20. From the above, it is clear that the application of the appellant has been rejected primarily on the ground of non¬compliance of clause (d) of Regulation 18(2) of the Regulations of 2008. It was incumbent on the Board to take into consideration various factors as specified in clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008, and the same has to be considered in the back drop of the fact that the press note was issued on 30.10.2007 to stop all incremental activities and as such it was necessary to consider whether the appellant could have been faulted for non-compliance of clause (d) of Regulation 18(2), and whether it was a mandatory requirement or merely one of the factors to be considered along with all the other factors. Other relevant aspects as contained in the other clauses have not been adverted to by the Board while deciding the application of the appellant, which were also equally significant. It was necessary to consider whether the appellant is compliant of various other factors as provided in clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008. The non¬ compliance, if any, of clause (d) ought to have been considered in the light of the press note dated 30.10.2007 which required stopping of all incremental activities. 21. The peculiar factual position is that the Act of 2006 had been notified on 03.04.2006 but came into force on 01.10.2007 and the NOC was issued on 27.03.2006, after the Government of Rajasthan had invited open bids on 19.11.2005 for laying of City Gas Distribution network in the cities of Udaipur and Jaipur, in which the appellant had been selected. Besides depositing the sum of Rs. 2 Crores immediately towards commitment fee, the appellant had thereafter incurred mammoth expenditure after it was successful in the bids, which aspect has not been considered by the Board while deciding the application of the appellant. In our considered view, the same should not have normally been over looked. Besides the same, in the factual circumstances of the present case, the provision of ‘deemed authorisation? contained in Proviso (ii) to Section 16 had also been enforced on 12.07.2010 and it was necessary for the Board to have considered whether it was a case where only certain safeguards were required to be observed in view of the ‘deemed authorisation?.22. We are of the firm view that it was also necessary for the Board to have considered all these aspects and thereafter to have decided the application relating to authorisation/conditions to be imposed under the Act, if any, required. Besides this, detailed replies had been submitted by the appellant before the Board, which also ought to have been considered. Further, the requirement under the Act/Regulations is for grant of personal hearing to the appellant before deciding its application and if personal hearing was given, to have discussed the same in the order, which aspect has also been ignored by the Board.23. In view of the aforesaid discussion, we are of the opinion that there was illegality committed by the Board in deciding the application of the appellant while passing the order dated 19.05.2011, and as such the same deserves to be quashed. We also hold that in the aforesaid factual background, the decision of the State Government to revoke the NOC vide order dated 18.05.2011 was also highly unfair and unjust in as much as the reply of the petitioner dated 16.03.2011 in response to the notice dated 26.02.2011 has not been dealt with by the Government of Rajasthan while passing the said impugned order dated 18.05.2011. As such, the same does not stand to reason, which also deserves to be quashed. ### Response: 1 ### Explanation: 14. It is not disputed that in pursuance to the Government of Rajasthan having, on 19.11.2005, invited bids for laying of Gas Distribution Network, the appellant had applied for the two cities of Udaipur and Jaipur and after acceptance of its application, the appellant was granted NOC by the Government of Rajasthan on 27.03.2006. It is also not disputed that pursuant thereto, the appellant has laid approximately 75 kms of pipeline in both the cities of Udaipur and Jaipur, and in the process, spent a huge amount of money relying on the NOC granted in its favour for such purpose.From the above, it is clear that the application of the appellant has been rejected primarily on the ground of non¬compliance of clause (d) of Regulation 18(2) of the Regulations of 2008. It was incumbent on the Board to take into consideration various factors as specified in clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008, and the same has to be considered in the back drop of the fact that the press note was issued on 30.10.2007 to stop all incremental activities and as such it was necessary to consider whether the appellant could have been faulted for non-compliance of clause (d) of Regulation 18(2), and whether it was a mandatory requirement or merely one of the factors to be considered along with all the other factors. Other relevant aspects as contained in the other clauses have not been adverted to by the Board while deciding the application of the appellant, which were also equally significant. It was necessary to consider whether the appellant is compliant of various other factors as provided in clauses (a) to (j) of Regulation 18(2) of the Regulations of 2008. The non¬ compliance, if any, of clause (d) ought to have been considered in the light of the press note dated 30.10.2007 which required stopping of all incremental. The peculiar factual position is that the Act of 2006 had been notified on 03.04.2006 but came into force on 01.10.2007 and the NOC was issued on 27.03.2006, after the Government of Rajasthan had invited open bids on 19.11.2005 for laying of City Gas Distribution network in the cities of Udaipur and Jaipur, in which the appellant had been selected. Besides depositing the sum of Rs. 2 Crores immediately towards commitment fee, the appellant had thereafter incurred mammoth expenditure after it was successful in the bids, which aspect has not been considered by the Board while deciding the application of the appellant. In our considered view, the same should not have normally been over looked. Besides the same, in the factual circumstances of the present case, the provision of ‘deemed authorisation? contained in Proviso (ii) to Section 16 had also been enforced on 12.07.2010 and it was necessary for the Board to have considered whether it was a case where only certain safeguards were required to be observed in view of the ‘deemed authorisation?.22. We are of the firm view that it was also necessary for the Board to have considered all these aspects and thereafter to have decided the application relating to authorisation/conditions to be imposed under the Act, if any, required. Besides this, detailed replies had been submitted by the appellant before the Board, which also ought to have been considered. Further, the requirement under the Act/Regulations is for grant of personal hearing to the appellant before deciding its application and if personal hearing was given, to have discussed the same in the order, which aspect has also been ignored by the Board.23. In view of the aforesaid discussion, we are of the opinion that there was illegality committed by the Board in deciding the application of the appellant while passing the order dated 19.05.2011, and as such the same deserves to be quashed. We also hold that in the aforesaid factual background, the decision of the State Government to revoke the NOC vide order dated 18.05.2011 was also highly unfair and unjust in as much as the reply of the petitioner dated 16.03.2011 in response to the notice dated 26.02.2011 has not been dealt with by the Government of Rajasthan while passing the said impugned order dated 18.05.2011. As such, the same does not stand to reason, which also deserves to be quashed.

H. B. Munshi, Commissioner of Sales Tax, Bombay Vs. S Oriental Rubber Industries Private Limited

appointing a number of officers for carrying out the purposes of the Act, the hierarchy of such officers has been indicated, the subordination of such officers, inter se, has been indicated and the Act provides for complete code of remedies available to a person who is aggrieved by any order passed by any officer under the Act. In the first place, therefore, the supreme Court decision dealt with an enactment which was a different type altogether than the subject-matter of the enactment with which we are concerned in this case. Secondly, the decision of the Supreme Court depended upon the proper construction of the relevant provisions of sections 41 (1) and 42 of the said Act whereas, in the instant case, we are concerned with the provisions contained in sections 20 (5), (6) and (8), 55 and 57 of the Act. The scheme which is obtained under the Bombay Sales Tax Act is entirely different from the scheme which obtained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, and it is in view of the scheme and from the examination of the relevant provisions of the Act in this case that we will have to consider what interpretation should be put upon the provisions contained in section 20 (5) of the Act. In other words, the provisions contained in the East Punjab holdings (Consolidation and Prevention of Fragmentation) Act, 1948, could never be regarded as being in pari materia anywhere similar to the provisions contained in the Act with which we are concerned. Placed in such a situation, what rule of interpretation could be applied has been clearly stated in the following passage occurring in Craies on Statute Law, 7th Ed. , p. 133, to which our attention was invited by the learned Advocate-General. The relevant passage runs as follows : "in the interpretation of statutes the courts decline to consider other statutes proceeding on different lines and including different provisions, or the judicial decisions thereon. Thus in Re lord Gerards Settled Estate ([1893] 3 Ch. 252.), the Court of Appeal held that the Settled Land acts formed a code applicable to the subject-matter with which they dealt, and that a decision on the Lands Clauses Act, 1845, was not applicable for their interpretation, because that Act was passed alio intuitu, and dealt with a different subject-matter. Lord Macnaghten, when discussing the phraseology of two Revenue Acts, said in Inland Revenue Commissioners v. Forrest ( (1890)15 App. Cas. 334, 353.) : the two Acts differ widely in their scope; and even when they happen to deal with the same subject their wording is not the same. It was argued, indeed, that the language was "practically identical"; but that expression, to my mind, involves an admission that the language is different, and in 1955 Lord Reid said : it does not necessarily follow that if parliament uses the same words in quite a different context they must retain the same meaning. "( 18 ) IN our view, therefore, having regard to the fact that the statute with which we are concerned is a taxing statute and contains provisions of different types altogether, then what was contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, which was dealt by the Supreme Court, the ratio of that decision would clearly be inapplicable to this case, where we are concerned with the proper interpretation to be placed upon the provisions in section 20 (5) read with sections 55 and 57 of the Act. Incidentally, it may be pointed out that under section 41 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation)Act, 1948, power had been conferred upon the State Government to appoint as many persons as it thought fit for proper administration of the Act and the State Government could delegate any of its powers or functions under the Act to any of its officers either by name or designation and it was in the context of such provisions which enabled the State Government to appoint as many officers as it liked to whom powers could be delegated by it that the Supreme Court took the view that there was scope for repeated interference by way of revision forever. As we have pointed above, the scheme of the Act with which we are concerned is nowhere near the aforesaid provisions. Under section 20 the officers having specified designations have been contemplated to be appointed by the State Government for carrying out the purposes of the Act and their hierarchy has been indicated and the subordination, inter se, has also been indicated and it is in the context of the hierarchy and the subordination, inter se, of officers that the provisions of sections 55 and 57 have to be understood. We are, therefore, clearly of the view that there would be no question of there being any scope for repeated interference by way of revisional jurisdiction arising under the provisions of the Act with which we are concerned. ( 19 ) HAVING regard to the above discussion, we are of the view that the view taken by the learned trial Judge on the principal contention urged in the petition before him cannot be sustained and, in our view, the orders passed by the Deputy Commissioner in second appeal on 16th April, 1965, were clearly revisable by the Commissioner under section 57 (1) (a) of the Act. ( 20 ) THE third contention pertained to the plea of absence of mens rea and the contention was that having regard to the facts which obtained in the case it could not be said that the petitioner-company had collected sales tax knowing that such collection was illegal or had guilty conscience in collecting such tax recoverable from the parties. However, Mr. Chagla appearing for the respondents did not press this contention, especially in view of the amended provisions of sub-section (6) of section 38 of the Act that has been retrospectively introduced in the provisions of the Act.

1[ds]( 5 ) THE main question, therefore, which arises for our consideration in this appeal is whether the orders passed by the Commissioner on 16th April, 1965, could be revised by the Commissioner of Sales Tax in exercise of his revisional jurisdiction under section 57 (1) (a) of the Act and the question, in our view, must principally depend upon the interpretation of the provisions contained in section 20 (5) read with the provisions contained in section 55 and 57 of the Act. It would, however, be desirable to set out the provisions of(1) to (6) of section 20 of the Act in order to appreciate the rival contentions urged before us. The said provisions of section 20 of the Act before its amendment by Maharashtra Act 21 of 1970 ran as follows :"20. (1) For carrying out the purposes of this Act, the State Government shall appoint an officer to be called the Commissioner of Sales Tax. (2) To assist the Commissioner in the execution of his functions under this Act the State government may appoint Additional Commissioners of Sales Tax (if any), and such number of,(a) Deputy Commissioners, (b) Assistant Commissioners, (c) Sales Tax Officers, and (d) other officers and persons, and give them such designations (if any), as that Government thinks necessary. (3) The Commissioner shall have jurisdiction over the whole of the State of Maharashtra; and an additional Commissioner of Sales Tax, if any be appointed, shall have jurisdiction over the whole of the State, or where the State Government so directs, over any local area thereof. All other officers shall have jurisdiction over such local areas as the State Government may specify. (4) The Commissioner shall have and exercise all the powers and perform all the duties, conferred or imposed on the Commissioner by or under this Act, and an Additional commissioner, if any be appointed, shall, save as otherwise directed by the State Government, have and exercise within his jurisdiction all the powers and perform all the duties, conferred or imposed on the Commissioner by or under this Act. (5) A Deputy Commissioner shall have and exercise in the area within his jurisdiction all the powers, and shall perform all the duties, conferred or imposed on the Commissioner, by or under this Act; but the Commissioner may, by order published in the official Gazette, direct that any deputy Commissioner or all Deputy Commissioners generally, shall not exercise such powers or perform such duties as are specified in the order, and thereupon such Deputy Commissioner or, as the case may be, all Deputy Commissioners, shall cease to exercise those powers and perform those duties. The Commissioner may, in like manner, revoke any such direction, and thereupon the powers or duties exercisable or performable by such Deputy Commissioner or, as the case may be, all Deputy Commissioner before such direction was issued, shall be restored to him or them. (6) Assistant Commissioner, Sales Tax Officers and other officers shall, within their jurisdiction, exercise such of the powers and perform such of the duties of the Commissioner under this Act, as the Commissioner may, subject to such conditions and restrictions as the State government may by general or special order impose, by order in writing delegate to them either generally, or as respects any particular matter or class of matters. . . . . .7 ) UNDER(2) of section 20 it is discretionary with the State to appoint Additional commissioners of Sales Tax (if any) and such number of Deputy Commissioners, Assistant commissioners, Sales Tax Officers and other officers and persons and give them such designations as the Government thinks necessary, in order that these officers assist the commissioner in execution of his functions under the Act.(3) deals with the territorial jurisdiction of the Commissioner which is the whole of the State of Maharashtra and also an Additional Commissioner of Sales Tax who shall have jurisdiction over the whole of the state or where the State Government so directs, over any local area thereof and all other officers shall have jurisdiction over such local areas as the State Government may specify.(4) and (5) deal with the powers of the Commissioner, Additional Commissioner and Deputy commissioner and it will appear clear on a plain reading ofion (5)that powers have been conferred upon these three categories of officers by enactment itself and this is very clear from the expression used in both theto the effect that the commissioner or the Deputy Commissioner or the Additional Commissioner "shall have and exercise in the area within his jurisdiction all the powers, and shall perform all the duties conferred or imposed on the Commissioner by or under this Act. " In other words, it is clear that it is by enactment itself that the powers have been conferred upon the Additional Commissioner or the Deputy Commissioner to perform their duties under the Act within his jurisdiction and the scope and ambit of such of the powers of these two officers have been defined by reference to powers and duties conferred or imposed upon the Commissioner by or under the Act. Neitherion (5)with which we are concerned in the caseuses the expression "delegates or contemplates delegation of any such powers" on these officers by anybody else. So far as the Deputy Commissioner is concerned,r goes on to provide that the Commissioner may, by order published in the official Gazette, direct that any Deputy Commissioner or all Deputy Commissioners generally, shall not exercise such powers or performs such duties as are specified in the order and thereupon such Deputy commissioner, or as the case may be, all Deputy Commissioners, shall cease to exercise those powers and perform those duties. In other words, by the enactment itself all powers and duties which have been conferred and imposed upon the Commissioner have been conferred and imposed upon the Deputy Commissioner, subject to powers being reserved to the Commissioner to withdraw from the totality of such of these powers such powers from the Deputy commissioner which he thinks the Deputy Commissioner should not exercise or perform and it is upon publication of such orders passed by the Commissioner that the Deputy Commissioner shall cease to exercise those powers or perform those duties. It has been further made clear in) that theCommissioner may revoke any such direction and thereupon the powers or duties exercisable or performable by such Deputy Commissioner before such direction was issued, shall be restored to him. The provisions of, therefore, make the position quite clear. In the first place it is the enactment which confers all powers upon the Deputy commissioner and the scope and ambit of such powers conferred upon the Deputy commissioner has been defined by reference to the powers of the Commissioner. Such conferment of powers on the Deputy Commissioner is again made subject to the Commissioners power to issue direction as to which particular powers should not be exercised by the Deputy commissioner and upon issue of such direction the Deputy Commissioner shall cease to exercise such power, but upon withdrawal of such direction those powers automatically get restored to such Deputy Commissioner. On a plain reading of(5) of section 20,therefore, it seems to us very clear that there is no question of there being any statutory delegation in respect of powers and duties to the Deputy Commissioner nor is there any delegation of such power any anybody to him, and if that be so, it will be difficult to hold that the Deputy Commissioner exercising the powers conferred upon him by enactment himself is a delegate of the commissioner or an agent of the Commissioner and it will be further difficult to hold that whatever orders are passed by the Deputy Commissioner should be regarded as orders passed by the Commissioner himself.( 8 ) IN this context it would not be out of place to refer to the provisions of(6) of section 20. Under(6) it has been provided that the Assistant Commissioners, Sales tax Officers and other officers shall, within their jurisdiction, exercise such of the powers and perform such of the duties of the Commissioner under the Act, as the Commissioner may, subject to such conditions and restrictions as the State Government may by general or special order impose, by order in writing, delegate to them either generally or as respects any particular matter or class of matters. Without expressing any opinion at this stage as to whether the expression "delegate" used in(6) of section 20 has been employed in the sense in which a delegate or an agent is intended to be appointed, the fact remains that(6)uses the expression "delegate" implying some sort of delegation of powers and such phraseology could be contrasted with the language in(5) of section 20 of the Act.At least in(6), the Legislature has provided that Assistant Commissioners, Sales Tax Officers and other officers shall exercise such of the powers and perform such of the duties of the commissioner as the Commissioner may delegate to them and, therefore, some sort of delegation of powers is contemplated, but no delegation of any kind whatsoever is contemplated under(5) of section20. Contrasting the language of, it appears to us very clear that so far as the Deputy Commissioner under(5) of section20 is concerned, there could be no question of the Deputy Commissioner exercising his powers or performing his duties as a delegate either of the Commissioner or of anybody else and, as we have indicated above, on a plain reading of, it is by the enactment itself that powers have been conferred upon the Deputy Commissioner but the powers have been defined by reference to the powers of the Commissioner. If once on a true construction of the provisions of(5) of section20 of the Act a view is taken that the Deputy Commissioner exercises his powers and performs functions in his own right, the theory that any order passed by him should be regarded as an order having been passed by the Commissioner himself and, therefore, such order is not revisable by the Commissioner must be rejected.(10 ) IT will appear clear from the contents of section 57 that there are two authorities on whom revisional jurisdiction has been conferred and these two authorities would be exercising their revisional jurisdiction in different fields; whereas under clause (a) of(1) of section 57 power has been conferred upon the Commissioner, of his own motion within the specified period, to call for and examine the record of any order passed by any officer appointed under section 20 to assist him and to pass such order thereon as he thinks just and proper, under clause (b) of(1) of section 57 such revisional power is to be exercised by the Tribunal, upon an application made to it against an order of the Commissioner [not being an order passed under(2) of section 55 in second appeal] within four months from the date of the communication of the order.(2) of section 57 is also important, which provides that where an appeal lies under section 55 and no appeal has been filed, no proceedings in revision under section 57 shall be entertained upon application. In other words, the revisional power of the Tribunal under clause (b) of(1) of section 57 cannot be invoked if an appeal lies under section 55 and no appeal has been preferred. Now the question that we have to consider is whether a revision against an order passed by the Deputy has been provided for by clause (a) of(1) of section 57 or not and on a plain reading of the said provision it appears to us very clear that against an order passed by the Deputy Commissioner, the Commissioner suo motu within the prescribed period can entertain the revisional application. The reason is he would be exercising the revisional jurisdiction against an order passed by an officer appointed under section 20 to assist him. It was not disputed before us that the Deputy Commissioner exercising his power and performing his functions under(5) of section20 would be one of the officers appointed under that section to assist the Commissioner. In the instant case, against an order passed by the Assistant Commissioner in the first appeal, theexercised their option and preferred second appeal to the Commissioner and not to the Tribunal and it was under(2) of section 55 of the Act that the Deputy commissioner heard this appeal. When theexercised that option with their eyes wide open, they must be deemed to have known that their second appeal could be heard either by the Commissioner eo nomine or by the Additional Commissioner or by the Deputy commissioner and having exercised that option themust be deemed to have subjected themselves to the revisional jurisdiction exercisable by the Commissioner under section 57 (1) (a) of the Act. Reading section 55 and section 57 (1) (a) with the provisions of section 20 (5) of the Act it seems to us clear, therefore, that there is no scope for invoking the legal theory that the Deputy Commissioner should be regarded as a delegate or an agent of the commissioner when he exercised his powers that are conferred on him and, on that basis, further come to a conclusion that the order passed by the Deputy Commissioner should be regarded as one having been passed by the Commissioner himself disabling himself to exercise the revisional jurisdiction conferred upon him under section 57 (1) (a) of the Act. It is, therefore, not possible to accept the view taken by the learned Judge that, in the instant case, the Commissioner of Sales tax was not entitled to exercise the revisional jurisdiction over the orders passed by the Deputy commissioner on 16th April,have already indicated above that Mr. Chagla is right in this contention of his, but the question whether an order passed in second appeal has been made final or has not been made subject to revision provided for in section 57 would depend upon whether the provisions of section 57 (1) (a) are attracted or not and if the provisions of section 57 (1) (a) are attracted, it cannot be said that the order passed in second appeal has become final and shall not be interfered with in exercise of revisional jurisdiction. As we have indicated above, on a plain reading or clause (a) of(1) of section 57 any order passed by the Deputy Commissioner in second appeal has been made subject to revisional jurisdiction of the Commissioner under the said provisions because the Deputy Commissioner must be held to be and is in fact an officer appointed under section 20 to assist the Commissioner and, therefore, any order passed by the Deputy Commissioner in second appeal would be subject to the exercise of revisional jurisdiction by the Commissioner. Mr. Chagla, however, contended that if the appeals preferred by thehad not been transferred to the Deputy commissioner administratively and had been heard by the Commissioner eo nomine, then those orders of the Commissioner obviously could not be subjected to revisional jurisdiction of the commissioner himself and, according to him, the question whether the order passed in second appeal would be subject to revisional jurisdiction or not could not be made to depend whether second appeals are heard by one or the other of the three categories of officers who are competent to hear the same. It is not possible to accept this submission of Mr. Chagla based on the aforesaid ground for two simple reasons. In the first place, if the second appeals are heard by the Commissioner himself, then those orders passed by him in the second appeals would not be subject to revisional jurisdiction because the orders are not passed by any officer appointed under section 20 to assist the Commissioner and it is for this reason that if the second appeals are heard by the Commissioner himself those orders would not be subject to any further revision. As regards the point that revisional jurisdiction could not be made dependent upon the sweet will of the administration, the answer is very simple. An option is provided to an aggrieved party under(2) of section 55 to prefer second appeal either to the Commissioner or to the tribunal and if with open eyes an aggrieved party prefers an appeals to the Commissioner rather than to the Tribunal, then he must be taken to have done so subjecting himself to the further consequence or possibility of appeal being heard not by the Commissioner eo nomine but by the additional Commissioner or by the Deputy Commissioner and, in that event, he must be taken to have subjected himself to having orders passed in second appeal being interfered with in revisional13 ) "prescribed" obviously means prescribed by the Rules. The aforesaid provision, therefore, clearly enacts that all officers and persons appointed under(2), who are Additional commissioners, Deputy Commissioners, Assistant Commissioners, Sales Tax Officers and other officers, have been expressly stated to besubordinate to theCommissioner and theof these officers, inter se, has been provided for by the Rules. Rule 5 of the bombay Sales Tax Rules, 1959, provides for subordination of such officers, inter se, and so far as the material clauses (a), (b) and (c) of rule 5 clearly provided that for the purpose of(8) of section 20, a Deputy Commissioner shall be subordinate to an Additional commissioner, an Assistant Commissioner shall be subordinate to a Deputy Commissioner and to an Additional Commissioner, and a Sales Tax Officer shall be subordinate to an Assistant commissioner, a Deputy Commissioner and an Additional Commissioner. It will thus appear clear that under the scheme of the Act and the relevant Rules the Deputy Commissioner issubordinate to theAdditional Commissioner andthe Additional Commissionersubordinate to theCommissioner and theprovisions of section 55 which provided for appeals and the provisions of section 57 which provided for revision will have to be understood in the context of this subordination contemplated by the Act and the Rules and it is in view of this subordination of officers, inter se, that has been provided for by the Act and the Rules that under section 55 an order passed by the Sales Tax Officer is made appealable to an Assistant Commissioner and an order made by an Assistant Commissioner is made appealable to the Commissioner and an order passed in appeal by an Assistant Commissioner is made subject to second appeal which shall lie either to the Commissioner or to the Tribunal and similarly clause (a) of(1) of section 57 provides that any order passed by any officer appointed under section 20 to assist the commissioner has been made subject to revisional jurisdiction of the Commissioner himself and, therefore, in our view, there is nothing anomalous or awkward for a Commissioner to entertain a revision against an order passed by a Deputy Commissioner or by an Additional Commissioner in second appeal. On the other hand, if the theory is accepted that a Sales Tax Officer or an assistant Commissioner or a Deputy Commissioner is to be regarded as a delegate of the commissioner and, therefore, the orders passed by such officers are to be regarded as the orders passed by the Commissioner himself, the entire scheme of appeals and revisions contained in sections 55 and 57 of the Act based on hierarchy of the officers, inter se, will becomeis one way of looking at the matter. However, there is another way in which we would like to look at the matter and it is this: After all the enactment with which we are concerned is a taxing statute like the Bombay Sales Tax Act, that it contains provisions indicating hierarchy of officers being appointed for carrying out the purposes of the Act, that it also contains subordination of such officers, inter se, and what is more, it contains complete code of remedies under sections 52 to 62a in Chapter VII of the Act, which are available to any person aggrieved by any order that may be passed by any officer under the Act. Such remedies lie against the order of an inferior officer to his superior in the hierarchy of officers, including revisions to the Commissioner or the Tribunal and reference to the High Court. Moreover, section 52 bars the jurisdiction of a civil court in regard to orders that might be passed by any officer under the Act, subject to the provisions of section 61. Having regard to this scheme which is very clear on perusal of the relevant provisions contained in the Act and particularly having regard to the fact that complete code of remedies has been provided within the framework of the act itself, it seems to us very clear that even the officers, viz. , Assistant Commissioners, Sales tax Officers and other officers, should not be held to be delegates or agents of the Commissioner from whom they derive their powers and authority to perform their functions. To hold so would render the entire scheme containing complete code of remedies nugatory. In our view, therefore, having regard to the entire scheme of the Act and the relevant provisions, even the officers mentioned in(6) of section 20 cannot be regarded as delegates or agents of the commissioner and if the provisions of(6) of section 20 are looked at from this angle, the argument based on the language of(6) as advanced by Mr. Chagla qua(5) of section20 must fail. Though we are not really concerned with(6)of section 20, but are concerned with the proper construction of(5) of section20, it has become necessary for us to express our view on the construction of(6) in order to refute Mr. Chaglas contention and, while refuting the contention of Mr. Chagla based on(6) of section 20, we would like to observe that, for the reasons indicated above, it is not possible to hold that the officers enumerated in(6) of section 20 should at any rate in regard to their judicial powers be regarded as delegates of the Commissioner in the sense that they exercise the powers of the Commissioner as hisour view, the apprehension that such overlapping of jurisdiction of the two authorities would lead to a conflicting decision is ratherand in practice it could be shown as unfounded. If the order passed by the lower authorities, such as Assistant Commissioner, Deputy commissioner or Additional Commissioner, which is intended to be revised, happens to be in favour of an assessee, then, there is no question of any conflict arising, for ordinarily such an assessee would not think of going to either of the two authorities. If at all, it would be the commissioner who would suo motu exercise the revisional jurisdiction under clause (a) of(1) of section 57 after issuing a notice to an assessee, in which case either the order concerned may be confirmed or varied or reversed by the Commissioner exercising his revisional jurisdiction, and there would be no question of the other authority, namely, the Tribunal having anything to do at this stage. If the Commissioner were to decide adversely against any assessee in exercise of his revisional jurisdiction, it would be open to an assessee to carry the commissioners order before the Tribunal and call upon the Tribunal to exercise its revisional jurisdiction under clause (b) of(1) of section 57 over such order. In such a case, it is inconceivable that the Commissioner who has revisional jurisdiction would himself approach the tribunal for asking the Tribunal to exercise its jurisdiction under clause (b) of(1) of section 57. On the other hand, if the order in question happens to be against an assessee, then it is open to the assessee to bring the adverse order to the notice of the Commissioner to enable the latter officer to exercise his revisional jurisdiction under clause (a) of(1) of section 57 or he can directly approach the Tribunal in exercise of his right conferred under clause (b) of(1) of section 57. It is true that the two authorities would be having revisional jurisdiction. But again it is inconceivable that an assessee who wishes to go in revision against the adverse order would approach both the authorities simultaneously. He would either go to the commissioner or to the Tribunal in which case also there is least likelihood of any conflicting decision being given by the two authorities concerned. The only possibility of an actual conflict arising to which Mr. Chagla would draw our attention was in a case where the Commissioner can seek to exercise his revisional jurisdiction suo motu when the assessee had already approached the Tribunal in revision or by way of appeal. In such a case, it is quite clear that the provisions of clauses (a) and (b) of(1) of section 57 will have to be read harmoniously, and it can be presumed that the authorities on whom such revisional jurisdiction has been conferred by the enactment would exercise their revisional jurisdiction has been harmoniously. In a case where the Commissioner sought to exercise such revisional jurisdiction when the matter was already pending in appeal or revision before the Tribunal, it is inconceivable that the Commissioner would seek to proceed with his revisional power in case of it being brought to his attention by the assessee that the matter was already pending before the Tribunal. Even if he sought to do so, we may point out that any order passed by him would again be subject to the revisional jurisdiction of the Tribunal and, therefore, no real prejudice could be caused to the assessee. In our view, therefore, the anomaly of overlapping jurisdiction leading to a conflicting decision does not present any difficulty in placing the interpretation which we have placed on the provisions of section 20 (5) and section 20 (6) of thewill necessitate consideration of the Supreme Court judgment in some greater detail to which we will come to a little later. But, considering the argument presented by Mr. Chagla by itself, we do not think that it would be right to say that our interpretation would lend to repeated interference by way of revision forever as contended for by him. In view of the hierarchy of officers and their subordination, inter se, to which we have already referred, it seems to us clear that such interference by way of exercising revisional jurisdiction would be limited and not repeated forever as suggested by Mr. Chagla and we do not think that such limited interference by way of revision under section 57 (1) (a) of the Act would be either incongruous or anomalous to the detriment of an assessee. In fact, it would be to his advantage, for, if it were the Deputy Commissioner who was exercising the revisional jurisdiction, in the first instance, against an order which has been passed in favour of an assessee previously, the assessee would be enabled to bring the injustice caused to him to the notice of the additional Commissioner and, similarly, ifs orders were against the assessee, he would be again entitled to bring the injustice caused to him to the notice of the commissioner himself and get injustice rectified. Exercise of revisional jurisdiction in the aforesaid manner would be preferable to a situation where no exercise of revisional jurisdiction at all would be possible if Mr. Chaglas contention that all these officers should be regarded as delegates or agents of the Commissioner were to be accepted. If the theory that Deputy or additional Commissioners are acting as delegates or agents of the Commissioners were to be accepted, the entire revisional jurisdiction contemplated under section 57 of the Act would be rendered nugatory and it is difficult to hold that such a result was at all contemplated or intended by the17 ) DEALING with the Supreme Court decision in Roop Chand (A. I. R. 1963 S. C. 1503.), on which the learned Judge has relied and on which Mr. Chagla also relied, it must be observed that the case before the Supreme Court arose under the relevant provisions contained in the East Punjab holdings (Consolidation and Prevention of Fragmentation) Act, 1948. One of the objects of the act was to pool together the entire lands held by different persons in a village and redistribute the same among them on a more utilitarian basis in accordance with a scheme framed for the purpose. The final result that the Act achieved was that instead of his original holding a person was given some other holding. Amongst other authorities established by the Act were Settlement officers (Consolidation), who were referred as Settlement Officers to consider the objections received and confirm the scheme with or without modification. After that was done it was provided by section 21 (1) of the said Act that the Consolidation Officer shall carry out a repartition in accordance with the scheme as confirmed under section 20.(4)provided that "any person aggrieved by the order of the Settlement Officer (Consolidation) under(2) may within sixty days of that order appeal to the State Government". Under section 41 (1) of that Act, the State Government were empowered to appoint such persons as it thought fit and by notification to delegate to them such of the powers or functions as it may choose. Under section 42 of that Act, the State Government was given power of revision similar to the provisions of section 57 (1) of the Act before us. In the case before the Supreme Court, being aggrieved by certain order passed by the Settlement Officer, the petitioner appealed to the state Government under section 21 (4) of the said Act. The State Government having delegated the power of hearing such appeal to one Shri Brar, Assistant Director, Consolidation of holdings, Ambala, under section 41, the said appeal was heard and allowed by the said Mr. Brar. The State Government then thought fit under section 42 to revise the order of the said Shri Brar and in exercise of the power of revision the State Government set aside that order. It was contended before the court that the order which could be revised by the State Government under section 42 had to be an order passed by an officer in his own right and not an order passed either by the State Government itself or by an officer exercising the power delegated to him by the government under section 41 and that contention was accepted and the court came to the conclusion that having regard to the relevant provisions contained in the enactment, particularly the provisions contained in section 41 and section 42 of the said Act, the Government could not revise the order passed by Shri Brar who had exercised his powers in place of the Government. Relying upon this decision, an argument was advanced before the learned Judge and also by Mr. Chagla before us that, in the instant case also, we should take the view that the order passed by the Deputy Commissioner in second appeal should be regarded as an order passed by the commissioner himself, the former being regarded as a delegate or an agent of the latter and, therefore, the Commissioner was incompetent to exercise his revisional jurisdiction over such order. It is not possible to accept this contention of Mr. Chagla for more than one reason. In the first place, the enactment with which the Supreme Court was concerned dealt with consolidation and prevention of fragmentation of holdings under the East Punjab Holdings (Consolidation and prevention of Fragmentation) Act, 1948. The objects of the enactment were to pool together the entire lands held by different persons in a village and redistribute the same among them on a more utilitarian basis in accordance with a scheme to be framed for the purpose and it was in the context of thatthat the provisions contained in section 42 of the Act had been made enabling the State Government to revise any order that may be passed by the Settlement officers and the question that arose was whether having regard to the fact that the settlement officers orders against which the petitioner was aggrieved having been dealt with by an officer appointed by the State Government under section 41 (1) of the Act, the State Government could exercise revisional jurisdiction over the order passed by such officer appointed by the government under section 41 (1) of the Act. The Supreme Court has further made it clear in its judgment that the question that were raised before it depended upon construction of certain relevant provisions of the Act and it was on such construction that the view was taken that the state Government could not exercise its revisional jurisdiction under section 42 of the Act. In our view, the ratio of that decision, therefore, cannot apply to the instant case before us which arose under a taxing statute like the Bombay Sales Tax Act, 1959, under which apart from making a provision for appointing a number of officers for carrying out the purposes of the Act, the hierarchy of such officers has been indicated, the subordination of such officers, inter se, has been indicated and the Act provides for complete code of remedies available to a person who is aggrieved by any order passed by any officer under the Act. In the first place, therefore, the supreme Court decision dealt with an enactment which was a different type altogether than theof the enactment with which we are concerned in this case. Secondly, the decision of the Supreme Court depended upon the proper construction of the relevant provisions of sections 41 (1) and 42 of the said Act whereas, in the instant case, we are concerned with the provisions contained in sections 20 (5), (6) and (8), 55 and 57 of the Act. The scheme which is obtained under the Bombay Sales Tax Act is entirely different from the scheme which obtained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, and it is in view of the scheme and from the examination of the relevant provisions of the Act in this case that we will have to consider what interpretation should be put upon the provisions contained in section 20 (5) of the Act. In other words, the provisions contained in the East Punjab holdings (Consolidation and Prevention of Fragmentation) Act, 1948, could never be regarded as being in pari materia anywhere similar to the provisions contained in the Act with which we are concerned. Placed in such a situation, what rule of interpretation could be applied has been clearly stated in the following passage occurring in Craies on Statute Law, 7th Ed. , p. 133, to which our attention was invited by the learnedThe relevant passage runs as follows : "in the interpretation of statutes the courts decline to consider other statutes proceeding on different lines and including different provisions, or the judicial decisions thereon. Thus in Re lord Gerards Settled Estate ([1893] 3 Ch. 252.), the Court of Appeal held that the Settled Land acts formed a code applicable to thewith which they dealt, and that a decision on the Lands Clauses Act, 1845, was not applicable for their interpretation, because that Act was passed alio intuitu, and dealt with a differentLord Macnaghten, when discussing the phraseology of two Revenue Acts, said in Inland Revenue Commissioners v. Forrest ( (1890)15 App. Cas. 334, 353.) : the two Acts differ widely in their scope; and even when they happen to deal with the same subject their wording is not the same. It was argued, indeed, that the language was "practically identical"; but that expression, to my mind, involves an admission that the language is different, and in 1955 Lord Reid said : it does not necessarily follow that if parliament uses the same words in quite a different context they must retain the same meaning. "( 18 ) IN our view, therefore, having regard to the fact that the statute with which we are concerned is a taxing statute and contains provisions of different types altogether, then what was contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, which was dealt by the Supreme Court, the ratio of that decision would clearly be inapplicable to this case, where we are concerned with the proper interpretation to be placed upon the provisions in section 20 (5) read with sections 55 and 57 of the Act. Incidentally, it may be pointed out that under section 41 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation)Act, 1948, power had been conferred upon the State Government to appoint as many persons as it thought fit for proper administration of the Act and the State Government could delegate any of its powers or functions under the Act to any of its officers either by name or designation and it was in the context of such provisions which enabled the State Government to appoint as many officers as it liked to whom powers could be delegated by it that the Supreme Court took the view that there was scope for repeated interference by way of revision forever. As we have pointed above, the scheme of the Act with which we are concerned is nowhere near the aforesaid provisions. Under section 20 the officers having specified designations have been contemplated to be appointed by the State Government for carrying out the purposes of the Act and their hierarchy has been indicated and the subordination, inter se, has also been indicated and it is in the context of the hierarchy and the subordination, inter se, of officers that the provisions of sections 55 and 57 have to be understood. We are, therefore, clearly of the view that there would be no question of there being any scope for repeated interference by way of revisional jurisdiction arising under the provisions of the Act with which we are19 ) HAVING regard to the above discussion, we are of the view that the view taken by the learned trial Judge on the principal contention urged in the petition before him cannot be sustained and, in our view, the orders passed by the Deputy Commissioner in second appeal on 16th April, 1965, were clearly revisable by the Commissioner under section 57 (1) (a) of the Act.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: appointing a number of officers for carrying out the purposes of the Act, the hierarchy of such officers has been indicated, the subordination of such officers, inter se, has been indicated and the Act provides for complete code of remedies available to a person who is aggrieved by any order passed by any officer under the Act. In the first place, therefore, the supreme Court decision dealt with an enactment which was a different type altogether than the subject-matter of the enactment with which we are concerned in this case. Secondly, the decision of the Supreme Court depended upon the proper construction of the relevant provisions of sections 41 (1) and 42 of the said Act whereas, in the instant case, we are concerned with the provisions contained in sections 20 (5), (6) and (8), 55 and 57 of the Act. The scheme which is obtained under the Bombay Sales Tax Act is entirely different from the scheme which obtained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, and it is in view of the scheme and from the examination of the relevant provisions of the Act in this case that we will have to consider what interpretation should be put upon the provisions contained in section 20 (5) of the Act. In other words, the provisions contained in the East Punjab holdings (Consolidation and Prevention of Fragmentation) Act, 1948, could never be regarded as being in pari materia anywhere similar to the provisions contained in the Act with which we are concerned. Placed in such a situation, what rule of interpretation could be applied has been clearly stated in the following passage occurring in Craies on Statute Law, 7th Ed. , p. 133, to which our attention was invited by the learned Advocate-General. The relevant passage runs as follows : "in the interpretation of statutes the courts decline to consider other statutes proceeding on different lines and including different provisions, or the judicial decisions thereon. Thus in Re lord Gerards Settled Estate ([1893] 3 Ch. 252.), the Court of Appeal held that the Settled Land acts formed a code applicable to the subject-matter with which they dealt, and that a decision on the Lands Clauses Act, 1845, was not applicable for their interpretation, because that Act was passed alio intuitu, and dealt with a different subject-matter. Lord Macnaghten, when discussing the phraseology of two Revenue Acts, said in Inland Revenue Commissioners v. Forrest ( (1890)15 App. Cas. 334, 353.) : the two Acts differ widely in their scope; and even when they happen to deal with the same subject their wording is not the same. It was argued, indeed, that the language was "practically identical"; but that expression, to my mind, involves an admission that the language is different, and in 1955 Lord Reid said : it does not necessarily follow that if parliament uses the same words in quite a different context they must retain the same meaning. "( 18 ) IN our view, therefore, having regard to the fact that the statute with which we are concerned is a taxing statute and contains provisions of different types altogether, then what was contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, which was dealt by the Supreme Court, the ratio of that decision would clearly be inapplicable to this case, where we are concerned with the proper interpretation to be placed upon the provisions in section 20 (5) read with sections 55 and 57 of the Act. Incidentally, it may be pointed out that under section 41 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation)Act, 1948, power had been conferred upon the State Government to appoint as many persons as it thought fit for proper administration of the Act and the State Government could delegate any of its powers or functions under the Act to any of its officers either by name or designation and it was in the context of such provisions which enabled the State Government to appoint as many officers as it liked to whom powers could be delegated by it that the Supreme Court took the view that there was scope for repeated interference by way of revision forever. As we have pointed above, the scheme of the Act with which we are concerned is nowhere near the aforesaid provisions. Under section 20 the officers having specified designations have been contemplated to be appointed by the State Government for carrying out the purposes of the Act and their hierarchy has been indicated and the subordination, inter se, has also been indicated and it is in the context of the hierarchy and the subordination, inter se, of officers that the provisions of sections 55 and 57 have to be understood. We are, therefore, clearly of the view that there would be no question of there being any scope for repeated interference by way of revisional jurisdiction arising under the provisions of the Act with which we are concerned. ( 19 ) HAVING regard to the above discussion, we are of the view that the view taken by the learned trial Judge on the principal contention urged in the petition before him cannot be sustained and, in our view, the orders passed by the Deputy Commissioner in second appeal on 16th April, 1965, were clearly revisable by the Commissioner under section 57 (1) (a) of the Act. ( 20 ) THE third contention pertained to the plea of absence of mens rea and the contention was that having regard to the facts which obtained in the case it could not be said that the petitioner-company had collected sales tax knowing that such collection was illegal or had guilty conscience in collecting such tax recoverable from the parties. However, Mr. Chagla appearing for the respondents did not press this contention, especially in view of the amended provisions of sub-section (6) of section 38 of the Act that has been retrospectively introduced in the provisions of the Act. ### Response: 1 ### Explanation: order passed by such officer appointed by the government under section 41 (1) of the Act. The Supreme Court has further made it clear in its judgment that the question that were raised before it depended upon construction of certain relevant provisions of the Act and it was on such construction that the view was taken that the state Government could not exercise its revisional jurisdiction under section 42 of the Act. In our view, the ratio of that decision, therefore, cannot apply to the instant case before us which arose under a taxing statute like the Bombay Sales Tax Act, 1959, under which apart from making a provision for appointing a number of officers for carrying out the purposes of the Act, the hierarchy of such officers has been indicated, the subordination of such officers, inter se, has been indicated and the Act provides for complete code of remedies available to a person who is aggrieved by any order passed by any officer under the Act. In the first place, therefore, the supreme Court decision dealt with an enactment which was a different type altogether than theof the enactment with which we are concerned in this case. Secondly, the decision of the Supreme Court depended upon the proper construction of the relevant provisions of sections 41 (1) and 42 of the said Act whereas, in the instant case, we are concerned with the provisions contained in sections 20 (5), (6) and (8), 55 and 57 of the Act. The scheme which is obtained under the Bombay Sales Tax Act is entirely different from the scheme which obtained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, and it is in view of the scheme and from the examination of the relevant provisions of the Act in this case that we will have to consider what interpretation should be put upon the provisions contained in section 20 (5) of the Act. In other words, the provisions contained in the East Punjab holdings (Consolidation and Prevention of Fragmentation) Act, 1948, could never be regarded as being in pari materia anywhere similar to the provisions contained in the Act with which we are concerned. Placed in such a situation, what rule of interpretation could be applied has been clearly stated in the following passage occurring in Craies on Statute Law, 7th Ed. , p. 133, to which our attention was invited by the learnedThe relevant passage runs as follows : "in the interpretation of statutes the courts decline to consider other statutes proceeding on different lines and including different provisions, or the judicial decisions thereon. Thus in Re lord Gerards Settled Estate ([1893] 3 Ch. 252.), the Court of Appeal held that the Settled Land acts formed a code applicable to thewith which they dealt, and that a decision on the Lands Clauses Act, 1845, was not applicable for their interpretation, because that Act was passed alio intuitu, and dealt with a differentLord Macnaghten, when discussing the phraseology of two Revenue Acts, said in Inland Revenue Commissioners v. Forrest ( (1890)15 App. Cas. 334, 353.) : the two Acts differ widely in their scope; and even when they happen to deal with the same subject their wording is not the same. It was argued, indeed, that the language was "practically identical"; but that expression, to my mind, involves an admission that the language is different, and in 1955 Lord Reid said : it does not necessarily follow that if parliament uses the same words in quite a different context they must retain the same meaning. "( 18 ) IN our view, therefore, having regard to the fact that the statute with which we are concerned is a taxing statute and contains provisions of different types altogether, then what was contained in the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, which was dealt by the Supreme Court, the ratio of that decision would clearly be inapplicable to this case, where we are concerned with the proper interpretation to be placed upon the provisions in section 20 (5) read with sections 55 and 57 of the Act. Incidentally, it may be pointed out that under section 41 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation)Act, 1948, power had been conferred upon the State Government to appoint as many persons as it thought fit for proper administration of the Act and the State Government could delegate any of its powers or functions under the Act to any of its officers either by name or designation and it was in the context of such provisions which enabled the State Government to appoint as many officers as it liked to whom powers could be delegated by it that the Supreme Court took the view that there was scope for repeated interference by way of revision forever. As we have pointed above, the scheme of the Act with which we are concerned is nowhere near the aforesaid provisions. Under section 20 the officers having specified designations have been contemplated to be appointed by the State Government for carrying out the purposes of the Act and their hierarchy has been indicated and the subordination, inter se, has also been indicated and it is in the context of the hierarchy and the subordination, inter se, of officers that the provisions of sections 55 and 57 have to be understood. We are, therefore, clearly of the view that there would be no question of there being any scope for repeated interference by way of revisional jurisdiction arising under the provisions of the Act with which we are19 ) HAVING regard to the above discussion, we are of the view that the view taken by the learned trial Judge on the principal contention urged in the petition before him cannot be sustained and, in our view, the orders passed by the Deputy Commissioner in second appeal on 16th April, 1965, were clearly revisable by the Commissioner under section 57 (1) (a) of the Act.

Dr. Kazimunnisa (Dead) By L.R Vs. Zakia Sultana (Dead) By L.R.& Others

petition filed by the appellant against the judgment dated 23.10.2008 passed in LGC No. 50/2004 and affirmed the judgment of Special Court dated 23.10.2008. 22) The effect of the impugned judgment of the High Court is that both LGCs, i.e., 41/1994 and 50/2004 filed by the respondents against the appellant stand decreed in relation to the respective suit land involved in both the applications and the original appellant herein has to restore the possession of the portion of the suit lands which is in her possession to the respondents. 23) Felt aggrieved, the original appellant has challenged the impugned common judgment of the High Court by way of appeal by special leave before this Court. 24) Heard Mr. Huzefa Ahmadi, learned senior counsel for the appellant and Mr. Basava Prabhu Patil, learned senior counsel for respondent Nos.3,7 and 8, Mr. Shanti Bhushan, learned senior counsel for respondent No.2 and Mr. P. Venkat Reddy, learned counsel for respondent Nos.4 & 5. 25) Having heard the learned senior counsel for the parties at length and on perusal of their written submissions and the record of the case, we are inclined to allow the appeals in part and while setting aside of the impugned judgment of the High Court and also of the Special Court in both the cases (L.G.C. Nos.41/1994 and 50/2004) remand both the LGCs to Special Court for their disposal afresh on merits in accordance with law as indicated below. 26) In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons. 27) First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases. 28) It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting orders - one was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case. 29) Indeed, in our view, this was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code. 30) Second, we find that the case which was filed first, i.e.,(L.G.C.No.41/1994), the District Collector and the Special Officer, Urban Land Ceiling, Hyderabad were rightly made parties -non-applicants by the respondents whereas in other case, i.e., (L.G.C. No.50/2004) filed subsequently, both the State authorities were not made parties for the reasons best known to the respondents. 31) In our opinion, these two State authorities should also have been arrayed as non-applicants in the second case, i.e., LGC No. 50/2004 like the earlier one to maintain parity in both the cases. The parties so also the Courts below overlooked this aspect though material for the proper disposal of both the cases. 32) Third, we find that though the District Collector filed his counter affidavit in first case (LGC No.41/1994) in which he not only denied the respondents title but also pointed out as to who was the original owner of the suit land but neither the respondents countered these averments nor the District Collector adduced any evidence to prove the averments. 33) Similarly, no counter affidavit was filed in second case (LGC 50/2004) by the District Collector because he was not made party in the case. This was another infirmity in the trial of both the cases, which resulted in passing conflicting decisions in both the cases. 34) This was neither noticed by the Special Court nor High Court which resulted in recording reversing finding on the same set of facts and evidence. 35) Fourth, we also find that the issue of maintainability of application and also issue of limitation in filing the two applications by the respondents under the Act should also have been decided along with other issues. 36) Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court. 37) The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition. 38) In the light of aforementioned five reasons, we have formed an opinion that the trial in both the cases was unsatisfactory inasmuch as it caused prejudice to the parties and especially to the one who lost the case. It is for these reasons, we do not consider it proper to probe at this stage the entire factual issues argued by the learned counsel for the parties at great length with reference to the pleadings and the evidence of the parties. We also do not consider it proper to record any finding on merits either way and leave the parties to contest the case before the Special Court de novo on merits. 39)

1[ds]25) Having heard the learned senior counsel for the parties at length and on perusal of their written submissions and the record of the case, we are inclined to allow the appeals in part and while setting aside of the impugned judgment of the High Court and also of the Special Court in both the cases (L.G.C. Nos.41/1994 and 50/2004) remand both the LGCs to Special Court for their disposal afresh on merits in accordance with law as indicated below26) In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons27) First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases28) It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting ordersone was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case29) Indeed, in our view, this was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code30) Second, we find that the case which was filed first, i.e.,(L.G.C.No.41/1994), the District Collector and the Special Officer, Urban Land Ceiling, Hyderabad were rightly made partiess by the respondents whereas in other case, i.e., (L.G.C. No.50/2004) filed subsequently, both the State authorities were not made parties for the reasons best known to the respondents31) In our opinion, these two State authorities should also have been arrayed ass in the second case, i.e., LGC No. 50/2004 like the earlier one to maintain parity in both the cases. The parties so also the Courts below overlooked this aspect though material for the proper disposal of both the cases32) Third, we find that though the District Collector filed his counter affidavit in first case (LGC No.41/1994) in which he not only denied the respondents title but also pointed out as to who was the original owner of the suit land but neither the respondents countered these averments nor the District Collector adduced any evidence to prove the averments33) Similarly, no counter affidavit was filed in second case (LGC 50/2004) by the District Collector because he was not made party in the case. This was another infirmity in the trial of both the cases, which resulted in passing conflicting decisions in both the cases34) This was neither noticed by the Special Court nor High Court which resulted in recording reversing finding on the same set of facts and evidence35) Fourth, we also find that the issue of maintainability of application and also issue of limitation in filing the two applications by the respondents under the Act should also have been decided along with other issues36) Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court37) The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition38) In the light of aforementioned five reasons, we have formed an opinion that the trial in both the cases was unsatisfactory inasmuch as it caused prejudice to the parties and especially to the one who lost the case. It is for these reasons, we do not consider it proper to probe at this stage the entire factual issues argued by the learned counsel for the parties at great length with reference to the pleadings and the evidence of the parties. We also do not consider it proper to record any finding on merits either way and leave the parties to contest the case before the Special Court de novo on merits.

### 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: petition filed by the appellant against the judgment dated 23.10.2008 passed in LGC No. 50/2004 and affirmed the judgment of Special Court dated 23.10.2008. 22) The effect of the impugned judgment of the High Court is that both LGCs, i.e., 41/1994 and 50/2004 filed by the respondents against the appellant stand decreed in relation to the respective suit land involved in both the applications and the original appellant herein has to restore the possession of the portion of the suit lands which is in her possession to the respondents. 23) Felt aggrieved, the original appellant has challenged the impugned common judgment of the High Court by way of appeal by special leave before this Court. 24) Heard Mr. Huzefa Ahmadi, learned senior counsel for the appellant and Mr. Basava Prabhu Patil, learned senior counsel for respondent Nos.3,7 and 8, Mr. Shanti Bhushan, learned senior counsel for respondent No.2 and Mr. P. Venkat Reddy, learned counsel for respondent Nos.4 & 5. 25) Having heard the learned senior counsel for the parties at length and on perusal of their written submissions and the record of the case, we are inclined to allow the appeals in part and while setting aside of the impugned judgment of the High Court and also of the Special Court in both the cases (L.G.C. Nos.41/1994 and 50/2004) remand both the LGCs to Special Court for their disposal afresh on merits in accordance with law as indicated below. 26) In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons. 27) First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases. 28) It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting orders - one was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case. 29) Indeed, in our view, this was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code. 30) Second, we find that the case which was filed first, i.e.,(L.G.C.No.41/1994), the District Collector and the Special Officer, Urban Land Ceiling, Hyderabad were rightly made parties -non-applicants by the respondents whereas in other case, i.e., (L.G.C. No.50/2004) filed subsequently, both the State authorities were not made parties for the reasons best known to the respondents. 31) In our opinion, these two State authorities should also have been arrayed as non-applicants in the second case, i.e., LGC No. 50/2004 like the earlier one to maintain parity in both the cases. The parties so also the Courts below overlooked this aspect though material for the proper disposal of both the cases. 32) Third, we find that though the District Collector filed his counter affidavit in first case (LGC No.41/1994) in which he not only denied the respondents title but also pointed out as to who was the original owner of the suit land but neither the respondents countered these averments nor the District Collector adduced any evidence to prove the averments. 33) Similarly, no counter affidavit was filed in second case (LGC 50/2004) by the District Collector because he was not made party in the case. This was another infirmity in the trial of both the cases, which resulted in passing conflicting decisions in both the cases. 34) This was neither noticed by the Special Court nor High Court which resulted in recording reversing finding on the same set of facts and evidence. 35) Fourth, we also find that the issue of maintainability of application and also issue of limitation in filing the two applications by the respondents under the Act should also have been decided along with other issues. 36) Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court. 37) The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition. 38) In the light of aforementioned five reasons, we have formed an opinion that the trial in both the cases was unsatisfactory inasmuch as it caused prejudice to the parties and especially to the one who lost the case. It is for these reasons, we do not consider it proper to probe at this stage the entire factual issues argued by the learned counsel for the parties at great length with reference to the pleadings and the evidence of the parties. We also do not consider it proper to record any finding on merits either way and leave the parties to contest the case before the Special Court de novo on merits. 39) ### Response: 1 ### Explanation: 25) Having heard the learned senior counsel for the parties at length and on perusal of their written submissions and the record of the case, we are inclined to allow the appeals in part and while setting aside of the impugned judgment of the High Court and also of the Special Court in both the cases (L.G.C. Nos.41/1994 and 50/2004) remand both the LGCs to Special Court for their disposal afresh on merits in accordance with law as indicated below26) In our considered opinion, the need to remand the aforementioned two LGCs to the Special Court is considered necessary due to the following reasons27) First, we find that the trial of the two cases before the Special Court was not satisfactory inasmuch as when admittedly two LGCs (41/1994 and 50/2004) arising between the same parties and in relation to the same piece of suit land were filed for grant of identical reliefs under the Act then, in our view, both the cases should have been clubbed together for their disposal on merits in accordance with law to avoid any conflicting decision in both the cases28) It was more so when both the cases were capable of being clubbed together because both were pending though filed one after the other, neither the parties nor the Courts below took note of this with the result, the same resulted in passing two conflicting ordersone was decreed and the other suffered dismissal. This recourse adopted by the Court below caused prejudice to the parties and, especially, to the party who lost the case29) Indeed, in our view, this was an appropriate case where the provisions of Order II Rule 3 of the Code, which deals with joinder of causes of action, could have been resorted to by the Court suo moto for clubbing the two cases as the facts involved in both the cases satisfied the attributes of Order II Rule 3 of the Code30) Second, we find that the case which was filed first, i.e.,(L.G.C.No.41/1994), the District Collector and the Special Officer, Urban Land Ceiling, Hyderabad were rightly made partiess by the respondents whereas in other case, i.e., (L.G.C. No.50/2004) filed subsequently, both the State authorities were not made parties for the reasons best known to the respondents31) In our opinion, these two State authorities should also have been arrayed ass in the second case, i.e., LGC No. 50/2004 like the earlier one to maintain parity in both the cases. The parties so also the Courts below overlooked this aspect though material for the proper disposal of both the cases32) Third, we find that though the District Collector filed his counter affidavit in first case (LGC No.41/1994) in which he not only denied the respondents title but also pointed out as to who was the original owner of the suit land but neither the respondents countered these averments nor the District Collector adduced any evidence to prove the averments33) Similarly, no counter affidavit was filed in second case (LGC 50/2004) by the District Collector because he was not made party in the case. This was another infirmity in the trial of both the cases, which resulted in passing conflicting decisions in both the cases34) This was neither noticed by the Special Court nor High Court which resulted in recording reversing finding on the same set of facts and evidence35) Fourth, we also find that the issue of maintainability of application and also issue of limitation in filing the two applications by the respondents under the Act should also have been decided along with other issues36) Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first Appellate Court by appreciating the entire evidence little realizing that the jurisdiction of the High Court while deciding the writ Petition under Article 227 is not akin to appeal and nor it can decide the writ petition like an Appellate Court37) The writ petition, in our opinion, should have been decided by the High Court keeping in view the scope and ambit of Article 227 for its exercise as explained by this Court consistently in series of decisions while examining the legality and correctness of judgment of Special Court impugned in the writ petition38) In the light of aforementioned five reasons, we have formed an opinion that the trial in both the cases was unsatisfactory inasmuch as it caused prejudice to the parties and especially to the one who lost the case. It is for these reasons, we do not consider it proper to probe at this stage the entire factual issues argued by the learned counsel for the parties at great length with reference to the pleadings and the evidence of the parties. We also do not consider it proper to record any finding on merits either way and leave the parties to contest the case before the Special Court de novo on merits.

Navnit Lal Manilal Bhat Vs. Union of India & Others

Alagiriswami, J.1. This appeal by Certificate against the judgment of the High Court of Gujarat dismissing the plaintiffs writ petition questioning the order of the Divisional Superintendent of Western Railway directing him to retire on his attaining the age of 55 could be disposed of on the basis of the judgment of this Court in Railway Board v. A. Pitchumani, AIR 1972 SC 508 . The facts necessary for disposing of this appeal may be shortly stated.2. The appellant entered the service of the B.B. and C. I. Railway on 30-11-1929 as a probationary Assistant Booking Clerk. On 1-1-1942 this Railway was taken over by the Central Government. At that time the appellant executed a service agreement which, among other things, preserved for him the leave privileges he was entitled to while serving under the Company. The age of retirement under the Company was 55 years as indeed it was for Government servants also. This age of retirement was made a specific clause of the agreement. On 5-12-62 the age of retirement of all Railway servants, without any distinction, was raised to 58. On 26-4-1963 the Railway Board issued a circular on the question of application of age of retirement under Rule 2046 of the Railway Establishment Code. On the basis of this circular the appellant was asked to retire on attaining the age of 55, as mentioned earlier. Before the High Court this circular of 26-4-1963 was urged as being a Rule made by the President and accepting this contention the High Court dismissed the appellants writ petition.3. The facts of the case in the decision of this Court, earlier referred to, are exactly the same. There also the Railway servant concerned had originally entered the service with the Madras and Southern Mahratta Railway Company. The subsequent history was also the same. The Rule which fell to be considered was also the same rule as amended on 5-12-1962. A subsequent amendment of that Rule which took away the benefit conferred on ex-company employees, as in the present case, was held to be violative of Art. 14 of the Constitution, and was struck down. It is unnecessary to quote at length from that judgment.4. The circular of the Railway Board dated 26-4-1963 picked out one section of the Railway employees which were governed by Rule 2046 of the Railway Establishment Code, as amended on 5-12-1962 and subjected them to hostile treatment. As observed in the decision referred to above, while there might be a reasonable classification of Railway servants as ex-company employees and others, there is no nexus or relation between the classification and the object sought to be achieved. It was sought to be argued in this case that the leave privileges of ex-company employees which were protected when those railway companies were taken over by the Government gave them an advantage of availing themselves of their leave after retirement, which privilege was not available to regular Government employees of Railways and this was a basis for the distinction. But then between 1-1-1942, when persons like the appellant became Government servants, till 5-12-1962 when the Rule 2046 of the Railway Establishment Code was amended, the ex-company employees had the same advantage over the other employees of the Railways. That situation did not change on 5-12-62. It did not, therefore, mean that if the benefit of the extended age of superannuation were given to ex-company employees they would get an advantage which other employees did not get. We have no doubt that if the decision of this Court had been rendered when the Gujarat High Court disposed of this writ petition the petitioner would have succeeded before that Court. We do not want to add to what has been discussed elaborately in that decision.

1[ds]4. The circular of the Railway Board datedpicked out one section of the Railway employees which were governed by Rule 2046 of the Railway Establishment Code, as amended onand subjected them to hostile treatment. As observed in the decision referred to above, while there might be a reasonable classification of Railway servants asemployees and others, there is no nexus or relation between the classification and the object sought to be achieved. It was sought to be argued in this case that the leave privileges ofemployees which were protected when those railway companies were taken over by the Government gave them an advantage of availing themselves of their leave after retirement, which privilege was not available to regular Government employees of Railways and this was a basis for the distinction. But then betweenwhen persons like the appellant became Government servants, tillwhen the Rule 2046 of the Railway Establishment Code was amended, theemployees had the same advantage over the other employees of the Railways. That situation did not change onIt did not, therefore, mean that if the benefit of the extended age of superannuation were given toemployees they would get an advantage which other employees did not get. We have no doubt that if the decision of this Court had been rendered when the Gujarat High Court disposed of this writ petition the petitioner would have succeeded before that Court. We do not want to add to what has been discussed elaborately in that decision.

### 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: Alagiriswami, J.1. This appeal by Certificate against the judgment of the High Court of Gujarat dismissing the plaintiffs writ petition questioning the order of the Divisional Superintendent of Western Railway directing him to retire on his attaining the age of 55 could be disposed of on the basis of the judgment of this Court in Railway Board v. A. Pitchumani, AIR 1972 SC 508 . The facts necessary for disposing of this appeal may be shortly stated.2. The appellant entered the service of the B.B. and C. I. Railway on 30-11-1929 as a probationary Assistant Booking Clerk. On 1-1-1942 this Railway was taken over by the Central Government. At that time the appellant executed a service agreement which, among other things, preserved for him the leave privileges he was entitled to while serving under the Company. The age of retirement under the Company was 55 years as indeed it was for Government servants also. This age of retirement was made a specific clause of the agreement. On 5-12-62 the age of retirement of all Railway servants, without any distinction, was raised to 58. On 26-4-1963 the Railway Board issued a circular on the question of application of age of retirement under Rule 2046 of the Railway Establishment Code. On the basis of this circular the appellant was asked to retire on attaining the age of 55, as mentioned earlier. Before the High Court this circular of 26-4-1963 was urged as being a Rule made by the President and accepting this contention the High Court dismissed the appellants writ petition.3. The facts of the case in the decision of this Court, earlier referred to, are exactly the same. There also the Railway servant concerned had originally entered the service with the Madras and Southern Mahratta Railway Company. The subsequent history was also the same. The Rule which fell to be considered was also the same rule as amended on 5-12-1962. A subsequent amendment of that Rule which took away the benefit conferred on ex-company employees, as in the present case, was held to be violative of Art. 14 of the Constitution, and was struck down. It is unnecessary to quote at length from that judgment.4. The circular of the Railway Board dated 26-4-1963 picked out one section of the Railway employees which were governed by Rule 2046 of the Railway Establishment Code, as amended on 5-12-1962 and subjected them to hostile treatment. As observed in the decision referred to above, while there might be a reasonable classification of Railway servants as ex-company employees and others, there is no nexus or relation between the classification and the object sought to be achieved. It was sought to be argued in this case that the leave privileges of ex-company employees which were protected when those railway companies were taken over by the Government gave them an advantage of availing themselves of their leave after retirement, which privilege was not available to regular Government employees of Railways and this was a basis for the distinction. But then between 1-1-1942, when persons like the appellant became Government servants, till 5-12-1962 when the Rule 2046 of the Railway Establishment Code was amended, the ex-company employees had the same advantage over the other employees of the Railways. That situation did not change on 5-12-62. It did not, therefore, mean that if the benefit of the extended age of superannuation were given to ex-company employees they would get an advantage which other employees did not get. We have no doubt that if the decision of this Court had been rendered when the Gujarat High Court disposed of this writ petition the petitioner would have succeeded before that Court. We do not want to add to what has been discussed elaborately in that decision. ### Response: 1 ### Explanation: 4. The circular of the Railway Board datedpicked out one section of the Railway employees which were governed by Rule 2046 of the Railway Establishment Code, as amended onand subjected them to hostile treatment. As observed in the decision referred to above, while there might be a reasonable classification of Railway servants asemployees and others, there is no nexus or relation between the classification and the object sought to be achieved. It was sought to be argued in this case that the leave privileges ofemployees which were protected when those railway companies were taken over by the Government gave them an advantage of availing themselves of their leave after retirement, which privilege was not available to regular Government employees of Railways and this was a basis for the distinction. But then betweenwhen persons like the appellant became Government servants, tillwhen the Rule 2046 of the Railway Establishment Code was amended, theemployees had the same advantage over the other employees of the Railways. That situation did not change onIt did not, therefore, mean that if the benefit of the extended age of superannuation were given toemployees they would get an advantage which other employees did not get. We have no doubt that if the decision of this Court had been rendered when the Gujarat High Court disposed of this writ petition the petitioner would have succeeded before that Court. We do not want to add to what has been discussed elaborately in that decision.

Dev Raj Dogra And Ors Vs. Gyan Chand Jain And Ors

Code of Civil Proce­dure, and the Court did not have to consider the scope and effect of a pro­ceeding under Order XXI Rule 95 and 96 of the Code of Civil Procedure.23. In our opinion, it cannot, therefore, be said that: these two decisions of this Court conclude the question involved in the present appeal before us.24. It may be true that Section 52 and Section 65A of the Transfer of Property Act operate in different spheres. Section 65A, as we have earlier ‘noticed deals with the powers of the mortgagor to grant a lease of the mortgaged property, while the mortgagor remains in lawful possession of the same. Section 52 deals with cases of transfer of or otherwise dealing with any immovable property after any suit or proceeding in which any right to the said immovable property is directly and specifically in question, has been filed. It is also to be noted that Section 65A which came to be inserted by the Amending Act, 1929, is neither made ‘subject to’ nor not withstanding the provisions cotitained in Section 52 of the Act. Section 52 will, however, be only applicable, if the requirements of the said section are satisfied. We have earlier noticed what the requirements of the said section are. In the instant case, it does not became necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of Section 65A of the Transfer of Property Act during the pendency of a suit by the mortgagee to enforce the mortgage will attract the provisions of Section 52 of the Act or will be outside the mischief of the provisions of the said section on the ground that the creation of such a lease may not affect the rights of the mortgagee under any decree or order which may be passed in the suit. We have earlier quoted the observations of this Court in the case of Mangru Mahto (supra) and it will be noticed that the Supreme Court in the said case did not decide this question and left this question open. In the instant case an out-side auction-purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said portions. The auction-purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the rights of the parties to the suit or proceed­ing. In this connection it may be noted that this Court in the case of Jayaram Mudaliar (supra) held at p. 163 as follows :—“It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers of rights which are subject-matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto. Hence it could be urged that where it is not a party to the litigation but an outside agency, such as the tax collecting authorities of the Govern­ment, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward”.25. The auction-purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him. The mode and manner of obtaining such possession are regulated by Rule 95 and 96 of the Code of Civil Procedure. It is of interest to note that in the instant case, the auction purchaser had applied for obtain­ing possession under Rule 95 which provides for actual possession and also under Rule 96 which provides for symbolic possession. We have earlier set out the provisions of these two rules. In the facts and circumstances of this case, the auction purchaser, in view of the provisions contained in Rule 95 which regu­lates the rights of the auction-purchaser to obtain physical possession of the property purchased, as not entitled to recover the physical possession of the portions in the occupation of the appellants as tenants. The appellants are not the judgment-debtors. They are not in occupation of the property on behalf of the judgment-debtor. They are also not claiming to be in occupa­tion under a title created by the judgment-debtor subsequently to any attach­ment of the property. There has been no question of any attachment in the instant case. The appellants are in the occupation of the respective portions as tenants and they claim to occupy the same as such. The question of validity or otherwise of the tenancy may have to be considered and determi­ned in an appropriate proceeding. In the present proceeding, the auction-purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale, is not entitled to recover physical possession from the appellants in view of the provisions contained in Order XXI Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI Rule 96 in respect of the portions in occupation of the appellants.26.

1[ds]We shall now proceed to consider the decision of this Court in the case of M/s, Supreme General Films Exchange Lid. v. His Highness Maharaja Sir Brijnath Singh Deo of Maihar and Ors. (supra) and also the decision of this Court in Jayaram Mudaliar v. Ayya Swami and Ors (supra). In the case of M/s. Supreme General Films Exchange Ltd , the plaintiff-respondent who were the mortgagees of a cinema theatre of which the appellant Supreme General Films Exchange Ltd. claimed to be a lessee in occupation., had filed a suit against the mortgagor and a decree by compromise had been passed in the said suit on 7th May, 1960. By the said compromise decree it was agreed that the amounts due to the mortgagee decree-holder would be realised by the sale of the theatre. The Central Bank of India, another creditor of the mortgagor, assigned its rights under the decree to the plaintiff decree-holder. The theatre was attached in the course of execution of the decree. The original lease of 1940 on the basis of which the appellant, the Supreme General Films Exchange Ltd. had entered into possession, expired in 1946 but thereafter the Company had continued in possession as a tenant holding over until the impugned lease-deed of 1956 in favour of the company was executed. The company filed a suit in 1954 for specific performance of the agreement to lease and the lease deed of 1956 was executed in compliance with the terms of the compromise decree passed in the said suit filed by the appellant company. In the said suit for specific performance by thecompany, the plaintiff mortgagee was not impleaded as a party. The plaintiff mortgagee thereafter filed a suit claiming that the lease of 1956 was void as the same came within the mischief of Sections 52 and 65A of the Transfer of Property Act and also Section 64 of theCode of Civil Procedure.The appellant company contested the said suit contending inter alia that the suit of this nature filed by the plaintiff mortgagee did not lie as it feel outside the purview of Section 42 of the Specific Relief Act. The Trial Court decreed the said suit of the plaintiff mortgagee and granted the declaration asked for. The appellant-company preferred an appeal against the decree of the Trial Court to the High Court which dismissed the said appeal. Thereafter the appellant company filed a further appeal to this Court by special leave granted by this Court. This Court for reasons recorded in the judgment held that the plaintiff was entitled to the declaration asked for on proper construction of Section 42 of the Specific Relief Act. One of the contentions which was raised on behalf of the appellant in this Court was that Section 52 of the Transfer ofAct was not attracted to the lease inour opinion, it cannot, therefore, be said that: these two decisions of this Court conclude the question involved in the present appeal beforemay be true that Section 52 and Section 65A of the Transfer of Property Act operate in different spheres. Section 65A, as we have earlier ‘noticed deals with the powers of the mortgagor to grant a lease of the mortgaged property, while the mortgagor remains in lawful possession of the same. Section 52 deals with cases of transfer of or otherwise dealing with any immovable property after any suit or proceeding in which any right to the said immovable property is directly and specifically in question, has been filed. It is also to be noted that Section 65A which came to be inserted by the Amending Act, 1929, is neither made ‘subjectnor not withstanding the provisions cotitained in Section 52 of the Act. Section 52 will, however, be only applicable, if the requirements of the said section are satisfied. We have earlier noticed what the requirements of the said section are. In the instant case, it does not became necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of Section 65A of the Transfer of Property Act during the pendency of a suit by the mortgagee to enforce the mortgage will attract the provisions of Section 52 of the Act or will be outside the mischief of the provisions of the said section on the ground that the creation of such a lease may not affect the rights of the mortgagee under any decree or order which may be passed in the suit. We have earlier quoted the observations of this Court in the case of Mangru Mahto (supra) and it will be noticed that the Supreme Court in the said case did not decide this question and left this question open. In the instant case an out-side auction-purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said portions. The auction-purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the rights of the parties to the suit orauction-purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him. The mode and manner of obtaining such possession are regulated by Rule 95 and 96 of theCode of Civil Procedure.It is of interest to note that in the instant case, the auction purchaser had applied forpossession under Rule 95 which provides for actual possession and also under Rule 96 which provides for symbolic possession. We have earlier set out the provisions of these two rules. In the facts and circumstances of this case, the auction purchaser, in view of the provisions contained in Rule 95 whichthe rights of the auction-purchaser to obtain physical possession of the property purchased, as not entitled to recover the physical possession of the portions in the occupation of the appellants as tenants. The appellants are not the judgment-debtors. They are not in occupation of the property on behalf of the judgment-debtor. They are also not claiming to be inunder a title created by the judgment-debtor subsequently to anyof the property. There has been no question of any attachment in the instant case. The appellants are in the occupation of the respective portions as tenants and they claim to occupy the same as such. The question of validity or otherwise of the tenancy may have to be considered andin an appropriate proceeding. In the present proceeding, the auction-purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale, is not entitled to recover physical possession from the appellants in view of the provisions contained in Order XXI Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI Rule 96 in respect of the portions in occupation of the appellants.

### 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: Code of Civil Proce­dure, and the Court did not have to consider the scope and effect of a pro­ceeding under Order XXI Rule 95 and 96 of the Code of Civil Procedure.23. In our opinion, it cannot, therefore, be said that: these two decisions of this Court conclude the question involved in the present appeal before us.24. It may be true that Section 52 and Section 65A of the Transfer of Property Act operate in different spheres. Section 65A, as we have earlier ‘noticed deals with the powers of the mortgagor to grant a lease of the mortgaged property, while the mortgagor remains in lawful possession of the same. Section 52 deals with cases of transfer of or otherwise dealing with any immovable property after any suit or proceeding in which any right to the said immovable property is directly and specifically in question, has been filed. It is also to be noted that Section 65A which came to be inserted by the Amending Act, 1929, is neither made ‘subject to’ nor not withstanding the provisions cotitained in Section 52 of the Act. Section 52 will, however, be only applicable, if the requirements of the said section are satisfied. We have earlier noticed what the requirements of the said section are. In the instant case, it does not became necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of Section 65A of the Transfer of Property Act during the pendency of a suit by the mortgagee to enforce the mortgage will attract the provisions of Section 52 of the Act or will be outside the mischief of the provisions of the said section on the ground that the creation of such a lease may not affect the rights of the mortgagee under any decree or order which may be passed in the suit. We have earlier quoted the observations of this Court in the case of Mangru Mahto (supra) and it will be noticed that the Supreme Court in the said case did not decide this question and left this question open. In the instant case an out-side auction-purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said portions. The auction-purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the rights of the parties to the suit or proceed­ing. In this connection it may be noted that this Court in the case of Jayaram Mudaliar (supra) held at p. 163 as follows :—“It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers of rights which are subject-matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto. Hence it could be urged that where it is not a party to the litigation but an outside agency, such as the tax collecting authorities of the Govern­ment, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward”.25. The auction-purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him. The mode and manner of obtaining such possession are regulated by Rule 95 and 96 of the Code of Civil Procedure. It is of interest to note that in the instant case, the auction purchaser had applied for obtain­ing possession under Rule 95 which provides for actual possession and also under Rule 96 which provides for symbolic possession. We have earlier set out the provisions of these two rules. In the facts and circumstances of this case, the auction purchaser, in view of the provisions contained in Rule 95 which regu­lates the rights of the auction-purchaser to obtain physical possession of the property purchased, as not entitled to recover the physical possession of the portions in the occupation of the appellants as tenants. The appellants are not the judgment-debtors. They are not in occupation of the property on behalf of the judgment-debtor. They are also not claiming to be in occupa­tion under a title created by the judgment-debtor subsequently to any attach­ment of the property. There has been no question of any attachment in the instant case. The appellants are in the occupation of the respective portions as tenants and they claim to occupy the same as such. The question of validity or otherwise of the tenancy may have to be considered and determi­ned in an appropriate proceeding. In the present proceeding, the auction-purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale, is not entitled to recover physical possession from the appellants in view of the provisions contained in Order XXI Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI Rule 96 in respect of the portions in occupation of the appellants.26. ### Response: 1 ### Explanation: possession, expired in 1946 but thereafter the Company had continued in possession as a tenant holding over until the impugned lease-deed of 1956 in favour of the company was executed. The company filed a suit in 1954 for specific performance of the agreement to lease and the lease deed of 1956 was executed in compliance with the terms of the compromise decree passed in the said suit filed by the appellant company. In the said suit for specific performance by thecompany, the plaintiff mortgagee was not impleaded as a party. The plaintiff mortgagee thereafter filed a suit claiming that the lease of 1956 was void as the same came within the mischief of Sections 52 and 65A of the Transfer of Property Act and also Section 64 of theCode of Civil Procedure.The appellant company contested the said suit contending inter alia that the suit of this nature filed by the plaintiff mortgagee did not lie as it feel outside the purview of Section 42 of the Specific Relief Act. The Trial Court decreed the said suit of the plaintiff mortgagee and granted the declaration asked for. The appellant-company preferred an appeal against the decree of the Trial Court to the High Court which dismissed the said appeal. Thereafter the appellant company filed a further appeal to this Court by special leave granted by this Court. This Court for reasons recorded in the judgment held that the plaintiff was entitled to the declaration asked for on proper construction of Section 42 of the Specific Relief Act. One of the contentions which was raised on behalf of the appellant in this Court was that Section 52 of the Transfer ofAct was not attracted to the lease inour opinion, it cannot, therefore, be said that: these two decisions of this Court conclude the question involved in the present appeal beforemay be true that Section 52 and Section 65A of the Transfer of Property Act operate in different spheres. Section 65A, as we have earlier ‘noticed deals with the powers of the mortgagor to grant a lease of the mortgaged property, while the mortgagor remains in lawful possession of the same. Section 52 deals with cases of transfer of or otherwise dealing with any immovable property after any suit or proceeding in which any right to the said immovable property is directly and specifically in question, has been filed. It is also to be noted that Section 65A which came to be inserted by the Amending Act, 1929, is neither made ‘subjectnor not withstanding the provisions cotitained in Section 52 of the Act. Section 52 will, however, be only applicable, if the requirements of the said section are satisfied. We have earlier noticed what the requirements of the said section are. In the instant case, it does not became necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of Section 65A of the Transfer of Property Act during the pendency of a suit by the mortgagee to enforce the mortgage will attract the provisions of Section 52 of the Act or will be outside the mischief of the provisions of the said section on the ground that the creation of such a lease may not affect the rights of the mortgagee under any decree or order which may be passed in the suit. We have earlier quoted the observations of this Court in the case of Mangru Mahto (supra) and it will be noticed that the Supreme Court in the said case did not decide this question and left this question open. In the instant case an out-side auction-purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said portions. The auction-purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the rights of the parties to the suit orauction-purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him. The mode and manner of obtaining such possession are regulated by Rule 95 and 96 of theCode of Civil Procedure.It is of interest to note that in the instant case, the auction purchaser had applied forpossession under Rule 95 which provides for actual possession and also under Rule 96 which provides for symbolic possession. We have earlier set out the provisions of these two rules. In the facts and circumstances of this case, the auction purchaser, in view of the provisions contained in Rule 95 whichthe rights of the auction-purchaser to obtain physical possession of the property purchased, as not entitled to recover the physical possession of the portions in the occupation of the appellants as tenants. The appellants are not the judgment-debtors. They are not in occupation of the property on behalf of the judgment-debtor. They are also not claiming to be inunder a title created by the judgment-debtor subsequently to anyof the property. There has been no question of any attachment in the instant case. The appellants are in the occupation of the respective portions as tenants and they claim to occupy the same as such. The question of validity or otherwise of the tenancy may have to be considered andin an appropriate proceeding. In the present proceeding, the auction-purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale, is not entitled to recover physical possession from the appellants in view of the provisions contained in Order XXI Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI Rule 96 in respect of the portions in occupation of the appellants.

Municipal Corporation Of Greater Bombay Vs. The B.E.S.T. Workers' Union

Lab LJ 790 (Madh Pra) (supra). We have already referred to the fact that the Labour Court has relied on this decision as supporting its view. The said High Court had to consider the provisions of sub-section (3) of S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, hereinafter referred to as the Berar Act. The said Berar Act was enacted to make provision for the promotion of peaceful and amicable settlement of industrial disputes by conciliation and arbitration and for certain other purposes. Section 16 dealt with Reference of disputes to Labour Commissioner. Sub-section (1) provided that powers can be conferred on a Labour Commissioner by the State Government by notification to decide an industrial dispute etc. A right was conferred by sub-section (2) on an employee working in an industry, to which the notification applied, to invoke the jurisdiction of the Labour Commissioner for granting reinstatement and payment of compensation. The said sub-section further provided that such an application for this purpose had to be made by an employee within six months from the date of dismissal, etc. The material part of sub-section (3) was as follows :"On receipt of such application, if the Labour Commissioner after such enquiry as may be prescribed, finds that the dismissal, discharge, removal or suspension was in contravention of any of the provisions of this Act or in contravention of a standing order made or sanctioned under this Act or was for a fault or misconduct committed by the employee more than six months prior to the date of such dismissal, discharge, removal or suspension, he may direct..........".The reliefs that could be granted were substantially in the same terms as in paragraph (D) of the Act but in sub-section (3) of Section 16 of the Berar Act there is no provision regarding the fault or misconduct coming to the notice of the employer, as in cl. (i) of paragraph (D) of the Act. From the judgment of the Madhya Pradesh High Court, we find that a workman was dismissed for misconduct on August 31, 1956. The allegations of misconduct related to embezzlement of three sums of money. The last item of embezzlement was on June 28, 1955. The Labour Commissioner, whose jurisdiction was invoked by the workman, took the view that the employer came to know of the misconduct only on April 9, 1956 when the auditors report was received and hence the order of dismissal had been properly passed within six months from the date of knowledge. On a revision being filed by the workman, the State Industrial Court reversed the decision of the Labour Commissioner and set aside the order of dismissal holding that the question of knowledge does not come into the picture in view of the clear terms of sub-section (3). The employer challenged this decision before the High Court under Articles 226 and 227 of the Constitution. The only contention that was raised before the High Court, as is seen from the judgment, was that Section 16 (3) should be liber ally construed by allowing the management to establish that they obtained knowledge of the embezzlement only within a period of six months prior to passing the order of dismissal. The High Court rejected this contention on the ground that the statute is clear and that an employer cannot be permitted to put forward their own inaction in defence. Another reason given by the High Court for rejecting this contention was that the statute has prescribed a period of limitation for determining the services of a delinquent employee as a measure of punishment and that such a period of limitation cannot be enlarged or extended by a Court. The contention that has been placed before us on behalf of the appellant regarding the interpretation to be placed on Clause (i) of paragraph (D) of the Act, was not pleaded before the High Court. In the Act, there is a clear provision regarding the misconduct coming to the notice of the employer. A similar provision was not in the Berar Act. The High Court has interpreted S. 16 (3) in isolation without having due regard to the scheme of the Act and the context in which the said section occurs. The same principles laid down by us for interpreting Section 78 (1) (D) (i) of the Act should have been borne in mind in interpreting Section 16 (3) of the Berar Act also. For instance, in a particular case, an employer may be able to satisfy the Tribunal that he had been kept out of knowledge of the misconduct due to the fraud of the opposite party and, therefore, he came to know of the said misconduct only within a period of six months prior to the date of passing the order. Similarly an employer may also be able to satisfy the Tribunal about the reasons for the delay caused in passing the orders. These and similar circumstances have not been considered by the High Court. The view of the High Court that the provision in Section 16 (3) is a period of limitation is erroneous. As we are of the opinion that the decision of the Madhya Pradesh High Court is erroneous, the support sought by the Labour Court on this decision is of no avail.22. As pointed out by us earlier, the Labour Court has upheld all the contentions of the appellant on facts. In fact, as pointed out already it has also held that if it had power to condone the delay for passing the orders of dismissal, it would have unhesitatingly ordered the same. The appellant has properly explained the delay as having been caused beyond its control. The only ground on which the two orders of dismissal were set aside was because of the fact that they have been passed beyond the period of six months. From what is stated above, it follows that the interpretation placed by the Labour Court on Section 78 (1) (D) (i) is erroneous.

1[ds]A reading of Section 78 as a whole leaves the impression in our minds that the legislature wanted the provision to be a comprehensive one. It contains all the powers of the Labour Court in the matter of all disputes mentioned therein and it also gives jurisdiction to punish certain offences under the Act. The scheme of Section 78 (1) appears to be that a Labour Court has to have power to decide all the disputes covered by paragraph (A). Paragraph (B) gives the Labour Court power to try offences punishable under the Act and cognizance of such offences can only be taken under Section 82. Paragraph (C) and (D) set out what reliefs the Labour Courts are empowered to give including directions as may be found necessary in thatmust be stated that a very superficial reading of sub-clause (i) of clause (D) may support the contention of Mr. Gupte. But, in our opinion, that is not the way to interpret a provision in the statute. On the other hand, the relevant provisions will have to be construed in the context in which they appear and having due regard to the objects which are sought to be served by the Act in question. It cannot be doubted that for the purpose of deciding whether reinstatement with back wages has to be ordered or whether payment of compensation, in addition to back wages, without reinstatement has to be ordered, the Labour Court will have to consider the circumstances of a particular case and the nature of the misconduct alleged on the part of the employee as also the nature of contravention of any provision of law or standing order. If the Labour Court was bound to take into account all these circumstances to consider what type of relief has to be granted, we fail to see why the Labour Court is not entitled to consider the circumstances which led the management to the passing of the orders more than six months prior to the misconduct coming to the notice of an employer. In our opinion, it cannot be the object of the Act that notwithstanding the fact that the workman, who has been found guilty in a proper domestic enquiry and punished for such misconduct, has to be given relief either by way of reinstatement with back wages or compensation and back wages without reinstatement, when once he has shown that the order of punishment was passed beyond the period of six months referred to in Section 78 (1) (D) (i). Such a position is not warranted by the statute. Nor will it be conducive to industrial peace and the cordial relationship that should exist between an employer and andue regard to the various aspects discussed above, we are of the opinion that the provisions contained in Section 78 (1) (D) (i) are not mandatory but only directory. The Labour Court will certainly have power to give relief to an employee if an order of dismissal, etc. is passed by the employer after the expiry of six months from the date when the misconduct came to the notice of the employer provided the employer has not been diligent in initiating disciplinary proceedings and if he is not able to offer satisfactory and adequate reasons for the delay in passing the orders imposing punishment. The provision only emphasises that an employer should be vigilant in taking disciplinary action against an employee for misconduct, once the said misconduct has come to his notice and that, as far as possible, the proceedings including the final orders imposing punishment must all the completed within a period six months. This will be the normal rule. Such an interpretation does not impinge upon either the rights of an employer to initiate disciplinary action or the rights of an employee to have a proper and fair enquiry conducted against him. If the employer is able to satisfy a tribunal about the reasons for not being able to pass the order imposing punishment within the period of six months, the Tribunal has no power to set aside the order merely on the ground that the period of six months has elapsed.21. The Labour Court, in the case before us, has proceeded on the basis that the provision in S. 78 (1) (D) (i) is a period of limitation prescribed by the statute which cannot be extended or enlarged by the Court.This approach, in our opinion, is erroneous. There is no question of any period of limitation provided by the said provision nor does the question of extending or enlarging the period arises in thiscontention that has been placed before us on behalf of the appellant regarding the interpretation to be placed on Clause (i) of paragraph (D) of the Act, was not pleaded before the High Court. In the Act, there is a clear provision regarding the misconduct coming to the notice of the employer. A similar provision was not in the Berar Act. The High Court has interpreted S. 16 (3) in isolation without having due regard to the scheme of the Act and the context in which the said section occurs. The same principles laid down by us for interpreting Section 78 (1) (D) (i) of the Act should have been borne in mind in interpreting Section 16 (3) of the Berar Act also. For instance, in a particular case, an employer may be able to satisfy the Tribunal that he had been kept out of knowledge of the misconduct due to the fraud of the opposite party and, therefore, he came to know of the said misconduct only within a period of six months prior to the date of passing the order. Similarly an employer may also be able to satisfy the Tribunal about the reasons for the delay caused in passing the orders. These and similar circumstances have not been considered by the High Court. The view of the High Court that the provision in Section 16 (3) is a period of limitation is erroneous. As we are of the opinion that the decision of the Madhya Pradesh High Court is erroneous, the support sought by the Labour Court on this decision is of no avail.22. As pointed out by us earlier, the Labour Court has upheld all the contentions of the appellant on facts. In fact, as pointed out already it has also held that if it had power to condone the delay for passing the orders of dismissal, it would have unhesitatingly ordered the same. The appellant has properly explained the delay as having been caused beyond its control. The only ground on which the two orders of dismissal were set aside was because of the fact that they have been passed beyond the period of six months. From what is stated above, it follows that the interpretation placed by the Labour Court on Section 78 (1) (D) (i) is erroneous

### 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: Lab LJ 790 (Madh Pra) (supra). We have already referred to the fact that the Labour Court has relied on this decision as supporting its view. The said High Court had to consider the provisions of sub-section (3) of S. 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, hereinafter referred to as the Berar Act. The said Berar Act was enacted to make provision for the promotion of peaceful and amicable settlement of industrial disputes by conciliation and arbitration and for certain other purposes. Section 16 dealt with Reference of disputes to Labour Commissioner. Sub-section (1) provided that powers can be conferred on a Labour Commissioner by the State Government by notification to decide an industrial dispute etc. A right was conferred by sub-section (2) on an employee working in an industry, to which the notification applied, to invoke the jurisdiction of the Labour Commissioner for granting reinstatement and payment of compensation. The said sub-section further provided that such an application for this purpose had to be made by an employee within six months from the date of dismissal, etc. The material part of sub-section (3) was as follows :"On receipt of such application, if the Labour Commissioner after such enquiry as may be prescribed, finds that the dismissal, discharge, removal or suspension was in contravention of any of the provisions of this Act or in contravention of a standing order made or sanctioned under this Act or was for a fault or misconduct committed by the employee more than six months prior to the date of such dismissal, discharge, removal or suspension, he may direct..........".The reliefs that could be granted were substantially in the same terms as in paragraph (D) of the Act but in sub-section (3) of Section 16 of the Berar Act there is no provision regarding the fault or misconduct coming to the notice of the employer, as in cl. (i) of paragraph (D) of the Act. From the judgment of the Madhya Pradesh High Court, we find that a workman was dismissed for misconduct on August 31, 1956. The allegations of misconduct related to embezzlement of three sums of money. The last item of embezzlement was on June 28, 1955. The Labour Commissioner, whose jurisdiction was invoked by the workman, took the view that the employer came to know of the misconduct only on April 9, 1956 when the auditors report was received and hence the order of dismissal had been properly passed within six months from the date of knowledge. On a revision being filed by the workman, the State Industrial Court reversed the decision of the Labour Commissioner and set aside the order of dismissal holding that the question of knowledge does not come into the picture in view of the clear terms of sub-section (3). The employer challenged this decision before the High Court under Articles 226 and 227 of the Constitution. The only contention that was raised before the High Court, as is seen from the judgment, was that Section 16 (3) should be liber ally construed by allowing the management to establish that they obtained knowledge of the embezzlement only within a period of six months prior to passing the order of dismissal. The High Court rejected this contention on the ground that the statute is clear and that an employer cannot be permitted to put forward their own inaction in defence. Another reason given by the High Court for rejecting this contention was that the statute has prescribed a period of limitation for determining the services of a delinquent employee as a measure of punishment and that such a period of limitation cannot be enlarged or extended by a Court. The contention that has been placed before us on behalf of the appellant regarding the interpretation to be placed on Clause (i) of paragraph (D) of the Act, was not pleaded before the High Court. In the Act, there is a clear provision regarding the misconduct coming to the notice of the employer. A similar provision was not in the Berar Act. The High Court has interpreted S. 16 (3) in isolation without having due regard to the scheme of the Act and the context in which the said section occurs. The same principles laid down by us for interpreting Section 78 (1) (D) (i) of the Act should have been borne in mind in interpreting Section 16 (3) of the Berar Act also. For instance, in a particular case, an employer may be able to satisfy the Tribunal that he had been kept out of knowledge of the misconduct due to the fraud of the opposite party and, therefore, he came to know of the said misconduct only within a period of six months prior to the date of passing the order. Similarly an employer may also be able to satisfy the Tribunal about the reasons for the delay caused in passing the orders. These and similar circumstances have not been considered by the High Court. The view of the High Court that the provision in Section 16 (3) is a period of limitation is erroneous. As we are of the opinion that the decision of the Madhya Pradesh High Court is erroneous, the support sought by the Labour Court on this decision is of no avail.22. As pointed out by us earlier, the Labour Court has upheld all the contentions of the appellant on facts. In fact, as pointed out already it has also held that if it had power to condone the delay for passing the orders of dismissal, it would have unhesitatingly ordered the same. The appellant has properly explained the delay as having been caused beyond its control. The only ground on which the two orders of dismissal were set aside was because of the fact that they have been passed beyond the period of six months. From what is stated above, it follows that the interpretation placed by the Labour Court on Section 78 (1) (D) (i) is erroneous. ### Response: 1 ### Explanation: Mr. Gupte. But, in our opinion, that is not the way to interpret a provision in the statute. On the other hand, the relevant provisions will have to be construed in the context in which they appear and having due regard to the objects which are sought to be served by the Act in question. It cannot be doubted that for the purpose of deciding whether reinstatement with back wages has to be ordered or whether payment of compensation, in addition to back wages, without reinstatement has to be ordered, the Labour Court will have to consider the circumstances of a particular case and the nature of the misconduct alleged on the part of the employee as also the nature of contravention of any provision of law or standing order. If the Labour Court was bound to take into account all these circumstances to consider what type of relief has to be granted, we fail to see why the Labour Court is not entitled to consider the circumstances which led the management to the passing of the orders more than six months prior to the misconduct coming to the notice of an employer. In our opinion, it cannot be the object of the Act that notwithstanding the fact that the workman, who has been found guilty in a proper domestic enquiry and punished for such misconduct, has to be given relief either by way of reinstatement with back wages or compensation and back wages without reinstatement, when once he has shown that the order of punishment was passed beyond the period of six months referred to in Section 78 (1) (D) (i). Such a position is not warranted by the statute. Nor will it be conducive to industrial peace and the cordial relationship that should exist between an employer and andue regard to the various aspects discussed above, we are of the opinion that the provisions contained in Section 78 (1) (D) (i) are not mandatory but only directory. The Labour Court will certainly have power to give relief to an employee if an order of dismissal, etc. is passed by the employer after the expiry of six months from the date when the misconduct came to the notice of the employer provided the employer has not been diligent in initiating disciplinary proceedings and if he is not able to offer satisfactory and adequate reasons for the delay in passing the orders imposing punishment. The provision only emphasises that an employer should be vigilant in taking disciplinary action against an employee for misconduct, once the said misconduct has come to his notice and that, as far as possible, the proceedings including the final orders imposing punishment must all the completed within a period six months. This will be the normal rule. Such an interpretation does not impinge upon either the rights of an employer to initiate disciplinary action or the rights of an employee to have a proper and fair enquiry conducted against him. If the employer is able to satisfy a tribunal about the reasons for not being able to pass the order imposing punishment within the period of six months, the Tribunal has no power to set aside the order merely on the ground that the period of six months has elapsed.21. The Labour Court, in the case before us, has proceeded on the basis that the provision in S. 78 (1) (D) (i) is a period of limitation prescribed by the statute which cannot be extended or enlarged by the Court.This approach, in our opinion, is erroneous. There is no question of any period of limitation provided by the said provision nor does the question of extending or enlarging the period arises in thiscontention that has been placed before us on behalf of the appellant regarding the interpretation to be placed on Clause (i) of paragraph (D) of the Act, was not pleaded before the High Court. In the Act, there is a clear provision regarding the misconduct coming to the notice of the employer. A similar provision was not in the Berar Act. The High Court has interpreted S. 16 (3) in isolation without having due regard to the scheme of the Act and the context in which the said section occurs. The same principles laid down by us for interpreting Section 78 (1) (D) (i) of the Act should have been borne in mind in interpreting Section 16 (3) of the Berar Act also. For instance, in a particular case, an employer may be able to satisfy the Tribunal that he had been kept out of knowledge of the misconduct due to the fraud of the opposite party and, therefore, he came to know of the said misconduct only within a period of six months prior to the date of passing the order. Similarly an employer may also be able to satisfy the Tribunal about the reasons for the delay caused in passing the orders. These and similar circumstances have not been considered by the High Court. The view of the High Court that the provision in Section 16 (3) is a period of limitation is erroneous. As we are of the opinion that the decision of the Madhya Pradesh High Court is erroneous, the support sought by the Labour Court on this decision is of no avail.22. As pointed out by us earlier, the Labour Court has upheld all the contentions of the appellant on facts. In fact, as pointed out already it has also held that if it had power to condone the delay for passing the orders of dismissal, it would have unhesitatingly ordered the same. The appellant has properly explained the delay as having been caused beyond its control. The only ground on which the two orders of dismissal were set aside was because of the fact that they have been passed beyond the period of six months. From what is stated above, it follows that the interpretation placed by the Labour Court on Section 78 (1) (D) (i) is erroneous

Omprakash S/O Jiwandas Miglani Vs. Coal India Limited, A Government of India Undertaking & Another

upto the General Manager, which was in the Personal Department and thus an ancillary work of the mine. During this period he was subject to leave Rules of Coal India Limited as also subject to the Mines Act, 1952. The petitioner was appointed as a Director by Public Enterprises Selection Board with the approval and sanction of the President of India for a period of 5 years and he served from 01.01.2008 to 30.04.2011, when he tendered his resignation for personal reasons. As Director he was subjected to WCL/CIL leave Rules and was paid salary and dues by WCL, therefore, Shri Sudame, learned counsel relies upon the position of Director of company under the scheme of Rules and Mines Act. He submits that the Director of Company is an employee and certainly not owner of the company.19. What we find from reading of the entire material placed before us is, that once the petitioner has subjected himself to the terms of the appointment letter which specifically apply to him the leave Rules of the CPSE and his petition proceeds on the basis that the Coal India Executive Leave Rules, 2010 are a complete code in itself, providing for types of leave, calculation of leave, procedure for encashment etc. then, it is not open to him to urge that these rules are applicable to him in so far as they carve out an exception regarding encashment of half pay rules but not earned leave and that leave benefit is derived from Mines Act, 1952. What the petitioner does is to rely on these rules for the purpose of half pay leave as it is clearly beneficial to him. He is aware that half pay leave is admissible to him even if resigns from the service, even when he is removed or dismissed or dies in service, and credit of the same is permissible. In so far as the earned leave on termination of service/retirement is concerned, it is dealt with by specific rule namely 12.4. Rule 12.4.1 provides that leave at credit shall not be granted for encashment, if an executive resigns from service. However, an executive who has resigned from the service can avail the benefit of the encashable portion of earned leave prior to the date of his actual quitting/release from service.20. In this case, we are not concerned with Rule 12.4.2. It is Rule 12.4.2 which can be said to be pari-materia with Rule 7.2 which was under consideration of the Division Bench. We must clarify that we are not concerned with a case of Termination on Disciplinary grounds, as here the petitioner has resigned from services. His services are not terminated on disciplinary grounds as in case of Pramod Baid (supra). Here the petitioner is not entitled to encashment of leave at credit, because he resigned from service, but he can avail the benefit of the encashable portion of the earned leave prior to the date of his actual quitting/release from service.21. Therefore, we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration. Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules is pari-materia with Rule 12.4. We do not find them to be pari-materia, because the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules being pari-materia, his case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.22. There is some substance in the contention of Shri Mehadia, learned counsel for respondents, that the petitioners case would be governed by the leave rules and he cannot fall back on the leave rules whenever it is convenient to him and challenge the provisions therein, merely because they deprive him of some benefits or entitlement. By projecting a conflict between the same and the 2010 Rules, the petitioner is picking and choosing the provisions to his advantage and benefit, which we think is enough to deny him any relief in discretionary and equitable jurisdiction under Article 226 of the Constitution of India. The petitioner has always understood his case to be covered by the 2010 Rules and derived benefits thereunder. Once that is stated to be a complete code by the petitioner, then, to allege conflict between them and the Mines Act, 1952 and that too only in relation to benefit of earned leave, would clearly mean that the petitioner is wriggling out of the same. He is also backing out of the terms and conditions on which he was appointed as a Director in 2008. He has enjoyed the pay scale and perquisites, facilities and benefits thereof till date. It is now the Rules and the terms are questioned and that too for few monetary benefits. In Harishankar .vrs. Deputy E & T Commissioner reported in AIR 1975 SC 1121 at para no.22 page no.1126, the Honble Supreme Court holds that the writ jurisdiction of High Court is not intended to facilitate avoidance of obligations voluntarily incurred. The obligations and the facilities in terms of the 2010 Rules, cannot be applied whenever it is convenient to the petitioner and brushed aside when he finds the compliance therewith inconvenient or not suitable.

1[ds]20. In this case, we are not concerned with Rule 12.4.2. It is Rule 12.4.2 which can be said to bewith Rule 7.2 which was under consideration of the Division Bench. We must clarify that we are not concerned with a case of Termination on Disciplinary grounds, as here the petitioner has resigned from services. His services are not terminated on disciplinary grounds as in case of Pramod Baid (supra). Here the petitioner is not entitled to encashment of leave at credit, because he resigned from service, but he can avail the benefit of the encashable portion of the earned leave prior to the date of his actual quitting/release from service.21.Therefore, we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration.Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules iswith Rule 12.4. We do not find them to bebecause the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules beinghis case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.22. There is some substance in the contention of Shri Mehadia, learned counsel for respondents, that the petitioners case would be governed by the leave rules and he cannot fall back on the leave rules whenever it is convenient to him and challenge the provisions therein, merely because they deprive him of some benefits or entitlement. By projecting a conflict between the same and the 2010 Rules, the petitioner is picking and choosing the provisions to his advantage and benefit, which we think is enough to deny him any relief in discretionary and equitable jurisdiction under Article 226 of the Constitution of India. The petitioner has always understood his case to be covered by the 2010 Rules and derived benefits thereunder. Once that is stated to be a complete code by the petitioner, then, to allege conflict between them and the Mines Act, 1952 and that too only in relation to benefit of earned leave, would clearly mean that the petitioner is wriggling out of the same. He is also backing out of the terms and conditions on which he was appointed as a Director in 2008. He has enjoyed the pay scale and perquisites, facilities and benefits thereof till date. It is now the Rules and the terms are questioned and that too for few monetary benefits. In Harishankar .vrs. Deputy ET Commissioner reported in AIR 1975 SC 1121 at para no.22 page no.1126, the Honble Supreme Court holds that the writ jurisdiction of High Court is not intended to facilitate avoidance of obligations voluntarily incurred. The obligations and the facilities in terms of the 2010 Rules, cannot be applied whenever it is convenient to the petitioner and brushed aside when he finds the compliance therewith inconvenient or not suitable., we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration.Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules iswith Rule 12.4. We do not find them to bebecause the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules beinghis case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.

### 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: upto the General Manager, which was in the Personal Department and thus an ancillary work of the mine. During this period he was subject to leave Rules of Coal India Limited as also subject to the Mines Act, 1952. The petitioner was appointed as a Director by Public Enterprises Selection Board with the approval and sanction of the President of India for a period of 5 years and he served from 01.01.2008 to 30.04.2011, when he tendered his resignation for personal reasons. As Director he was subjected to WCL/CIL leave Rules and was paid salary and dues by WCL, therefore, Shri Sudame, learned counsel relies upon the position of Director of company under the scheme of Rules and Mines Act. He submits that the Director of Company is an employee and certainly not owner of the company.19. What we find from reading of the entire material placed before us is, that once the petitioner has subjected himself to the terms of the appointment letter which specifically apply to him the leave Rules of the CPSE and his petition proceeds on the basis that the Coal India Executive Leave Rules, 2010 are a complete code in itself, providing for types of leave, calculation of leave, procedure for encashment etc. then, it is not open to him to urge that these rules are applicable to him in so far as they carve out an exception regarding encashment of half pay rules but not earned leave and that leave benefit is derived from Mines Act, 1952. What the petitioner does is to rely on these rules for the purpose of half pay leave as it is clearly beneficial to him. He is aware that half pay leave is admissible to him even if resigns from the service, even when he is removed or dismissed or dies in service, and credit of the same is permissible. In so far as the earned leave on termination of service/retirement is concerned, it is dealt with by specific rule namely 12.4. Rule 12.4.1 provides that leave at credit shall not be granted for encashment, if an executive resigns from service. However, an executive who has resigned from the service can avail the benefit of the encashable portion of earned leave prior to the date of his actual quitting/release from service.20. In this case, we are not concerned with Rule 12.4.2. It is Rule 12.4.2 which can be said to be pari-materia with Rule 7.2 which was under consideration of the Division Bench. We must clarify that we are not concerned with a case of Termination on Disciplinary grounds, as here the petitioner has resigned from services. His services are not terminated on disciplinary grounds as in case of Pramod Baid (supra). Here the petitioner is not entitled to encashment of leave at credit, because he resigned from service, but he can avail the benefit of the encashable portion of the earned leave prior to the date of his actual quitting/release from service.21. Therefore, we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration. Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules is pari-materia with Rule 12.4. We do not find them to be pari-materia, because the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules being pari-materia, his case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.22. There is some substance in the contention of Shri Mehadia, learned counsel for respondents, that the petitioners case would be governed by the leave rules and he cannot fall back on the leave rules whenever it is convenient to him and challenge the provisions therein, merely because they deprive him of some benefits or entitlement. By projecting a conflict between the same and the 2010 Rules, the petitioner is picking and choosing the provisions to his advantage and benefit, which we think is enough to deny him any relief in discretionary and equitable jurisdiction under Article 226 of the Constitution of India. The petitioner has always understood his case to be covered by the 2010 Rules and derived benefits thereunder. Once that is stated to be a complete code by the petitioner, then, to allege conflict between them and the Mines Act, 1952 and that too only in relation to benefit of earned leave, would clearly mean that the petitioner is wriggling out of the same. He is also backing out of the terms and conditions on which he was appointed as a Director in 2008. He has enjoyed the pay scale and perquisites, facilities and benefits thereof till date. It is now the Rules and the terms are questioned and that too for few monetary benefits. In Harishankar .vrs. Deputy E & T Commissioner reported in AIR 1975 SC 1121 at para no.22 page no.1126, the Honble Supreme Court holds that the writ jurisdiction of High Court is not intended to facilitate avoidance of obligations voluntarily incurred. The obligations and the facilities in terms of the 2010 Rules, cannot be applied whenever it is convenient to the petitioner and brushed aside when he finds the compliance therewith inconvenient or not suitable. ### Response: 1 ### Explanation: 20. In this case, we are not concerned with Rule 12.4.2. It is Rule 12.4.2 which can be said to bewith Rule 7.2 which was under consideration of the Division Bench. We must clarify that we are not concerned with a case of Termination on Disciplinary grounds, as here the petitioner has resigned from services. His services are not terminated on disciplinary grounds as in case of Pramod Baid (supra). Here the petitioner is not entitled to encashment of leave at credit, because he resigned from service, but he can avail the benefit of the encashable portion of the earned leave prior to the date of his actual quitting/release from service.21.Therefore, we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration.Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules iswith Rule 12.4. We do not find them to bebecause the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules beinghis case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.22. There is some substance in the contention of Shri Mehadia, learned counsel for respondents, that the petitioners case would be governed by the leave rules and he cannot fall back on the leave rules whenever it is convenient to him and challenge the provisions therein, merely because they deprive him of some benefits or entitlement. By projecting a conflict between the same and the 2010 Rules, the petitioner is picking and choosing the provisions to his advantage and benefit, which we think is enough to deny him any relief in discretionary and equitable jurisdiction under Article 226 of the Constitution of India. The petitioner has always understood his case to be covered by the 2010 Rules and derived benefits thereunder. Once that is stated to be a complete code by the petitioner, then, to allege conflict between them and the Mines Act, 1952 and that too only in relation to benefit of earned leave, would clearly mean that the petitioner is wriggling out of the same. He is also backing out of the terms and conditions on which he was appointed as a Director in 2008. He has enjoyed the pay scale and perquisites, facilities and benefits thereof till date. It is now the Rules and the terms are questioned and that too for few monetary benefits. In Harishankar .vrs. Deputy ET Commissioner reported in AIR 1975 SC 1121 at para no.22 page no.1126, the Honble Supreme Court holds that the writ jurisdiction of High Court is not intended to facilitate avoidance of obligations voluntarily incurred. The obligations and the facilities in terms of the 2010 Rules, cannot be applied whenever it is convenient to the petitioner and brushed aside when he finds the compliance therewith inconvenient or not suitable., we are of the opinion that the larger controversy as to whether this Rule is in conflict with Section 52 of the Mines Act, 1952 does not arise for determination and consideration.Here the petitioner is governed by the 2010 Rules, as is admitted by him, therefore, it is not permissible for him to rely on any judgment and urge that Rule 7.0 of the 2010 Rules iswith Rule 12.4. We do not find them to bebecause the later part of Rule 12.4 is not appearing in Rule 7.0. The later part of Rule 12.4.1. is reproduced by the petitioner himself at page no.5 of his writ petition and once this is not the subject matter in Pramod Baids case (supra), then, we are of the opinion that there is no substance in the contentions of Shri Sudame, learned Counsel for petitioner that both the rules beinghis case will be covered by the judgment delivered in Pramod Baids case. In such circumstances, we are of the view that the learned counsel for the petitioner cannot derive any assistance from the ratio of the judgment in Pramod Baids case or the view taken therein about conflict between Section 52 of the Mines Act and the 2010 Rules.

D.H.B.V.N.L Vidyut Nagar, Hisar Vs. Yashvir Singh Gulia

of the whole or part of any pecuniary loss, caused by negligence or breach of orders of the Board or Central Government or a State Government or to a Company Association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by Government or to a local authority set-up by an Act of Parliament or the Legislature of a State, during discharge of official duty.B. MAJOR PENALTIES:vi) Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of post-pending the future increments of his pay.vii) Reduction to a lower scale of pay or grade, post or service, which shall ordinarily be a bar to the promotion of the employee to the time scale of pay or grade or post or service, from which he was reduced with or without further directions regarding conditions of restoration to the grade or post or service from which the employee was reduced and seniority and pay on such restoration to that grade or post or service;viii) Compulsory retirement;ix) Removal from service which shall not be a disqualification for future employment under the Board;x) Dismissal from service which shall ordinarily be a disqualification for future employment under the Board/State Govt./State Govt. Undertakings.” The procedure for inflicting major penalties is provided in Regulation 7. The relevant portion of the same is extracted hereunder: “7. PROCEDURE FOR INFLICTING MAJOR PENALTIES:1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850; no order of inflicting a major penalty, shall be passed against a person to whom these Regulations are applicable unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.2) (a) The grounds on which it is proposed to take such action, shall be reduced to the form of definite charge or charges which shall be communicated in writing to the person charged, together with a statement of allegations on which each charge is based alongwith a list of documents and witnesses to be relied-upon and of any other circumstances which it is proposed to take into consideration in passing orders on the case and he shall be required within a reasonable time to state in writing whether he admits the truth of all or any, of the charges, what explanation of defence, if any, he has to offer and whether he desires to be heard in person. If he so desires, or if the authority empowered to inflict major penalty upon him so directs, an enquiry shall be held at which all evidence(s) shall be heard as to such of the charges as are not admitted.” The procedure for inflicting minor penalties is proved in Regulation 8, which reads as follows: “8. PROCEDURE FOR INFLICTING MINOR PENALTIES:(a) Without prejudice to the provisions of Regulations 7, an order for inflicting minor penalty shall not be passed on an employee unless he has been given a show-cause notice thereof and a reasonable opportunity of making representation there-against. If he requests for access to relevant record it may be allowed and opportunity of personal hearing be also given. Request for personal hearing may be rejected by the punishing authority by passing a speaking order.(b) Provided that this condition shall not apply in a case where an order based on facts, has led to his conviction in a Criminal Court or an order has been passed superseding him for promotion to a higher post on the grounds of his unfitness for that post on account of the existence of unsatisfactory record.” 11. The abovementioned provisions would indicate that an employee can be charge-sheeted for inflicting major penalties as well as minor penalties. In a given case even if a major penalty has been proposed on getting the reply from the delinquent, if the competent authority feels that no major penalty proceeding need be initiated, it can always switch over to initiate proceeding for inflicting minor penalties. Such a power is conferred on the Board vide Sub-regulation 8 of Regulation 7, which reads as follows: “7(8). Where an employee has been charge-sheeted under this regulation and the Competent Authority, on receipt of his reply to the charge sheet is of the opinion that no major punishment as laid down in Regulation-4 (vi to x) is called for, it may dispense with the holding of enquiry and inflict straight-away any of the minor penalties as laid down in Clause (i) to (v) of the ibid Regulation by a speaking order.” 12. Above referred regulations, especially Regulation 7(8) clearly indicates that the competent authority has got the power to dispense with the procedure for holding a departmental inquiry, even though it had contemplated major penalty proceedings, on being satisfied with the reply submitted by the delinquent officer. In such a case, it can always follow the procedure for imposing minor penalty. Minor penalty, as per the Regulation, can be inflicted without holding any departmental inquiry, by giving only a show-cause-notice and a reasonable opportunity to make a representation to the show-cause-notice. Personal hearing can also be afforded and also can be dispensed with by a speaking order. 13. We are of the view that the procedure referred to hereinbefore has been followed by the Board. The delinquent officer was given an opportunity to submit his reply to the show-cause-notice which was considered and the Board took a conscious decision to impose only a minor penalty, i.e. barring one increment without cumulative effect, for which no full-fledged departmental inquiry is contemplated. Learned District Judge as well as the High Court, in our view, has committed a grave error in interfering with the punishment imposed by the Board which, in our view, is perfectly legal, going by the regulations referred to hereinbefore. 14.

1[ds]We are of the view that the procedure referred to hereinbefore has been followed by the Board. The delinquent officer was given an opportunity to submit his reply to the show-cause-notice which was considered and the Board took a conscious decision to impose only a minor penalty, i.e. barring one increment without cumulative effect, for which no full-fledged departmental inquiry is contemplated. Learned District Judge as well as the High Court, in our view, has committed a grave error in interfering with the punishment imposed by the Board which, in our view, is perfectly legal, going by the regulations referred to hereinbefore.

### 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 the whole or part of any pecuniary loss, caused by negligence or breach of orders of the Board or Central Government or a State Government or to a Company Association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by Government or to a local authority set-up by an Act of Parliament or the Legislature of a State, during discharge of official duty.B. MAJOR PENALTIES:vi) Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of post-pending the future increments of his pay.vii) Reduction to a lower scale of pay or grade, post or service, which shall ordinarily be a bar to the promotion of the employee to the time scale of pay or grade or post or service, from which he was reduced with or without further directions regarding conditions of restoration to the grade or post or service from which the employee was reduced and seniority and pay on such restoration to that grade or post or service;viii) Compulsory retirement;ix) Removal from service which shall not be a disqualification for future employment under the Board;x) Dismissal from service which shall ordinarily be a disqualification for future employment under the Board/State Govt./State Govt. Undertakings.” The procedure for inflicting major penalties is provided in Regulation 7. The relevant portion of the same is extracted hereunder: “7. PROCEDURE FOR INFLICTING MAJOR PENALTIES:1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850; no order of inflicting a major penalty, shall be passed against a person to whom these Regulations are applicable unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.2) (a) The grounds on which it is proposed to take such action, shall be reduced to the form of definite charge or charges which shall be communicated in writing to the person charged, together with a statement of allegations on which each charge is based alongwith a list of documents and witnesses to be relied-upon and of any other circumstances which it is proposed to take into consideration in passing orders on the case and he shall be required within a reasonable time to state in writing whether he admits the truth of all or any, of the charges, what explanation of defence, if any, he has to offer and whether he desires to be heard in person. If he so desires, or if the authority empowered to inflict major penalty upon him so directs, an enquiry shall be held at which all evidence(s) shall be heard as to such of the charges as are not admitted.” The procedure for inflicting minor penalties is proved in Regulation 8, which reads as follows: “8. PROCEDURE FOR INFLICTING MINOR PENALTIES:(a) Without prejudice to the provisions of Regulations 7, an order for inflicting minor penalty shall not be passed on an employee unless he has been given a show-cause notice thereof and a reasonable opportunity of making representation there-against. If he requests for access to relevant record it may be allowed and opportunity of personal hearing be also given. Request for personal hearing may be rejected by the punishing authority by passing a speaking order.(b) Provided that this condition shall not apply in a case where an order based on facts, has led to his conviction in a Criminal Court or an order has been passed superseding him for promotion to a higher post on the grounds of his unfitness for that post on account of the existence of unsatisfactory record.” 11. The abovementioned provisions would indicate that an employee can be charge-sheeted for inflicting major penalties as well as minor penalties. In a given case even if a major penalty has been proposed on getting the reply from the delinquent, if the competent authority feels that no major penalty proceeding need be initiated, it can always switch over to initiate proceeding for inflicting minor penalties. Such a power is conferred on the Board vide Sub-regulation 8 of Regulation 7, which reads as follows: “7(8). Where an employee has been charge-sheeted under this regulation and the Competent Authority, on receipt of his reply to the charge sheet is of the opinion that no major punishment as laid down in Regulation-4 (vi to x) is called for, it may dispense with the holding of enquiry and inflict straight-away any of the minor penalties as laid down in Clause (i) to (v) of the ibid Regulation by a speaking order.” 12. Above referred regulations, especially Regulation 7(8) clearly indicates that the competent authority has got the power to dispense with the procedure for holding a departmental inquiry, even though it had contemplated major penalty proceedings, on being satisfied with the reply submitted by the delinquent officer. In such a case, it can always follow the procedure for imposing minor penalty. Minor penalty, as per the Regulation, can be inflicted without holding any departmental inquiry, by giving only a show-cause-notice and a reasonable opportunity to make a representation to the show-cause-notice. Personal hearing can also be afforded and also can be dispensed with by a speaking order. 13. We are of the view that the procedure referred to hereinbefore has been followed by the Board. The delinquent officer was given an opportunity to submit his reply to the show-cause-notice which was considered and the Board took a conscious decision to impose only a minor penalty, i.e. barring one increment without cumulative effect, for which no full-fledged departmental inquiry is contemplated. Learned District Judge as well as the High Court, in our view, has committed a grave error in interfering with the punishment imposed by the Board which, in our view, is perfectly legal, going by the regulations referred to hereinbefore. 14. ### Response: 1 ### Explanation: We are of the view that the procedure referred to hereinbefore has been followed by the Board. The delinquent officer was given an opportunity to submit his reply to the show-cause-notice which was considered and the Board took a conscious decision to impose only a minor penalty, i.e. barring one increment without cumulative effect, for which no full-fledged departmental inquiry is contemplated. Learned District Judge as well as the High Court, in our view, has committed a grave error in interfering with the punishment imposed by the Board which, in our view, is perfectly legal, going by the regulations referred to hereinbefore.

Union of India and Another Vs. G.V. Bhakta Priya and Others

1. Writ Petitions Nos. 553, 562, 563 and 564 of 1969 were filed by several petitioners in Delhi High Court. The Union Public Service Commission invited the applications of suitable persons as per its advertisement dated February 22, 1969 for recruitment to permanent and temporary posts of Hindi Supervisors and Hindi Officers or equivalent posts in Ministries/Departments of the Government of India. In response to this advertisement number of persons including the petitioner before the High Court applied for the posts so advertised. The petitioners were informed that their applications were not entertained by the Union Public Service Commission on two grounds which have been specifically set out in the writ petitions. The petitioners challenged the legality and correctness of the reasons which prevailed with the Union Public Service Commission for not entertaining their applications. By a common judgment, the High Court held that the decision of the Union Public Service Commission not to entertain the applications was incorrect and issued a writ of mandamus directing the Union Public Service Commission to entertain their applications for the posts set out in the advertisement. This decision was rendered on February 11, 1970. 2. The Union of India having failed to obtain a certificate of fitness approached this Court under Article 136 of the Constitution and preferred the present five appeals by special leave. 3. While granting special leave to appeal, the record does not show that stay of the operation of the judgment of the High Court was granted. Therefore, the judgment of the High Court became operative. Neither side is in a position to shed light as to what happened pursuant to the mandamus granted by High Court and whether applications of the original petitioners, present respondents were entertained and what follow up action was taken.

1[ds]3. While granting special leave to appeal, the record does not show that stay of the operation of the judgment of the High Court was granted. Therefore, the judgment of the High Court became operative. Neither side is in a position to shed light as to what happened pursuant to the mandamus granted by High Court and whether applications of the original petitioners, present respondents were entertained and what follow up action was taken.

### 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: 1. Writ Petitions Nos. 553, 562, 563 and 564 of 1969 were filed by several petitioners in Delhi High Court. The Union Public Service Commission invited the applications of suitable persons as per its advertisement dated February 22, 1969 for recruitment to permanent and temporary posts of Hindi Supervisors and Hindi Officers or equivalent posts in Ministries/Departments of the Government of India. In response to this advertisement number of persons including the petitioner before the High Court applied for the posts so advertised. The petitioners were informed that their applications were not entertained by the Union Public Service Commission on two grounds which have been specifically set out in the writ petitions. The petitioners challenged the legality and correctness of the reasons which prevailed with the Union Public Service Commission for not entertaining their applications. By a common judgment, the High Court held that the decision of the Union Public Service Commission not to entertain the applications was incorrect and issued a writ of mandamus directing the Union Public Service Commission to entertain their applications for the posts set out in the advertisement. This decision was rendered on February 11, 1970. 2. The Union of India having failed to obtain a certificate of fitness approached this Court under Article 136 of the Constitution and preferred the present five appeals by special leave. 3. While granting special leave to appeal, the record does not show that stay of the operation of the judgment of the High Court was granted. Therefore, the judgment of the High Court became operative. Neither side is in a position to shed light as to what happened pursuant to the mandamus granted by High Court and whether applications of the original petitioners, present respondents were entertained and what follow up action was taken. ### Response: 1 ### Explanation: 3. While granting special leave to appeal, the record does not show that stay of the operation of the judgment of the High Court was granted. Therefore, the judgment of the High Court became operative. Neither side is in a position to shed light as to what happened pursuant to the mandamus granted by High Court and whether applications of the original petitioners, present respondents were entertained and what follow up action was taken.

Commissioner Of Income Tax Vs. Mahendra Mills

32 allows depreciation as deduction subject to the provisions of Section 34. Section 34 provides that deduction under Section 32 shall be allowed only if prescribed particulars have been furnished. We have seen Rule 5AA of the Rules which though since deleted provided for the particulars required for the purpose of deduction under Section 32. Even in the absence of Rule 5AA return of the income in the form prescribed itself requires particulars to be furnished if the assessee claims depreciation. These particulars are required to be furnished in great detail. There is a circular of the Board dated August 31, 1965, which provides that depreciation could not be assessee and no claim for the depreciation has been made in the return. Income-tax Officer in such a case is required to compute the income without allowing depreciation allowance. Circular of the Board dated April 11, 1955 is of no help to the Revenue. It imposes merely a duty on the officers of the department to assist the tax-prayers in every reasonable way, particularly, in the matter of claiming and securing relief. The Officer is required to do no more than to advise the assessee. It does not place any mandatory duty on the officer to allow depreciation if the assessee does not want to claim that. Provision for claim of depreciation is certainly for the benefit of the assessee. If it does not wish to avail that benefit for some reason, benefit cannot be forced upon him. It is for the assessee to see if the claim of depreciation is to his advantage. Rather Income-tax Officer should advise him not to claim depreciation if that course is beneficial to the assessee. That would be in our view the spirit of the circular dated April 11, 1955. Income under the head "profits and gains of business or profession" is chargeable to income-tax under Section 28 and that income under Section 29 is to be computed in accordance with the provisions contained in sections 30 to 43A. The argument that since Section 32 provides for depreciation it has to be allowed in computing the income of the assessee cannot in all circumstances be accepted in view of the bar contained in Section 34. If Section 34 is not satisfied and particulars are not furnished by the assessee his claim for depreciation under Section 32 cannot be allowed. Section 29 is thus to be read with reference to other provisions of the Act. It is not in itself a complete code.38. In Ascharallal Ram Parkash case [90 ITR 477] Allahabad High Court said that since it is not mentioned in Section 34 as to in what form the prescribed particulars of depreciation must be furnished and that, therefore, there is no requirement in that Section that particulars must be furnished. High Court further went on to say that merely because the form of return provides for a place where the statement of such particulars should be set out would not mean that in absence of such statement the Income-tax Officer has no power to allow the depreciation. This is contrary to the mandate of SEction 34 as well as the Board circular dated August 31, 1965. Madras High Court in Dasa Parkash Bottling Co. case [122 ITR 9 ] following Allahabad High Court in the case of Ascharajlal Ram Prakash said that Income-tax Officer can disallow the claim of depreciation if the assessee did not furnish the prescribed particulars. It further went on to hold that it would be open to the Income-tax Officer to grant depreciation even if the assessee had not furnished the prescribed particulars. In this case the assessee did not give the particulars relating to depreciation in the return form not did it claim depreciation. On being called upon by the Income-tax Officer to furnish necessary particulars the assessee in response thereto furnished the particulars under protest. On that basis the Income-tax Officer granted the depreciation. We do not think that the views expressed by the Madras High Court lay down correct law. Section 34 is not in the nature of merely an enabling provision. In the absence of particulars of depreciation as required by Section 34, there is no mandate on the Income-tax Officer under Section 29 to compute the income by allowing depreciation under Section 32. In the second Madras Case CIT v. Southern Petro Chemicals Industries Corporation Ltd., 233 ITR 400 the assessee did claim depreciation but he withdrew the same in the revised return. On that basis it was held that since the assessee had furnished the particulars regarding the claim of depreciation in the original return the assessee would not be able to withdraw his claim for depreciation. It would appear that High Court proceeded on the basis that the revised return was not a valid return under Section 139(5) of the Act. High Court followed its earlier decision in Dasa Prakash Bottling Co. To us it appears that if the revised return is a valid return and the assessee has withdrawn the claim of depreciation it cannot be granted relying on the original return when the assessment is based on the revised return.40. We get support from the earlier decision of this Court in Dharampur Leather Co. Ltd. case [60 ITR 165] . Allowance of depreciation is calculated on the written down value of the assets, which written down value would be the actual cost of acquisition less the aggregate of all deductions "actually allowed" to the assessee for the past years. "Actually allowed" does not mean `notionally allowed. If the assessee has not claimed deduction of depreciation in any past year it cannot be said that it was nationally allowed to him. A thing is "allowed" when it is claimed. A subtle distinction is there when we examine the language used in Section 16 and that Sections 34 and 37 of the Act. It is rightly said that a privilege cannot be to a disadvantage and an option cannot become an obligation.

0[ds]21. It will be seen that the issues which were before the Court are not the same which we are now considering. In the case of Garden Silk Weaving Factory reliance was again placed on the earlier decision of this Court in Jaipuria China Clay Mines (P) Ltd.s case. The whole stress of argument of Mr. Verma was that net income has to be ascertained and for that purpose Income Tax Officer is duty bound to look into the amount of depreciation available for that assessment year and to allow credit for the same to arrive at the net income. This, he said, would be so irrespective whether the assessee has claimed depreciation or not and whether particulars of depreciation have been furnished or not. We do not think these two judgments of this Court on which strong reliance was placed by Mr. Verma advance his case. Issues in those cases were entirely different having no bearing on the question before us.We do not think Gujarat High Court in the case of Gujarat State Warehousing Corporation 104 ITR 1 has taken correct view in respect of the issues with which we are concerned in the present appeal. High Court has not properly appreciated the context in which this Court made observations in the case of Jaipuria China Clay Mines (P) Ltd., 59 ITR 555 on which High Court has relied. In later two cases of Chokshi Metel Refinery, 107 ITR 63 and Arun Textiles "C", 192 ITR 700 Gujarat High Court has itself taken, if we may say so, a different view falling in line with the views of Bombay, Punjab and Haryana, Karnataka, Andhra Pradesh, Calcutta and Kerala High Courts which view commends to us. Language of the provision of Sections 32 and 34 are specific and admits if no ambiguity. Section 32 allows depreciation as deduction subject to the provisions of Section 34. Section 34 provides that deduction under Section 32 shall be allowed only if prescribed particulars have been furnished. We have seen Rule 5AA of the Rules which though since deleted provided for the particulars required for the purpose of deduction under Section 32. Even in the absence of Rule 5AA return of the income in the form prescribed itself requires particulars to be furnished if the assessee claims depreciation. These particulars are required to be furnished in great detail. There is a circular of the Board dated August 31, 1965, which provides that depreciation could not be assessee and no claim for the depreciation has been made in the return.Officer in such a case is required to compute the income without allowing depreciation allowance. Circular of the Board dated April 11, 1955 is of no help to the Revenue. It imposes merely a duty on the officers of the department to assist thein every reasonable way, particularly, in the matter of claiming and securing relief. The Officer is required to do no more than to advise the assessee. It does not place any mandatory duty on the officer to allow depreciation if the assessee does not want to claim that. Provision for claim of depreciation is certainly for the benefit of the assessee. If it does not wish to avail that benefit for some reason, benefit cannot be forced upon him. It is for the assessee to see if the claim of depreciation is to his advantage. RatherOfficer should advise him not to claim depreciation if that course is beneficial to the assessee. That would be in our view the spirit of the circular dated April 11, 1955. Income under the head "profits and gains of business or profession" is chargeable tounder Section 28 and that income under Section 29 is to be computed in accordance with the provisions contained in sections 30 to 43A. The argument that since Section 32 provides for depreciation it has to be allowed in computing the income of the assessee cannot in all circumstances be accepted in view of the bar contained in Section 34. If Section 34 is not satisfied and particulars are not furnished by the assessee his claim for depreciation under Section 32 cannot be allowed. Section 29 is thus to be read with reference to other provisions of the Act. It is not in itself a complete code.38. In Ascharallal Ram Parkash case [90 ITR 477] Allahabad High Court said that since it is not mentioned in Section 34 as to in what form the prescribed particulars of depreciation must be furnished and that, therefore, there is no requirement in that Section that particulars must be furnished. High Court further went on to say that merely because the form of return provides for a place where the statement of such particulars should be set out would not mean that in absence of such statement theOfficer has no power to allow the depreciation. This is contrary to the mandate of SEction 34 as well as the Board circular dated August 31, 1965. Madras High Court in Dasa Parkash Bottling Co. case [122 ITR 9 ] following Allahabad High Court in the case of Ascharajlal Ram Prakash said thatOfficer can disallow the claim of depreciation if the assessee did not furnish the prescribed particulars. It further went on to hold that it would be open to theOfficer to grant depreciation even if the assessee had not furnished the prescribed particulars. In this case the assessee did not give the particulars relating to depreciation in the return form not did it claim depreciation. On being called upon by theOfficer to furnish necessary particulars the assessee in response thereto furnished the particulars under protest. On that basis theOfficer granted the depreciation. We do not think that the views expressed by the Madras High Court lay down correct law. Section 34 is not in the nature of merely an enabling provision. In the absence of particulars of depreciation as required by Section 34, there is no mandate on theOfficer under Section 29 to compute the income by allowing depreciation under Section 32. In the second Madras Case CIT v. Southern Petro Chemicals Industries Corporation Ltd., 233 ITR 400 the assessee did claim depreciation but he withdrew the same in the revised return. On that basis it was held that since the assessee had furnished the particulars regarding the claim of depreciation in the original return the assessee would not be able to withdraw his claim for depreciation. It would appear that High Court proceeded on the basis that the revised return was not a valid return under Section 139(5) of the Act. High Court followed its earlier decision in Dasa Prakash Bottling Co. To us it appears that if the revised return is a valid return and the assessee has withdrawn the claim of depreciation it cannot be granted relying on the original return when the assessment is based on the revised return.40. We get support from the earlier decision of this Court in Dharampur Leather Co. Ltd. case [60 ITR 165] . Allowance of depreciation is calculated on the written down value of the assets, which written down value would be the actual cost of acquisition less the aggregate of all deductions "actually allowed" to the assessee for the past years. "Actually allowed" does not mean `notionally allowed. If the assessee has not claimed deduction of depreciation in any past year it cannot be said that it was nationally allowed to him. A thing is "allowed" when it is claimed. A subtle distinction is there when we examine the language used in Section 16 and that Sections 34 and 37 of the Act. It is rightly said that a privilege cannot be to a disadvantage and an option cannot become an obligation.

### 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: 32 allows depreciation as deduction subject to the provisions of Section 34. Section 34 provides that deduction under Section 32 shall be allowed only if prescribed particulars have been furnished. We have seen Rule 5AA of the Rules which though since deleted provided for the particulars required for the purpose of deduction under Section 32. Even in the absence of Rule 5AA return of the income in the form prescribed itself requires particulars to be furnished if the assessee claims depreciation. These particulars are required to be furnished in great detail. There is a circular of the Board dated August 31, 1965, which provides that depreciation could not be assessee and no claim for the depreciation has been made in the return. Income-tax Officer in such a case is required to compute the income without allowing depreciation allowance. Circular of the Board dated April 11, 1955 is of no help to the Revenue. It imposes merely a duty on the officers of the department to assist the tax-prayers in every reasonable way, particularly, in the matter of claiming and securing relief. The Officer is required to do no more than to advise the assessee. It does not place any mandatory duty on the officer to allow depreciation if the assessee does not want to claim that. Provision for claim of depreciation is certainly for the benefit of the assessee. If it does not wish to avail that benefit for some reason, benefit cannot be forced upon him. It is for the assessee to see if the claim of depreciation is to his advantage. Rather Income-tax Officer should advise him not to claim depreciation if that course is beneficial to the assessee. That would be in our view the spirit of the circular dated April 11, 1955. Income under the head "profits and gains of business or profession" is chargeable to income-tax under Section 28 and that income under Section 29 is to be computed in accordance with the provisions contained in sections 30 to 43A. The argument that since Section 32 provides for depreciation it has to be allowed in computing the income of the assessee cannot in all circumstances be accepted in view of the bar contained in Section 34. If Section 34 is not satisfied and particulars are not furnished by the assessee his claim for depreciation under Section 32 cannot be allowed. Section 29 is thus to be read with reference to other provisions of the Act. It is not in itself a complete code.38. In Ascharallal Ram Parkash case [90 ITR 477] Allahabad High Court said that since it is not mentioned in Section 34 as to in what form the prescribed particulars of depreciation must be furnished and that, therefore, there is no requirement in that Section that particulars must be furnished. High Court further went on to say that merely because the form of return provides for a place where the statement of such particulars should be set out would not mean that in absence of such statement the Income-tax Officer has no power to allow the depreciation. This is contrary to the mandate of SEction 34 as well as the Board circular dated August 31, 1965. Madras High Court in Dasa Parkash Bottling Co. case [122 ITR 9 ] following Allahabad High Court in the case of Ascharajlal Ram Prakash said that Income-tax Officer can disallow the claim of depreciation if the assessee did not furnish the prescribed particulars. It further went on to hold that it would be open to the Income-tax Officer to grant depreciation even if the assessee had not furnished the prescribed particulars. In this case the assessee did not give the particulars relating to depreciation in the return form not did it claim depreciation. On being called upon by the Income-tax Officer to furnish necessary particulars the assessee in response thereto furnished the particulars under protest. On that basis the Income-tax Officer granted the depreciation. We do not think that the views expressed by the Madras High Court lay down correct law. Section 34 is not in the nature of merely an enabling provision. In the absence of particulars of depreciation as required by Section 34, there is no mandate on the Income-tax Officer under Section 29 to compute the income by allowing depreciation under Section 32. In the second Madras Case CIT v. Southern Petro Chemicals Industries Corporation Ltd., 233 ITR 400 the assessee did claim depreciation but he withdrew the same in the revised return. On that basis it was held that since the assessee had furnished the particulars regarding the claim of depreciation in the original return the assessee would not be able to withdraw his claim for depreciation. It would appear that High Court proceeded on the basis that the revised return was not a valid return under Section 139(5) of the Act. High Court followed its earlier decision in Dasa Prakash Bottling Co. To us it appears that if the revised return is a valid return and the assessee has withdrawn the claim of depreciation it cannot be granted relying on the original return when the assessment is based on the revised return.40. We get support from the earlier decision of this Court in Dharampur Leather Co. Ltd. case [60 ITR 165] . Allowance of depreciation is calculated on the written down value of the assets, which written down value would be the actual cost of acquisition less the aggregate of all deductions "actually allowed" to the assessee for the past years. "Actually allowed" does not mean `notionally allowed. If the assessee has not claimed deduction of depreciation in any past year it cannot be said that it was nationally allowed to him. A thing is "allowed" when it is claimed. A subtle distinction is there when we examine the language used in Section 16 and that Sections 34 and 37 of the Act. It is rightly said that a privilege cannot be to a disadvantage and an option cannot become an obligation. ### Response: 0 ### Explanation: commends to us. Language of the provision of Sections 32 and 34 are specific and admits if no ambiguity. Section 32 allows depreciation as deduction subject to the provisions of Section 34. Section 34 provides that deduction under Section 32 shall be allowed only if prescribed particulars have been furnished. We have seen Rule 5AA of the Rules which though since deleted provided for the particulars required for the purpose of deduction under Section 32. Even in the absence of Rule 5AA return of the income in the form prescribed itself requires particulars to be furnished if the assessee claims depreciation. These particulars are required to be furnished in great detail. There is a circular of the Board dated August 31, 1965, which provides that depreciation could not be assessee and no claim for the depreciation has been made in the return.Officer in such a case is required to compute the income without allowing depreciation allowance. Circular of the Board dated April 11, 1955 is of no help to the Revenue. It imposes merely a duty on the officers of the department to assist thein every reasonable way, particularly, in the matter of claiming and securing relief. The Officer is required to do no more than to advise the assessee. It does not place any mandatory duty on the officer to allow depreciation if the assessee does not want to claim that. Provision for claim of depreciation is certainly for the benefit of the assessee. If it does not wish to avail that benefit for some reason, benefit cannot be forced upon him. It is for the assessee to see if the claim of depreciation is to his advantage. RatherOfficer should advise him not to claim depreciation if that course is beneficial to the assessee. That would be in our view the spirit of the circular dated April 11, 1955. Income under the head "profits and gains of business or profession" is chargeable tounder Section 28 and that income under Section 29 is to be computed in accordance with the provisions contained in sections 30 to 43A. The argument that since Section 32 provides for depreciation it has to be allowed in computing the income of the assessee cannot in all circumstances be accepted in view of the bar contained in Section 34. If Section 34 is not satisfied and particulars are not furnished by the assessee his claim for depreciation under Section 32 cannot be allowed. Section 29 is thus to be read with reference to other provisions of the Act. It is not in itself a complete code.38. In Ascharallal Ram Parkash case [90 ITR 477] Allahabad High Court said that since it is not mentioned in Section 34 as to in what form the prescribed particulars of depreciation must be furnished and that, therefore, there is no requirement in that Section that particulars must be furnished. High Court further went on to say that merely because the form of return provides for a place where the statement of such particulars should be set out would not mean that in absence of such statement theOfficer has no power to allow the depreciation. This is contrary to the mandate of SEction 34 as well as the Board circular dated August 31, 1965. Madras High Court in Dasa Parkash Bottling Co. case [122 ITR 9 ] following Allahabad High Court in the case of Ascharajlal Ram Prakash said thatOfficer can disallow the claim of depreciation if the assessee did not furnish the prescribed particulars. It further went on to hold that it would be open to theOfficer to grant depreciation even if the assessee had not furnished the prescribed particulars. In this case the assessee did not give the particulars relating to depreciation in the return form not did it claim depreciation. On being called upon by theOfficer to furnish necessary particulars the assessee in response thereto furnished the particulars under protest. On that basis theOfficer granted the depreciation. We do not think that the views expressed by the Madras High Court lay down correct law. Section 34 is not in the nature of merely an enabling provision. In the absence of particulars of depreciation as required by Section 34, there is no mandate on theOfficer under Section 29 to compute the income by allowing depreciation under Section 32. In the second Madras Case CIT v. Southern Petro Chemicals Industries Corporation Ltd., 233 ITR 400 the assessee did claim depreciation but he withdrew the same in the revised return. On that basis it was held that since the assessee had furnished the particulars regarding the claim of depreciation in the original return the assessee would not be able to withdraw his claim for depreciation. It would appear that High Court proceeded on the basis that the revised return was not a valid return under Section 139(5) of the Act. High Court followed its earlier decision in Dasa Prakash Bottling Co. To us it appears that if the revised return is a valid return and the assessee has withdrawn the claim of depreciation it cannot be granted relying on the original return when the assessment is based on the revised return.40. We get support from the earlier decision of this Court in Dharampur Leather Co. Ltd. case [60 ITR 165] . Allowance of depreciation is calculated on the written down value of the assets, which written down value would be the actual cost of acquisition less the aggregate of all deductions "actually allowed" to the assessee for the past years. "Actually allowed" does not mean `notionally allowed. If the assessee has not claimed deduction of depreciation in any past year it cannot be said that it was nationally allowed to him. A thing is "allowed" when it is claimed. A subtle distinction is there when we examine the language used in Section 16 and that Sections 34 and 37 of the Act. It is rightly said that a privilege cannot be to a disadvantage and an option cannot become an obligation.

Suresh Prasad Yadav Vs. Jai Prakash Mishra & Others

the figures were first extracted on the detailed result sheet giving their numbers round wise, candidate-wise and table-wise and thereafter those figures were totalled roundwise and extracted in this Exh. 7."36. From the statement of R. W. 13 extracted above, it would appear that at first a detailed result sheet in which figures were tabulated candidate-wise, table-wise and round-wise was prepared, and then, therefrom, all the figures, excepting those showing table-wise break-up, were carried over to the final result sheet, Exh. 7, drawn up in the prescribed Form 20. This detailed result-sheet, though summoned, is not forthcoming from, the District Election Officer. Might be, it has been misplaced. Might be, it was destroyed by the Counting Staff after the preparation of the final result-sheet in the prescribed Form. Whatever be the case, the absence of that document, does not make the checking and verification of the figures entered in the final result sheet, Exh. 7 impossible or even difficult. Its preparation is not a requirement of any statutory provision. It is prepared only as a matter of convenience in view of the instructions of the Election Commission, by carrying over, collating and totalling the figures from the Check Memos containing tablewise figures of each round of counting. It is a sort of rough intermediary tabulation intended to facilitate the compilation of the final result-sheet m the prescribed form. The basic figures from which the final result-sheet, whether detailed or abstracted, are worked out are given in the Check Memos pertaining to the various counting tables. Such Check Memos are available and in. deed reference to some of them namely Exhs. C/3, C/4, C/6 and C/8 was specifically made before us. The correctness or otherwise of the figures given in Ex. 7 could easily tee verified by tallying the same with the aggregate of those given in the Check Memos. Indeed, no argument has been advanced before us that the figures given in the final result sheet, Ex. 7, would not agree with the figures taken and totalled from the Check Memos.37. We therefore, repel this contention.38. This bring us to the last contention. The argument advanced by Mr. Prasad is that during the fourth round of counting 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detected by the petitioners counting agent, Jagannath Sah, lying under the table of the Assistant Returning Officer. Jagannath Sah protested. The Assistant Returning Officer, however, put those uncounted ballot papers in the lot of counted votes. P. W. 13 also, on coming to know about it, protested against that mixing. In support of this contention, Counsel has referred to the circumstance that at the end of the third round of counting, the appellant was leading by a margin of 2205 votes. It is urged, this lead of 2205 votes could not thereafter be turned into a deficit of 575 votes when the total number of ballot papers that remained to be counted in the last round, was 3800 only.39. Like the elusive cloud, this ground of objection, also, has been ever changing its hue and shape. In the application Exh. 3, for a recount which was submitted by the petitioner to the Returning Officer at 7 p. m. towards the close of the final round of counting all that was stated, was :"It is respectfully submitted that recounting of 168 Katoria Assembly Constituency be done. Because one bundle of 600 votes have beenrecounted again.All the votes be recounted."40. It was not alleged therein, even in an embryonic form that 600uncountedvotes in bundles were detectedlying underneath the tableof the Assistant Returning Officer. Such an allegation appeared for the first time in the election petition which was filed about 33 days after the election. What was earlier said to have counted twice over, had now become completely uncounted. What was then alleged in Ex. 3 to have been countedonthe table, has now goneunderneaththe table.41. The original allegation in Ex. 3 (which was repeated in the second application, Ex. 3a, presented at 7-40 p. m.) was manifestly untenable, because if there was double counting of any ballot papers, the total of the votes polled should have exceeded by the number doubly counted. No such excess was reflected in the grand total of the final result sheet. The total was correct. The petitioner had no explanation as to why the grand-total of the final result sheet did not show an excess of 600 or any other number of ballot papers. It was mainly for this reason, that the Returning Officer had rejected the applications of the petitioner for a recount. That is why the petitioner has now come forward with a changed version, invented as an afterthought.42. The final result sheet, Exh. 7, falsifies his present contention also. It shows that at the end of the third round, the appellant was leading by a margin of 424 votes only. There is no good reason to doubt the authenticity of the figures given in Exh. 7. As against it, the notes, Ex. 2 Series, on which the petitioner relies for his contention that at the end of the third round he was leading by 2205 votes was a self-serving and wholly unreliable piece of evidence. These notes (Ext. 2 series) were not mentioned in the list of reliance filed along with the petition. There is no reference to any such notes or their contents in the applications Exhs. 3 and 3a. These notes are said to have been made by the Counting Agents of the petitioner at the time of counting. But in the initial list submitted by the petitioner on 30-8-1972 for summoning among others, his Counting Agents as witnesses, it was not mentioned that they would produce any such notes. Subsequently on 28-3-1973 he moved the Court requesting that these witnesses be required to bring their notes.43. In these circumstances, the High Court was right in holding that these notes had been subsequently brought into existence for the purpose of this petition.

0[ds]7. Since, on the whole, we agree with the findings and the conclusion of the Court below, we will confine the discussion to the broad features of the case and the legal aspects of the contentions canvassed before us.8. The first contention is that four unauthorised persons were allowed to act as Counting Supervisors at tables Nos. 4, 5, 7 and 9. The argument proceeds that the list of all the persons who were appointed as Counting Supervisors Counting Assistants, was summoned from the office of the District Election Officer, and in response thereto, the list Ex. 6, has been produced. It is argued that since the names of Ajudhya Prasad Singh, Q. M. Zaman, Parvez Ahmed and Radhey Sham Sah do not find mention in Exh. B. they were never appointed to act as Counting Supervisors. In this connection, reference has been made to the application filed on April 14, 1972, by the petitioner for summoning documents, the list Ex. 6 and the Check Memos (Ex. C/3, Ex. C/4, Ex. C/6 and Ex. C/8). The Check Memos show that the aforesaid persons actually supervised the counting at tables Nos. 4, 5, 7 and 9.Indeed the main burden of the arguments of Mr. Prasad, is that the Assistant Returning Officer Returning Officer was not competent to open the packet of unused ballot papers and inspect the same as such a course was expressly forbidden by Rule 93 (1) of the Rules. It is stressed that this illegality vitiating the counting, was itself a good ground for ordering a recount.Any other interpretation of Rule 93 and its acope would make it difficult, if not altogether impossible, for the Returning Officer to perform the various functions and duties enjoined by the rules at the stage of Counting.This will be clear from a reference to the other Rules. Take for instance R. 56 which requires that the ballot papers shall first be taken out from the boxes used in a constituency and mixed together and then arranged in convenient bundles and scrutinised. Sub-rule (2) of Rule 56 further requires inter alia that if a ballot paper does not bear any mark at all or does not bear both the mark or the signature which it should have borne under the provisions of sub-rule (1) of Rule 38, it shall be rejected by the Returning Officer. To perform this duty, it would be absolutely necessary for the Returning Officer to inspect such ballot papers.Indeed, in the present case, an objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 38 (l). The Returning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein.28. Instruction 23 in the Hand Book issued by the Election Commission, also indicates that Rule 93 (1) operates at a post-election stage. Under this instruction, the Returning Officer is required to seal the packets of all the papers relating to the election, specified in clauses (a), (b), (c), (d) and (e) of Rule 93 (1) immediatelyafterthe counting of the votes is over, with his own seal and also with that of the Commission. After the sealing, the packets are to be put in a separate steel box which shall be locked with two locks and each lock shall be sealed. Immediately after the declaration of the election result the sealed box is to be despatched to the District Election Officer who on receipt of the same shall forthright deposit it in safe custody in the Treasury under double-lock. The key of one of the locks is entrusted to the Treasury Officer. In Union Territories such a deposit is to be made by the Returning Officer. The secret seals of the Commission are returned immediately after their required use. Thus, it is clear that the custody contemplated by Rule 93 (1) is the post-election custody.29.In the light of the above discussion, the conclusion is inescapable that tile act of the Returning Officer in opening the packet, and in inspecting and counting the unused ballot-papers found therein, far from amounting to an illegality, was necessary for the due performance of the duty enjoined on him by the Rules.30. Accordingly, we overrule this contention.31. It is urged that the detailed result-sheet, prepared candidate-wise, tablewise and round-wise, from which figures mentioned in the final result-sheet (Exh. 7) were extracted, has been deliberately withheld to prevent detection of the hank panky done in the counting. Such a detailed result sheet, it is maintained, was required to be prepared - and was admittedly prepared - under instruction No. 17 (q) in "the Hand Book for Returning Officers (1970)" issued by the ElectionFrom the statement of R. W. 13 extracted above, it would appear that at first a detailed result sheet in which figures were tabulated candidate-wise, table-wise and round-wise was prepared, and then, therefrom, all the figures, excepting those showing table-wise break-up, were carried over to the final result sheet, Exh. 7, drawn up in the prescribed Form 20. This detailed result-sheet, though summoned, is not forthcoming from, the District Election Officer. Might be, it has been misplaced. Might be, it was destroyed by the Counting Staff after the preparation of the final result-sheet in the prescribed Form. Whatever be the case, the absence of that document, does not make the checking and verification of the figures entered in the final result sheet, Exh. 7 impossible or even difficult. Its preparation is not a requirement of any statutory provision. It is prepared only as a matter of convenience in view of the instructions of the Election Commission, by carrying over, collating and totalling the figures from the Check Memos containing tablewise figures of each round of counting. It is a sort of rough intermediary tabulation intended to facilitate the compilation of the final result-sheet m the prescribed form. The basic figures from which the final result-sheet, whether detailed or abstracted, are worked out are given in the Check Memos pertaining to the various counting tables. Such Check Memos are available and in. deed reference to some of them namely Exhs. C/3, C/4, C/6 and C/8 was specifically made before us. The correctness or otherwise of the figures given in Ex. 7 could easily tee verified by tallying the same with the aggregate of those given in the Check Memos. Indeed, no argument has been advanced before us that the figures given in the final result sheet, Ex. 7, would not agree with the figures taken and totalled from the Check Memos.37. We therefore, repel this contention.38. This bring us to the last contention. The argument advanced by Mr. Prasad is that during the fourth round of counting 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detected by the petitioners counting agent, Jagannath Sah, lying under the table of the Assistant Returning Officer. Jagannath Sah protested. The Assistant Returning Officer, however, put those uncounted ballot papers in the lot of counted votes. P. W. 13 also, on coming to know about it, protested against that mixing. In support of this contention, Counsel has referred to the circumstance that at the end of the third round of counting, the appellant was leading by a margin of 2205 votes. It is urged, this lead of 2205 votes could not thereafter be turned into a deficit of 575 votes when the total number of ballot papers that remained to be counted in the last round, was 3800 only.The final result sheet, Exh. 7, falsifies his present contention also. It shows that at the end of the third round, the appellant was leading by a margin of 424 votes only. There is no good reason to doubt the authenticity of the figures given in Exh. 7. As against it, the notes, Ex. 2 Series, on which the petitioner relies for his contention that at the end of the third round he was leading by 2205 votes was a self-serving and wholly unreliable piece of evidence. These notes (Ext. 2 series) were not mentioned in the list of reliance filed along with the petition. There is no reference to any such notes or their contents in the applications Exhs. 3 and 3a. These notes are said to have been made by the Counting Agents of the petitioner at the time of counting. But in the initial list submitted by the petitioner on 30-8-1972 for summoning among others, his Counting Agents as witnesses, it was not mentioned that they would produce any such notes. Subsequently on 28-3-1973 he moved the Court requesting that these witnesses be required to bring their notes.43. In these circumstances, the High Court was right in holding that these notes had been subsequently brought into existence for the purpose of this petition.

### 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: the figures were first extracted on the detailed result sheet giving their numbers round wise, candidate-wise and table-wise and thereafter those figures were totalled roundwise and extracted in this Exh. 7."36. From the statement of R. W. 13 extracted above, it would appear that at first a detailed result sheet in which figures were tabulated candidate-wise, table-wise and round-wise was prepared, and then, therefrom, all the figures, excepting those showing table-wise break-up, were carried over to the final result sheet, Exh. 7, drawn up in the prescribed Form 20. This detailed result-sheet, though summoned, is not forthcoming from, the District Election Officer. Might be, it has been misplaced. Might be, it was destroyed by the Counting Staff after the preparation of the final result-sheet in the prescribed Form. Whatever be the case, the absence of that document, does not make the checking and verification of the figures entered in the final result sheet, Exh. 7 impossible or even difficult. Its preparation is not a requirement of any statutory provision. It is prepared only as a matter of convenience in view of the instructions of the Election Commission, by carrying over, collating and totalling the figures from the Check Memos containing tablewise figures of each round of counting. It is a sort of rough intermediary tabulation intended to facilitate the compilation of the final result-sheet m the prescribed form. The basic figures from which the final result-sheet, whether detailed or abstracted, are worked out are given in the Check Memos pertaining to the various counting tables. Such Check Memos are available and in. deed reference to some of them namely Exhs. C/3, C/4, C/6 and C/8 was specifically made before us. The correctness or otherwise of the figures given in Ex. 7 could easily tee verified by tallying the same with the aggregate of those given in the Check Memos. Indeed, no argument has been advanced before us that the figures given in the final result sheet, Ex. 7, would not agree with the figures taken and totalled from the Check Memos.37. We therefore, repel this contention.38. This bring us to the last contention. The argument advanced by Mr. Prasad is that during the fourth round of counting 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detected by the petitioners counting agent, Jagannath Sah, lying under the table of the Assistant Returning Officer. Jagannath Sah protested. The Assistant Returning Officer, however, put those uncounted ballot papers in the lot of counted votes. P. W. 13 also, on coming to know about it, protested against that mixing. In support of this contention, Counsel has referred to the circumstance that at the end of the third round of counting, the appellant was leading by a margin of 2205 votes. It is urged, this lead of 2205 votes could not thereafter be turned into a deficit of 575 votes when the total number of ballot papers that remained to be counted in the last round, was 3800 only.39. Like the elusive cloud, this ground of objection, also, has been ever changing its hue and shape. In the application Exh. 3, for a recount which was submitted by the petitioner to the Returning Officer at 7 p. m. towards the close of the final round of counting all that was stated, was :"It is respectfully submitted that recounting of 168 Katoria Assembly Constituency be done. Because one bundle of 600 votes have beenrecounted again.All the votes be recounted."40. It was not alleged therein, even in an embryonic form that 600uncountedvotes in bundles were detectedlying underneath the tableof the Assistant Returning Officer. Such an allegation appeared for the first time in the election petition which was filed about 33 days after the election. What was earlier said to have counted twice over, had now become completely uncounted. What was then alleged in Ex. 3 to have been countedonthe table, has now goneunderneaththe table.41. The original allegation in Ex. 3 (which was repeated in the second application, Ex. 3a, presented at 7-40 p. m.) was manifestly untenable, because if there was double counting of any ballot papers, the total of the votes polled should have exceeded by the number doubly counted. No such excess was reflected in the grand total of the final result sheet. The total was correct. The petitioner had no explanation as to why the grand-total of the final result sheet did not show an excess of 600 or any other number of ballot papers. It was mainly for this reason, that the Returning Officer had rejected the applications of the petitioner for a recount. That is why the petitioner has now come forward with a changed version, invented as an afterthought.42. The final result sheet, Exh. 7, falsifies his present contention also. It shows that at the end of the third round, the appellant was leading by a margin of 424 votes only. There is no good reason to doubt the authenticity of the figures given in Exh. 7. As against it, the notes, Ex. 2 Series, on which the petitioner relies for his contention that at the end of the third round he was leading by 2205 votes was a self-serving and wholly unreliable piece of evidence. These notes (Ext. 2 series) were not mentioned in the list of reliance filed along with the petition. There is no reference to any such notes or their contents in the applications Exhs. 3 and 3a. These notes are said to have been made by the Counting Agents of the petitioner at the time of counting. But in the initial list submitted by the petitioner on 30-8-1972 for summoning among others, his Counting Agents as witnesses, it was not mentioned that they would produce any such notes. Subsequently on 28-3-1973 he moved the Court requesting that these witnesses be required to bring their notes.43. In these circumstances, the High Court was right in holding that these notes had been subsequently brought into existence for the purpose of this petition. ### Response: 0 ### Explanation: Election Commission, also indicates that Rule 93 (1) operates at a post-election stage. Under this instruction, the Returning Officer is required to seal the packets of all the papers relating to the election, specified in clauses (a), (b), (c), (d) and (e) of Rule 93 (1) immediatelyafterthe counting of the votes is over, with his own seal and also with that of the Commission. After the sealing, the packets are to be put in a separate steel box which shall be locked with two locks and each lock shall be sealed. Immediately after the declaration of the election result the sealed box is to be despatched to the District Election Officer who on receipt of the same shall forthright deposit it in safe custody in the Treasury under double-lock. The key of one of the locks is entrusted to the Treasury Officer. In Union Territories such a deposit is to be made by the Returning Officer. The secret seals of the Commission are returned immediately after their required use. Thus, it is clear that the custody contemplated by Rule 93 (1) is the post-election custody.29.In the light of the above discussion, the conclusion is inescapable that tile act of the Returning Officer in opening the packet, and in inspecting and counting the unused ballot-papers found therein, far from amounting to an illegality, was necessary for the due performance of the duty enjoined on him by the Rules.30. Accordingly, we overrule this contention.31. It is urged that the detailed result-sheet, prepared candidate-wise, tablewise and round-wise, from which figures mentioned in the final result-sheet (Exh. 7) were extracted, has been deliberately withheld to prevent detection of the hank panky done in the counting. Such a detailed result sheet, it is maintained, was required to be prepared - and was admittedly prepared - under instruction No. 17 (q) in "the Hand Book for Returning Officers (1970)" issued by the ElectionFrom the statement of R. W. 13 extracted above, it would appear that at first a detailed result sheet in which figures were tabulated candidate-wise, table-wise and round-wise was prepared, and then, therefrom, all the figures, excepting those showing table-wise break-up, were carried over to the final result sheet, Exh. 7, drawn up in the prescribed Form 20. This detailed result-sheet, though summoned, is not forthcoming from, the District Election Officer. Might be, it has been misplaced. Might be, it was destroyed by the Counting Staff after the preparation of the final result-sheet in the prescribed Form. Whatever be the case, the absence of that document, does not make the checking and verification of the figures entered in the final result sheet, Exh. 7 impossible or even difficult. Its preparation is not a requirement of any statutory provision. It is prepared only as a matter of convenience in view of the instructions of the Election Commission, by carrying over, collating and totalling the figures from the Check Memos containing tablewise figures of each round of counting. It is a sort of rough intermediary tabulation intended to facilitate the compilation of the final result-sheet m the prescribed form. The basic figures from which the final result-sheet, whether detailed or abstracted, are worked out are given in the Check Memos pertaining to the various counting tables. Such Check Memos are available and in. deed reference to some of them namely Exhs. C/3, C/4, C/6 and C/8 was specifically made before us. The correctness or otherwise of the figures given in Ex. 7 could easily tee verified by tallying the same with the aggregate of those given in the Check Memos. Indeed, no argument has been advanced before us that the figures given in the final result sheet, Ex. 7, would not agree with the figures taken and totalled from the Check Memos.37. We therefore, repel this contention.38. This bring us to the last contention. The argument advanced by Mr. Prasad is that during the fourth round of counting 600 to 700 unused and uncounted ballot papers in bundles of 25 each were detected by the petitioners counting agent, Jagannath Sah, lying under the table of the Assistant Returning Officer. Jagannath Sah protested. The Assistant Returning Officer, however, put those uncounted ballot papers in the lot of counted votes. P. W. 13 also, on coming to know about it, protested against that mixing. In support of this contention, Counsel has referred to the circumstance that at the end of the third round of counting, the appellant was leading by a margin of 2205 votes. It is urged, this lead of 2205 votes could not thereafter be turned into a deficit of 575 votes when the total number of ballot papers that remained to be counted in the last round, was 3800 only.The final result sheet, Exh. 7, falsifies his present contention also. It shows that at the end of the third round, the appellant was leading by a margin of 424 votes only. There is no good reason to doubt the authenticity of the figures given in Exh. 7. As against it, the notes, Ex. 2 Series, on which the petitioner relies for his contention that at the end of the third round he was leading by 2205 votes was a self-serving and wholly unreliable piece of evidence. These notes (Ext. 2 series) were not mentioned in the list of reliance filed along with the petition. There is no reference to any such notes or their contents in the applications Exhs. 3 and 3a. These notes are said to have been made by the Counting Agents of the petitioner at the time of counting. But in the initial list submitted by the petitioner on 30-8-1972 for summoning among others, his Counting Agents as witnesses, it was not mentioned that they would produce any such notes. Subsequently on 28-3-1973 he moved the Court requesting that these witnesses be required to bring their notes.43. In these circumstances, the High Court was right in holding that these notes had been subsequently brought into existence for the purpose of this petition.

Mahendra Rambhai Patel Vs. Controller Of Estate Duty, Gujarat

payable when Maubhai died on June 7, 1954. Section 5 of the Act, sub-s. (1), provides :"In the case of every person dying after the commencement of this Act, there shall save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all property, settled or not settled, * * * which passes on the death of such person, a duty called estate duty at the rates fixed in accordance with Section 35."The expression property is defined in S. 2 (15) as inclusive of-"any interest in property, moveable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also includes any property converted from one species into another by any method."Explanations 1 and 2 are not relevant. Section 2 (16) defines "property passing on the death" as inclusive of-"property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and "on the death" includes "at a period ascertainable only by reference to the death"."Interest of Manubhai in the shares and in the accumulated income was property within the meaning of S. 2 (15). That property did, as we have already pointed out, vest in ownership in Manubhai immediately on the execution of the deed of trust. On Manubhai dying unmarried, the property as to the shares under Cl. 7 of the deed and as to the accumulated income under the law of inheritance devolved upon his brother Mahendra. On Manubhais death there was under the deed of trust a change in the person who was beneficially interested in the shares.6. Counsel for the appellant relied upon S. 23 of the Estate Duty Act, which insofar as it is material, provides:"In the case of settled property where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession and one or more subsequent limitation under the settlement continue to subsist, the property shall not be deemed pass on his death by reason only of the failure or determination of that interest."That the 80 shares under the deed of trust were settled property is not disputed; and Manubhai had an interest in those 80 share. But the interest of Manubhai in the shares did not, for reasons already set out, fail or determine before it became an interest in possession. Section 23 therefore has no application to the present case.7. Counsel for the appellant relic upon an Irish case reported in The Attorney-General v. power, (1906) 2 Ir. Rep. 272. In that case under a settlement one H took a vested legal estate as tenant in common fee, with a limitation over on his dying under the age of twenty-one. The legal estate was subject to the proviso that during minority of H the trustees were to enter into receipt of the rents, providing thereout for his maintenance etc. and to accumulate the surplus upon trust, if H should attain his age, for him, and if H should die under-age for the persons who should ultimately become indefeasibly entitled. H died underage, and the defendants became indefeasibly entitled as tenants-in-common in fee of all the lands in the settlement, including Hs share. It was held that estate duty was not payable as on a property passing on Hs death, that Hs interest had not become beneficial interest in possession in the lands at his death, and that accordingly S. 5, sub-s. (3) of the Finance Act 1894, was inapplicable. Section 5 (3) of the Finance Act, 1894 which was latter amplified by S. 48 of the Finance Act, 1938, was substantially in the same terms as S. 23 of the Estate Duty Act. But Powers case, (l906) 2 Ir. Rep. 272 was decided on the footing that the settlors interest was not vested in H in possession during his minority. The Court held that mere possibility of receiving maintenance at the discretion ot the trustees was not per se an interest in possession for the purpose of S.5(3) of the Finance Act, 1894. An interest in property liable to be divested on the death before the beneficiary attains a certain age, coupled with a direction to accumulate the income in the meantime so far as it is not required for maintenance so as to make the accumulated income an accretion to the capital is in substance a contingent interest, and the property may be exempt from estate duty, if the beneficiary dies before he attains the age specified. But where, as in the present case, the income of the property absolutely belongs to the beneficiary and such part of the interest as is not applied for the benefit of the beneficiary, is liable to be accumulated for his benefit, and in the event of his death before he attains the age specified in the deed of trust, it is to devolve upon his heirs, creates in the beneficiary an interest in possession and not an interest in expectancy.8. The High Court was in our judgment, right in holding that though the shares were not to be delivered over to Manubhai until he attained the age of twenty-five years, the shares belonged to him since the execution of the deed of trust, and he was also beneficially entitled to the income from the shares; that his interest in the shares and the income was not an estate in remainder or reversion, nor was his interest a future interest; and that he was presently entitled to the whole income of his one-half share in the said 160 shares and after provision of maintenance and advancement, if any surplus remained, it was to be accumulated and he was the beneficial owner of the accumulation of such surplus income and but for Cl. 5 he could dispose it of as he willed, and if he died it was heritable by his heirs.

0[ds]Under the terms of the deed of trust, each beneficiary was entitled to 80 shares of the Central Trading Company. The trustees were to hold 80 shares for each beneficiary till he attained the age of twenty-five years, and the trustees were to apply either the whole or part of the profits arising from the shares, as the trustees deemed "fit and proper", for the maintenance and advancement of the beneficiaries, and to invest the surplus in securities or concerns as they deemed proper. In the event of death of either beneficiary before he attained the age of twenty-five, the shares settled on him, but not the accumulated surplus income, were to devolve on the persons mentioned in Cls. 6 and 7. Till each beneficiary attained the age of twenty-five years, management of the shares was to remain with the trustees and provision for maintenance and advancement for the benefit of the beneficiary was to be made by the trustees. But the income which remained unused after providing for maintenance and advancement was not directed in the event of death of the beneficiary before he attained the age of twenty five years to go to the persons named in Cls. 6 and 7 and was to devolve upon the heirs of the beneficiary according to the personal law of succession and inheritance. This clearly indicates that the entire income accruing to each beneficiary in respect of his 80 shares belonged to him. Clause 5 also indicated that but for that clause the beneficiaries would have been entitled to exercise the right to mortgage or create any incumbrance or sell the shares and the accumulations thereof. By Cl. 4 it was expressly provided that on the attainment of the age of twenty five years by each beneficiary the trustees shall transfer 80 shares and the accumulations thereof or any other investment in lieu thereof as provided in Cls. 2 and 3 of the deed.4. On the clauses set out earlier, we are unable to accept the contention that each beneficiary, until he attained the age of twenty-five years, was enfield merely to receive maintenance and provision for advancement, and had no interest in the corpus of the shares. We are of the opinion that under the deed of trust the right to 80 shares and to the income thereof arose from the date on which the deed of trust became operative and it was not deferred till the beneficiary attained the age of twenty-fivethe 80 shares under the deed of trust were settled property is not disputed; and Manubhai had an interest in those 80 share. But the interest of Manubhai in the shares did not, for reasons already set out, fail or determine before it became an interest in possession. Section 23 therefore has no application to the presentinterest in property liable to be divested on the death before the beneficiary attains a certain age, coupled with a direction to accumulate the income in the meantime so far as it is not required for maintenance so as to make the accumulated income an accretion to the capital is in substance a contingent interest, and the property may be exempt from estate duty, if the beneficiary dies before he attains the age specified. But where, as in the present case, the income of the property absolutely belongs to the beneficiary and such part of the interest as is not applied for the benefit of the beneficiary, is liable to be accumulated for his benefit, and in the event of his death before he attains the age specified in the deed of trust, it is to devolve upon his heirs, creates in the beneficiary an interest in possession and not an interest in expectancy.8. The High Court was in our judgment, right in holding that though the shares were not to be delivered over to Manubhai until he attained the age of twenty-five years, the shares belonged to him since the execution of the deed of trust, and he was also beneficially entitled to the income from the shares; that his interest in the shares and the income was not an estate in remainder or reversion, nor was his interest a future interest; and that he was presently entitled to the whole income of his one-half share in the said 160 shares and after provision of maintenance and advancement, if any surplus remained, it was to be accumulated and he was the beneficial owner of the accumulation of such surplus income and but for Cl. 5 he could dispose it of as he willed, and if he died it was heritable by his heirs.

### 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: payable when Maubhai died on June 7, 1954. Section 5 of the Act, sub-s. (1), provides :"In the case of every person dying after the commencement of this Act, there shall save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all property, settled or not settled, * * * which passes on the death of such person, a duty called estate duty at the rates fixed in accordance with Section 35."The expression property is defined in S. 2 (15) as inclusive of-"any interest in property, moveable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also includes any property converted from one species into another by any method."Explanations 1 and 2 are not relevant. Section 2 (16) defines "property passing on the death" as inclusive of-"property passing either immediately on the death or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and "on the death" includes "at a period ascertainable only by reference to the death"."Interest of Manubhai in the shares and in the accumulated income was property within the meaning of S. 2 (15). That property did, as we have already pointed out, vest in ownership in Manubhai immediately on the execution of the deed of trust. On Manubhai dying unmarried, the property as to the shares under Cl. 7 of the deed and as to the accumulated income under the law of inheritance devolved upon his brother Mahendra. On Manubhais death there was under the deed of trust a change in the person who was beneficially interested in the shares.6. Counsel for the appellant relied upon S. 23 of the Estate Duty Act, which insofar as it is material, provides:"In the case of settled property where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession and one or more subsequent limitation under the settlement continue to subsist, the property shall not be deemed pass on his death by reason only of the failure or determination of that interest."That the 80 shares under the deed of trust were settled property is not disputed; and Manubhai had an interest in those 80 share. But the interest of Manubhai in the shares did not, for reasons already set out, fail or determine before it became an interest in possession. Section 23 therefore has no application to the present case.7. Counsel for the appellant relic upon an Irish case reported in The Attorney-General v. power, (1906) 2 Ir. Rep. 272. In that case under a settlement one H took a vested legal estate as tenant in common fee, with a limitation over on his dying under the age of twenty-one. The legal estate was subject to the proviso that during minority of H the trustees were to enter into receipt of the rents, providing thereout for his maintenance etc. and to accumulate the surplus upon trust, if H should attain his age, for him, and if H should die under-age for the persons who should ultimately become indefeasibly entitled. H died underage, and the defendants became indefeasibly entitled as tenants-in-common in fee of all the lands in the settlement, including Hs share. It was held that estate duty was not payable as on a property passing on Hs death, that Hs interest had not become beneficial interest in possession in the lands at his death, and that accordingly S. 5, sub-s. (3) of the Finance Act 1894, was inapplicable. Section 5 (3) of the Finance Act, 1894 which was latter amplified by S. 48 of the Finance Act, 1938, was substantially in the same terms as S. 23 of the Estate Duty Act. But Powers case, (l906) 2 Ir. Rep. 272 was decided on the footing that the settlors interest was not vested in H in possession during his minority. The Court held that mere possibility of receiving maintenance at the discretion ot the trustees was not per se an interest in possession for the purpose of S.5(3) of the Finance Act, 1894. An interest in property liable to be divested on the death before the beneficiary attains a certain age, coupled with a direction to accumulate the income in the meantime so far as it is not required for maintenance so as to make the accumulated income an accretion to the capital is in substance a contingent interest, and the property may be exempt from estate duty, if the beneficiary dies before he attains the age specified. But where, as in the present case, the income of the property absolutely belongs to the beneficiary and such part of the interest as is not applied for the benefit of the beneficiary, is liable to be accumulated for his benefit, and in the event of his death before he attains the age specified in the deed of trust, it is to devolve upon his heirs, creates in the beneficiary an interest in possession and not an interest in expectancy.8. The High Court was in our judgment, right in holding that though the shares were not to be delivered over to Manubhai until he attained the age of twenty-five years, the shares belonged to him since the execution of the deed of trust, and he was also beneficially entitled to the income from the shares; that his interest in the shares and the income was not an estate in remainder or reversion, nor was his interest a future interest; and that he was presently entitled to the whole income of his one-half share in the said 160 shares and after provision of maintenance and advancement, if any surplus remained, it was to be accumulated and he was the beneficial owner of the accumulation of such surplus income and but for Cl. 5 he could dispose it of as he willed, and if he died it was heritable by his heirs. ### Response: 0 ### Explanation: Under the terms of the deed of trust, each beneficiary was entitled to 80 shares of the Central Trading Company. The trustees were to hold 80 shares for each beneficiary till he attained the age of twenty-five years, and the trustees were to apply either the whole or part of the profits arising from the shares, as the trustees deemed "fit and proper", for the maintenance and advancement of the beneficiaries, and to invest the surplus in securities or concerns as they deemed proper. In the event of death of either beneficiary before he attained the age of twenty-five, the shares settled on him, but not the accumulated surplus income, were to devolve on the persons mentioned in Cls. 6 and 7. Till each beneficiary attained the age of twenty-five years, management of the shares was to remain with the trustees and provision for maintenance and advancement for the benefit of the beneficiary was to be made by the trustees. But the income which remained unused after providing for maintenance and advancement was not directed in the event of death of the beneficiary before he attained the age of twenty five years to go to the persons named in Cls. 6 and 7 and was to devolve upon the heirs of the beneficiary according to the personal law of succession and inheritance. This clearly indicates that the entire income accruing to each beneficiary in respect of his 80 shares belonged to him. Clause 5 also indicated that but for that clause the beneficiaries would have been entitled to exercise the right to mortgage or create any incumbrance or sell the shares and the accumulations thereof. By Cl. 4 it was expressly provided that on the attainment of the age of twenty five years by each beneficiary the trustees shall transfer 80 shares and the accumulations thereof or any other investment in lieu thereof as provided in Cls. 2 and 3 of the deed.4. On the clauses set out earlier, we are unable to accept the contention that each beneficiary, until he attained the age of twenty-five years, was enfield merely to receive maintenance and provision for advancement, and had no interest in the corpus of the shares. We are of the opinion that under the deed of trust the right to 80 shares and to the income thereof arose from the date on which the deed of trust became operative and it was not deferred till the beneficiary attained the age of twenty-fivethe 80 shares under the deed of trust were settled property is not disputed; and Manubhai had an interest in those 80 share. But the interest of Manubhai in the shares did not, for reasons already set out, fail or determine before it became an interest in possession. Section 23 therefore has no application to the presentinterest in property liable to be divested on the death before the beneficiary attains a certain age, coupled with a direction to accumulate the income in the meantime so far as it is not required for maintenance so as to make the accumulated income an accretion to the capital is in substance a contingent interest, and the property may be exempt from estate duty, if the beneficiary dies before he attains the age specified. But where, as in the present case, the income of the property absolutely belongs to the beneficiary and such part of the interest as is not applied for the benefit of the beneficiary, is liable to be accumulated for his benefit, and in the event of his death before he attains the age specified in the deed of trust, it is to devolve upon his heirs, creates in the beneficiary an interest in possession and not an interest in expectancy.8. The High Court was in our judgment, right in holding that though the shares were not to be delivered over to Manubhai until he attained the age of twenty-five years, the shares belonged to him since the execution of the deed of trust, and he was also beneficially entitled to the income from the shares; that his interest in the shares and the income was not an estate in remainder or reversion, nor was his interest a future interest; and that he was presently entitled to the whole income of his one-half share in the said 160 shares and after provision of maintenance and advancement, if any surplus remained, it was to be accumulated and he was the beneficial owner of the accumulation of such surplus income and but for Cl. 5 he could dispose it of as he willed, and if he died it was heritable by his heirs.

Jivarajbhai Ujamshi Sheth And Others Vs. Chintamanrao Balaji And Others

goods purchased, and other property, and submitted that the total value of the goodwill of the firm by taking into account the profit of the firm for the last five years "as per the statement filed was Rs. 21,70,650/10/ 3 and deducting therefrom 15% of the outstandings of the firm considered as irrecoverable, the balance was Rs. 20,33,295 /12/9", and that this was the amount from which the shares of the retiring partners were to be computed. On December 2, 1958 an application was filed by Chintamanrao inviting the attention of the arbitrator to the agreement of reference and to the terms of the deed of partnership, especially paragraphs 7 and 13, and submitting that the book values of items (2) to (5) in paragraph 4 of the agreement of reference were already in the books of account and could be easily found without any detailed or elaborate examination of the books of account, it was unnecessary to enter upon any detailed inspection of the various entries. On this application an order was passed on December 5, 1958, by the arbitrator that the inspection of the books of account do start on December 21, 1958, in his presence at Sagar in the office of Messers. Virajlal Manilal and Company and that Chintamanrao do make arrangements for giving inspection of all the books of account. On December 22, 1958, another application was submitted by Chintamanrao stating that it was not necessary to produce certain registers and manufacturing accounts and that the orders in that behalf were beyond the jurisdiction of the arbitrator and that he was unable to produce the documents demanded. It was submitted by that application that the kind of inspection claimed and granted amounted to re-opening of the accounts for the last five years which were closed with the consent and to the knowledge of all the partners and which could not in law be re-opened. On December 23, 1958, an application was made by Amrit Lal son of Jivraj (one of the retiring partners) submitting that the arbitrator had to value the goodwill and this had to be done by ascertaining the value of the profits of the five years, and for that purpose the arbitrator was entitled to ascertain yearly profits by scrutinising the account books and finding out the yearly net profits. On these applications on December 25, 1958, the arbitrator gave a direction that Chintamanrao do produce the papers mentioned in item No. 2 in the order dated September 16, 1958, namely, the gross and net profits of the last five years, and that he do produce the other papers which were ordered to be produced by the order dated September 16, 1958. Thereafter on January 9, 1959, the arbitrator made his award. The instance of the arbitrator upon production of the gross and net profits of the last five years indicate that it was the opinion of the arbitrator that he was entitled to take into consideration not only the book value of the assets given in the partnership books of account but the depreciation and appreciation of those assets. The specific use of the expression by the arbitrator that he had included the depreciation and appreciation of various items of property and the procedure followed by him including the orders therefore clearly establish that the expression used by him was not a mere surplusage.23. It is clear that the arbitrator has included in his valuation some amount which he was incompetent, by virtue of the limits placed upon his authority by the deed of reference, to include. This is not a case in which the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication. It is a case of assumption of jurisdiction not possessed by him, and that renders the award, to the extent to which it is beyond the arbitrators jurisdiction, invalid. It is, however, impossible to sever from the valuation made by the arbitrator the value of the depreciation and appreciation included by the arbitrator. The award must, therefore fail in its entirety.24. In this view of the case, we do not think it necessary to consider whether the plea raised by the remaining partners that the award is vitiated on the ground that the arbitrator accepted from the retiring partners documents prepared from the books of account without giving an opportunity to the remaining partners to explain those documents. It was the case of Chintamanrao that these documents were prepared and handed over to the arbitrator without giving any notice to him. It was the case of the retiring partners that the documents consisted merely of extracts of entries in the books of account, and that in any event Chintamanrao had assented to those documents being included in the record of the arbitrator. For the reasons set out by us in dealing with the first plea of setting aside the award, and that plea having succeeded, we do not think it necessary to enter upon the respective contentions of the parties on the second ground.25. We accordingly hold that the award was properly set aside by the Courts below.26. Counsel for the retiring partners submitted that on the view taken by us, the award should be remitted to the arbitrator under O. 16 of the Arbitration Act, 1940. No such request, was, however, made by them in the Trial Court or in the High Court, and we will not be justified in the circumstances of the case in acceding to the request. We may observe that we have not heard counsel on the question whether in the circumstances of the case and on the conclusion recorded, we have the power under S. 16 to remit the award to the arbitrator. The retiring partners have also not asked for an order for supersession of the arbitration agreement in exercise of the powers of the Court under S. 19. We have, therefore, refrained from considering that question also.

0[ds]In the case before us there is no dispute that the duty of the arbitrator was to make "valuation of the firm" subject to paragraph 13 of the partnership agreement and it may even be granted that in arriving at that valuation he was not bound by paragraph 7, but on this question we express no opinion. But the values as mentioned in the different clauses had to be accepted in making up the partnership account in respect of the four matters specifically enumerated. The principle of Cruikshanks case, (1922) 93 LJ Ch 136 did not apply, because the partnership agreement in this case itself provides that the book value in the books of the firm shall be accepted.It was next urged that the depreciation or appreciation which had been entered in the assessment of the book value were "other matters connected with" the "transactions" mentioned in the deed of reference. But manifestly those other matters were apart from the valuation of the goodwill, property, outstandings and the dead-stock.In this view of the case, we do not think it necessary to consider whether the plea raised by the remaining partners that the award is vitiated on the ground that the arbitrator accepted from the retiring partners documents prepared from the books of account without giving an opportunity to the remaining partners to explain those documents. It was the case of Chintamanrao that these documents were prepared and handed over to the arbitrator without giving any notice to him. It was the case of the retiring partners that the documents consisted merely of extracts of entries in the books of account, and that in any event Chintamanrao had assented to those documents being included in the record of the arbitrator. For the reasons set out by us in dealing with the first plea of setting aside the award, and that plea having succeeded, we do not think it necessary to enter upon the respective contentions of the parties on the second ground.Counsel for the retiring partners submitted that on the view taken by us, the award should be remitted to the arbitrator under O. 16 of the Arbitration Act, 1940. No such request, was, however, made by them in the Trial Court or in the High Court, and we will not be justified in the circumstances of the case in acceding to the request. We may observe that we have not heard counsel on the question whether in the circumstances of the case and on the conclusion recorded, we have the power under S. 16 to remit the award to the arbitrator. The retiring partners have also not asked for an order for supersession of the arbitration agreement in exercise of the powers of the Court under S. 19. We have, therefore, refrained from considering that question also.

### 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: goods purchased, and other property, and submitted that the total value of the goodwill of the firm by taking into account the profit of the firm for the last five years "as per the statement filed was Rs. 21,70,650/10/ 3 and deducting therefrom 15% of the outstandings of the firm considered as irrecoverable, the balance was Rs. 20,33,295 /12/9", and that this was the amount from which the shares of the retiring partners were to be computed. On December 2, 1958 an application was filed by Chintamanrao inviting the attention of the arbitrator to the agreement of reference and to the terms of the deed of partnership, especially paragraphs 7 and 13, and submitting that the book values of items (2) to (5) in paragraph 4 of the agreement of reference were already in the books of account and could be easily found without any detailed or elaborate examination of the books of account, it was unnecessary to enter upon any detailed inspection of the various entries. On this application an order was passed on December 5, 1958, by the arbitrator that the inspection of the books of account do start on December 21, 1958, in his presence at Sagar in the office of Messers. Virajlal Manilal and Company and that Chintamanrao do make arrangements for giving inspection of all the books of account. On December 22, 1958, another application was submitted by Chintamanrao stating that it was not necessary to produce certain registers and manufacturing accounts and that the orders in that behalf were beyond the jurisdiction of the arbitrator and that he was unable to produce the documents demanded. It was submitted by that application that the kind of inspection claimed and granted amounted to re-opening of the accounts for the last five years which were closed with the consent and to the knowledge of all the partners and which could not in law be re-opened. On December 23, 1958, an application was made by Amrit Lal son of Jivraj (one of the retiring partners) submitting that the arbitrator had to value the goodwill and this had to be done by ascertaining the value of the profits of the five years, and for that purpose the arbitrator was entitled to ascertain yearly profits by scrutinising the account books and finding out the yearly net profits. On these applications on December 25, 1958, the arbitrator gave a direction that Chintamanrao do produce the papers mentioned in item No. 2 in the order dated September 16, 1958, namely, the gross and net profits of the last five years, and that he do produce the other papers which were ordered to be produced by the order dated September 16, 1958. Thereafter on January 9, 1959, the arbitrator made his award. The instance of the arbitrator upon production of the gross and net profits of the last five years indicate that it was the opinion of the arbitrator that he was entitled to take into consideration not only the book value of the assets given in the partnership books of account but the depreciation and appreciation of those assets. The specific use of the expression by the arbitrator that he had included the depreciation and appreciation of various items of property and the procedure followed by him including the orders therefore clearly establish that the expression used by him was not a mere surplusage.23. It is clear that the arbitrator has included in his valuation some amount which he was incompetent, by virtue of the limits placed upon his authority by the deed of reference, to include. This is not a case in which the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication. It is a case of assumption of jurisdiction not possessed by him, and that renders the award, to the extent to which it is beyond the arbitrators jurisdiction, invalid. It is, however, impossible to sever from the valuation made by the arbitrator the value of the depreciation and appreciation included by the arbitrator. The award must, therefore fail in its entirety.24. In this view of the case, we do not think it necessary to consider whether the plea raised by the remaining partners that the award is vitiated on the ground that the arbitrator accepted from the retiring partners documents prepared from the books of account without giving an opportunity to the remaining partners to explain those documents. It was the case of Chintamanrao that these documents were prepared and handed over to the arbitrator without giving any notice to him. It was the case of the retiring partners that the documents consisted merely of extracts of entries in the books of account, and that in any event Chintamanrao had assented to those documents being included in the record of the arbitrator. For the reasons set out by us in dealing with the first plea of setting aside the award, and that plea having succeeded, we do not think it necessary to enter upon the respective contentions of the parties on the second ground.25. We accordingly hold that the award was properly set aside by the Courts below.26. Counsel for the retiring partners submitted that on the view taken by us, the award should be remitted to the arbitrator under O. 16 of the Arbitration Act, 1940. No such request, was, however, made by them in the Trial Court or in the High Court, and we will not be justified in the circumstances of the case in acceding to the request. We may observe that we have not heard counsel on the question whether in the circumstances of the case and on the conclusion recorded, we have the power under S. 16 to remit the award to the arbitrator. The retiring partners have also not asked for an order for supersession of the arbitration agreement in exercise of the powers of the Court under S. 19. We have, therefore, refrained from considering that question also. ### Response: 0 ### Explanation: In the case before us there is no dispute that the duty of the arbitrator was to make "valuation of the firm" subject to paragraph 13 of the partnership agreement and it may even be granted that in arriving at that valuation he was not bound by paragraph 7, but on this question we express no opinion. But the values as mentioned in the different clauses had to be accepted in making up the partnership account in respect of the four matters specifically enumerated. The principle of Cruikshanks case, (1922) 93 LJ Ch 136 did not apply, because the partnership agreement in this case itself provides that the book value in the books of the firm shall be accepted.It was next urged that the depreciation or appreciation which had been entered in the assessment of the book value were "other matters connected with" the "transactions" mentioned in the deed of reference. But manifestly those other matters were apart from the valuation of the goodwill, property, outstandings and the dead-stock.In this view of the case, we do not think it necessary to consider whether the plea raised by the remaining partners that the award is vitiated on the ground that the arbitrator accepted from the retiring partners documents prepared from the books of account without giving an opportunity to the remaining partners to explain those documents. It was the case of Chintamanrao that these documents were prepared and handed over to the arbitrator without giving any notice to him. It was the case of the retiring partners that the documents consisted merely of extracts of entries in the books of account, and that in any event Chintamanrao had assented to those documents being included in the record of the arbitrator. For the reasons set out by us in dealing with the first plea of setting aside the award, and that plea having succeeded, we do not think it necessary to enter upon the respective contentions of the parties on the second ground.Counsel for the retiring partners submitted that on the view taken by us, the award should be remitted to the arbitrator under O. 16 of the Arbitration Act, 1940. No such request, was, however, made by them in the Trial Court or in the High Court, and we will not be justified in the circumstances of the case in acceding to the request. We may observe that we have not heard counsel on the question whether in the circumstances of the case and on the conclusion recorded, we have the power under S. 16 to remit the award to the arbitrator. The retiring partners have also not asked for an order for supersession of the arbitration agreement in exercise of the powers of the Court under S. 19. We have, therefore, refrained from considering that question also.

R.S. Mittal Vs. Union of India

sitting Judge of this Court was gathering dust in records of the concerned Ministry since January 25, 1988. We take serious view of the matter and we direct that any recommendation of a Selection Board which is headed by a sitting Judge of this Court must be given prompt and immediate attention. Once there is a recommendation by such a Selection Board, nothing should intervene between the recommendation and the consideration by the appointments Committee of Cabinet (ACC). The Minister/Secretary in the Administrative Department is under a legal obligation and is duty bound to process the recommendation of the Selection Board by giving it a top priority an place the same before the ACC within reasonable time. In the present case though the action was stated to be initiated of February 28, 1989 the reference to the AC was made on May 1, 1989. We direct that the recommendations of the Selection Board headed by a sitting Judge of this Court must be placed before the ACC expeditiously and preferably within two months from the date of recommendation. 7.It is stated by the Central Government that the offer of appointment was sent to Mr. Murgod on January 30, 1990. He did not join till May 4, 1990 and as a consequence, the offer was cancelled. Thereafter no further offer was made to any other candidate and the matter was closed. 8. Apart from the appellant, Mr. S.P. Singh Chaudhary, who was at No. 2 in the select-panel also sought similar relief from the Central Administrative Tribunal. His application having been dismissed, he filed Civil Appeal No. 5156 of 1993 in this Court. Sri S.P. Singh Chaudhary was a member of the Delhi Judicial Service and was posted as Additional District and Sessions Judge at the relevant time. At the hearing of the appeal, we were informed that Sri S.P. Singh Chaudhary sought voluntary premature retirement from judicial service, which was granted by the Delhi High Court. He later on withdrew his appeal, which was disposed of as such by this Court on November 15, 1994. 9.At this stage, we may refer to Rule 4 of the Rules which is reproduced hereunder: "4. Method of Recruitment:- (1) There shall be a Selection Board consisting of - (i) a nominee of the Minister of Law; (ii) The Secretary to the Government of India Ministry of Law (Department of Legal Affairs); (iii) The President of the Tribunal; and (iv)Such other persons, if any, not exceeding two, as the Minister of Law may appoint- (2) The nominee of the Minister of Law shall be the Chairman of the Selection Board. (3) The Selection Board shall recommend persons for appointment as members from amongst the persons on the list of candidates prepared by the Ministry of Law after inviting applications therefore by advertisement or on the recommendations of the appropriate authorities. (4) The Central Government shall after taking into consideration the recommendations of the Selection Board make a list of persons selected for appointment as members. " * 10.As mentioned above, a sitting Judge of this Court being a nominee of the Minister of Law was the Chairman of the Selection Board. 11.The Tribunal dismissed the application by the impugned judgment on the following reasoning: (a) The selection-panel was merely a list of person found suitable and does not clothe the applications with any right of appointment. The recommendations of the Selection Board were directory and not therefore enforceable by issue of a writ of mandamus by the Court. (b) The letter of Ministry of Home Affairs dated February 8, 1982 which extends the life of panel till exhausted is not relevant in the present case. In, , the circumstances the life of the panel in this case cannot go beyond 18 months and as such expired in July, 1989. 12. It is no doubt correct that a person on the select-panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, w as given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Governments approach in this case was wholly unjustified. 13. On the facts of this case, it is not necessary for us to go into the question o applicability of various instructions relied upon by the Tribunal. Even if there are any instructions which provide that a select-panel shall remain operative for one and a half year, the said period in our vie is sufficient for the Central Government to exhaust the select-panel of the type with which we are concerned in this case. We have already indicated the time-bound procedure to be followed in dealing with the select-panel of this type. 14. Sri Murgod who was at No. 1 of the select-panel did not accept the appointment. Sri S.P . Singh Chaudhary has already withdrawn his appeal and he is out of run. We arc not sure about the stand of the person who is at No.3 of the select-panel. Under the circumstances it would not be appropriate to issue any direction at this point of time in favour of the appellant who is at No.4 of the select-panel.

0[ds]12. It is no doubt correct that a person on the select-panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, w as given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Governments approach in this case was wholly unjustified14. Sri Murgod who was at No. 1 of the select-panel did not accept the appointment. Sri S.P . Singh Chaudhary has already withdrawn his appeal and he is out of run. We arc not sure about the stand of the person who is at No.3 of the select-panel. Under the circumstances it would not be appropriate to issue any direction at this point of time in favour of the appellant who is at No.4 of the select-panel.

### 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: sitting Judge of this Court was gathering dust in records of the concerned Ministry since January 25, 1988. We take serious view of the matter and we direct that any recommendation of a Selection Board which is headed by a sitting Judge of this Court must be given prompt and immediate attention. Once there is a recommendation by such a Selection Board, nothing should intervene between the recommendation and the consideration by the appointments Committee of Cabinet (ACC). The Minister/Secretary in the Administrative Department is under a legal obligation and is duty bound to process the recommendation of the Selection Board by giving it a top priority an place the same before the ACC within reasonable time. In the present case though the action was stated to be initiated of February 28, 1989 the reference to the AC was made on May 1, 1989. We direct that the recommendations of the Selection Board headed by a sitting Judge of this Court must be placed before the ACC expeditiously and preferably within two months from the date of recommendation. 7.It is stated by the Central Government that the offer of appointment was sent to Mr. Murgod on January 30, 1990. He did not join till May 4, 1990 and as a consequence, the offer was cancelled. Thereafter no further offer was made to any other candidate and the matter was closed. 8. Apart from the appellant, Mr. S.P. Singh Chaudhary, who was at No. 2 in the select-panel also sought similar relief from the Central Administrative Tribunal. His application having been dismissed, he filed Civil Appeal No. 5156 of 1993 in this Court. Sri S.P. Singh Chaudhary was a member of the Delhi Judicial Service and was posted as Additional District and Sessions Judge at the relevant time. At the hearing of the appeal, we were informed that Sri S.P. Singh Chaudhary sought voluntary premature retirement from judicial service, which was granted by the Delhi High Court. He later on withdrew his appeal, which was disposed of as such by this Court on November 15, 1994. 9.At this stage, we may refer to Rule 4 of the Rules which is reproduced hereunder: "4. Method of Recruitment:- (1) There shall be a Selection Board consisting of - (i) a nominee of the Minister of Law; (ii) The Secretary to the Government of India Ministry of Law (Department of Legal Affairs); (iii) The President of the Tribunal; and (iv)Such other persons, if any, not exceeding two, as the Minister of Law may appoint- (2) The nominee of the Minister of Law shall be the Chairman of the Selection Board. (3) The Selection Board shall recommend persons for appointment as members from amongst the persons on the list of candidates prepared by the Ministry of Law after inviting applications therefore by advertisement or on the recommendations of the appropriate authorities. (4) The Central Government shall after taking into consideration the recommendations of the Selection Board make a list of persons selected for appointment as members. " * 10.As mentioned above, a sitting Judge of this Court being a nominee of the Minister of Law was the Chairman of the Selection Board. 11.The Tribunal dismissed the application by the impugned judgment on the following reasoning: (a) The selection-panel was merely a list of person found suitable and does not clothe the applications with any right of appointment. The recommendations of the Selection Board were directory and not therefore enforceable by issue of a writ of mandamus by the Court. (b) The letter of Ministry of Home Affairs dated February 8, 1982 which extends the life of panel till exhausted is not relevant in the present case. In, , the circumstances the life of the panel in this case cannot go beyond 18 months and as such expired in July, 1989. 12. It is no doubt correct that a person on the select-panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, w as given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Governments approach in this case was wholly unjustified. 13. On the facts of this case, it is not necessary for us to go into the question o applicability of various instructions relied upon by the Tribunal. Even if there are any instructions which provide that a select-panel shall remain operative for one and a half year, the said period in our vie is sufficient for the Central Government to exhaust the select-panel of the type with which we are concerned in this case. We have already indicated the time-bound procedure to be followed in dealing with the select-panel of this type. 14. Sri Murgod who was at No. 1 of the select-panel did not accept the appointment. Sri S.P . Singh Chaudhary has already withdrawn his appeal and he is out of run. We arc not sure about the stand of the person who is at No.3 of the select-panel. Under the circumstances it would not be appropriate to issue any direction at this point of time in favour of the appellant who is at No.4 of the select-panel. ### Response: 0 ### Explanation: 12. It is no doubt correct that a person on the select-panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, w as given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Governments approach in this case was wholly unjustified14. Sri Murgod who was at No. 1 of the select-panel did not accept the appointment. Sri S.P . Singh Chaudhary has already withdrawn his appeal and he is out of run. We arc not sure about the stand of the person who is at No.3 of the select-panel. Under the circumstances it would not be appropriate to issue any direction at this point of time in favour of the appellant who is at No.4 of the select-panel.

National Insurance Company Ltd. Vs. Balakrishnan and Ors

days to the respective operating officers and the counsel to withdraw the contest on this ground which would require identification of the number of appeals pending before the High Courts (whether filed by the claimants or the insurers) on this issue within a period of 2 weeks and the contest on this ground being withdrawn within a period of four weeks thereafter; iii) With respect to the appeals pending before the Honble Apex Court, informing, within a period of 7 days, their respective advocates on record about the IRDA Circulars, for appropriate advice and action. Your attention is also drawn to the discussions in the CEOs meeting on 26.11.2009, when it was reiterated that insurers must take immediate steps to collect statistics about accident claims on the above subject through a central point of reference decided by them as the same has to be communicated in due course to the Honourable High Court. You are therefore advised to take up the exercise of collecting and collating the information within a period of two months to ensure necessary & effective compliance of the order of the Court. The information may be centralized with the Secretariat of the General Insurance Council and also furnished to us. IRDA requires a written confirmation from you on the action taken by you in this regard. This has the approval of the Competent Authority. Sd/- (Prabodh Chander) Executive Director [emphasis added] 19. It is extremely important to note here that till 31st December, 2006 the Tariff Advisory Committee and, thereafter, from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the comprehensive/ package policy. Before the High Court, the Competent Authority of IRDA had stated that on 2nd June, 1986, the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the comprehensive policy and the said position continues to be in vogue till date. It had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the comprehensive/package policy irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued. 20. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:- In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TACs directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case. 21. In view of the aforesaid factual position, there is no scintilla of doubt that a comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an Act Policy stands on a different footing from a Comprehensive/Package Policy. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a Comprehensive/Package Policy covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the Act Policy which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a Comprehensive/Package Policy, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same. 22. In view of the aforesaid legal position, the question that emerges for consideration is whether in the case at hand, the policy is an Act Policy or Comprehensive/Package Policy. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car.

1[ds]scrutiny of the award passed by the tribunal which has been given the stamp of approval by the High Court, it is manifest that the 1st respondent was the Managing Director of the respondent No. 2 and the vehicle was registered in the name of the company but the Managing Director had signed on behalf of the company in the R. C. book of the car that was involved in the accident. The High Court has returned a finding that the company and the Managing Director are two different legal entities and hence, the Managing Director cannot be equated with the owner. On that foundation, the claimant has been treated as a passenger and, accordingly, liability has been fastened on the insurer.On a scanning of the aforesaid provision, it is evident that the policy of insurance must be a policy which complies with the conditions enumerated under Section 147 (1) (a) & (b). It also provides where a policy is not required and also stipulates to cover any contractual liability.15. At this juncture, we may refer with profit to a two-Judge Bench decision in Bhagyalakshmi and others v. United Insurance Company Limited and another [(2009) 7 SCC 148] wherein the learned Judges took note of the contention of the learned senior counsel for the claimant-appellant which was to the effect that after the deletion of the second proviso appended to Section 95(1)(b) of the Motor Vehicles Act, 1939 in the 1988 Act, the liability of a passenger in a private vehicle must also be included in the policy in terms of the provisions of the 1988 Act. The Bench reproduced the policy, referred to Section 64-B of the Insurance Act, 1938, took note of the role of the Tariff Advisory Committee and referred to the decisions in Amrit Lal Sood and Another v. Kaushalya Devi Thapar and Others [(1998) 3 SCC 744] , Asha Rani (supra), Tilak Singh (supra), Jhuma Saha (supra) and Sudhakaran K. V. and Others (supra) and observed thus :Before this Court, however, the nature of policies which came up for consideration were Act policies. This Court did not deal with a package policy. If the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third-party risk which would include all persons including occupants of the vehicle and the insurer having entered into a contract of insurance in relation thereto, we are of the opinion that the matter may require a deeper scrutinyOn a perusal of the aforesaid paragraph, it is clear as crystal that the decisions that have been referred to in Bhagyalakshmi (supra) involved only Act Policies. The Bench felt that the matter would be different if the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third party risk which would include an occupant in a vehicle. It is worth noting that the Bench referred to certain decisions of Delhi High Court and Madras High Court and thought it appropriate to refer the matter to a larger Bench. Be it noted, in the said case, the Court was dealing with comprehensive policy which is also called a package policy. In that context, in the earlier part of the judgment, the Bench had stated thus:-The policy in question is a package policy. The contract of insurance if given its face value covers the risk not only of a third party but also of persons travelling in the car including the owner thereof. The question is as to whether the policy in question is a comprehensive policy or only an Act policy.. Thus, it is quite vivid that the Bench had made a distinction between the Act policy and comprehensive policy/package policy. We respectfully concur with the said distinction. The crux of the matter is what would be the liability of the insurer if the policy is a comprehensive/package policy. We are absolutely conscious that the matter has been referred to a larger Bench, but, as is evident, the Bench has also observed that it would depend upon the view of the Tariff Advisory Committee pertaining to enforcement of its decision to cover the liability of an occupant in a vehicle in a comprehensive/package policy regard being had to the contract of insurance.17. At this stage, it is apposite to note that when the decision in Bhagyalakshmi (supra) was rendered, a decision of High Court of Delhi dealing with the view of the Tariff Advisory Committee in respect of comprehensive/package policy had not come into the field. We think it apt to refer to the same as it deals with certain factual position which can be of assistance. The High Court of Delhi in Yashpal Luthra and Anr. V. United India Insurance Co. Ltd. and Another [2011 ACJ 1415 ], after recording the evidence of the competent authority of Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA), reproduced a circular dated 16.11.2009 issued by IRDA to CEOs of all the Insurance Companies restating the factual position relating to the liability of Insurance companies in respect of a pillion rider on a two-wheeler and occupants in a private car under the comprehensive/package policy.19. It is extremely important to note here that till 31st December, 2006 the Tariff Advisory Committee and, thereafter, from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the comprehensive/ package policy. Before the High Court, the Competent Authority of IRDA had stated that on 2nd June, 1986, the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the comprehensive policy and the said position continues to be in vogue till date. It had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the comprehensive/package policy irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued20. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:-In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TACs directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.. In view of the aforesaid factual position, there is no scintilla of doubt that a comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an Act Policy stands on a different footing from a Comprehensive/Package Policy. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a Comprehensive/Package Policy covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the Act Policy which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a Comprehensive/Package Policy, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car.

### 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: days to the respective operating officers and the counsel to withdraw the contest on this ground which would require identification of the number of appeals pending before the High Courts (whether filed by the claimants or the insurers) on this issue within a period of 2 weeks and the contest on this ground being withdrawn within a period of four weeks thereafter; iii) With respect to the appeals pending before the Honble Apex Court, informing, within a period of 7 days, their respective advocates on record about the IRDA Circulars, for appropriate advice and action. Your attention is also drawn to the discussions in the CEOs meeting on 26.11.2009, when it was reiterated that insurers must take immediate steps to collect statistics about accident claims on the above subject through a central point of reference decided by them as the same has to be communicated in due course to the Honourable High Court. You are therefore advised to take up the exercise of collecting and collating the information within a period of two months to ensure necessary & effective compliance of the order of the Court. The information may be centralized with the Secretariat of the General Insurance Council and also furnished to us. IRDA requires a written confirmation from you on the action taken by you in this regard. This has the approval of the Competent Authority. Sd/- (Prabodh Chander) Executive Director [emphasis added] 19. It is extremely important to note here that till 31st December, 2006 the Tariff Advisory Committee and, thereafter, from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the comprehensive/ package policy. Before the High Court, the Competent Authority of IRDA had stated that on 2nd June, 1986, the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the comprehensive policy and the said position continues to be in vogue till date. It had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the comprehensive/package policy irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued. 20. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:- In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TACs directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case. 21. In view of the aforesaid factual position, there is no scintilla of doubt that a comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an Act Policy stands on a different footing from a Comprehensive/Package Policy. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a Comprehensive/Package Policy covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the Act Policy which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a Comprehensive/Package Policy, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same. 22. In view of the aforesaid legal position, the question that emerges for consideration is whether in the case at hand, the policy is an Act Policy or Comprehensive/Package Policy. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car. ### Response: 1 ### Explanation: comprehensive policy or only an Act policy.. Thus, it is quite vivid that the Bench had made a distinction between the Act policy and comprehensive policy/package policy. We respectfully concur with the said distinction. The crux of the matter is what would be the liability of the insurer if the policy is a comprehensive/package policy. We are absolutely conscious that the matter has been referred to a larger Bench, but, as is evident, the Bench has also observed that it would depend upon the view of the Tariff Advisory Committee pertaining to enforcement of its decision to cover the liability of an occupant in a vehicle in a comprehensive/package policy regard being had to the contract of insurance.17. At this stage, it is apposite to note that when the decision in Bhagyalakshmi (supra) was rendered, a decision of High Court of Delhi dealing with the view of the Tariff Advisory Committee in respect of comprehensive/package policy had not come into the field. We think it apt to refer to the same as it deals with certain factual position which can be of assistance. The High Court of Delhi in Yashpal Luthra and Anr. V. United India Insurance Co. Ltd. and Another [2011 ACJ 1415 ], after recording the evidence of the competent authority of Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA), reproduced a circular dated 16.11.2009 issued by IRDA to CEOs of all the Insurance Companies restating the factual position relating to the liability of Insurance companies in respect of a pillion rider on a two-wheeler and occupants in a private car under the comprehensive/package policy.19. It is extremely important to note here that till 31st December, 2006 the Tariff Advisory Committee and, thereafter, from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the comprehensive/ package policy. Before the High Court, the Competent Authority of IRDA had stated that on 2nd June, 1986, the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the comprehensive policy and the said position continues to be in vogue till date. It had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the comprehensive/package policy irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued20. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:-In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TACs directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.. In view of the aforesaid factual position, there is no scintilla of doubt that a comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an Act Policy stands on a different footing from a Comprehensive/Package Policy. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a Comprehensive/Package Policy covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the Act Policy which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a Comprehensive/Package Policy, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car.

Kirloskar Oil Engines Limited Vs. Union of India and Others

or entirely unsustainable 4. Various submissions were advanced by Shri. Hidayatullah, the learned Senior Counsel appearing for the appellant. He urged that functional test to determine taxability or assessability was rejected by this Court as far back as 1988 in Jain Engineering Co. v. Collector of Customs1, therefore, the High Court gravely erred in rejecting the claim of the appellant only because the bushes and bearings manufactured by the appellant were performing the same function as bearings. Reliance was also placed on Union of India v. Delhi Cloth & General Mills2 and it was urged that the specifications by the Indian Standard Institute furnished very strong and indeed incontrovertible evidence and, therefore, the High Court was in complete error in its opinion that the Indian Standard specifications do not reflect trade understanding. The learned counsel challenged the finding recorded by the High Court on merits and urged that the specifications as given by the Indian Standard Institute have not only been understood erroneously, but even applied incorrectly as the Assistant Collector found that the bush and bearing manufactured by the appellant were of dimension of 4775 and the consensus having been arrived at the meeting between the Board and the trade representatives for including those bushes and washers which were of dimension of 4774 the High Court could not have in the absence of any other material held that the goods manufactured by the appellant were thin-walled bearings. On the other hand Shri. A. K. Ganguli, learned Senior Counsel appearing for the Department urged that it has been held by a Constitution Bench of this Court in Novopan India Ltd. v. CCE and Customs3 that the burden was on the assessee to prove the exception and in the absence of any material brought on record as to how the goods were understood in the trade circle the High Court was justified in dismissing the writ petition 5. A bush in normal sense is understood as "a thin metal sleeve or tubular lining serving as a bearing or guide". In Van Nostrands Scientific Encyclopaedia it is explained as under "In mechanical terminology, to bush is to reduce the size of a hole. A bushing is a hollow cylinder used as a renewable liner for a bearing or a drill jig." * Similarly, washer is understood as "a flat ring or drilled disc of metal used under the head of a bolt or nut to spread the load when tightened". In McGraw-Hills Encyclopaedia of Science & Technology it is explained as "a flattened, ring-shaped device used to improve the tightness of a screw fastener". The use of washer in common parlance is explained in the dictionary as "for placing beneath a nut or an axle bearing or joint, to serve as a cushion, to relieve friction etc. " A bearing is normally understood in mechanical sense to be a "part that rests on something or on which something rests or in which a pin etc. turns" (Encyclopaedia Britannica, Vol. 2). In normal sense, therefore, a washer has different purpose than bearing 6. Wrapped bushes and thrust washers, however, find a very wide application in engineering industry, particularly automobile industry. In the Foreword to the Indian Standard Booklet, published in 1974 it is mentioned that wrapped bushes save both space and weight and thrust washers with wrapped bushes are intended to take light thrust loads. A bearing on the other hand is generally understood as mentioned in the same booklet "an element of mechanism which allows a force to be transmitted between two relatively moving parts". A bush and washer manufactured by the appellant could not normally be treated as bearing except when it is understood in technical sense. It appears when the Indian Standard Specifications were published and washers and wrapped bushes, thrust washers and thrust half washers were mentioned in the booklet as goods which are extensively used in automobile industry, the Department invited the trade representatives to discuss the matter, the result of which has been extracted earlier. Therefore, before a decision was taken by the Board, there was no material available with the Department which could furnish basis for deciding whether bushes or washers manufactured by the appellant could be classified as bearing much less "thin-walled bearing" within the meaning of notification issued in 1971. Not only that the entire proceedings were initiated by the Superintendent of Central Excise on the basis of Trade Notice referred to earlier inviting the appellant to classify these goods as "thin-walled bearings" if they satisfied the specification of 4774. It is true, as held by the High Court and by the authorities that a trade notice is not binding, but what the High Court omitted to consider was that there was no other material with the Department on which it could assume that the washers and bushes manufactured by the appellant were "thin-walled bearings". The basis for initiation of proceedings being Indian Standard Booklet published by the Indian Standard Institute, it was not proper either for the High Court or for the assessing authorities to ignore it and levy the duty treating these goods to be "thin-walled bearings", on assumptions without any material. The observation in the judgment of the High Court that it was specification under IS : 4774-1968 is factually incorrect. The written note of the appellant given before the assessing authority has been extracted. It is obvious that the order was made under misapprehension7. Since the High Court and the assessing authorities approached the case with an entirely incorrect perspective, their orders cannot be maintained. Yet it would be hazardous for this Court to examine the dimension and specification of these bushes and washers and decide whether they can be classified as thin-walled bearings. For that purpose it would be expedient to sent the case back to the High Court which may decide it either itself or send it to the Tribunal which has now been constituted. In view of this it is not necessary to decide any other issue

1[ds]6. Wrapped bushes and thrust washers, however, find a very wide application in engineering industry, particularly automobile industry. In the Foreword to the Indian Standard Booklet, published in 1974 it is mentioned that wrapped bushes save both space and weight and thrust washers with wrapped bushes are intended to take light thrust loads. A bearing on the other hand is generally understood as mentioned in the same booklet "an element of mechanism which allows a force to be transmitted between two relatively moving parts". A bush and washer manufactured by the appellant could not normally be treated as bearing except when it is understood in technical sense. It appears when the Indian Standard Specifications were published and washers and wrapped bushes, thrust washers and thrust half washers were mentioned in the booklet as goods which are extensively used in automobile industry, the Department invited the trade representatives to discuss the matter, the result of which has been extracted earlier. Therefore, before a decision was taken by the Board, there was no material available with the Department which could furnish basis for deciding whether bushes or washers manufactured by the appellant could be classified as bearing much lessbearing" within the meaning of notification issued in 1971. Not only that the entire proceedings were initiated by the Superintendent of Central Excise on the basis of Trade Notice referred to earlier inviting the appellant to classify these goods asbearings" if they satisfied the specification of 4774. It is true, as held by the High Court and by the authorities that a trade notice is not binding, but what the High Court omitted to consider was that there was no other material with the Department on which it could assume that the washers and bushes manufactured by the appellant werebearings". The basis for initiation of proceedings being Indian Standard Booklet published by the Indian Standard Institute, it was not proper either for the High Court or for the assessing authorities to ignore it and levy the duty treating these goods to bebearings", on assumptions without any material. The observation in the judgment of the High Court that it was specification under IS :is factually incorrect. The written note of the appellant given before the assessing authority has been extracted. It is obvious that the order was made under misapprehension7. Since the High Court and the assessing authorities approached the case with an entirely incorrect perspective, their orders cannot be maintained. Yet it would be hazardous for this Court to examine the dimension and specification of these bushes and washers and decide whether they can be classified asbearings. For that purpose it would be expedient to sent the case back to the High Court which may decide it either itself or send it to the Tribunal which has now been constituted. In view of this it is not necessary to decide any other issue

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: or entirely unsustainable 4. Various submissions were advanced by Shri. Hidayatullah, the learned Senior Counsel appearing for the appellant. He urged that functional test to determine taxability or assessability was rejected by this Court as far back as 1988 in Jain Engineering Co. v. Collector of Customs1, therefore, the High Court gravely erred in rejecting the claim of the appellant only because the bushes and bearings manufactured by the appellant were performing the same function as bearings. Reliance was also placed on Union of India v. Delhi Cloth & General Mills2 and it was urged that the specifications by the Indian Standard Institute furnished very strong and indeed incontrovertible evidence and, therefore, the High Court was in complete error in its opinion that the Indian Standard specifications do not reflect trade understanding. The learned counsel challenged the finding recorded by the High Court on merits and urged that the specifications as given by the Indian Standard Institute have not only been understood erroneously, but even applied incorrectly as the Assistant Collector found that the bush and bearing manufactured by the appellant were of dimension of 4775 and the consensus having been arrived at the meeting between the Board and the trade representatives for including those bushes and washers which were of dimension of 4774 the High Court could not have in the absence of any other material held that the goods manufactured by the appellant were thin-walled bearings. On the other hand Shri. A. K. Ganguli, learned Senior Counsel appearing for the Department urged that it has been held by a Constitution Bench of this Court in Novopan India Ltd. v. CCE and Customs3 that the burden was on the assessee to prove the exception and in the absence of any material brought on record as to how the goods were understood in the trade circle the High Court was justified in dismissing the writ petition 5. A bush in normal sense is understood as "a thin metal sleeve or tubular lining serving as a bearing or guide". In Van Nostrands Scientific Encyclopaedia it is explained as under "In mechanical terminology, to bush is to reduce the size of a hole. A bushing is a hollow cylinder used as a renewable liner for a bearing or a drill jig." * Similarly, washer is understood as "a flat ring or drilled disc of metal used under the head of a bolt or nut to spread the load when tightened". In McGraw-Hills Encyclopaedia of Science & Technology it is explained as "a flattened, ring-shaped device used to improve the tightness of a screw fastener". The use of washer in common parlance is explained in the dictionary as "for placing beneath a nut or an axle bearing or joint, to serve as a cushion, to relieve friction etc. " A bearing is normally understood in mechanical sense to be a "part that rests on something or on which something rests or in which a pin etc. turns" (Encyclopaedia Britannica, Vol. 2). In normal sense, therefore, a washer has different purpose than bearing 6. Wrapped bushes and thrust washers, however, find a very wide application in engineering industry, particularly automobile industry. In the Foreword to the Indian Standard Booklet, published in 1974 it is mentioned that wrapped bushes save both space and weight and thrust washers with wrapped bushes are intended to take light thrust loads. A bearing on the other hand is generally understood as mentioned in the same booklet "an element of mechanism which allows a force to be transmitted between two relatively moving parts". A bush and washer manufactured by the appellant could not normally be treated as bearing except when it is understood in technical sense. It appears when the Indian Standard Specifications were published and washers and wrapped bushes, thrust washers and thrust half washers were mentioned in the booklet as goods which are extensively used in automobile industry, the Department invited the trade representatives to discuss the matter, the result of which has been extracted earlier. Therefore, before a decision was taken by the Board, there was no material available with the Department which could furnish basis for deciding whether bushes or washers manufactured by the appellant could be classified as bearing much less "thin-walled bearing" within the meaning of notification issued in 1971. Not only that the entire proceedings were initiated by the Superintendent of Central Excise on the basis of Trade Notice referred to earlier inviting the appellant to classify these goods as "thin-walled bearings" if they satisfied the specification of 4774. It is true, as held by the High Court and by the authorities that a trade notice is not binding, but what the High Court omitted to consider was that there was no other material with the Department on which it could assume that the washers and bushes manufactured by the appellant were "thin-walled bearings". The basis for initiation of proceedings being Indian Standard Booklet published by the Indian Standard Institute, it was not proper either for the High Court or for the assessing authorities to ignore it and levy the duty treating these goods to be "thin-walled bearings", on assumptions without any material. The observation in the judgment of the High Court that it was specification under IS : 4774-1968 is factually incorrect. The written note of the appellant given before the assessing authority has been extracted. It is obvious that the order was made under misapprehension7. Since the High Court and the assessing authorities approached the case with an entirely incorrect perspective, their orders cannot be maintained. Yet it would be hazardous for this Court to examine the dimension and specification of these bushes and washers and decide whether they can be classified as thin-walled bearings. For that purpose it would be expedient to sent the case back to the High Court which may decide it either itself or send it to the Tribunal which has now been constituted. In view of this it is not necessary to decide any other issue ### Response: 1 ### Explanation: 6. Wrapped bushes and thrust washers, however, find a very wide application in engineering industry, particularly automobile industry. In the Foreword to the Indian Standard Booklet, published in 1974 it is mentioned that wrapped bushes save both space and weight and thrust washers with wrapped bushes are intended to take light thrust loads. A bearing on the other hand is generally understood as mentioned in the same booklet "an element of mechanism which allows a force to be transmitted between two relatively moving parts". A bush and washer manufactured by the appellant could not normally be treated as bearing except when it is understood in technical sense. It appears when the Indian Standard Specifications were published and washers and wrapped bushes, thrust washers and thrust half washers were mentioned in the booklet as goods which are extensively used in automobile industry, the Department invited the trade representatives to discuss the matter, the result of which has been extracted earlier. Therefore, before a decision was taken by the Board, there was no material available with the Department which could furnish basis for deciding whether bushes or washers manufactured by the appellant could be classified as bearing much lessbearing" within the meaning of notification issued in 1971. Not only that the entire proceedings were initiated by the Superintendent of Central Excise on the basis of Trade Notice referred to earlier inviting the appellant to classify these goods asbearings" if they satisfied the specification of 4774. It is true, as held by the High Court and by the authorities that a trade notice is not binding, but what the High Court omitted to consider was that there was no other material with the Department on which it could assume that the washers and bushes manufactured by the appellant werebearings". The basis for initiation of proceedings being Indian Standard Booklet published by the Indian Standard Institute, it was not proper either for the High Court or for the assessing authorities to ignore it and levy the duty treating these goods to bebearings", on assumptions without any material. The observation in the judgment of the High Court that it was specification under IS :is factually incorrect. The written note of the appellant given before the assessing authority has been extracted. It is obvious that the order was made under misapprehension7. Since the High Court and the assessing authorities approached the case with an entirely incorrect perspective, their orders cannot be maintained. Yet it would be hazardous for this Court to examine the dimension and specification of these bushes and washers and decide whether they can be classified asbearings. For that purpose it would be expedient to sent the case back to the High Court which may decide it either itself or send it to the Tribunal which has now been constituted. In view of this it is not necessary to decide any other issue

Delhi Development Authority Vs. Munni Lal and Ors

orders quashing the acquisition on the ground of Section 24 are liable to be quashed and are set aside.5. On merits of the case, the submissions raised on behalf of the land owners are two-fold that when the declaration Under Section 6 was issued after eight months inquiry Under Section 5 A ought to have been held. Thus, invocation of the urgency provision could not be said to be proper. There was non-application of mind in respect of invoking the provision Under Section 17 of Act of 1894. The second submission is that certain other area has been de-notified on 31.5.1999 which was covered under the same notification and the farm/house in question is the only accommodation available with the Respondents-herein which should have been de-notified. The rejection of the prayer for de-notification vide orders dated 19.4.2012 was illegal.6. It was submitted on behalf of the learned Counsel appearing for DDA that the acquisition was for Planned Development of Delhi for Freight Complex at Narela, which could not have been delayed as such invocation of urgency provision was proper. The Planned Development of Delhi could not have been delayed. Thus, notification of urgency provision Under Section 17(1) and to dispense with the inquiry Under Section 5 A was proper. While declining the derequisition of the land reasoned orders have been passed on 19.4.2012. No case for interference is made out on the grounds urged on behalf of the land owners.7. Coming to the invocation of the urgency provision, in our opinion, when the public purpose of freight complex at Narela under Planned Development of Delhi was involved, obviously, there was urgency and the project was such that it could not have brooked any delay. Thus, invocation of Section 17 was proper. Merely by the fact that declaration Under Section 6 was issued in December, it could not be said that invocation of the urgency provision Under Section 17(1) and 17(4) was improper. The satisfaction of Lt. Governor as mentioned in the notification in the facts of the case was not appropriate considering the nature of the requirement. We are satisfied that notification Under Section 4 read with Section 17(1) and 17(4) did not suffer with illegality.8. Reliance has been placed on the decision of Union of India and Ors. v. Mukesh Hans etc. 2004 (8) SCC 14 . The decision cannot be said to be applicable as there was an earlier acquisition which was allowed to be lapsed by efflux of time. The authority who dispensed with the inquiry was not made aware of the fact, thus, the decision has no application. Reliance has also been placed on the decision of this Court in Anand Singh and Anr. v. State of Uttar Pradesh and Ors. 2010 (11) SCC 242. In the said case the identification of land was for Housing Colony. There was a gap of one year in declaration Under Section 6. However, the Appellants were not granted any relief in the facts of the said case. It was observed that Section 17(4) should be invoked in appropriate cases. There is no dispute with the aforesaid proposition. However, in the instant case considering the nature of the requirement and facts of the case, we find that invocation of the urgency Clause was appropriate.9. Reliance has also been placed on the decision of this Court in Ramdhari Jindal Memorial Trust v. Union of India and Ors., 2012 (11) SCC 370. It was again a residential scheme which was involved and in the facts of the said case, this Court directed the inquiry to be made. The decision is of no application to the facts of the instant case. Reliance has also been placed on Narain Govind Gavate and Ors. v. State of Maharashtra and Ors. 1977 (1) SCC 133 which rather negates the case of Respondents. Be that as it may, other cases relied upon are Dev Sharan and Ors. v. State of U.P. and Ors. JT 2011 (3) SC 102 , State of Punjab and Anr. v. Gurdial Singh and Anr., 1980 (2) SCC 471 , Hari Ram and Anr. v. State of Haryana and Ors., 2010 (3) SCC 621 , Patasi Devi v. State of Haryana and Ors., 2012 (9) SCC 503. Each case has to be decided on its own facts. We find that there was an urgency in the present case and the requirement was urgent as such the provision was rightly invoked in the case.10. In the second round of the litigation the aforesaid question is being again raised, though permission was sought to withdraw the earlier writ petition with liberty inter alia to question the order relating to de-notification and accordingly, the liberty was granted. Facts remain that dilatory tactics have been adopted by Respondents. There was no formal defect and it was not appropriate to withdraw writ petitions after so much period of 16 years. We are not satisfied on merits with respect to the submission raised by learned Counsel for the land owners and they have clearly adopted delaying tactics.11. When we come to the question of de-requisition it is apparent that the order dated 19.4.2012 in the matter of Swarup Singh clearly indicate that the representation dated 27.8.2010 was actively considered by the De-notification Committee in its meeting held on 22.7.2011. The Committee did not recommend the de-notification Under Section 48(i) of the Land Acquisition Act, 1894 as the land was required by the DDA for relocation of Chemical Godowns and Development of Freight Complex at Narela under Planned Development of Delhi and the matter was placed before the Lt. Governor who after due consideration of the facts has rejected the prayer for de-notification of captioned land. Mind has been applied and considering the necessity, decision has been taken not to de-notify the land. The decision is appropriate and we find no infirmity in the same. Similar is the reasoning given in the case of Munnilal and others in the communication dated 19.4.2012. We find no infirmity in the same also.

0[ds]7. Coming to the invocation of the urgency provision, in our opinion, when the public purpose of freight complex at Narela under Planned Development of Delhi was involved, obviously, there was urgency and the project was such that it could not have brooked any delay. Thus, invocation of Section 17 was proper. Merely by the fact that declaration Under Section 6 was issued in December, it could not be said that invocation of the urgency provision Under Section 17(1) and 17(4) was improper. The satisfaction of Lt. Governor as mentioned in the notification in the facts of the case was not appropriate considering the nature of the requirement. We are satisfied that notification Under Section 4 read with Section 17(1) and 17(4) did not suffer with illegality. The decision cannot be said to be applicable as there was an earlier acquisition which was allowed to be lapsed by efflux of time. The authority who dispensed with the inquiry was not made aware of the fact, thus, the decision has no applicationThere is no dispute with the aforesaid proposition. However, in the instant case considering the nature of the requirement and facts of the case, we find that invocation of the urgency Clause was appropriateThe decision is of no application to the facts of the instant case. Reliance has also been placed on Narain Govind Gavate and Ors. v. State of Maharashtra and Ors. 1977 (1) SCC 133 which rather negates the case of Respondents. Be that as it may, other cases relied upon are Dev Sharan and Ors. v. State of U.P. and Ors. JT 2011 (3) SC 102 , State of Punjab and Anr. v. Gurdial Singh and Anr., 1980 (2) SCC 471 , Hari Ram and Anr. v. State of Haryana and Ors., 2010 (3) SCC 621 , Patasi Devi v. State of Haryana and Ors., 2012 (9) SCC 503. Each case has to be decided on its own facts. We find that there was an urgency in the present case and the requirement was urgent as such the provision was rightly invoked in the case10. In the second round of the litigation the aforesaid question is being again raised, though permission was sought to withdraw the earlier writ petition with liberty inter alia to question the order relating to de-notification and accordingly, the liberty was granted. Facts remain that dilatory tactics have been adopted by Respondents. There was no formal defect and it was not appropriate to withdraw writ petitions after so much period of 16 years. We are not satisfied on merits with respect to the submission raised by learned Counsel for the land owners and they have clearly adopted delaying tactics11. When we come to the question of de-requisition it is apparent that the order dated 19.4.2012 in the matter of Swarup Singh clearly indicate that the representation dated 27.8.2010 was actively considered by the De-notification Committee in its meeting held on 22.7.2011. The Committee did not recommend the de-notification Under Section 48(i) of the Land Acquisition Act, 1894 as the land was required by the DDA for relocation of Chemical Godowns and Development of Freight Complex at Narela under Planned Development of Delhi and the matter was placed before the Lt. Governor who after due consideration of the facts has rejected the prayer for de-notification of captioned land. Mind has been applied and considering the necessity, decision has been taken not to de-notify the land. The decision is appropriate and we find no infirmity in the same. Similar is the reasoning given in the case of Munnilal and others in the communication dated 19.4.2012. We find no infirmity in the same also.

### 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: orders quashing the acquisition on the ground of Section 24 are liable to be quashed and are set aside.5. On merits of the case, the submissions raised on behalf of the land owners are two-fold that when the declaration Under Section 6 was issued after eight months inquiry Under Section 5 A ought to have been held. Thus, invocation of the urgency provision could not be said to be proper. There was non-application of mind in respect of invoking the provision Under Section 17 of Act of 1894. The second submission is that certain other area has been de-notified on 31.5.1999 which was covered under the same notification and the farm/house in question is the only accommodation available with the Respondents-herein which should have been de-notified. The rejection of the prayer for de-notification vide orders dated 19.4.2012 was illegal.6. It was submitted on behalf of the learned Counsel appearing for DDA that the acquisition was for Planned Development of Delhi for Freight Complex at Narela, which could not have been delayed as such invocation of urgency provision was proper. The Planned Development of Delhi could not have been delayed. Thus, notification of urgency provision Under Section 17(1) and to dispense with the inquiry Under Section 5 A was proper. While declining the derequisition of the land reasoned orders have been passed on 19.4.2012. No case for interference is made out on the grounds urged on behalf of the land owners.7. Coming to the invocation of the urgency provision, in our opinion, when the public purpose of freight complex at Narela under Planned Development of Delhi was involved, obviously, there was urgency and the project was such that it could not have brooked any delay. Thus, invocation of Section 17 was proper. Merely by the fact that declaration Under Section 6 was issued in December, it could not be said that invocation of the urgency provision Under Section 17(1) and 17(4) was improper. The satisfaction of Lt. Governor as mentioned in the notification in the facts of the case was not appropriate considering the nature of the requirement. We are satisfied that notification Under Section 4 read with Section 17(1) and 17(4) did not suffer with illegality.8. Reliance has been placed on the decision of Union of India and Ors. v. Mukesh Hans etc. 2004 (8) SCC 14 . The decision cannot be said to be applicable as there was an earlier acquisition which was allowed to be lapsed by efflux of time. The authority who dispensed with the inquiry was not made aware of the fact, thus, the decision has no application. Reliance has also been placed on the decision of this Court in Anand Singh and Anr. v. State of Uttar Pradesh and Ors. 2010 (11) SCC 242. In the said case the identification of land was for Housing Colony. There was a gap of one year in declaration Under Section 6. However, the Appellants were not granted any relief in the facts of the said case. It was observed that Section 17(4) should be invoked in appropriate cases. There is no dispute with the aforesaid proposition. However, in the instant case considering the nature of the requirement and facts of the case, we find that invocation of the urgency Clause was appropriate.9. Reliance has also been placed on the decision of this Court in Ramdhari Jindal Memorial Trust v. Union of India and Ors., 2012 (11) SCC 370. It was again a residential scheme which was involved and in the facts of the said case, this Court directed the inquiry to be made. The decision is of no application to the facts of the instant case. Reliance has also been placed on Narain Govind Gavate and Ors. v. State of Maharashtra and Ors. 1977 (1) SCC 133 which rather negates the case of Respondents. Be that as it may, other cases relied upon are Dev Sharan and Ors. v. State of U.P. and Ors. JT 2011 (3) SC 102 , State of Punjab and Anr. v. Gurdial Singh and Anr., 1980 (2) SCC 471 , Hari Ram and Anr. v. State of Haryana and Ors., 2010 (3) SCC 621 , Patasi Devi v. State of Haryana and Ors., 2012 (9) SCC 503. Each case has to be decided on its own facts. We find that there was an urgency in the present case and the requirement was urgent as such the provision was rightly invoked in the case.10. In the second round of the litigation the aforesaid question is being again raised, though permission was sought to withdraw the earlier writ petition with liberty inter alia to question the order relating to de-notification and accordingly, the liberty was granted. Facts remain that dilatory tactics have been adopted by Respondents. There was no formal defect and it was not appropriate to withdraw writ petitions after so much period of 16 years. We are not satisfied on merits with respect to the submission raised by learned Counsel for the land owners and they have clearly adopted delaying tactics.11. When we come to the question of de-requisition it is apparent that the order dated 19.4.2012 in the matter of Swarup Singh clearly indicate that the representation dated 27.8.2010 was actively considered by the De-notification Committee in its meeting held on 22.7.2011. The Committee did not recommend the de-notification Under Section 48(i) of the Land Acquisition Act, 1894 as the land was required by the DDA for relocation of Chemical Godowns and Development of Freight Complex at Narela under Planned Development of Delhi and the matter was placed before the Lt. Governor who after due consideration of the facts has rejected the prayer for de-notification of captioned land. Mind has been applied and considering the necessity, decision has been taken not to de-notify the land. The decision is appropriate and we find no infirmity in the same. Similar is the reasoning given in the case of Munnilal and others in the communication dated 19.4.2012. We find no infirmity in the same also. ### Response: 0 ### Explanation: 7. Coming to the invocation of the urgency provision, in our opinion, when the public purpose of freight complex at Narela under Planned Development of Delhi was involved, obviously, there was urgency and the project was such that it could not have brooked any delay. Thus, invocation of Section 17 was proper. Merely by the fact that declaration Under Section 6 was issued in December, it could not be said that invocation of the urgency provision Under Section 17(1) and 17(4) was improper. The satisfaction of Lt. Governor as mentioned in the notification in the facts of the case was not appropriate considering the nature of the requirement. We are satisfied that notification Under Section 4 read with Section 17(1) and 17(4) did not suffer with illegality. The decision cannot be said to be applicable as there was an earlier acquisition which was allowed to be lapsed by efflux of time. The authority who dispensed with the inquiry was not made aware of the fact, thus, the decision has no applicationThere is no dispute with the aforesaid proposition. However, in the instant case considering the nature of the requirement and facts of the case, we find that invocation of the urgency Clause was appropriateThe decision is of no application to the facts of the instant case. Reliance has also been placed on Narain Govind Gavate and Ors. v. State of Maharashtra and Ors. 1977 (1) SCC 133 which rather negates the case of Respondents. Be that as it may, other cases relied upon are Dev Sharan and Ors. v. State of U.P. and Ors. JT 2011 (3) SC 102 , State of Punjab and Anr. v. Gurdial Singh and Anr., 1980 (2) SCC 471 , Hari Ram and Anr. v. State of Haryana and Ors., 2010 (3) SCC 621 , Patasi Devi v. State of Haryana and Ors., 2012 (9) SCC 503. Each case has to be decided on its own facts. We find that there was an urgency in the present case and the requirement was urgent as such the provision was rightly invoked in the case10. In the second round of the litigation the aforesaid question is being again raised, though permission was sought to withdraw the earlier writ petition with liberty inter alia to question the order relating to de-notification and accordingly, the liberty was granted. Facts remain that dilatory tactics have been adopted by Respondents. There was no formal defect and it was not appropriate to withdraw writ petitions after so much period of 16 years. We are not satisfied on merits with respect to the submission raised by learned Counsel for the land owners and they have clearly adopted delaying tactics11. When we come to the question of de-requisition it is apparent that the order dated 19.4.2012 in the matter of Swarup Singh clearly indicate that the representation dated 27.8.2010 was actively considered by the De-notification Committee in its meeting held on 22.7.2011. The Committee did not recommend the de-notification Under Section 48(i) of the Land Acquisition Act, 1894 as the land was required by the DDA for relocation of Chemical Godowns and Development of Freight Complex at Narela under Planned Development of Delhi and the matter was placed before the Lt. Governor who after due consideration of the facts has rejected the prayer for de-notification of captioned land. Mind has been applied and considering the necessity, decision has been taken not to de-notify the land. The decision is appropriate and we find no infirmity in the same. Similar is the reasoning given in the case of Munnilal and others in the communication dated 19.4.2012. We find no infirmity in the same also.

Industrial Supplies Private Limited Vs. Union of India and Ors

the working of mines.29. This brings us to the next question, namely whether the amount of Rs. 4, 50, 000 receivable by the petitioners from the erstwhile Coal Board, was an amount impressed with a trust, being advanced for a specific purpose, i.e., for the purpose of stowing and other safety operations an d conservation of coal mines, and could not be regarded as "any money due to the coking coal mines" within sub-s. (3) of s. 22 of the Act and the Central Government, therefore, could not appropriate the amount of subsidy and utilize it under sub- s. (4) thereof for meeting the liabilities of the coking coal mines.30. The conclusion of the High Court upon this point is contained in the following passage:"The amount of subsidy due could not be current assets of the coking coal mine because it had to be utilised for a certain definite specified purpose. In the instant case cost of stowing and other safety operations had already been incurred and the subsidy was by way of reimbursement. The amount was already identified as belonging to the petitioner and is on the analogy or in the nature of trust money impressed with a specific purpose."31. In reaching that conclusion, it relied upon the decisions in Barclays Bank Ltd. v . Quistclose Investments Ltd. and Coal Products Private Ltd. v. I.T.O., which are both distinguishable. They enunciate the principle that when property is entrusted for specific purpose, it is clothed with a trust. It seems somewhat illogical that the equitable doctrine of resulting trust should be brought into play in the construction of the provisions of a legislation dealing with nationalisation like the Coking Coal Mines (Nationalisation) Act, 1972. In Barclays Bank Ltd. v. Quistclose Investments Ltd., the House of Lords dealt with a question as to rights of set off following the liquidation of a company. The principle was applied to a sum of money lent to a company (later wound up) for a specific purpose, viz., payment of dividend, which was not implemented; the money, being still identifiable, was held to be impressed with a trust, and accordingly did not enure to the benefit of the general body of creditors, but was recoverable by the lender. I n Coal Products Private Ltd. v. I.T.O. there was an extension of this principle by a Single Judge of the Calcutta High Court to "assistance" which was payable to the assessee and was sought to be 1 attached by the Income-tax Department by way of garnishee proceedings under s. 226(3)(i) of the Income tax Act, 1961. There was an application made for grant of assistance under r. 49 of the Coal Mines (Conservation and Safety Rules, 1952. There were conditions attached to the grant under r. 54. There was an affidavit filed before the Calcutta High Court showing that the grant was subject to the condition that it would be utilised for the purpose of stowing and other connected operations in the coal mine. The High Court quashed the garnishee notice on the ground that the Income-tax Department was not entitled to any part of the money for the payment of income-tax liabilities of the assessee, as it could only be utilized for the purpose of stowing and other safety operations and conservation of coal mines.Two questions arise, both of which must be answered in favour of the Union of India. The first is whether the payment of Rs. 4, 50, 000 was advanced for a special purpose, i.e., as assistance under r. 49 and not by way of reimbursement. The second is whether, in that event, the money having been advanced for a special purpose, and that being so clothed with a specific trust, it could not be adjusted by the Central Government under sub-s. (4) of s. 22 of the Nationalisation Act towards the liabilities of the coking coal mines.32. It is not difficult to establish precisely on what terms the money was advanced by the erstwhile Coal Board. On behalf of the petitioners, it is not disputed that the bills for the subsidy were for the H cost of stowing and connected safety operations and of hard mining operations which, the petitioners had already prior to October 17, 1971, at their own cost, carried out. If that be so, the inevitable conclusion is that the amount of subsidy in question was like any other amount due to the coking coal mine, prior to the appointed day, and therefore did not fall outside the purview of sub-s. (3) of s. 22.33. The payment in question was not by way of assistance receivable from the erstwhile Coal Board for carrying out of stowing and other safety operations and conservation of the coal mines. In the present case, the petitioners on their own showing had already carried our sand stowing and hard mining operations and had admittedly applied for subsidy by way of reimbursement. The payment of Rs. 4, 50, 000 was, therefore, one to reimburse for the expenditure already undertaken. Indubitably, the amount in dispute was payable by way of reimbursement. The petitioners were, therefore, free to utilise the money in any manner they liked. In other words, the grant was not impressed with any particular purpose or purposes.34. Even if the subsidy receivable from the erstwhile Coal Board was by way of assistance, the amount of Rs. 4, 50, 000 was recoverable by the Central Government in whom the coking coal mines have vested under sub-s. (1) of s. 4 of the Nationalisation Act and not by the petitioners. It is, however, needless to stress that if the grant were by way of assistance under r. 49 of the Coal Mines (Conservation and Safety) Rules, 1952, the grant being conditional, the Central Government would in that event. be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted viz., for the purposes of showing or other safety operations and conservation of coal mines.35.

1[ds]We are quite sure that was not the intention of the Legislature. There is no reason why the word occupier should not be understood to have been used in its usual sense, according to its plain meaning. In common parlance, an occupier is one who takes or (more usually) holds possession: Shorter oxford Dictionary, 3rd edn., vol. 2, p. 1433. In the legal sense, an occupier is a person in actual occupation. The petitioners being raising contractors were, under the terms of the agreement dated February 7, 1969 entitled to, and in fact in actual physical possession and enjoyment of the colliery and were, therefore, an occupier thereof. That being so, the petitioners being in possession, in their own right, by virtue of the substantial rights acquired by them under the agreement, were not in possession on behalf of somebody else and, therefore, the decision in Lala Karamchand Thapars case cannotwas asserted that the petitioners were really not the managing contractors but wrongly described as such in the agreement. A bare perusal of the agreement would, however, be destructive of the argument. It is a document drawn consisting of 46 clauses defining the mutual rights and obligations of the parties., The petitioners were conferred all the rights to work the mine for winning, getting and raising coal. The so-called remuneration payable to them was virtually the price of coal supplied leaving to the owners a margin of profit. Even the liability for payment of rent, royalty, taxes etc., in relation to the mine was saddled on the petitioners. In view of these terms, they cannot be heard to say that they were not the managing contractors though they have been so described in the preamble to the agreement and in each and every clause thereof. It is, however, asserted that the functions of a managing contract or. namely, appointment of managers, were not entrusted to the petitioners but were actually assigned to Messrs Madhusudan &Co. under a separate agreement. The submission is spelled out from the terms of cl. 11 relating to employment of workers of the colliery. All that was done was that the erstwhile owners had by this clause reserved to them selves the power to appoint managers. Such reservation does not take the petitioners out of the definition of managing contractor under 6. 3(i) of t he Nationalisation Act, as they still had substantial control over the mine. The plea that not they but someone else was the managing contractor is only an after thought. The petitioners having bound themselves by the terms of the agreement, cannot be permitted to escape from the provisions of sub-s. (1) of s. 4. as they come within the purview of the definition of owner in s. 3(n) of the Nationalisationis then argued, in the alternative. that the term owner as define d in s. 3(n) of the Nationalisation Act read with s: 2(1) of the Mines Act. 1952 does not in any event, include a raising contractor. It is not suggested that a raising contractor does not come within the description of a contractor in s. 2(1), but it is urged that the word includes is not there. There was no need for Parliament to insert the word includes because of the words as if he were. Although the term owner in common parlance, in its usual sense, connotes ownership of a mine. the term has to be understood in the legal sense, aswith due deliberation, in s. 3(n) adopted by incorporation the enlarged definition of owner in s. 2(1) ofthe Mines Act, 1952 to make the Nationalisation Act all embracing and fully effective. The definition is wide enough to include three categories of persons: (i) in relation to a mine, the person who is the immediate proprietor or a assesses or occupier of mine or any part thereof, (ii) in the case of a mine the business whereof is carried on by a liquidator or a receiver, such liquidator or receiver, and (iii) in the case of a mine owned by a company, the business whereof is carried on by a managing agent. such managing agent. Each is a separate and distinct category of persons and the concept of ownership does not come in. Then come the crucial last words: "but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability". The insertion of this clause is to make both the owner as well as the contractor equally liable for the due observance of the Act. It is needless to stress thatthe Mines Act, 1952 contains various provisions for the safety of the mines and the persons employed therein. In the case of a mine, the working whereof is being carried on by a raising contractor, he is primarily responsible to comply with the provision s of the Act. Though a contractor for the working of a mine or any part thereof is not an owner, he shall be subject to the provisions of the Act, in the like manner as if he were an owner but not so AS to exempt the owner from anyis now axiomatic that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The Court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words "as if he were" in the definition of owner in s . 3(n of the Nationalisation Act read with s. 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were notwhole object and purpose of the Nationalisation Act is to expropriate private ownership of coking coal mines and all interests created therein. It provides by sub-s. (1) of s. 4 that on the appointed day, the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule shall stand transferred to, and shall vest absolutely in the Central Government, free from all incumbrances. Now unless the term owner in sub-s. (1) of s. 4 is given an extended meaning so as to include a contractor for the working of a mine or any part thereof, the very object of the legislation would be frustrated. It has to be presumed that Parliament was fully aware of the normal pattern of working of all the coal mines, i.e., by employment of raising contractors. Any other construction would lead to a manifest absurdity and attribute to Parliament a result which it never intended. It would result in the contractors escaping from the consequences of vesting under sub-s.(1) of s. 4 of theAct and permit them to dismantle and remove the additional machinery, plants and equipment which were being utilised for the working ofis not difficult to establish precisely on what terms the money was advanced by the erstwhile Coal Board. On behalf of the petitioners, it is not disputed that the bills for the subsidy were for the H cost of stowing and connected safety operations and of hard mining operations which, the petitioners had already prior to October 17, 1971, at their own cost, carried out. If that be so, the inevitable conclusion is that the amount of subsidy in question was like any other amount due to the coking coal mine, prior to the appointed day, and therefore did not fall outside the purview of sub-s. (3) of s.payment in question was not by way of assistance receivable from the erstwhile Coal Board for carrying out of stowing and other safety operations and conservation of the coal mines. In the present case, the petitioners on their own showing had already carried our sand stowing and hard mining operations and had admittedly applied for subsidy by way of reimbursement. The payment of Rs. 4, 50, 000 was, therefore, one to reimburse for the expenditure already undertaken. Indubitably, the amount in dispute was payable by way of reimbursement. The petitioners were, therefore, free to utilise the money in any manner they liked. In other words, the grant was not impressed with any particular purpose orif the subsidy receivable from the erstwhile Coal Board was by way of assistance, the amount of Rs. 4, 50, 000 was recoverable by the Central Government in whom the coking coal mines have vested under sub-s.(1) of s. 4 of theNationalisation Act and not by the petitioners. It is, however, needless to stress that if the grant were by way of assistance under r. 49 of the Coal Mines (Conservation and Safety) Rules, 1952, the grant being conditional, the Central Government would in that event. be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted viz., for the purposes of showing or other safety operations and conservation of coal mines.

### 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 working of mines.29. This brings us to the next question, namely whether the amount of Rs. 4, 50, 000 receivable by the petitioners from the erstwhile Coal Board, was an amount impressed with a trust, being advanced for a specific purpose, i.e., for the purpose of stowing and other safety operations an d conservation of coal mines, and could not be regarded as "any money due to the coking coal mines" within sub-s. (3) of s. 22 of the Act and the Central Government, therefore, could not appropriate the amount of subsidy and utilize it under sub- s. (4) thereof for meeting the liabilities of the coking coal mines.30. The conclusion of the High Court upon this point is contained in the following passage:"The amount of subsidy due could not be current assets of the coking coal mine because it had to be utilised for a certain definite specified purpose. In the instant case cost of stowing and other safety operations had already been incurred and the subsidy was by way of reimbursement. The amount was already identified as belonging to the petitioner and is on the analogy or in the nature of trust money impressed with a specific purpose."31. In reaching that conclusion, it relied upon the decisions in Barclays Bank Ltd. v . Quistclose Investments Ltd. and Coal Products Private Ltd. v. I.T.O., which are both distinguishable. They enunciate the principle that when property is entrusted for specific purpose, it is clothed with a trust. It seems somewhat illogical that the equitable doctrine of resulting trust should be brought into play in the construction of the provisions of a legislation dealing with nationalisation like the Coking Coal Mines (Nationalisation) Act, 1972. In Barclays Bank Ltd. v. Quistclose Investments Ltd., the House of Lords dealt with a question as to rights of set off following the liquidation of a company. The principle was applied to a sum of money lent to a company (later wound up) for a specific purpose, viz., payment of dividend, which was not implemented; the money, being still identifiable, was held to be impressed with a trust, and accordingly did not enure to the benefit of the general body of creditors, but was recoverable by the lender. I n Coal Products Private Ltd. v. I.T.O. there was an extension of this principle by a Single Judge of the Calcutta High Court to "assistance" which was payable to the assessee and was sought to be 1 attached by the Income-tax Department by way of garnishee proceedings under s. 226(3)(i) of the Income tax Act, 1961. There was an application made for grant of assistance under r. 49 of the Coal Mines (Conservation and Safety Rules, 1952. There were conditions attached to the grant under r. 54. There was an affidavit filed before the Calcutta High Court showing that the grant was subject to the condition that it would be utilised for the purpose of stowing and other connected operations in the coal mine. The High Court quashed the garnishee notice on the ground that the Income-tax Department was not entitled to any part of the money for the payment of income-tax liabilities of the assessee, as it could only be utilized for the purpose of stowing and other safety operations and conservation of coal mines.Two questions arise, both of which must be answered in favour of the Union of India. The first is whether the payment of Rs. 4, 50, 000 was advanced for a special purpose, i.e., as assistance under r. 49 and not by way of reimbursement. The second is whether, in that event, the money having been advanced for a special purpose, and that being so clothed with a specific trust, it could not be adjusted by the Central Government under sub-s. (4) of s. 22 of the Nationalisation Act towards the liabilities of the coking coal mines.32. It is not difficult to establish precisely on what terms the money was advanced by the erstwhile Coal Board. On behalf of the petitioners, it is not disputed that the bills for the subsidy were for the H cost of stowing and connected safety operations and of hard mining operations which, the petitioners had already prior to October 17, 1971, at their own cost, carried out. If that be so, the inevitable conclusion is that the amount of subsidy in question was like any other amount due to the coking coal mine, prior to the appointed day, and therefore did not fall outside the purview of sub-s. (3) of s. 22.33. The payment in question was not by way of assistance receivable from the erstwhile Coal Board for carrying out of stowing and other safety operations and conservation of the coal mines. In the present case, the petitioners on their own showing had already carried our sand stowing and hard mining operations and had admittedly applied for subsidy by way of reimbursement. The payment of Rs. 4, 50, 000 was, therefore, one to reimburse for the expenditure already undertaken. Indubitably, the amount in dispute was payable by way of reimbursement. The petitioners were, therefore, free to utilise the money in any manner they liked. In other words, the grant was not impressed with any particular purpose or purposes.34. Even if the subsidy receivable from the erstwhile Coal Board was by way of assistance, the amount of Rs. 4, 50, 000 was recoverable by the Central Government in whom the coking coal mines have vested under sub-s. (1) of s. 4 of the Nationalisation Act and not by the petitioners. It is, however, needless to stress that if the grant were by way of assistance under r. 49 of the Coal Mines (Conservation and Safety) Rules, 1952, the grant being conditional, the Central Government would in that event. be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted viz., for the purposes of showing or other safety operations and conservation of coal mines.35. ### Response: 1 ### Explanation: the term owner in common parlance, in its usual sense, connotes ownership of a mine. the term has to be understood in the legal sense, aswith due deliberation, in s. 3(n) adopted by incorporation the enlarged definition of owner in s. 2(1) ofthe Mines Act, 1952 to make the Nationalisation Act all embracing and fully effective. The definition is wide enough to include three categories of persons: (i) in relation to a mine, the person who is the immediate proprietor or a assesses or occupier of mine or any part thereof, (ii) in the case of a mine the business whereof is carried on by a liquidator or a receiver, such liquidator or receiver, and (iii) in the case of a mine owned by a company, the business whereof is carried on by a managing agent. such managing agent. Each is a separate and distinct category of persons and the concept of ownership does not come in. Then come the crucial last words: "but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability". The insertion of this clause is to make both the owner as well as the contractor equally liable for the due observance of the Act. It is needless to stress thatthe Mines Act, 1952 contains various provisions for the safety of the mines and the persons employed therein. In the case of a mine, the working whereof is being carried on by a raising contractor, he is primarily responsible to comply with the provision s of the Act. Though a contractor for the working of a mine or any part thereof is not an owner, he shall be subject to the provisions of the Act, in the like manner as if he were an owner but not so AS to exempt the owner from anyis now axiomatic that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The Court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words "as if he were" in the definition of owner in s . 3(n of the Nationalisation Act read with s. 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were notwhole object and purpose of the Nationalisation Act is to expropriate private ownership of coking coal mines and all interests created therein. It provides by sub-s. (1) of s. 4 that on the appointed day, the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule shall stand transferred to, and shall vest absolutely in the Central Government, free from all incumbrances. Now unless the term owner in sub-s. (1) of s. 4 is given an extended meaning so as to include a contractor for the working of a mine or any part thereof, the very object of the legislation would be frustrated. It has to be presumed that Parliament was fully aware of the normal pattern of working of all the coal mines, i.e., by employment of raising contractors. Any other construction would lead to a manifest absurdity and attribute to Parliament a result which it never intended. It would result in the contractors escaping from the consequences of vesting under sub-s.(1) of s. 4 of theAct and permit them to dismantle and remove the additional machinery, plants and equipment which were being utilised for the working ofis not difficult to establish precisely on what terms the money was advanced by the erstwhile Coal Board. On behalf of the petitioners, it is not disputed that the bills for the subsidy were for the H cost of stowing and connected safety operations and of hard mining operations which, the petitioners had already prior to October 17, 1971, at their own cost, carried out. If that be so, the inevitable conclusion is that the amount of subsidy in question was like any other amount due to the coking coal mine, prior to the appointed day, and therefore did not fall outside the purview of sub-s. (3) of s.payment in question was not by way of assistance receivable from the erstwhile Coal Board for carrying out of stowing and other safety operations and conservation of the coal mines. In the present case, the petitioners on their own showing had already carried our sand stowing and hard mining operations and had admittedly applied for subsidy by way of reimbursement. The payment of Rs. 4, 50, 000 was, therefore, one to reimburse for the expenditure already undertaken. Indubitably, the amount in dispute was payable by way of reimbursement. The petitioners were, therefore, free to utilise the money in any manner they liked. In other words, the grant was not impressed with any particular purpose orif the subsidy receivable from the erstwhile Coal Board was by way of assistance, the amount of Rs. 4, 50, 000 was recoverable by the Central Government in whom the coking coal mines have vested under sub-s.(1) of s. 4 of theNationalisation Act and not by the petitioners. It is, however, needless to stress that if the grant were by way of assistance under r. 49 of the Coal Mines (Conservation and Safety) Rules, 1952, the grant being conditional, the Central Government would in that event. be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted viz., for the purposes of showing or other safety operations and conservation of coal mines.

Zuari Management Services Limited, Through Its Authorized Representative Shri Anandu Vithal Nayak Vs. Commissioner of Income Tax

fresh order after verifying the claim of the assessee company in respect of carry forward of the loss of Rs. 36109708/-. 6. The assessee company challenged the order of CIT by preferring appeal to the ITAT contending that invoking of jurisdiction under section 263 of the Income Tax Act by the CIT was erroneous because the assessment order was neither erroneous nor prejudicial to the interest of the revenue and that it had been passed after making detailed enquiries during the course of assessment proceedings. It was also contended that the CIT erred in ignoring the fact that the business of the appellant was set up as well as commenced during AY 2008-09 when it had borrowed money from holding company and lent it to subsidiary company, which represents one of the objects of the appellant. The ITAT dismissed the appeal by its detailed order dated 16th February, 2015. Therefore, the present appeal which is in the nature of this second appeal. 7. Before this Court, in addition to the grounds of challenge before ITAT, the assessee company, has set up two more grounds. It alleges that the order of the CIT suffers from non-application of independent mind and that the order passed by him is a non-speaking order. We find no merit in both the contentions. Though the record shows that there was a reference made by the CIT to the Assessing Officer pointing out the error in the Assessment Order, merely for that reason it cannot be said that there was no application of independent mind by the CIT. This is because under Section 263 of the IT Act, the CIT can suo motu exercise his jurisdiction thereunder. As regards the objection of the order of CIT being a non-speaking order, we find that the order though not as elaborate as the Order of the ITAT, does not suffer from lack of reasons. The order clearly makes out that the assessment order is erroneous and has adverse effect on the interest of the Revenue. 8. Mr. Kapoor the learned Senior Counsel appearing for the appellants submits that once the Assessing Officer acting in according with law makes a certain assessment the same cannot be ordered as erroneous merely because the CIT views the same differently. He also submits that there is no finding of the CIT that the order sought to be revised was erroneous or prejudicial to the interest of the Revenue. He argues that it was imperative for the CIT to give positive finding that the order of the Assessing Officer was erroneous and not in the interest of the Revenue, and for this reason, the first impugned order is invalid. Mr. Kapoor further submits that it is established principle of law that for an order to be termed as erroneous it must be not in accordance with law, also for the order to be held prejudicial to the interest of the Revenue, the consequence of the erroneous order must be, the revenue to the State either has not been realised or cannot be realised. This fact must be established on the basis of the material on record. In support of his submissions, Mr. Kapoor relies upon the following decisions of our High Court and of the Apex Court: (1) Commissioner of Income-tax vs. Gabriel India Ltd., [203 ITR 108 (Bombay)]; (2) Jewel of India vs. Assistant Commissioner of Income-tax; [2010] 325 ITR 93 (Bombay) (3) Malabar Industrial Co. Ltd. vs. CIT; [243 ITR 83 (SC)] (4) CIT vs. Max India Ltd., [295 ITR 282 (SC)]. There can be no dispute as regards the propositions of law canvassed by Mr. Kapoor on exercise of revisional jurisdiction by the CIT under Section 263 of the IT Act. Therefore, the only question that is required to be considered is whether on application of these propositions of law the two impugned orders can be sustained. 9. The first requisite for exercise of revisional jurisdiction is that the order of the Assessing Officer is erroneous on the ground of not being in accordance with law. The CIT in his order has held that the Assessing Officer has not taken into account the relevant consideration of absence of actual business activity of the appellant for the purpose of treating the expenditure claimed as an allowable expenditure. Perusal of the assessment order quoted above substantiates these observations of the CIT. Therefore, in our opinion, the first requisite of law stands satisfied. 10. The second requisite is of the loss to the revenue on account of the error in the assessment order. The impugned orders observe that the Assessing Company during the previous year, relevant to the Assessment Year 2009-10, has not commenced the business of development of SEZ/Real Estate and that the Company had merely obtained loan from the holding company amounting to Rs.49,81,00,000/- in the financial year 2007-08 and utilized it for investing in share of subsidiary company M/s. Zuari Developers Pvt. Ltd., to the extent of Rs.8,26,75,564/- and giving loans to subsidiary company to the extent of Rs.42,16,40,630/-. The interest paid on the loans amounted to Rs. 3,56,51,678/- and other incidental expenses, amounting to Rs. 4,69,544/- were charged to the Profit and Loss Account as expenses incurred during the P.Y. relevant to the assessment year 2009-10. On the basis of this business loss of Rs.36,10,09,708/- was computed and claimed as loss to be carried forward to subsequent years. In the opinion of the CIT and ITAT since the Company had not commenced its business of development of SEZ/Real Estate, the expenditure claimed could not have been treated as the expenditure incurred for the purpose of business. As such, it was denied. Since the expenditure was not allowable expenditure, it amounted to irregular allowances of loss. Such loss was allowed to be carried forward to the extent of Rs.1,78,57,950/- and involved notional tax effect of Rs. 60,69,917/- (33.99% of Rs.1,78,57,950/-). This notional tax effect is directly attributable to the error in the assessment order. Therefore, even the second requisite is satisfied.

0[ds]We find no merit in both the contentionsAs regards the objection of the order of CIT being ag order, we find that the order though not as elaborate as the Order of the ITAT, does not suffer from lack of reasons. The order clearly makes out that the assessment order is erroneous and has adverse effect on the interest of the Revenue9. The first requisite for exercise of revisional jurisdiction is that the order of the Assessing Officer is erroneous on the ground of not being in accordance with law. The CIT in his order has held that the Assessing Officer has not taken into account the relevant consideration of absence of actual business activity of the appellant for the purpose of treating the expenditure claimed as an allowable expenditure. Perusal of the assessment order quoted above substantiates these observations of the CIT. Therefore, in our opinion, the first requisite of law stands satisfied10. The second requisite is of the loss to the revenue on account of the error in the assessment order. The impugned orders observe that the Assessing Company during the previous year, relevant to the Assessment Year, has not commenced the business of development of SEZ/Real Estate and that the Company had merely obtained loan from the holding company amounting to Rs.49,81,00,000/in the financial year8 and utilized it for investing in share of subsidiary company M/s. Zuari Developers Pvt. Ltd., to the extent of Rs.8,26,75,564/and giving loans to subsidiary company to the extent of Rs.. The interest paid on the loans amounted to Rs. 3,56,51,678/and other incidental expenses, amounting to Rs. 4,69,544/were charged to the Profit and Loss Account as expenses incurred during the P.Y. relevant to the assessment year. On the basis of this business loss of Rs.36,10,09,708/was computed and claimed as loss to be carried forward to subsequent years. In the opinion of the CIT and ITAT since the Company had not commenced its business of development of SEZ/Real Estate, the expenditure claimed could not have been treated as the expenditure incurred for the purpose of business. As such, it was denied. Since the expenditure was not allowable expenditure, it amounted to irregular allowances of loss. Such loss was allowed to be carried forward to the extent of Rs.1,78,57,950/and involved notional tax effect of Rs. 60,69,917/. This notional tax effect is directly attributable to the error in the assessment order. Therefore, even the second requisite is satisfied.

### 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: fresh order after verifying the claim of the assessee company in respect of carry forward of the loss of Rs. 36109708/-. 6. The assessee company challenged the order of CIT by preferring appeal to the ITAT contending that invoking of jurisdiction under section 263 of the Income Tax Act by the CIT was erroneous because the assessment order was neither erroneous nor prejudicial to the interest of the revenue and that it had been passed after making detailed enquiries during the course of assessment proceedings. It was also contended that the CIT erred in ignoring the fact that the business of the appellant was set up as well as commenced during AY 2008-09 when it had borrowed money from holding company and lent it to subsidiary company, which represents one of the objects of the appellant. The ITAT dismissed the appeal by its detailed order dated 16th February, 2015. Therefore, the present appeal which is in the nature of this second appeal. 7. Before this Court, in addition to the grounds of challenge before ITAT, the assessee company, has set up two more grounds. It alleges that the order of the CIT suffers from non-application of independent mind and that the order passed by him is a non-speaking order. We find no merit in both the contentions. Though the record shows that there was a reference made by the CIT to the Assessing Officer pointing out the error in the Assessment Order, merely for that reason it cannot be said that there was no application of independent mind by the CIT. This is because under Section 263 of the IT Act, the CIT can suo motu exercise his jurisdiction thereunder. As regards the objection of the order of CIT being a non-speaking order, we find that the order though not as elaborate as the Order of the ITAT, does not suffer from lack of reasons. The order clearly makes out that the assessment order is erroneous and has adverse effect on the interest of the Revenue. 8. Mr. Kapoor the learned Senior Counsel appearing for the appellants submits that once the Assessing Officer acting in according with law makes a certain assessment the same cannot be ordered as erroneous merely because the CIT views the same differently. He also submits that there is no finding of the CIT that the order sought to be revised was erroneous or prejudicial to the interest of the Revenue. He argues that it was imperative for the CIT to give positive finding that the order of the Assessing Officer was erroneous and not in the interest of the Revenue, and for this reason, the first impugned order is invalid. Mr. Kapoor further submits that it is established principle of law that for an order to be termed as erroneous it must be not in accordance with law, also for the order to be held prejudicial to the interest of the Revenue, the consequence of the erroneous order must be, the revenue to the State either has not been realised or cannot be realised. This fact must be established on the basis of the material on record. In support of his submissions, Mr. Kapoor relies upon the following decisions of our High Court and of the Apex Court: (1) Commissioner of Income-tax vs. Gabriel India Ltd., [203 ITR 108 (Bombay)]; (2) Jewel of India vs. Assistant Commissioner of Income-tax; [2010] 325 ITR 93 (Bombay) (3) Malabar Industrial Co. Ltd. vs. CIT; [243 ITR 83 (SC)] (4) CIT vs. Max India Ltd., [295 ITR 282 (SC)]. There can be no dispute as regards the propositions of law canvassed by Mr. Kapoor on exercise of revisional jurisdiction by the CIT under Section 263 of the IT Act. Therefore, the only question that is required to be considered is whether on application of these propositions of law the two impugned orders can be sustained. 9. The first requisite for exercise of revisional jurisdiction is that the order of the Assessing Officer is erroneous on the ground of not being in accordance with law. The CIT in his order has held that the Assessing Officer has not taken into account the relevant consideration of absence of actual business activity of the appellant for the purpose of treating the expenditure claimed as an allowable expenditure. Perusal of the assessment order quoted above substantiates these observations of the CIT. Therefore, in our opinion, the first requisite of law stands satisfied. 10. The second requisite is of the loss to the revenue on account of the error in the assessment order. The impugned orders observe that the Assessing Company during the previous year, relevant to the Assessment Year 2009-10, has not commenced the business of development of SEZ/Real Estate and that the Company had merely obtained loan from the holding company amounting to Rs.49,81,00,000/- in the financial year 2007-08 and utilized it for investing in share of subsidiary company M/s. Zuari Developers Pvt. Ltd., to the extent of Rs.8,26,75,564/- and giving loans to subsidiary company to the extent of Rs.42,16,40,630/-. The interest paid on the loans amounted to Rs. 3,56,51,678/- and other incidental expenses, amounting to Rs. 4,69,544/- were charged to the Profit and Loss Account as expenses incurred during the P.Y. relevant to the assessment year 2009-10. On the basis of this business loss of Rs.36,10,09,708/- was computed and claimed as loss to be carried forward to subsequent years. In the opinion of the CIT and ITAT since the Company had not commenced its business of development of SEZ/Real Estate, the expenditure claimed could not have been treated as the expenditure incurred for the purpose of business. As such, it was denied. Since the expenditure was not allowable expenditure, it amounted to irregular allowances of loss. Such loss was allowed to be carried forward to the extent of Rs.1,78,57,950/- and involved notional tax effect of Rs. 60,69,917/- (33.99% of Rs.1,78,57,950/-). This notional tax effect is directly attributable to the error in the assessment order. Therefore, even the second requisite is satisfied. ### Response: 0 ### Explanation: We find no merit in both the contentionsAs regards the objection of the order of CIT being ag order, we find that the order though not as elaborate as the Order of the ITAT, does not suffer from lack of reasons. The order clearly makes out that the assessment order is erroneous and has adverse effect on the interest of the Revenue9. The first requisite for exercise of revisional jurisdiction is that the order of the Assessing Officer is erroneous on the ground of not being in accordance with law. The CIT in his order has held that the Assessing Officer has not taken into account the relevant consideration of absence of actual business activity of the appellant for the purpose of treating the expenditure claimed as an allowable expenditure. Perusal of the assessment order quoted above substantiates these observations of the CIT. Therefore, in our opinion, the first requisite of law stands satisfied10. The second requisite is of the loss to the revenue on account of the error in the assessment order. The impugned orders observe that the Assessing Company during the previous year, relevant to the Assessment Year, has not commenced the business of development of SEZ/Real Estate and that the Company had merely obtained loan from the holding company amounting to Rs.49,81,00,000/in the financial year8 and utilized it for investing in share of subsidiary company M/s. Zuari Developers Pvt. Ltd., to the extent of Rs.8,26,75,564/and giving loans to subsidiary company to the extent of Rs.. The interest paid on the loans amounted to Rs. 3,56,51,678/and other incidental expenses, amounting to Rs. 4,69,544/were charged to the Profit and Loss Account as expenses incurred during the P.Y. relevant to the assessment year. On the basis of this business loss of Rs.36,10,09,708/was computed and claimed as loss to be carried forward to subsequent years. In the opinion of the CIT and ITAT since the Company had not commenced its business of development of SEZ/Real Estate, the expenditure claimed could not have been treated as the expenditure incurred for the purpose of business. As such, it was denied. Since the expenditure was not allowable expenditure, it amounted to irregular allowances of loss. Such loss was allowed to be carried forward to the extent of Rs.1,78,57,950/and involved notional tax effect of Rs. 60,69,917/. This notional tax effect is directly attributable to the error in the assessment order. Therefore, even the second requisite is satisfied.

DALIP KAUR (D) THR LRS AND OTHERS Vs. RAM KISHAN (D) THR LR(S) AND OTHERS

decreed by the High Court. 2. Brief facts leading to this appeal are as under: Harnam Singh was the original owner of the property. He died on 12.11.1934, leaving behind his wife Prem Kaur and three daughters, namely, Basant Kaur, Dalip Kaur and Raj Kaur. After the death of Harnam Singh in the year 1934, Prem Kaur succeeded to the property in question as per the prevailing custom in the area. She executed a gift deed on 19.09.1951 in favour of three daughters, namely, Basant Kaur, Dalip Kaur and Raj Kaur to the extent of 1/3rd each. Basant Kaur, the first daughter of Harnam Singh and Prem Kaur expired on 25.03.1975, leaving behind her husband - Ram Kishan s/o Telu. Basant Kaur had executed a will in favour of her husband - Ram Kishan. Based on the said will, he filed a suit for possession of 1/3rd share in the property. It is the case of the defendants that upon the death of their sister Basant Kaur, the suit property devolved on heirs of her father Harnam Singh; since they are the only heirs of their father, they are entitled to the property as reversioners. 3. There is no dispute with regard to the relationship between the parties. The only question to be decided in this appeal is, as to whether the trial Court and the High Court are justified in concluding that Basant Kaur was entitled to 1/3rd share in the property of Prem Kaur, and consequently, as to whether the plaintiff being the husband of Basant Kaur is entitled to the said 1/3rd share. 4. Indisputably, the suit property was gifted by Prem Kaur by executing a registered deed in favour of her three daughters, namely, Basant Kaur (wife of the contesting respondent) and Dalip Kaur and Raj Kaur (defendant nos. 1 and 2) on 19.09.1951 in equal shares. The possession of the property was also delivered to them. Mutation no. 1555 was sanctioned on 26.6.1952 in their favour respectively. The gift deed, as well as, the consequent mutation are not questioned by anybody at any point of time. 5. The husband of Prem Kaur, viz. Harnam Singh, expired in the year 1934. The parties are Hindus. The properties are situated at Punjab. It may be noted at this point that though the Benaras school of Mitakshara law covers practically the whole of North India, Punjab is an exception, since here the Mitakshara law has been modified considerably by custom on certain points. The whole matter is viewed keeping in mind customary Hindu law prevailing in the state of Punjab during the relevant period of time. 6. Prem Kaur, being the mother of Basant Kaur, Dalip Kaur and Raj Kaur, gifted the properties situated at Manauli, tehsil Kharar in favour of her three daughters. Prem Kaur had a limited estate in the property. Despite the same, the three daughters did not object to the alienation. On the contrary, they accepted the gift and got their names mutated in the revenue records. 7. Learned author Sir Dinshaw Mulla, while commenting in his book Hindu Law (22nd edition, 191) mentions that a reversioner, whether male or female, who consents to an alienation (including by way of gift) by a widow or other limited heir made without legal necessity, or to an invalid surrender, and transferees from him, are precluded from disputing the validity of the alienation, though he may have received no consideration for his consent. In 192, it is observed by the learned author that where a widow or other limited heir enters into a family arrangement or a compromise which involves an alienation of the estate, the reversioner who has been a party to and has benefitted from the transaction is precluded from questioning the alienation, and so are his descendants. There is no question in a case of this kind of a transfer of spes successionis by the reversioner. The reversioner, being a party to a transaction cannot repudiate it. This Court in the case of Krisha Behari Lal v. Gulabchand & Ors., (1971) 1 SCC 837 , has held that where a widow entered into a compromise with a presumptive reversioner and was accepted as the absolute owner of a portion of the properties, and gave up her claim in the remaining properties, the presumptive reversioners who themselves ultimately became the reversioners were estopped from challenging the transaction. It was held by the Supreme Court that the settlement could also be considered as a family arrangement binding on the parties. 8. In the matter on hand, on facts we find that though the properties were gifted by Prem Kaur in favour of her three daughters, the said gift by her as a limited owner was treated by the three daughters, who were the only legal representatives to their parents, as a surrender of properties by their mother in their favour. We find that the alienation by way of gift by Prem Kaur is more in the nature of a family arrangement, inasmuch as she must have intended to avoid any future disputes after her demise. All the three daughters are beneficiaries of such arrangement. As mentioned supra, all the three daughters got their names mutated by Mutation No. 1555 sanctioned on 26.6.1952. The Court leans strongly in favour of family arrangements/alienations in favour of all legal representatives, to bring about harmony in the family and to do justice to its various members and avoid future disputes. We also find that the alienation by way of gift by the mother in favour of the three daughters as far back as 1951, under which all daughters were given equal shares in the property, and by which the mother relinquished all her rights in favour of the three daughters, was permissible under the prevailing customary law. Prem Kaurs three daughters accepted such agreement with a bona fide intention. Prem Kaur also did not think of her personal advantage while settling the properties among her three daughters equally, bona fide.

0[ds]4. Indisputably, the suit property was gifted by Prem Kaur by executing a registered deed in favour of her three daughters, namely, Basant Kaur (wife of the contesting respondent) and Dalip Kaur and Raj Kaur (defendant nos. 1 and 2) on 19.09.1951 in equal shares. The possession of the property was also delivered to them. Mutation no. 1555 was sanctioned on 26.6.1952 in their favour respectively. The gift deed, as well as, the consequent mutation are not questioned by anybody at any point of time.5. The husband of Prem Kaur, viz. Harnam Singh, expired in the year 1934. The parties are Hindus. The properties are situated at Punjab. It may be noted at this point that though the Benaras school of Mitakshara law covers practically the whole of North India, Punjab is an exception, since here the Mitakshara law has been modified considerably by custom on certain points. The whole matter is viewed keeping in mind customary Hindu law prevailing in the state of Punjab during the relevant period of time.6. Prem Kaur, being the mother of Basant Kaur, Dalip Kaur and Raj Kaur, gifted the properties situated at Manauli, tehsil Kharar in favour of her three daughters. Prem Kaur had a limited estate in the property. Despite the same, the three daughters did not object to the alienation. On the contrary, they accepted the gift and got their names mutated in the revenue records.8. In the matter on hand, on facts we find that though the properties were gifted by Prem Kaur in favour of her three daughters, the said gift by her as a limited owner was treated by the three daughters, who were the only legal representatives to their parents, as a surrender of properties by their mother in their favour. We find that the alienation by way of gift by Prem Kaur is more in the nature of a family arrangement, inasmuch as she must have intended to avoid any future disputes after her demise. All the three daughters are beneficiaries of such arrangement. As mentioned supra, all the three daughters got their names mutated by Mutation No. 1555 sanctioned on 26.6.1952. The Court leans strongly in favour of family arrangements/alienations in favour of all legal representatives, to bring about harmony in the family and to do justice to its various members and avoid future disputes. We also find that the alienation by way of gift by the mother in favour of the three daughters as far back as 1951, under which all daughters were given equal shares in the property, and by which the mother relinquished all her rights in favour of the three daughters, was permissible under the prevailing customary law. Prem Kaurs three daughters accepted such agreement with a bona fide intention. Prem Kaur also did not think of her personal advantage while settling the properties among her three daughters equally, bona fide.

### 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: decreed by the High Court. 2. Brief facts leading to this appeal are as under: Harnam Singh was the original owner of the property. He died on 12.11.1934, leaving behind his wife Prem Kaur and three daughters, namely, Basant Kaur, Dalip Kaur and Raj Kaur. After the death of Harnam Singh in the year 1934, Prem Kaur succeeded to the property in question as per the prevailing custom in the area. She executed a gift deed on 19.09.1951 in favour of three daughters, namely, Basant Kaur, Dalip Kaur and Raj Kaur to the extent of 1/3rd each. Basant Kaur, the first daughter of Harnam Singh and Prem Kaur expired on 25.03.1975, leaving behind her husband - Ram Kishan s/o Telu. Basant Kaur had executed a will in favour of her husband - Ram Kishan. Based on the said will, he filed a suit for possession of 1/3rd share in the property. It is the case of the defendants that upon the death of their sister Basant Kaur, the suit property devolved on heirs of her father Harnam Singh; since they are the only heirs of their father, they are entitled to the property as reversioners. 3. There is no dispute with regard to the relationship between the parties. The only question to be decided in this appeal is, as to whether the trial Court and the High Court are justified in concluding that Basant Kaur was entitled to 1/3rd share in the property of Prem Kaur, and consequently, as to whether the plaintiff being the husband of Basant Kaur is entitled to the said 1/3rd share. 4. Indisputably, the suit property was gifted by Prem Kaur by executing a registered deed in favour of her three daughters, namely, Basant Kaur (wife of the contesting respondent) and Dalip Kaur and Raj Kaur (defendant nos. 1 and 2) on 19.09.1951 in equal shares. The possession of the property was also delivered to them. Mutation no. 1555 was sanctioned on 26.6.1952 in their favour respectively. The gift deed, as well as, the consequent mutation are not questioned by anybody at any point of time. 5. The husband of Prem Kaur, viz. Harnam Singh, expired in the year 1934. The parties are Hindus. The properties are situated at Punjab. It may be noted at this point that though the Benaras school of Mitakshara law covers practically the whole of North India, Punjab is an exception, since here the Mitakshara law has been modified considerably by custom on certain points. The whole matter is viewed keeping in mind customary Hindu law prevailing in the state of Punjab during the relevant period of time. 6. Prem Kaur, being the mother of Basant Kaur, Dalip Kaur and Raj Kaur, gifted the properties situated at Manauli, tehsil Kharar in favour of her three daughters. Prem Kaur had a limited estate in the property. Despite the same, the three daughters did not object to the alienation. On the contrary, they accepted the gift and got their names mutated in the revenue records. 7. Learned author Sir Dinshaw Mulla, while commenting in his book Hindu Law (22nd edition, 191) mentions that a reversioner, whether male or female, who consents to an alienation (including by way of gift) by a widow or other limited heir made without legal necessity, or to an invalid surrender, and transferees from him, are precluded from disputing the validity of the alienation, though he may have received no consideration for his consent. In 192, it is observed by the learned author that where a widow or other limited heir enters into a family arrangement or a compromise which involves an alienation of the estate, the reversioner who has been a party to and has benefitted from the transaction is precluded from questioning the alienation, and so are his descendants. There is no question in a case of this kind of a transfer of spes successionis by the reversioner. The reversioner, being a party to a transaction cannot repudiate it. This Court in the case of Krisha Behari Lal v. Gulabchand & Ors., (1971) 1 SCC 837 , has held that where a widow entered into a compromise with a presumptive reversioner and was accepted as the absolute owner of a portion of the properties, and gave up her claim in the remaining properties, the presumptive reversioners who themselves ultimately became the reversioners were estopped from challenging the transaction. It was held by the Supreme Court that the settlement could also be considered as a family arrangement binding on the parties. 8. In the matter on hand, on facts we find that though the properties were gifted by Prem Kaur in favour of her three daughters, the said gift by her as a limited owner was treated by the three daughters, who were the only legal representatives to their parents, as a surrender of properties by their mother in their favour. We find that the alienation by way of gift by Prem Kaur is more in the nature of a family arrangement, inasmuch as she must have intended to avoid any future disputes after her demise. All the three daughters are beneficiaries of such arrangement. As mentioned supra, all the three daughters got their names mutated by Mutation No. 1555 sanctioned on 26.6.1952. The Court leans strongly in favour of family arrangements/alienations in favour of all legal representatives, to bring about harmony in the family and to do justice to its various members and avoid future disputes. We also find that the alienation by way of gift by the mother in favour of the three daughters as far back as 1951, under which all daughters were given equal shares in the property, and by which the mother relinquished all her rights in favour of the three daughters, was permissible under the prevailing customary law. Prem Kaurs three daughters accepted such agreement with a bona fide intention. Prem Kaur also did not think of her personal advantage while settling the properties among her three daughters equally, bona fide. ### Response: 0 ### Explanation: 4. Indisputably, the suit property was gifted by Prem Kaur by executing a registered deed in favour of her three daughters, namely, Basant Kaur (wife of the contesting respondent) and Dalip Kaur and Raj Kaur (defendant nos. 1 and 2) on 19.09.1951 in equal shares. The possession of the property was also delivered to them. Mutation no. 1555 was sanctioned on 26.6.1952 in their favour respectively. The gift deed, as well as, the consequent mutation are not questioned by anybody at any point of time.5. The husband of Prem Kaur, viz. Harnam Singh, expired in the year 1934. The parties are Hindus. The properties are situated at Punjab. It may be noted at this point that though the Benaras school of Mitakshara law covers practically the whole of North India, Punjab is an exception, since here the Mitakshara law has been modified considerably by custom on certain points. The whole matter is viewed keeping in mind customary Hindu law prevailing in the state of Punjab during the relevant period of time.6. Prem Kaur, being the mother of Basant Kaur, Dalip Kaur and Raj Kaur, gifted the properties situated at Manauli, tehsil Kharar in favour of her three daughters. Prem Kaur had a limited estate in the property. Despite the same, the three daughters did not object to the alienation. On the contrary, they accepted the gift and got their names mutated in the revenue records.8. In the matter on hand, on facts we find that though the properties were gifted by Prem Kaur in favour of her three daughters, the said gift by her as a limited owner was treated by the three daughters, who were the only legal representatives to their parents, as a surrender of properties by their mother in their favour. We find that the alienation by way of gift by Prem Kaur is more in the nature of a family arrangement, inasmuch as she must have intended to avoid any future disputes after her demise. All the three daughters are beneficiaries of such arrangement. As mentioned supra, all the three daughters got their names mutated by Mutation No. 1555 sanctioned on 26.6.1952. The Court leans strongly in favour of family arrangements/alienations in favour of all legal representatives, to bring about harmony in the family and to do justice to its various members and avoid future disputes. We also find that the alienation by way of gift by the mother in favour of the three daughters as far back as 1951, under which all daughters were given equal shares in the property, and by which the mother relinquished all her rights in favour of the three daughters, was permissible under the prevailing customary law. Prem Kaurs three daughters accepted such agreement with a bona fide intention. Prem Kaur also did not think of her personal advantage while settling the properties among her three daughters equally, bona fide.

State of Haryana & Others Vs. Shamsher Jang Bahadur & Others

He was reverted as a clerk on February 3, 1960, on the ground that he failed to qualify the test prescribed under certain administrative instructions issued on June 21, 1958. He filed a civil suit challenging his reversion. The suit was decreed by the trial Court. That decree was affirmed by the appellate Court. The High Court of Punjab and Haryana dismissed the second appeal filed by the State. Somewhat similar are the facts in the other appeals. 4. It was conceded before us that the appellants at the relevant time were governed by the Punjab Civil Secretariat (State Service Class III) Rules, 1952 (to be hereinafter referred to as the Rules), in view of certain instructions issued by the Central Government under the provisions of the States Reorganization Act, 1956. Hence it is not necessary to refer to the Pepsu Secretariat (Service, Recruitment, Promotion, Punishment and Seniority) Rules, 1952.5. Rule 6 of the Rules regulates the appointment of assistants by promotion. The relevant portion of that rule reads :"6(1) Posts in the service shall be filled : (a) ... ... ... (b) ... ... ... (c) ... ... ... (d) ... ... ... (e) ... ... ... (f) in the case of assistants (i) ... ... ... (ii) By promotion of senior clerks; or (iii) By selection from among officials employed in departments of Government other than the Civil Secretariat. 6(2) ... ... ... 6(3) Appointment to any post by the promotion of officials already in the service or by transfer of officials employed in Government departments other than the Civil Secretariat shall be made strictly by selection, and official shall have any claim to such appointment as of right." 6. On June 21, 1958, the Government issued instructions to the effect that 25 per cent of the vacancies in the cadre of assistants in the Punjab Civil Secretariat will be filled by appointment of suitable personnel from serving officials in the offices of the heads of departments in the State while the remaining 75 per cents will be filled by promotion from amongst the clerks in the Punjab Civil Secretariat. Clause (b) of that Order provides :"For the purpose of appointment of officials from the offices of heads of departments as assistants in the Punjab Civil Secretariat as also for promotion of clerks of the Secretariat to the posts of assistants in the cadre, a test separately prescribed will be held by the Punjab Public Service Commission. For officials belonging to the offices of the heads of departments, this test will be a competitive one and for the Secretariat clerks it will be a qualifying test. As at present this test will be conducted simultaneously in accounts as also in noting and drafting. The question as to what standard of accounts test it would be fair to expect of the examinees is being considered separately." 7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Art. 309. The High Court and the Courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and another, [1968 - II L.L.J. 830]; (1968) 1 S.C.R. 111, that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as they relate to the clerks in the Secretariat, amend or alter the conditions of service prescribed by the rules framed under Art. 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and, therefore, they relate to their conditions of service. The Government is not competent to alter the rules framed under Art. 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules. 8. There is a further difficulty in the way of the Government. The additional qualification prescribed under the administrative instructions referred to earlier undoubtedly relates to the conditions of service of the Government servants. As laid down by this Court in Mohammad Bhaker and others v. Y. Krishna Reddy and others, (1970) S.L.R. 768, any rule which affects the promotion of a person relates to his conditions of service and, therefore, unless the same is approved by the Central Government in terms of proviso to sub-s.(7) of S.115 of the States Reorganization Act, 1956, it is invalid as it violates sub-s.(7) of S.115 of the States Reorganization Act. Admittedly the approval of the Central Government had not been obtained for issuing those instructions. But reliance was sought to be placed on the letter of the Central Government, dated March 27, 1957, wherein the Central Government accorded advance approval to the State Governments regarding the change in the conditions of service obtaining immediately before November 1, 1956, in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The scope of that letter has been considered by this Court in Mohammad Bhakars case (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants.

0[ds]7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Art. 309. The High Court and the Courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and another, [1968 - II L.L.J. 830]; (1968) 1 S.C.R. 111, that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as they relate to the clerks in the Secretariat, amend or alter the conditions of service prescribed by the rules framed under Art. 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and, therefore, they relate to their conditions of service. The Government is not competent to alter the rules framed under Art. 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules8. There is a further difficulty in the way of the Government. The additional qualification prescribed under the administrative instructions referred to earlier undoubtedly relates to the conditions of service of the Government servants. As laid down by this Court in Mohammad Bhaker and others v. Y. Krishna Reddy and others, (1970) S.L.R. 768, any rule which affects the promotion of a person relates to his conditions of service and, therefore, unless the same is approved by the Central Government in terms of proviso to sub-s.(7) of S.115 of the States Reorganization Act, 1956, it is invalid as it violates sub-s.(7) of S.115 of the States Reorganization Act. Admittedly the approval of the Central Government had not been obtained for issuing those instructions. But reliance was sought to be placed on the letter of the Central Government, dated March 27, 1957, wherein the Central Government accorded advance approval to the State Governments regarding the change in the conditions of service obtaining immediately before November 1, 1956, in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The scope of that letter has been considered by this Court in Mohammad Bhakars case (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants.

### 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: He was reverted as a clerk on February 3, 1960, on the ground that he failed to qualify the test prescribed under certain administrative instructions issued on June 21, 1958. He filed a civil suit challenging his reversion. The suit was decreed by the trial Court. That decree was affirmed by the appellate Court. The High Court of Punjab and Haryana dismissed the second appeal filed by the State. Somewhat similar are the facts in the other appeals. 4. It was conceded before us that the appellants at the relevant time were governed by the Punjab Civil Secretariat (State Service Class III) Rules, 1952 (to be hereinafter referred to as the Rules), in view of certain instructions issued by the Central Government under the provisions of the States Reorganization Act, 1956. Hence it is not necessary to refer to the Pepsu Secretariat (Service, Recruitment, Promotion, Punishment and Seniority) Rules, 1952.5. Rule 6 of the Rules regulates the appointment of assistants by promotion. The relevant portion of that rule reads :"6(1) Posts in the service shall be filled : (a) ... ... ... (b) ... ... ... (c) ... ... ... (d) ... ... ... (e) ... ... ... (f) in the case of assistants (i) ... ... ... (ii) By promotion of senior clerks; or (iii) By selection from among officials employed in departments of Government other than the Civil Secretariat. 6(2) ... ... ... 6(3) Appointment to any post by the promotion of officials already in the service or by transfer of officials employed in Government departments other than the Civil Secretariat shall be made strictly by selection, and official shall have any claim to such appointment as of right." 6. On June 21, 1958, the Government issued instructions to the effect that 25 per cent of the vacancies in the cadre of assistants in the Punjab Civil Secretariat will be filled by appointment of suitable personnel from serving officials in the offices of the heads of departments in the State while the remaining 75 per cents will be filled by promotion from amongst the clerks in the Punjab Civil Secretariat. Clause (b) of that Order provides :"For the purpose of appointment of officials from the offices of heads of departments as assistants in the Punjab Civil Secretariat as also for promotion of clerks of the Secretariat to the posts of assistants in the cadre, a test separately prescribed will be held by the Punjab Public Service Commission. For officials belonging to the offices of the heads of departments, this test will be a competitive one and for the Secretariat clerks it will be a qualifying test. As at present this test will be conducted simultaneously in accounts as also in noting and drafting. The question as to what standard of accounts test it would be fair to expect of the examinees is being considered separately." 7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Art. 309. The High Court and the Courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and another, [1968 - II L.L.J. 830]; (1968) 1 S.C.R. 111, that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as they relate to the clerks in the Secretariat, amend or alter the conditions of service prescribed by the rules framed under Art. 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and, therefore, they relate to their conditions of service. The Government is not competent to alter the rules framed under Art. 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules. 8. There is a further difficulty in the way of the Government. The additional qualification prescribed under the administrative instructions referred to earlier undoubtedly relates to the conditions of service of the Government servants. As laid down by this Court in Mohammad Bhaker and others v. Y. Krishna Reddy and others, (1970) S.L.R. 768, any rule which affects the promotion of a person relates to his conditions of service and, therefore, unless the same is approved by the Central Government in terms of proviso to sub-s.(7) of S.115 of the States Reorganization Act, 1956, it is invalid as it violates sub-s.(7) of S.115 of the States Reorganization Act. Admittedly the approval of the Central Government had not been obtained for issuing those instructions. But reliance was sought to be placed on the letter of the Central Government, dated March 27, 1957, wherein the Central Government accorded advance approval to the State Governments regarding the change in the conditions of service obtaining immediately before November 1, 1956, in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The scope of that letter has been considered by this Court in Mohammad Bhakars case (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants. ### Response: 0 ### Explanation: 7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Art. 309. The High Court and the Courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Sharma v. State of Rajasthan and another, [1968 - II L.L.J. 830]; (1968) 1 S.C.R. 111, that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as they relate to the clerks in the Secretariat, amend or alter the conditions of service prescribed by the rules framed under Art. 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and, therefore, they relate to their conditions of service. The Government is not competent to alter the rules framed under Art. 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules8. There is a further difficulty in the way of the Government. The additional qualification prescribed under the administrative instructions referred to earlier undoubtedly relates to the conditions of service of the Government servants. As laid down by this Court in Mohammad Bhaker and others v. Y. Krishna Reddy and others, (1970) S.L.R. 768, any rule which affects the promotion of a person relates to his conditions of service and, therefore, unless the same is approved by the Central Government in terms of proviso to sub-s.(7) of S.115 of the States Reorganization Act, 1956, it is invalid as it violates sub-s.(7) of S.115 of the States Reorganization Act. Admittedly the approval of the Central Government had not been obtained for issuing those instructions. But reliance was sought to be placed on the letter of the Central Government, dated March 27, 1957, wherein the Central Government accorded advance approval to the State Governments regarding the change in the conditions of service obtaining immediately before November 1, 1956, in the matter of travelling allowance, discipline, control, classification, appeal, conduct, probation and departmental promotion. The scope of that letter has been considered by this Court in Mohammad Bhakars case (supra). Therein this Court held that the letter in question cannot be considered as permitting the State Governments to alter any conditions of service relating to promotion of the affected Government servants.

Yovan Vs. Management Of India Cements Ltd

was raised. Conciliation proceedings took place on various dates. Ultimately on September 22, 1986 a failure report by Joint Commissioner of Labour, Madras, was submitted. On consideration of the report and the other relevant facts a notification was issued by the Government of Tamil Nadu on September 23, 1987 under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) that the dispute between the union and the management of India Cements contractors relating to non-employment of 300 workers be referred for adjudication to the Labour Court, Madurai. Pending adjudication of main dispute, the management (Respondent 1) preferred an interlocutory application for determination as a preliminary issue that the reference by the State of Tamil Nadu is bad since the appropriate authority in relation to the cement industry is the Central Government. The Principal Labour Court, Madurai, allowed the application by the impugned order dated August 28, 1991 and terminated the proceedings. It is under these circumstances the special leave petition came to be filed after a delay of 223 days. Notices were issued on September 25, 1992 both on the SLP as well as on the application for condonation of delay 3. The argument on behalf of the appellant is that the finding of the Labour Court that it is a controlled industry by the Central Government is incorrect. Equally, the finding that in view of the application of the Government of India dated April 15, 1988 that cement industry is a controlled industry under the Act and, therefore, the reference by Central Government is bad and cannot be supported. The question of delegation of powers to the State Government does not arise. The powers exercised by the Central Government under the Act are equally exercisable by the State Government. Therefore, the impugned order is to be set aside 4. The stand of the appellant-union is opposed by the management. The Union of India supports the appellant and filed a counter in which it is clearly averred that under notification dated December 8, 1977 issued under Section 39 of the Act, the powers exercisable by the Government of India in relation to cement industry shall also be exercised by State Governments, except in the cases of mines and quarries forming part of cement industry where the Central Government alone has jurisdiction. Thus, both the Central Government and the State Governments have concurrent jurisdiction under the Act in relation to cement industry 5. In view of the above, the only short question which arises for our determination is as to which is the appropriate Government to make a reference in this case 6. We need not dwell at length in view of the notification dated December 8, 1977 of the Union of India and the stand taken in the counter-affidavit, the relevant portion of which is extracted below "The Government of India had issued Notification No. SO 757(E) dated November 8, 1977 wherein it is stated that under Section 2(a) of the Industrial Disputes Act, 1947, the Central Government has specified (for the purpose of the said sub-clause) the controlled industry engaged in the manufacture and production of cement, which has been declared controlled industry under Section 2 of the Industrial (Development and Regulation) Act, 1951. By virtue of the aforesaid notification the Central Government becomes appropriate Government under the Industrial Disputes Act, 1947, in respect of cement industry. A true copy of the aforesaid notification dated November 8, 1977 is annexed herewith as Annexure R-ISubsequently, another notification was published in the Gazette of India Extraordinary dated December 8, 1977 wherein the Government of India exercised its power under Section 39 of the Industrial Disputes Act, 1947, and it was notified that the powers exercisable by Government of India under the Industrial Disputes Act, 1947, in relation to cement industry shall also be exercisable by the State Governments, except in the case of mines and quarries forming part of the cement industry where the Central Government alone has jurisdiction. Thus both the Central Government and State Governments have concurrent jurisdiction in relation to cement industry under the Industrial Disputes Act, 1947, except in the case of mines and quarries forming part of the cement industry. A true copy of said notification date December 8, 1977 is annexed to this affidavit as Annexure R-II In the present special leave petition pertaining to regularisation of certain workmen working in the cement factory, engaged in the processes connected with transfer of cement, the Central Government as well as the State Governments are the appropriate Governments under the Industrial Disputes Act, 1947 in view of the issuance of notifications dated December 8, 1977 under Section 39 of the Industrial Disputes Act mentioned above." 7. The notification dated December 8, 1977 reads as under "S.O. 826(E) - In exercise of the powers, conferred by Section 39 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby directs that all the powers exercisable by it under that Act and the rules made thereunder shall, in relation to the Cement Industry be exercised also by all the State Governments, subject to the condition that the Central Government shall continue to exercise all the powers under the said Act and Rules made thereunder -(i) relating to mines and quarries even where such mines and quarries form part of the Cement Industry; and (ii) relating to the dispute between the employers who are members of the Cement Manufacturers Association, Express Building, Churchgate, Bombay and their workmen represented by Indian National Cement and Allied Workers Federation, Mazdoor Karyalaya, Congress House, Bombay, which has been referred for arbitration in pursuance of Section 10-A of the said Act, read with Notification No. S.O. 757(E) dated November 8, 1977 (No. S. 11025/9/77/DI(A)), in terms of the arbitration agreement published by the notification of the Government of India in the Ministry of Labour Order No. L. 29013/2/77-D.O. III(B), dated November 28, 1977 No. S. 11025/9/77/DI(A) D. Bandopadhyay Jt. Secy (True copy/attested) sd/- Regional Labour Commissioner (Central) Madras."

1[ds]6. We need not dwell at length in view of the notification dated December 8, 1977 of the Union of India and the stand taken in the, the relevant portion of which is extracted below"The Government of India had issued Notification No. SO 757(E) dated November 8, 1977 wherein it is stated that under Section 2(a) of the Industrial Disputes Act, 1947, the Central Government has specified (for the purpose of the said) the controlled industry engaged in the manufacture and production of cement, which has been declared controlled industry under Section 2 of the Industrial (Development and Regulation) Act, 1951. By virtue of the aforesaid notification the Central Government becomes appropriate Government under the Industrial Disputes Act, 1947, in respect of cement industry. A true copy of the aforesaid notification dated November 8, 1977 is annexed herewith as AnnexureIn the present special leave petition pertaining to regularisation of certain workmen working in the cement factory, engaged in the processes connected with transfer of cement, the Central Government as well as the State Governments are the appropriate Governments under the Industrial Disputes Act, 1947 in view of the issuance of notifications dated December 8, 1977 under Section 39 of the Industrial Disputes Act mentioned above."

### 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: was raised. Conciliation proceedings took place on various dates. Ultimately on September 22, 1986 a failure report by Joint Commissioner of Labour, Madras, was submitted. On consideration of the report and the other relevant facts a notification was issued by the Government of Tamil Nadu on September 23, 1987 under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) that the dispute between the union and the management of India Cements contractors relating to non-employment of 300 workers be referred for adjudication to the Labour Court, Madurai. Pending adjudication of main dispute, the management (Respondent 1) preferred an interlocutory application for determination as a preliminary issue that the reference by the State of Tamil Nadu is bad since the appropriate authority in relation to the cement industry is the Central Government. The Principal Labour Court, Madurai, allowed the application by the impugned order dated August 28, 1991 and terminated the proceedings. It is under these circumstances the special leave petition came to be filed after a delay of 223 days. Notices were issued on September 25, 1992 both on the SLP as well as on the application for condonation of delay 3. The argument on behalf of the appellant is that the finding of the Labour Court that it is a controlled industry by the Central Government is incorrect. Equally, the finding that in view of the application of the Government of India dated April 15, 1988 that cement industry is a controlled industry under the Act and, therefore, the reference by Central Government is bad and cannot be supported. The question of delegation of powers to the State Government does not arise. The powers exercised by the Central Government under the Act are equally exercisable by the State Government. Therefore, the impugned order is to be set aside 4. The stand of the appellant-union is opposed by the management. The Union of India supports the appellant and filed a counter in which it is clearly averred that under notification dated December 8, 1977 issued under Section 39 of the Act, the powers exercisable by the Government of India in relation to cement industry shall also be exercised by State Governments, except in the cases of mines and quarries forming part of cement industry where the Central Government alone has jurisdiction. Thus, both the Central Government and the State Governments have concurrent jurisdiction under the Act in relation to cement industry 5. In view of the above, the only short question which arises for our determination is as to which is the appropriate Government to make a reference in this case 6. We need not dwell at length in view of the notification dated December 8, 1977 of the Union of India and the stand taken in the counter-affidavit, the relevant portion of which is extracted below "The Government of India had issued Notification No. SO 757(E) dated November 8, 1977 wherein it is stated that under Section 2(a) of the Industrial Disputes Act, 1947, the Central Government has specified (for the purpose of the said sub-clause) the controlled industry engaged in the manufacture and production of cement, which has been declared controlled industry under Section 2 of the Industrial (Development and Regulation) Act, 1951. By virtue of the aforesaid notification the Central Government becomes appropriate Government under the Industrial Disputes Act, 1947, in respect of cement industry. A true copy of the aforesaid notification dated November 8, 1977 is annexed herewith as Annexure R-ISubsequently, another notification was published in the Gazette of India Extraordinary dated December 8, 1977 wherein the Government of India exercised its power under Section 39 of the Industrial Disputes Act, 1947, and it was notified that the powers exercisable by Government of India under the Industrial Disputes Act, 1947, in relation to cement industry shall also be exercisable by the State Governments, except in the case of mines and quarries forming part of the cement industry where the Central Government alone has jurisdiction. Thus both the Central Government and State Governments have concurrent jurisdiction in relation to cement industry under the Industrial Disputes Act, 1947, except in the case of mines and quarries forming part of the cement industry. A true copy of said notification date December 8, 1977 is annexed to this affidavit as Annexure R-II In the present special leave petition pertaining to regularisation of certain workmen working in the cement factory, engaged in the processes connected with transfer of cement, the Central Government as well as the State Governments are the appropriate Governments under the Industrial Disputes Act, 1947 in view of the issuance of notifications dated December 8, 1977 under Section 39 of the Industrial Disputes Act mentioned above." 7. The notification dated December 8, 1977 reads as under "S.O. 826(E) - In exercise of the powers, conferred by Section 39 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby directs that all the powers exercisable by it under that Act and the rules made thereunder shall, in relation to the Cement Industry be exercised also by all the State Governments, subject to the condition that the Central Government shall continue to exercise all the powers under the said Act and Rules made thereunder -(i) relating to mines and quarries even where such mines and quarries form part of the Cement Industry; and (ii) relating to the dispute between the employers who are members of the Cement Manufacturers Association, Express Building, Churchgate, Bombay and their workmen represented by Indian National Cement and Allied Workers Federation, Mazdoor Karyalaya, Congress House, Bombay, which has been referred for arbitration in pursuance of Section 10-A of the said Act, read with Notification No. S.O. 757(E) dated November 8, 1977 (No. S. 11025/9/77/DI(A)), in terms of the arbitration agreement published by the notification of the Government of India in the Ministry of Labour Order No. L. 29013/2/77-D.O. III(B), dated November 28, 1977 No. S. 11025/9/77/DI(A) D. Bandopadhyay Jt. Secy (True copy/attested) sd/- Regional Labour Commissioner (Central) Madras." ### Response: 1 ### Explanation: 6. We need not dwell at length in view of the notification dated December 8, 1977 of the Union of India and the stand taken in the, the relevant portion of which is extracted below"The Government of India had issued Notification No. SO 757(E) dated November 8, 1977 wherein it is stated that under Section 2(a) of the Industrial Disputes Act, 1947, the Central Government has specified (for the purpose of the said) the controlled industry engaged in the manufacture and production of cement, which has been declared controlled industry under Section 2 of the Industrial (Development and Regulation) Act, 1951. By virtue of the aforesaid notification the Central Government becomes appropriate Government under the Industrial Disputes Act, 1947, in respect of cement industry. A true copy of the aforesaid notification dated November 8, 1977 is annexed herewith as AnnexureIn the present special leave petition pertaining to regularisation of certain workmen working in the cement factory, engaged in the processes connected with transfer of cement, the Central Government as well as the State Governments are the appropriate Governments under the Industrial Disputes Act, 1947 in view of the issuance of notifications dated December 8, 1977 under Section 39 of the Industrial Disputes Act mentioned above."

Commissioner Of Wealth Tax, Bihar Andorissa Vs. Kirpashankar Dayashankar Worah

(1962) Supp 2 SCR 902 = (AIR 1963 SC 433 ) this Court again proceeded on the basis that S. 41 applied to the trustees. 14. In Commissioner of Income-tax, Madras v. Managing Trustees, Nagore Durgha, 57 ITR 321 = (AIR 1966 SC 73 ), this Court was called upon to interpret the scope of S. 41 (1). Therein the question was whether Nattamaigars of Nagore Durgha who are considered as trustees in whom the properties of the Durgha vested and they would come within the scope of S. 41 (1) of the Indian Income-tax Act 1922. This Court answered that question in the affirmative. Therein also it was contended that as the property is vested in the managing trustee and he received the income in his own right and not on behalf of the beneficiaries though for their benefit the income in the hands of the managing trustee fell outside the scope of S. 41 (1) of the Act. Repelling that contention Subba Rao J. (as he then was) speaking for the Court, observed: There are two answers to this contention. The doctrine of vesting is not germane to this contention. In some of the enumerated persons in the section the property vests and in others it does not vest, but they only manage the property. In general law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in section 41 of the Act. The common thread that passes through all of them is that they function legally or factually for others; they manage the property for the benefit of others. That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him. 15. In G. T. Rajamannar v. Commissioner of Income-tax, Mysore, (1964) 51 ITR 339 (Mys) while dealing with the scope of S. 41 (1), the High Court of Mysore had to deal with a contention similar to the one advanced in this case. Therein also the assessee relied on the decision of this Court in Holdsworths case, AIR 1957 SC 887 (supra). While rejecting the contention of the assessee the High Court held that the observations made by this Court in Holdsworths case must be understood in the light of the provision that this Court was considering in that case. The Court held that S. 41 (1) of the Income-tax Act 1922 is applicable to a case where income is derived from the trust property even though the trustee does not strictly speaking receive such income on behalf of the beneficiaries but is the legal owner of that income; the words on behalf of in S. 41 (1) must be construed as being equivalent to for the benefit of and further in the case of a trust where the beneficiaries are indeterminate, the income must be assessed at the maximum rate in the hands of the trustee in view of the first proviso to S. 41 (1). In the course of that judgment it was observed: But in the present case if we do not read that expression in the manner I have indicated, then a good portion of section 41 (1) and the first proviso thereto becomes otiose. It is not proper to construe that any portion of a provision in a statute is superfluous. Such a construction should be avoided except in extreme cases. Though as a normal rule the courts should give to the words used in the statute its normal meaning, occasions do arise when it becomes necessary to give a special meaning to a word. For the reasons mentioned above, I interpret the words on behalf of found in section 41 (1) and the first proviso thereto as equivalent to for the benefit of. 16. In Suhashini Karuri v. Wealth Tax Officer, Calcutta, 46 ITR 953 = (AIR 1962 Cal 295 ) the High Court of Calcutta held that the words on behalf of used in S. 21 (1) of the Act are synonymous with the expression for the benefit of. It further held that notwithstanding that the trustees hold property for the benefit of beneficiaries and not on their behalf, S. 21 (1) applies to them and they are liable to wealth tax only in the like manner and to the extent as it would be leviable upon and recoverable from any such beneficiary. The Calcutta High Court distinguished the decision of this Court in Holdsworths case, (AIR 1957 SC 887 ). The Bombay High Court in Trustees of Gordhandas Govindram Family Charity Trust, Bombay v. Commissioner of Income-tax, Central Bombay, (1968) 70 ITR 600 (Bom) disagreeing with the decision under appeal and following the decision of the Calcutta High Court in Suhashini Karuris case, AIR 1962 Cal 295 (supra) took the view that a trustee also came within the scope of S. 21 (1) of the Act. The same view was taken by the Allahabad High Court in Chintamani Ghosh Trust v. Commissioner of Wealth Tax, U. P. We think that the view taken by the Calcutta, Bombay and Allahabad High Courts is the correct view. 17. Now coming to the question whether the shares of the beneficiaries under the trust deed on the relevant valuation dates are determinate or indeterminate we have to bear in mind the fact that on those dates the Settlor as well as his wife were alive. They had a right to be maintained out of the income of the trust properties. They had also a right of residence in house, situate in that property. The two sons of the Settlor had a right to be maintained and educated. That being so, there is no doubt that on the relevant dates, the shares of the beneficiaries were indeterminate. Hence the trustee had to be assessed under S. 21(4) as it stood at the relevant time.

1[ds]7. Leaving out the unnecessary words, Section 21 to the extent material for our present purpose can be recast thus :In the case of the assets chargeable to tax under this Act which are held by a trustee appointed under a trust deed by a duly executed instrument in writing whether testamentary or otherwise, the wealth tax shall be levied upon and recoverable from the trustee in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf the assets we held and the provision of this Act shall apply accordingly8. It is plain from the language of Section 21 (1) that a trustee is also brought within its scope. But that section proceeds on the basis that a trustee is holding the trust property on behalf of one or more beneficiariesIn our opinion the ratio of that decision does not bear on the point under consideration though certain observations found therein may give some assistance to the respondent. Section 11 of the U. P. Agriculturaldoes not refer to trustees at all whereas Section 21 (1) of the Act specifically refers to trustees.It is true that it refers to a trustee as holding a trust property on behalf of other persons. The conception that the trustee is holding the trust property on behalf of others may not be in conformity with the legal position as contemplated by the Trusts Act but the legislature is competent in the absence of any restrictions placed on it by the Constitution to give its own meaning to the words used by it in a statute. There can be hardly any doubt that the Parliament while enacting Sec. 21 (2) of the Act proceeded on the basis that for the purpose of that Act the trustee is holding the trust property on behalf of the beneficiaries. The mere fact that this conception does not accord with the provisions of the Trusts Act does not invalidate Section 21 (1)It is true that a taxing provision must receive a strict construction at the hands of the Courts and if there is any ambiguity, the benefit of that ambiguity must go to the assessee. But that is not the same thing as saying that a taxing provision should not receive a reasonable construction. If the intention of the legislature is clear and beyond doubt then the fact that the provision could have been more artistically drafted cannot be a ground to treat any part of a provision as otiose.If the construction contended for on behalf of the respondent is accepted then a part of S. 21 (1) would become otiose. So long as the intention of the legislature is clear and beyond doubt, the courts have to carry out that intention. In our opinion the High Court did not take a proper view of the decision of this Court in Holdsworths case, AIR 1957 SC 887 (supra)17. Now coming to the question whether the shares of the beneficiaries under the trust deed on the relevant valuation dates are determinate or indeterminate we have to bear in mind the fact that on those dates the Settlor as well as his wife were alive. They had a right to be maintained out of the income of the trust properties. They had also a right of residence in house, situate in that property. The two sons of the Settlor had a right to be maintained and educated. That being so, there is no doubt that on the relevant dates, the shares of the beneficiaries were indeterminate. Hence the trustee had to be assessed under S. 21(4) as it stood at the relevant time.

### 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: (1962) Supp 2 SCR 902 = (AIR 1963 SC 433 ) this Court again proceeded on the basis that S. 41 applied to the trustees. 14. In Commissioner of Income-tax, Madras v. Managing Trustees, Nagore Durgha, 57 ITR 321 = (AIR 1966 SC 73 ), this Court was called upon to interpret the scope of S. 41 (1). Therein the question was whether Nattamaigars of Nagore Durgha who are considered as trustees in whom the properties of the Durgha vested and they would come within the scope of S. 41 (1) of the Indian Income-tax Act 1922. This Court answered that question in the affirmative. Therein also it was contended that as the property is vested in the managing trustee and he received the income in his own right and not on behalf of the beneficiaries though for their benefit the income in the hands of the managing trustee fell outside the scope of S. 41 (1) of the Act. Repelling that contention Subba Rao J. (as he then was) speaking for the Court, observed: There are two answers to this contention. The doctrine of vesting is not germane to this contention. In some of the enumerated persons in the section the property vests and in others it does not vest, but they only manage the property. In general law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in section 41 of the Act. The common thread that passes through all of them is that they function legally or factually for others; they manage the property for the benefit of others. That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him. 15. In G. T. Rajamannar v. Commissioner of Income-tax, Mysore, (1964) 51 ITR 339 (Mys) while dealing with the scope of S. 41 (1), the High Court of Mysore had to deal with a contention similar to the one advanced in this case. Therein also the assessee relied on the decision of this Court in Holdsworths case, AIR 1957 SC 887 (supra). While rejecting the contention of the assessee the High Court held that the observations made by this Court in Holdsworths case must be understood in the light of the provision that this Court was considering in that case. The Court held that S. 41 (1) of the Income-tax Act 1922 is applicable to a case where income is derived from the trust property even though the trustee does not strictly speaking receive such income on behalf of the beneficiaries but is the legal owner of that income; the words on behalf of in S. 41 (1) must be construed as being equivalent to for the benefit of and further in the case of a trust where the beneficiaries are indeterminate, the income must be assessed at the maximum rate in the hands of the trustee in view of the first proviso to S. 41 (1). In the course of that judgment it was observed: But in the present case if we do not read that expression in the manner I have indicated, then a good portion of section 41 (1) and the first proviso thereto becomes otiose. It is not proper to construe that any portion of a provision in a statute is superfluous. Such a construction should be avoided except in extreme cases. Though as a normal rule the courts should give to the words used in the statute its normal meaning, occasions do arise when it becomes necessary to give a special meaning to a word. For the reasons mentioned above, I interpret the words on behalf of found in section 41 (1) and the first proviso thereto as equivalent to for the benefit of. 16. In Suhashini Karuri v. Wealth Tax Officer, Calcutta, 46 ITR 953 = (AIR 1962 Cal 295 ) the High Court of Calcutta held that the words on behalf of used in S. 21 (1) of the Act are synonymous with the expression for the benefit of. It further held that notwithstanding that the trustees hold property for the benefit of beneficiaries and not on their behalf, S. 21 (1) applies to them and they are liable to wealth tax only in the like manner and to the extent as it would be leviable upon and recoverable from any such beneficiary. The Calcutta High Court distinguished the decision of this Court in Holdsworths case, (AIR 1957 SC 887 ). The Bombay High Court in Trustees of Gordhandas Govindram Family Charity Trust, Bombay v. Commissioner of Income-tax, Central Bombay, (1968) 70 ITR 600 (Bom) disagreeing with the decision under appeal and following the decision of the Calcutta High Court in Suhashini Karuris case, AIR 1962 Cal 295 (supra) took the view that a trustee also came within the scope of S. 21 (1) of the Act. The same view was taken by the Allahabad High Court in Chintamani Ghosh Trust v. Commissioner of Wealth Tax, U. P. We think that the view taken by the Calcutta, Bombay and Allahabad High Courts is the correct view. 17. Now coming to the question whether the shares of the beneficiaries under the trust deed on the relevant valuation dates are determinate or indeterminate we have to bear in mind the fact that on those dates the Settlor as well as his wife were alive. They had a right to be maintained out of the income of the trust properties. They had also a right of residence in house, situate in that property. The two sons of the Settlor had a right to be maintained and educated. That being so, there is no doubt that on the relevant dates, the shares of the beneficiaries were indeterminate. Hence the trustee had to be assessed under S. 21(4) as it stood at the relevant time. ### Response: 1 ### Explanation: 7. Leaving out the unnecessary words, Section 21 to the extent material for our present purpose can be recast thus :In the case of the assets chargeable to tax under this Act which are held by a trustee appointed under a trust deed by a duly executed instrument in writing whether testamentary or otherwise, the wealth tax shall be levied upon and recoverable from the trustee in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf the assets we held and the provision of this Act shall apply accordingly8. It is plain from the language of Section 21 (1) that a trustee is also brought within its scope. But that section proceeds on the basis that a trustee is holding the trust property on behalf of one or more beneficiariesIn our opinion the ratio of that decision does not bear on the point under consideration though certain observations found therein may give some assistance to the respondent. Section 11 of the U. P. Agriculturaldoes not refer to trustees at all whereas Section 21 (1) of the Act specifically refers to trustees.It is true that it refers to a trustee as holding a trust property on behalf of other persons. The conception that the trustee is holding the trust property on behalf of others may not be in conformity with the legal position as contemplated by the Trusts Act but the legislature is competent in the absence of any restrictions placed on it by the Constitution to give its own meaning to the words used by it in a statute. There can be hardly any doubt that the Parliament while enacting Sec. 21 (2) of the Act proceeded on the basis that for the purpose of that Act the trustee is holding the trust property on behalf of the beneficiaries. The mere fact that this conception does not accord with the provisions of the Trusts Act does not invalidate Section 21 (1)It is true that a taxing provision must receive a strict construction at the hands of the Courts and if there is any ambiguity, the benefit of that ambiguity must go to the assessee. But that is not the same thing as saying that a taxing provision should not receive a reasonable construction. If the intention of the legislature is clear and beyond doubt then the fact that the provision could have been more artistically drafted cannot be a ground to treat any part of a provision as otiose.If the construction contended for on behalf of the respondent is accepted then a part of S. 21 (1) would become otiose. So long as the intention of the legislature is clear and beyond doubt, the courts have to carry out that intention. In our opinion the High Court did not take a proper view of the decision of this Court in Holdsworths case, AIR 1957 SC 887 (supra)17. Now coming to the question whether the shares of the beneficiaries under the trust deed on the relevant valuation dates are determinate or indeterminate we have to bear in mind the fact that on those dates the Settlor as well as his wife were alive. They had a right to be maintained out of the income of the trust properties. They had also a right of residence in house, situate in that property. The two sons of the Settlor had a right to be maintained and educated. That being so, there is no doubt that on the relevant dates, the shares of the beneficiaries were indeterminate. Hence the trustee had to be assessed under S. 21(4) as it stood at the relevant time.

State of Rajasthan Vs. Vidhyawati & Another

State of Rajasthan with an area of 16,807 sq. miles developed into one of the biggest units in India, as the Rajasthan union, before the Constitution with an area of 1,28,424 sq. miles. And, finally, on the inauguration of the Constitution emerged the State of Rajasthan as one of the Part B States. It is clear that we cannot go beyond the last stage of the integration, as aforesaid, which brought into existence the State just before the coming into effect of the Constitution. As already pointed out, the provisions of the second of Art. 800 have to be traced back untill we reach the Government of India Act of 1858 (S. 65), which itself was based upon S. 10 of the Act (3 and 4 Wm. IV c. 85 of which the relevant portions have been set out above. 14. From the resume of the formation of the State of Rajasthan given above, it is clear that we need not travel beyond the stage when the Rajasthan Union was formed on the eve of the Constitution. It has not been shown that the Rajasthan Union would not have been liable for the tortious act of its employee, in the circumstances disclosed in the present case. The issue framed at the trial on this part of the controversy, was issue No. 9, in these terms: "Whether the State of Rajasthan is not liable for the act of Defendant No. 1 ? The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by Common Law. It is clear from what has been said above that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858. We have not been shown any provision of law, statutory or otherwise, which would exonerate the Rajasthan Union from vicarious liability for the acts of its servant, analogous to the Common Law of England. It was impossible, by reason of the maxim "The King can do no wrong to sue the Crown for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern developments in statecraft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on January 1, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up. Section 2(1) of the Act provides that the Crown shall be subject to all those liabilities, in tort, to which it would be subject if it were a private person of full age and capacity, in respect of torts committed by its servants or agents, subject to the other provisions of the Act. As already pointed out, the law applicable to India in respect of torts committed by a servant of the Government was very much in advance of the Common law, before the enactment of the Crown Proceedings Act, 1947, which has revolutionised the law in the United Kingdom, also. It has not been claimed before us that the common law of the United Kingdom before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949 or even earlier. It must, therefore, be held that the state of Rajasthan has failed to discharge the burden of establishing the case raised in Issue No. 9, set out above. 15. Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India. Now that we have, by our Constitution, established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle, or in public interest, that the State should not be held liable vicariously for the tortious act of its servant. This Court has deliberately departed from the Common Law rule that a civil servant cannot maintain a suit against the Crown. In the case of State of Bihar v. Abdul Majid, 1954 SCR 786 (AIR 1954 SC 245) ,this Court has recognised the right of a government servant to sue the Government for recovery of arrears of salary. When the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution. As the cause of action in this case arose after the coming into effect of the Constitution in our opinion, it would be only reconishing the old established rule, going back to more than 100 years at least, if we uphold the vicarious liability of the State. Art. 300 of the Constitution itself has saved the right of Parliament or the Legislature of a State to enact such law as it may think fit and proper in this behalf. But so long as the Legislature has not expressed its intention to the contrary, it must be held that the law what it has been ever since the days of the East India Company.

0[ds]5. The more important question raised on this appeal rests upon the true construction and effect of Art. 300(1) of the ConstitutionIt will be noticed that this Article consists of three parts, namely, (1) the first part provides for the form kind the cause-title in a suit and says that a State (omitting any reference to the Government of India) may sue or be sued by the name of the State and (2) that a State may sue or be sued in relation to its affairs in like cases as the corresponding Provinces or the corresponding Indian States might have sued or been sued it this Constitution had not been enacted; and (3) that the second part is subject to any provisions which may be made by an Act of the Legislature of the State concerned, in due exercise of its legislative functions, in pursuance of powers conferred by the Constitution. The learned Advocate-General for the State of Rajasthan argued that the second part of the Article has reference to the extent of the liability of a State to be sued, and that, therefore, we have to determine the question of the liability of the State in this case in terms of the Article. On the other hand, it has been argued on behalf of the plaintiffs-respondents that Chapter III of Part XII of the Constitution, which is headed as "Property, Contracts, Rights, Liabilities, Obligations and Suits", contains other Articles in the Chapter dealing with rights and liabilities, namely, Arts. 294 and 295, and that Art. 300 is confined to only the question in whose name suits and proceedings may be commenced, in which the Government of a State may figure as plaintiff or as defendant, and that the Article is not concerned with defining the extent of liability of a State. In other words, it was contended that Art. 300 was irrelevant for determining the vicarious liability of the defendant State in this case, and that there was nothing in this Article definitive of that liability. In our opinion, it is not correct to argue that the provisions of Art. 300 are wholly out of the way for determining the liability of the appellant State. It is true that Arts. 294 and 295 deal with rights to property, assets, liabilities and obligations of the erstwhile Governors Provinces or of the Indian States (specified in Part B of the First Schedule).But Arts, 294 and 295 are primarily concerned with the devolution of those rights, assets and liabilities, and generally speaking, provide for the succession of a State in respect of the rights and liabilities of an Indian State. That is to say, they do not define those rights and liabilities, but only, provide for substitution of one Government in place of the other.It is also true that the first part of Art. 300, as already indicated, deals only with the nomenclature of the parties to a suit or proceeding, but the second part defines the extent of liability by the use of the words "in the like cases" and refers back for the determination of such cases to the legal position before the enactment of the Constitution7. As compared to the terms of Art. 200, it will be noticed that part (i) of that Article corresponds to sub-s. (1) of S. 32 above, part (2) roughly, though not exactly, corresponds to sub-s. (2), and part (3) of the Article, as indicated above, does not find a place in S. 32,Sub-section (2) of S. 32 has specific reference to "remedies and has provided that the remedies against the Secretary of State in Council shall be the same as against the East India Company, if the Government of India Act of 1858, and the Government of India Act, 1915, had not been passed. We are, thus referred further back to the Act 21 and 22 Victoria Ch. CVI, entitled "An Act for the better Government of India." As this Act transferred the Government of India to Her Majesty, it had to make provisions for succession of power and authority, rights and liabilities. Section 65 of the Act of 1858 is in these terms :"The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would while vested in the said Company have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company."It will thus be seen that by the chain of enactments beginning with the Act of 1858 and ending with the Constitution, the words "shall and may have and take the same suits, remedies and proceedings" in S. 65 above, by incorporation, apply to the Government of a State to the same extent as they applied to the East India CompanyThe history of events leading up to the formation of the State of Rajasthan has to be adverted to in this connection. It is clear, on a reference to the Government publication called "The White Paper on Indian States" (paragraphs 134 to 138, at pages 53-55) that the integration of the Rajputana States into one single state was effected in several stages. Rajasthan Union was originally formed by the smaller States, which later united and formed the united State of Rajasthan, inaugurated on March 25, 1948. Subsequently, bigger States joined and the second Rajasthan Union was inaugurated on April 18, 1948. By a further process of integration of some bigger States, a new United State of Rajasthan was inaugurated on March 30, 1949. There was a further accession of territory by the agreement contained in Appendix XLI, on May 10, 1949, with the result that the initial United State of Rajasthan with an area of 16,807 sq. miles developed into one of the biggest units in India, as the Rajasthan union, before the Constitution with an area of 1,28,424 sq. miles. And, finally, on the inauguration of the Constitution emerged the State of Rajasthan as one of the Part B States. It is clear that we cannot go beyond the last stage of the integration, as aforesaid, which brought into existence the State just before the coming into effect of the Constitution. As already pointed out, the provisions of the second of Art. 800 have to be traced back untill we reach the Government of India Act of 1858 (S. 65), which itself was based upon S. 10 of the Act (3 and 4 Wm. IV c. 85 of which the relevant portions have been set out above14. From the resume of the formation of the State of Rajasthan given above, it is clear that we need not travel beyond the stage when the Rajasthan Union was formed on the eve of the Constitution. It has not been shown that the Rajasthan Union would not have been liable for the tortious act of its employee, in the circumstances disclosed in the present case. The issue framed at the trial on this part of the controversy, was issue No. 9, in these terms:"Whether the State of Rajasthan is not liable for the act of Defendant No. 1 ?The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by Common Law. It is clear from what has been said above that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858. We have not been shown any provision of law, statutory or otherwise, which would exonerate the Rajasthan Union from vicarious liability for the acts of its servant, analogous to the Common Law of England. It was impossible, by reason of the maxim "The King can do no wrong to sue the Crown for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern developments in statecraft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on January 1, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up. Section 2(1) of the Act provides that the Crown shall be subject to all those liabilities, in tort, to which it would be subject if it were a private person of full age and capacity, in respect of torts committed by its servants or agents, subject to the other provisions of the Act. As already pointed out, the law applicable to India in respect of torts committed by a servant of the Government was very much in advance of the Common law, before the enactment of the Crown Proceedings Act, 1947, which has revolutionised the law in the United Kingdom, also. It has not been claimed before us that the common law of the United Kingdom before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949 or even earlier. It must, therefore, be held that the state of Rajasthan has failed to discharge the burden of establishing the case raised in Issue No. 9, set out above15. Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India. Now that we have, by our Constitution, established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle, or in public interest, that the State should not be held liable vicariously for the tortious act of its servant. This Court has deliberately departed from the Common Law rule that a civil servant cannot maintain a suit against the Crown. In the case of State of Bihar v. Abdul Majid, 1954 SCR 786 (AIR 1954 SC 245) ,this Court has recognised the right of a government servant to sue the Government for recovery of arrears of salary. When the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution. As the cause of action in this case arose after the coming into effect of the Constitution in our opinion, it would be only reconishing the old established rule, going back to more than 100 years at least, if we uphold the vicarious liability of the State. Art. 300 of the Constitution itself has saved the right of Parliament or the Legislature of a State to enact such law as it may think fit and proper in this behalf. But so long as the Legislature has not expressed its intention to the contrary, it must be held that the law what it has been ever since the days of the East India Company.

### 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: State of Rajasthan with an area of 16,807 sq. miles developed into one of the biggest units in India, as the Rajasthan union, before the Constitution with an area of 1,28,424 sq. miles. And, finally, on the inauguration of the Constitution emerged the State of Rajasthan as one of the Part B States. It is clear that we cannot go beyond the last stage of the integration, as aforesaid, which brought into existence the State just before the coming into effect of the Constitution. As already pointed out, the provisions of the second of Art. 800 have to be traced back untill we reach the Government of India Act of 1858 (S. 65), which itself was based upon S. 10 of the Act (3 and 4 Wm. IV c. 85 of which the relevant portions have been set out above. 14. From the resume of the formation of the State of Rajasthan given above, it is clear that we need not travel beyond the stage when the Rajasthan Union was formed on the eve of the Constitution. It has not been shown that the Rajasthan Union would not have been liable for the tortious act of its employee, in the circumstances disclosed in the present case. The issue framed at the trial on this part of the controversy, was issue No. 9, in these terms: "Whether the State of Rajasthan is not liable for the act of Defendant No. 1 ? The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by Common Law. It is clear from what has been said above that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858. We have not been shown any provision of law, statutory or otherwise, which would exonerate the Rajasthan Union from vicarious liability for the acts of its servant, analogous to the Common Law of England. It was impossible, by reason of the maxim "The King can do no wrong to sue the Crown for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern developments in statecraft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on January 1, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up. Section 2(1) of the Act provides that the Crown shall be subject to all those liabilities, in tort, to which it would be subject if it were a private person of full age and capacity, in respect of torts committed by its servants or agents, subject to the other provisions of the Act. As already pointed out, the law applicable to India in respect of torts committed by a servant of the Government was very much in advance of the Common law, before the enactment of the Crown Proceedings Act, 1947, which has revolutionised the law in the United Kingdom, also. It has not been claimed before us that the common law of the United Kingdom before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949 or even earlier. It must, therefore, be held that the state of Rajasthan has failed to discharge the burden of establishing the case raised in Issue No. 9, set out above. 15. Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India. Now that we have, by our Constitution, established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle, or in public interest, that the State should not be held liable vicariously for the tortious act of its servant. This Court has deliberately departed from the Common Law rule that a civil servant cannot maintain a suit against the Crown. In the case of State of Bihar v. Abdul Majid, 1954 SCR 786 (AIR 1954 SC 245) ,this Court has recognised the right of a government servant to sue the Government for recovery of arrears of salary. When the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution. As the cause of action in this case arose after the coming into effect of the Constitution in our opinion, it would be only reconishing the old established rule, going back to more than 100 years at least, if we uphold the vicarious liability of the State. Art. 300 of the Constitution itself has saved the right of Parliament or the Legislature of a State to enact such law as it may think fit and proper in this behalf. But so long as the Legislature has not expressed its intention to the contrary, it must be held that the law what it has been ever since the days of the East India Company. ### Response: 0 ### Explanation: the initial United State of Rajasthan with an area of 16,807 sq. miles developed into one of the biggest units in India, as the Rajasthan union, before the Constitution with an area of 1,28,424 sq. miles. And, finally, on the inauguration of the Constitution emerged the State of Rajasthan as one of the Part B States. It is clear that we cannot go beyond the last stage of the integration, as aforesaid, which brought into existence the State just before the coming into effect of the Constitution. As already pointed out, the provisions of the second of Art. 800 have to be traced back untill we reach the Government of India Act of 1858 (S. 65), which itself was based upon S. 10 of the Act (3 and 4 Wm. IV c. 85 of which the relevant portions have been set out above14. From the resume of the formation of the State of Rajasthan given above, it is clear that we need not travel beyond the stage when the Rajasthan Union was formed on the eve of the Constitution. It has not been shown that the Rajasthan Union would not have been liable for the tortious act of its employee, in the circumstances disclosed in the present case. The issue framed at the trial on this part of the controversy, was issue No. 9, in these terms:"Whether the State of Rajasthan is not liable for the act of Defendant No. 1 ?The State of Rajasthan has not shown that the Rajasthan Union, its predecessor, was not liable by any rule of positive enactment or by Common Law. It is clear from what has been said above that the Dominion of India, or any constituent Province of the Dominion, would have been liable in view of the provisions aforesaid of the Government of India Act, 1858. We have not been shown any provision of law, statutory or otherwise, which would exonerate the Rajasthan Union from vicarious liability for the acts of its servant, analogous to the Common Law of England. It was impossible, by reason of the maxim "The King can do no wrong to sue the Crown for the tortious act of its servant. But it was realised in the United Kingdom that that rule had become outmoded in the context of modern developments in statecraft, and Parliament intervened by enacting the Crown Proceedings Act, 1947, which came into force on January 1, 1948. Hence the very citadel of the absolute rule of immunity of the sovereign has now been blown up. Section 2(1) of the Act provides that the Crown shall be subject to all those liabilities, in tort, to which it would be subject if it were a private person of full age and capacity, in respect of torts committed by its servants or agents, subject to the other provisions of the Act. As already pointed out, the law applicable to India in respect of torts committed by a servant of the Government was very much in advance of the Common law, before the enactment of the Crown Proceedings Act, 1947, which has revolutionised the law in the United Kingdom, also. It has not been claimed before us that the common law of the United Kingdom before it was altered by the said Act with effect from 1948, applied to the Rajasthan Union in 1949 or even earlier. It must, therefore, be held that the state of Rajasthan has failed to discharge the burden of establishing the case raised in Issue No. 9, set out above15. Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of Justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India. Now that we have, by our Constitution, established a Republican form of Government, and one of the objectives is to establish a Socialistic State with its varied industrial and other activities, employing a large army of servants, there is no justification, in principle, or in public interest, that the State should not be held liable vicariously for the tortious act of its servant. This Court has deliberately departed from the Common Law rule that a civil servant cannot maintain a suit against the Crown. In the case of State of Bihar v. Abdul Majid, 1954 SCR 786 (AIR 1954 SC 245) ,this Court has recognised the right of a government servant to sue the Government for recovery of arrears of salary. When the rule of immunity in favour of the Crown, based on Common Law in the United Kingdom, has disappeared from the land of its birth there is no legal warrant for holding that it has any validity in this country, particularly after the Constitution. As the cause of action in this case arose after the coming into effect of the Constitution in our opinion, it would be only reconishing the old established rule, going back to more than 100 years at least, if we uphold the vicarious liability of the State. Art. 300 of the Constitution itself has saved the right of Parliament or the Legislature of a State to enact such law as it may think fit and proper in this behalf. But so long as the Legislature has not expressed its intention to the contrary, it must be held that the law what it has been ever since the days of the East India Company.

Gaindo Vs. State of U.P. & Others

1. Heard learned counsel for the parties.2. The landowners have preferred the instant appeals for enhancement of compensation. A common Notification under Sections 4 and 17 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act), was issued on 17.2.1989/2.3.1989, for acquisition of land situated in two villages, namely, Budhera Zahidpur and Kazipur, for construction of staff quarters and 44th Battalion, Provincial Armed Constabulary P.A.C. in District Meerut (U.P.).3. The Land Acquisition Collector determined the compensation @ Rs. 30/- per sq.yd.. The Reference Court enhanced the compensation @ Rs. 90.50 per sq.yd., whereas the High Court had further enhanced the same to Rs. 115/- per sq.yd. Still dissatisfied with the same, the landowners are before us in appeals.4. The evidence, that has been placed on record, was the Award passed in the case decided by this Court in U.P. Avas Evam Vikas Parishad v. Jainul Islam, (1998) 2 SCC 467 , in which the Notification had been issued under Section 4 in the year 1983, and the compensation determined by this Court was @ Rs. 73/- per sq.yd. and exemplar evidence produced in the close proximity of time of Notification issued in 1989 indicated that the prices had increased in the area, particularly, the exemplars, that were placed on record, relating to village Kazipur. The sale deed dated 27.2.1987 executed by Mohar Singh related to Khasra No.393, in Village Kazipur, @ Rs. 290/- per sq.yd. and the sale deed dated 23.8.1988 was executed by Jai Narain Sharma, relating to Khasra No.393, in village Kazipur @ Rs. 360/- per sq.yd. If the aforesaid sale deeds are taken into consideration, the average value would come to Rs. 325/- per sq.yd. in village Kazipur. Thus, after making 50% deduction out of the amount, for development and for smallness of the plot sold, as the area acquired was a large tract of land, we deem it appropriate to work out the compensation after deduction of said amount in the instant cases and it would be fair to grant compensation @ Rs. 162.50 per sq.yd., which is rounded off to Rs. 163/- per sq. yd.5. The trend of increase in prices was there, thus, the aforesaid compensation holds good for both the villages, i.e., Budhera Zahidpur and Kazipur, District Meerut (U.P.), as they are adjacent and, particularly, when development had taken place after acquisition had been made in the year 1983 in Jainul Islams case (supra). The compensation be paid to the landowners, along with statutory benefits, within three months from today.

1[ds]4. The evidence, that has been placed on record, was the Award passed in the case decided by this Court in U.P. Avas Evam Vikas Parishad v. Jainul Islam, (1998) 2 SCC 467 , in which the Notification had been issued under Section 4 in the year 1983, and the compensation determined by this Court was @ Rs. 73/per sq.yd. and exemplar evidence produced in the close proximity of time of Notification issued in 1989 indicated that the prices had increased in the area, particularly, the exemplars, that were placed on record, relating to village Kazipur. The sale deed dated 27.2.1987 executed by Mohar Singh related to Khasra No.393, in Village Kazipur, @ Rs. 290/per sq.yd. and the sale deed dated 23.8.1988 was executed by Jai Narain Sharma, relating to Khasra No.393, in village Kazipur @ Rs. 360/per sq.yd. If the aforesaid sale deeds are taken into consideration, the average value would come to Rs. 325/per sq.yd. in village Kazipur. Thus, after making 50% deduction out of the amount, for development and for smallness of the plot sold, as the area acquired was a large tract of land, we deem it appropriate to work out the compensation after deduction of said amount in the instant cases and it would be fair to grant compensation @ Rs. 162.50 per sq.yd., which is rounded off to Rs. 163/per sq. yd.5. The trend of increase in prices was there, thus, the aforesaid compensation holds good for both the villages, i.e., Budhera Zahidpur and Kazipur, District Meerut (U.P.), as they are adjacent and, particularly, when development had taken place after acquisition had been made in the year 1983 in Jainul Islams case (supra)

### 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: 1. Heard learned counsel for the parties.2. The landowners have preferred the instant appeals for enhancement of compensation. A common Notification under Sections 4 and 17 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act), was issued on 17.2.1989/2.3.1989, for acquisition of land situated in two villages, namely, Budhera Zahidpur and Kazipur, for construction of staff quarters and 44th Battalion, Provincial Armed Constabulary P.A.C. in District Meerut (U.P.).3. The Land Acquisition Collector determined the compensation @ Rs. 30/- per sq.yd.. The Reference Court enhanced the compensation @ Rs. 90.50 per sq.yd., whereas the High Court had further enhanced the same to Rs. 115/- per sq.yd. Still dissatisfied with the same, the landowners are before us in appeals.4. The evidence, that has been placed on record, was the Award passed in the case decided by this Court in U.P. Avas Evam Vikas Parishad v. Jainul Islam, (1998) 2 SCC 467 , in which the Notification had been issued under Section 4 in the year 1983, and the compensation determined by this Court was @ Rs. 73/- per sq.yd. and exemplar evidence produced in the close proximity of time of Notification issued in 1989 indicated that the prices had increased in the area, particularly, the exemplars, that were placed on record, relating to village Kazipur. The sale deed dated 27.2.1987 executed by Mohar Singh related to Khasra No.393, in Village Kazipur, @ Rs. 290/- per sq.yd. and the sale deed dated 23.8.1988 was executed by Jai Narain Sharma, relating to Khasra No.393, in village Kazipur @ Rs. 360/- per sq.yd. If the aforesaid sale deeds are taken into consideration, the average value would come to Rs. 325/- per sq.yd. in village Kazipur. Thus, after making 50% deduction out of the amount, for development and for smallness of the plot sold, as the area acquired was a large tract of land, we deem it appropriate to work out the compensation after deduction of said amount in the instant cases and it would be fair to grant compensation @ Rs. 162.50 per sq.yd., which is rounded off to Rs. 163/- per sq. yd.5. The trend of increase in prices was there, thus, the aforesaid compensation holds good for both the villages, i.e., Budhera Zahidpur and Kazipur, District Meerut (U.P.), as they are adjacent and, particularly, when development had taken place after acquisition had been made in the year 1983 in Jainul Islams case (supra). The compensation be paid to the landowners, along with statutory benefits, within three months from today. ### Response: 1 ### Explanation: 4. The evidence, that has been placed on record, was the Award passed in the case decided by this Court in U.P. Avas Evam Vikas Parishad v. Jainul Islam, (1998) 2 SCC 467 , in which the Notification had been issued under Section 4 in the year 1983, and the compensation determined by this Court was @ Rs. 73/per sq.yd. and exemplar evidence produced in the close proximity of time of Notification issued in 1989 indicated that the prices had increased in the area, particularly, the exemplars, that were placed on record, relating to village Kazipur. The sale deed dated 27.2.1987 executed by Mohar Singh related to Khasra No.393, in Village Kazipur, @ Rs. 290/per sq.yd. and the sale deed dated 23.8.1988 was executed by Jai Narain Sharma, relating to Khasra No.393, in village Kazipur @ Rs. 360/per sq.yd. If the aforesaid sale deeds are taken into consideration, the average value would come to Rs. 325/per sq.yd. in village Kazipur. Thus, after making 50% deduction out of the amount, for development and for smallness of the plot sold, as the area acquired was a large tract of land, we deem it appropriate to work out the compensation after deduction of said amount in the instant cases and it would be fair to grant compensation @ Rs. 162.50 per sq.yd., which is rounded off to Rs. 163/per sq. yd.5. The trend of increase in prices was there, thus, the aforesaid compensation holds good for both the villages, i.e., Budhera Zahidpur and Kazipur, District Meerut (U.P.), as they are adjacent and, particularly, when development had taken place after acquisition had been made in the year 1983 in Jainul Islams case (supra)

Ibrat Faizan Vs. Omaxe Buildhome Private Limited

Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. That thereafter, it is observed and held that against the order passed by the tribunal, the aggrieved party may approach the concerned High Court under Article 227 of the Constitution of India. 12.2 We may also refer to the decision of this Court in State of Karnataka vs. Vishwabarathi House Building Co-operative Society and Ors., (2003) 2 SCC 412 . In the said case, the contest before this Court was with regard to the Constitutional validity of the Consumer Protection Act, 1986. The validity of the Act was challenged, inter-alia, on the ground that the Parliament, was not empowered to establish a hierarchy of Courts, which would operate parallelly with the Courts established under the Constitution. Upholding the validity of the Act, this Court observed that the very fact that a given party could always approach the High Court under Article 227, or the Supreme Court, as the case may be, against an order of a Commission constituted under the Act, was itself an adequate safeguard. The observations of this Court, to the effect that a party aggrieved by an order of a Commission constituted under the Act, could approach a High Court, or this Court, have been extracted as under: 52. The very fact that in a given case a party under the said Act may approach upto this Court and or may otherwise take recourse to the remedy of judicial review, the interest of the parties must be held to have been sufficient safeguard. 53. The provisions relating to power to approach appellate court by a party aggrieved by a decision of the forums State Commissions as also the power of High Court and thus Court under Article 226/227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safeguards. Furthermore, primarily the jurisdiction of the forum/commissions is to grant damages. In the event, a complainant feels that he will have a better and effective remedy in a civil court as he may have to seek for an order of injunction, he indisputably may file a suit in an appropriate civil court or may take recourse to some other remedies as provided for in other statutes. 13. No so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed and held by this Court in the case of L. Chandra Kumar (supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article 136 of the Constitution. 14. In view of the above, in the present case, the High Court has not committed any error in entertaining the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission which has been passed in an appeal under Section 58(1)(a) (iii) of the 2019 Act. We are in complete agreement with the view taken by the High Court. However, at the same time, it goes without saying that while exercising the powers under Article 227 of the Constitution of India, the High Court subjects itself to the rigour of Article 227 of the Constitution and the High Court has to exercise the jurisdiction under Article 227 within the parameters within which such jurisdiction is required to be exercised. 15. The scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by this Court in the case of Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, which has been consistently followed by this Court (see the recent decision of this Court in the case of Garment Craft v. Prakash Chand Goel, 2022 SCC Online SC 29). Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution. Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article 227 of the Constitution of India. 16. In view of the above discussion and for the reasons stated above and subject to the observations made hereinabove, it cannot be said that a writ petition under Article 227 of the Constitution of India before the concerned High Court against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) of the 2019 Act was not maintainable. We are in complete agreement with the view taken by the High Court. As the matter on merits is yet to be considered by the High Court, we do not express anything on merits in favour of either of the parties. However, it is observed that while considering the question of interim relief/stay, the High Court will bear in mind the observations made hereinabove.

0[ds]It is not in dispute that in the present case, the appeal before the National Commission was against the order passed by the State Commission under Section 47(1)(a) of the 2019 Act. Therefore, against the order passed by the State Commission passed in a complaint in exercise of its powers conferred under Section 47(1)(a) of the 2019 Act, an appeal to the National Commission was maintainable, as provided under Section 58(1)(a)(iii) of the 2019 Act. As per Section 67 of the 2019 Act, any person, aggrieved by an order made by the National Commission of its powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of Section 58, may prefer an appeal against such order to the Supreme Court. Therefore, an appeal against the order passed by the National Commission to this Court would be maintainable only in case the order is passed by the National Commission in exercise of its powers conferred under Section 58(1)(a)(i) or under Section 58(1)(a)(ii) of the 2019 Act. No further appeal to this Court is provided against the order passed by the National Commission in exercise of its powers conferred under Section 58(1)(a)(iii) or under Section 58(1)(a)(iv) of the 2019 Act. In that view of the matter, the remedy which may be available to the aggrieved party against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) or Section 58(1)(a) (iv) would be to approach the concerned High Court having jurisdiction under Article 227 of the Constitution of India.12. Whether the National Commission can be said to be a tribunal for the purpose of exercise of powers under Article 227 of the Constitution of India by the High Court is concerned, has been considered by a Constitution Bench of this Court in the case of Associate Cement Companies Limited (supra), which is required to be referred to. In paragraphs 44 and 45, it is observed and held as under:44. An authority other than a court may be vested by statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial powers of the State. For the purpose of this case, it is sufficient to say that any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Article 136. Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. This test of a tribunal is not meant to be exhaustive, and it may be that other bodies not satisfying this test are also tribunals. In order to be a tribunal, it is essential that the power of adjudication must be derived from a statute or a statutory rule. An authority or body deriving its power of adjudication from an agreement of the parties, such as a private arbitrator or a tribunal acting under Section 10-A of the Industrial Disputes Act, 1947, does not satisfy the test of a tribunal within Article 136. It matters little that such a body or authority is vested with the trappings of a court. The Arbitration Act, 1940 vests an arbitrator with some of the trappings of a court, so also the Industrial Disputes Act, 1947 vests an authority acting under Section 10-A of the Act with many of such trappings, and yet, such bodies and authorities are not tribunals.45. The word tribunal finds place in Article 227 of the Constitution also, and I think that there also the word has the same meaning as in Article 136.Therefore, the National Commission can be said to be a Tribunal which is vested by Statute the powers to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them. Therefore, as observed hereinabove in the aforesaid decision, it satisfies the test of an authority vested with the judicial powers of the State and therefore may be regarded as a Tribunal within the meaning of Article 227 and/or 136 of the Constitution of India. Also, in a given case, this Court may not exercise its powers under Article 136 of the Constitution of India, in view of the remedy which may be available to the aggrieved party before the concerned High Court under Article 227 of the Constitution of India, as it is appropriate that aggrieved party approaches the concerned High Court by way of writ petition under Article 227 of the Constitution of India.12.1 At this stage, another Constitution Bench decision of this Court in the case of L. Chandra Kumar (supra) is required to be referred to. While dealing with the jurisdiction of the High Courts under Articles 226/227 of the Constitution of India in respect of powers of judicial review, it is observed and held in para 90 as under:90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.That thereafter, it is observed and held that against the order passed by the tribunal, the aggrieved party may approach the concerned High Court under Article 227 of the Constitution of India.13. No so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed and held by this Court in the case of L. Chandra Kumar (supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article 136 of the Constitution.14. In view of the above, in the present case, the High Court has not committed any error in entertaining the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission which has been passed in an appeal under Section 58(1)(a) (iii) of the 2019 Act. We are in complete agreement with the view taken by the High Court. However, at the same time, it goes without saying that while exercising the powers under Article 227 of the Constitution of India, the High Court subjects itself to the rigour of Article 227 of the Constitution and the High Court has to exercise the jurisdiction under Article 227 within the parameters within which such jurisdiction is required to be exercised.scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by this Court in the case of Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, which has been consistently followed by this Court (see the recent decision of this Court in the case of Garment Craft v. Prakash Chand Goel, 2022 SCC Online SC 29). Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution. Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article 227 of the Constitution of India.16. In view of the above discussion and for the reasons stated above and subject to the observations made hereinabove, it cannot be said that a writ petition under Article 227 of the Constitution of India before the concerned High Court against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) of the 2019 Act was not maintainable. We are in complete agreement with the view taken by the High Court. As the matter on merits is yet to be considered by the High Court, we do not express anything on merits in favour of either of the parties. However, it is observed that while considering the question of interim relief/stay, the High Court will bear in mind the observations made hereinabove.

### 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: Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. That thereafter, it is observed and held that against the order passed by the tribunal, the aggrieved party may approach the concerned High Court under Article 227 of the Constitution of India. 12.2 We may also refer to the decision of this Court in State of Karnataka vs. Vishwabarathi House Building Co-operative Society and Ors., (2003) 2 SCC 412 . In the said case, the contest before this Court was with regard to the Constitutional validity of the Consumer Protection Act, 1986. The validity of the Act was challenged, inter-alia, on the ground that the Parliament, was not empowered to establish a hierarchy of Courts, which would operate parallelly with the Courts established under the Constitution. Upholding the validity of the Act, this Court observed that the very fact that a given party could always approach the High Court under Article 227, or the Supreme Court, as the case may be, against an order of a Commission constituted under the Act, was itself an adequate safeguard. The observations of this Court, to the effect that a party aggrieved by an order of a Commission constituted under the Act, could approach a High Court, or this Court, have been extracted as under: 52. The very fact that in a given case a party under the said Act may approach upto this Court and or may otherwise take recourse to the remedy of judicial review, the interest of the parties must be held to have been sufficient safeguard. 53. The provisions relating to power to approach appellate court by a party aggrieved by a decision of the forums State Commissions as also the power of High Court and thus Court under Article 226/227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safeguards. Furthermore, primarily the jurisdiction of the forum/commissions is to grant damages. In the event, a complainant feels that he will have a better and effective remedy in a civil court as he may have to seek for an order of injunction, he indisputably may file a suit in an appropriate civil court or may take recourse to some other remedies as provided for in other statutes. 13. No so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed and held by this Court in the case of L. Chandra Kumar (supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article 136 of the Constitution. 14. In view of the above, in the present case, the High Court has not committed any error in entertaining the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission which has been passed in an appeal under Section 58(1)(a) (iii) of the 2019 Act. We are in complete agreement with the view taken by the High Court. However, at the same time, it goes without saying that while exercising the powers under Article 227 of the Constitution of India, the High Court subjects itself to the rigour of Article 227 of the Constitution and the High Court has to exercise the jurisdiction under Article 227 within the parameters within which such jurisdiction is required to be exercised. 15. The scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by this Court in the case of Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, which has been consistently followed by this Court (see the recent decision of this Court in the case of Garment Craft v. Prakash Chand Goel, 2022 SCC Online SC 29). Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution. Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article 227 of the Constitution of India. 16. In view of the above discussion and for the reasons stated above and subject to the observations made hereinabove, it cannot be said that a writ petition under Article 227 of the Constitution of India before the concerned High Court against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) of the 2019 Act was not maintainable. We are in complete agreement with the view taken by the High Court. As the matter on merits is yet to be considered by the High Court, we do not express anything on merits in favour of either of the parties. However, it is observed that while considering the question of interim relief/stay, the High Court will bear in mind the observations made hereinabove. ### Response: 0 ### Explanation: of writ petition under Article 227 of the Constitution of India.12.1 At this stage, another Constitution Bench decision of this Court in the case of L. Chandra Kumar (supra) is required to be referred to. While dealing with the jurisdiction of the High Courts under Articles 226/227 of the Constitution of India in respect of powers of judicial review, it is observed and held in para 90 as under:90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.That thereafter, it is observed and held that against the order passed by the tribunal, the aggrieved party may approach the concerned High Court under Article 227 of the Constitution of India.13. No so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed and held by this Court in the case of L. Chandra Kumar (supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article 136 of the Constitution.14. In view of the above, in the present case, the High Court has not committed any error in entertaining the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission which has been passed in an appeal under Section 58(1)(a) (iii) of the 2019 Act. We are in complete agreement with the view taken by the High Court. However, at the same time, it goes without saying that while exercising the powers under Article 227 of the Constitution of India, the High Court subjects itself to the rigour of Article 227 of the Constitution and the High Court has to exercise the jurisdiction under Article 227 within the parameters within which such jurisdiction is required to be exercised.scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by this Court in the case of Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, which has been consistently followed by this Court (see the recent decision of this Court in the case of Garment Craft v. Prakash Chand Goel, 2022 SCC Online SC 29). Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution. Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article 227 of the Constitution of India.16. In view of the above discussion and for the reasons stated above and subject to the observations made hereinabove, it cannot be said that a writ petition under Article 227 of the Constitution of India before the concerned High Court against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) of the 2019 Act was not maintainable. We are in complete agreement with the view taken by the High Court. As the matter on merits is yet to be considered by the High Court, we do not express anything on merits in favour of either of the parties. However, it is observed that while considering the question of interim relief/stay, the High Court will bear in mind the observations made hereinabove.

Commissioner Of Customs, Bangalore Vs. M/S. N.I. Systems India P.Ltd

applications. It is a Programmable Microprocessor based device which is used to control assembly lines and machinery on the shop floor as well as to control many other types of mechanical, electrical and electronic equipment in a plant. A PLC is designed for real-time use in rugged industrial environments, connected to sensors and actuators. PLCs are characterized by the number of I.O. Ports which they provide. PLCs are also categorized by their I.O. scan rates. As stated, PACs, which expands the role of PLCs and, at the same time, combines the capabilities of several traditional controls and monitoring systems, offers several benefits in the form of enhanced functionalities. Thus, a PAC does not replace the traditional PLCs but it expands the role of a PLC. A PAC has features found in Programmable Logic Controllers, Distributed Control Systems, Remote Terminal Units and PCs. 40. The summary of what we have stated above is that PACs/Programmable Process Controllers and I.O. Modules by themselves are not measuring, regulating or controlling instrument (system). Physical variables such as temperature and voltage are measured by device, like sensors which constitute measuring and control systems. In other words, controllers and I.O. Modules each have a specific function to perform being parts of a measuring and control system i.e. sensors. 41. We also do not find any merit in the submission of the importer that in view of the Explanatory Notes, the Measuring Device, the Control Device and the Operating Device has to form a "single entity". There is no dispute that if all the above three devices are found in one "single entity" then classification will fall under Chapter 90. However, the test of "single entity" containing three devices is not a pre-condition for classification under CTH 9032. On the contrary, the test is not that of single entity, but of the device being capable of working as a functional unit. In this connection, Note 3 of Chapter 90 is to be read. Note 3 incorporates Note 4 to Section XVI. Note 4 inter alia provides for a machine consisting of individual components which may be separate as long as they are intended to contribute to a clear defined function. The PACs/Programmable Process Controller, though separate from sensors, is an individual component intended to contribute to a clearly defined function. Note 3 of Chapter 90 has to be read with Note 2(b) of Chapter 90 and if so read then it becomes clear that PAC/Programmable Process Controllers, being parts and accessories and a regulating or controlling apparatus like sensors have got to be classified under CTH 9032.89.10. 42. For the above reasons, we hold that PACs (including embedded Controllers/Programmable Process Controllers) have been rightly classified by the Department under CTH 9032. 43. On the question of Input-Output (I.O.) Modules and Chassis, the Tribunal has not given any finding whatsoever thereon. However, on going through the technical material and the demonstration given to us in Court, we are of the view that I.O. Modules and Chassis have also been rightly classified by the Department as parts and accessories of regulating and controlling apparatus classifiable under Chapter 90. In this connection, one needs to examine the nature and function of I.O. Modules and Chassis which we have already discussed hereinabove. To put it briefly, at the cost of repetition, we may say that the primary function of I.O. Modules (Boards) is to function as a part of measuring and control System. It is for this reason that such Modules are required to be classified as parts and accessories of regulating and measuring System. For this purpose, it is necessary to examine each of the imported items apart from Controllers in order to see whether the hardware coupled with the pre-installed software gives it a definite identity and function. From the catalogue and technological write-ups we find that each and every I.O. Module imported by the assessee is configured with a sensor at one end. This aspect is very important. Take the example of Data Acquisition Boards (DAQ). The purpose of DAQ Boards is to acquire data from external sensor, usually in the form of analog voltage of +/- 10 volts. This data is converted by DAQ Boards into digital signals which the personal computer can understand. On the other hand, Instrument Control Boards which are placed inside the computer allow data required from external sensors to be communicated directly to the computer. This is called as handling of information (see Explanatory Notes of HSN at page 1575) which is different from controlling temperature, pressure etc. (see Explanatory Notes of HSN at page 1856). On the other hand, we have what is called as Analog Output Boards which are meant for converting signals from external units such as PXI. Similarly, the Chassis provides connectivity and housing for embedded controller and the data acquisition modules, allowing them to communicate with each other. A network interface module is used to connect to a network for distributed control applications. It interconnects measuring instruments to a PC by sending and receiving messages from the two units. Thus, each I.O. Module is tailored to a specific function and is therefore a part of regulating and controlling apparatus. Handling of information under the HSN Notes is separate and distinct from regulating and measuring temperature, pressure etc. 44. Lastly, we need to analyse Chapter Note 5(E) to Chapter 84. In our view, once a machine incorporating an ADPM performs a specific function other than data processing then that machine is classifiable in the heading corresponding to the function of that machine (see Note 4 of Section XVI and Note 3 to Chapter 90, the scope whereof has already been explained hereinabove). Further, HSN clearly indicates that Heading 8478 is excluded where the case is of a clearly defined function to which separate components contribute. 45. In our view, in order to attract Note 5(E) the real test is whether or not the machine imported is performing a specific function relatable to the functional unit as a whole.

1[ds]On the other hand, we have what is called as Analog Output Boards which are meant for converting signals from external units such as PXI. Similarly, the Chassis provides connectivity and housing for embedded controller and the data acquisition modules, allowing them to communicate with each other. A network interface module is used to connect to a network for distributed control applications. It interconnects measuring instruments to a PC by sending and receiving messages from the two units. Thus, each I.O. Module is tailored to a specific function and is therefore a part of regulating and controlling apparatus. Handling of information under the HSN Notes is separate and distinct from regulating and measuring temperature, pressure etc.44. Lastly, we need to analyse Chapter Note 5(E) to Chapter 84. In our view, once a machine incorporating an ADPM performs a specific function other than data processing then that machine is classifiable in the heading corresponding to the function of that machine (see Note 4 of Section XVI and Note 3 to Chapter 90, the scope whereof has already been explained hereinabove). Further, HSN clearly indicates that Heading 8478 is excluded where the case is of a clearly defined function to which separate components contribute.45. In our view, in order to attract Note 5(E) the real test is whether or not the machine imported is performing a specific function relatable to the functional unit as a whole.

### 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: applications. It is a Programmable Microprocessor based device which is used to control assembly lines and machinery on the shop floor as well as to control many other types of mechanical, electrical and electronic equipment in a plant. A PLC is designed for real-time use in rugged industrial environments, connected to sensors and actuators. PLCs are characterized by the number of I.O. Ports which they provide. PLCs are also categorized by their I.O. scan rates. As stated, PACs, which expands the role of PLCs and, at the same time, combines the capabilities of several traditional controls and monitoring systems, offers several benefits in the form of enhanced functionalities. Thus, a PAC does not replace the traditional PLCs but it expands the role of a PLC. A PAC has features found in Programmable Logic Controllers, Distributed Control Systems, Remote Terminal Units and PCs. 40. The summary of what we have stated above is that PACs/Programmable Process Controllers and I.O. Modules by themselves are not measuring, regulating or controlling instrument (system). Physical variables such as temperature and voltage are measured by device, like sensors which constitute measuring and control systems. In other words, controllers and I.O. Modules each have a specific function to perform being parts of a measuring and control system i.e. sensors. 41. We also do not find any merit in the submission of the importer that in view of the Explanatory Notes, the Measuring Device, the Control Device and the Operating Device has to form a "single entity". There is no dispute that if all the above three devices are found in one "single entity" then classification will fall under Chapter 90. However, the test of "single entity" containing three devices is not a pre-condition for classification under CTH 9032. On the contrary, the test is not that of single entity, but of the device being capable of working as a functional unit. In this connection, Note 3 of Chapter 90 is to be read. Note 3 incorporates Note 4 to Section XVI. Note 4 inter alia provides for a machine consisting of individual components which may be separate as long as they are intended to contribute to a clear defined function. The PACs/Programmable Process Controller, though separate from sensors, is an individual component intended to contribute to a clearly defined function. Note 3 of Chapter 90 has to be read with Note 2(b) of Chapter 90 and if so read then it becomes clear that PAC/Programmable Process Controllers, being parts and accessories and a regulating or controlling apparatus like sensors have got to be classified under CTH 9032.89.10. 42. For the above reasons, we hold that PACs (including embedded Controllers/Programmable Process Controllers) have been rightly classified by the Department under CTH 9032. 43. On the question of Input-Output (I.O.) Modules and Chassis, the Tribunal has not given any finding whatsoever thereon. However, on going through the technical material and the demonstration given to us in Court, we are of the view that I.O. Modules and Chassis have also been rightly classified by the Department as parts and accessories of regulating and controlling apparatus classifiable under Chapter 90. In this connection, one needs to examine the nature and function of I.O. Modules and Chassis which we have already discussed hereinabove. To put it briefly, at the cost of repetition, we may say that the primary function of I.O. Modules (Boards) is to function as a part of measuring and control System. It is for this reason that such Modules are required to be classified as parts and accessories of regulating and measuring System. For this purpose, it is necessary to examine each of the imported items apart from Controllers in order to see whether the hardware coupled with the pre-installed software gives it a definite identity and function. From the catalogue and technological write-ups we find that each and every I.O. Module imported by the assessee is configured with a sensor at one end. This aspect is very important. Take the example of Data Acquisition Boards (DAQ). The purpose of DAQ Boards is to acquire data from external sensor, usually in the form of analog voltage of +/- 10 volts. This data is converted by DAQ Boards into digital signals which the personal computer can understand. On the other hand, Instrument Control Boards which are placed inside the computer allow data required from external sensors to be communicated directly to the computer. This is called as handling of information (see Explanatory Notes of HSN at page 1575) which is different from controlling temperature, pressure etc. (see Explanatory Notes of HSN at page 1856). On the other hand, we have what is called as Analog Output Boards which are meant for converting signals from external units such as PXI. Similarly, the Chassis provides connectivity and housing for embedded controller and the data acquisition modules, allowing them to communicate with each other. A network interface module is used to connect to a network for distributed control applications. It interconnects measuring instruments to a PC by sending and receiving messages from the two units. Thus, each I.O. Module is tailored to a specific function and is therefore a part of regulating and controlling apparatus. Handling of information under the HSN Notes is separate and distinct from regulating and measuring temperature, pressure etc. 44. Lastly, we need to analyse Chapter Note 5(E) to Chapter 84. In our view, once a machine incorporating an ADPM performs a specific function other than data processing then that machine is classifiable in the heading corresponding to the function of that machine (see Note 4 of Section XVI and Note 3 to Chapter 90, the scope whereof has already been explained hereinabove). Further, HSN clearly indicates that Heading 8478 is excluded where the case is of a clearly defined function to which separate components contribute. 45. In our view, in order to attract Note 5(E) the real test is whether or not the machine imported is performing a specific function relatable to the functional unit as a whole. ### Response: 1 ### Explanation: On the other hand, we have what is called as Analog Output Boards which are meant for converting signals from external units such as PXI. Similarly, the Chassis provides connectivity and housing for embedded controller and the data acquisition modules, allowing them to communicate with each other. A network interface module is used to connect to a network for distributed control applications. It interconnects measuring instruments to a PC by sending and receiving messages from the two units. Thus, each I.O. Module is tailored to a specific function and is therefore a part of regulating and controlling apparatus. Handling of information under the HSN Notes is separate and distinct from regulating and measuring temperature, pressure etc.44. Lastly, we need to analyse Chapter Note 5(E) to Chapter 84. In our view, once a machine incorporating an ADPM performs a specific function other than data processing then that machine is classifiable in the heading corresponding to the function of that machine (see Note 4 of Section XVI and Note 3 to Chapter 90, the scope whereof has already been explained hereinabove). Further, HSN clearly indicates that Heading 8478 is excluded where the case is of a clearly defined function to which separate components contribute.45. In our view, in order to attract Note 5(E) the real test is whether or not the machine imported is performing a specific function relatable to the functional unit as a whole.

Binod Mills Co. Ltd., Ujjain (M.P.) Vs. Suresh Chandra Mahaveer Prasadmantri, Bombay

The government are interested to see that the investments made by it and other financial institutions do not get frittered away by avoidable litigation and other legal proceedings. The bar contained in Section 5 by way of suspension of suits or other legal proceedings is thus an absolute bar but only for the period contemplated by the Act. 22. The limited question that we have to answer is as to whether Section 5 operates even against execution of decrees obtained against the relief undertaking by its creditors outside the State of Madhya Pradesh. 23. The learned counsel for the respondent brought to our notice decisions in Inderchand Kajriwal v. Bansropan Sahu (AIR 1948 Pat 245 ) and Basheer Ahmed v. G. Padmanabha Kamath (AIR 1953 Mys 37 : ILR 1952 Mys 312) and similar other decisions to contend that the execution court cannot, while executing decrees, adopt a procedure under any special law available in the State in which the execution court is situate, in relation to decrees obtained outside the State. For example, suppose a decree is obtained in Madras and it is transferred to Madhya Pradesh. Suppose again that in Madhya Pradesh, there is an enactment to scale down the decree amount either in instalments or to wipe out the debt of an agriculturist; will it be open to the executing court to take recourse to such enactments and give relief to debtors in the State in relation to a decree obtained in a court outside the State. It is settled law that the transferee court has to execute the decree in accordance with the law obtaining in the court that passed the decree and determine the rights and liabilities of the parties in accordance with the substantive law obtaining in the State where that court is situate. That being so the judgment-debtor cannot move the execution court and get the benefit of the procedure available in the State in which the transferee court is situated. 24. Here we are not confronted with such a situation. Nobody contends that the executing court has to change the terms of the decree. All that is stated is that its execution has to be suspended for a specified period. Section 5, therefore, does not come into conflict either with Section 40 or Section 42 of the Civil Procedure Code. In our view, and the bar under Section 5 is an absolute one for the duration of the period contemplated in the Act. 25. If the relief undertakings are not protected by a provision like Section 5, the position will be distressing. The creditors will proceed against them. Their properties and goods will be attached. The workers will be rendered jobless. In this case, this unit is said to employ nearly 2000 workers. The creditors will not be in a more advantageous position either. If liquidation proceedings are initiated, the creditors will get only pro rata from the sale proceeding of the assets. If creditors are permitted to proceed against the assets and the products of the undertaking, that would be detrimental to the heavy investment made by the State and other financial institutions. The concern of the government in enacting this law is thus in the interest of the large number of workmen employed in these undertakings and in the revival, if possible, of a sick unit. It is to protect them and not to render them unemployed that such relief undertakings are financed by the State. 26. A contention was raised that Section 5 cannot apply to post-notification liabilities. In other words, suits and other proceedings in relation to the debts incurred prior to the notification under Section 3 alone are barred and debts incurred subsequent to the notification under Section 3 are not barred under Section 5. In our view, the reading of the sections does not permit such an interpretation. The object of Section 5 is to protect the relief undertakings from all suits and legal proceedings. This protection is to end on November 18, 1987. We hold that the High Court was in error in allowing execution to proceed. 27. Before parting with this case, we wish to observe that the powers that be will have to evolve a more acceptable procedure while dealing with sick units. We share the concern expressed in high places about the loss that government incur in trying to rescue sick units. Invariably, the amounts pumped in are ultimately lost. The machineries of the unit in question are as old as 1920. One can easily imagine the nature of the products that come out of a unit like this. What purpose will be solved by giving life to such units by providing artificial respiration ? The concern for workers must be matched with the concern for modernisation also. The labour should not be left to the mercy of such sick units. The government will have to evolve a more acceptable and intelligent policy, to help the labour and for modernisation of industry. These units like "flaring tapers brightening as they waste" with temporary financial blood transfusion must, in the interest of all concerned, be subjected to euthanasia. The situation created must be met boldly. Such units with decrepit and antiquated machineries must be got rid of and public money must be saved. In their places new units must come into existence. We known that this would involve heavy financial liability. But in the long run, it would save (sic serve) public interest more. If government find it difficult to pump enough money, at least a trial must be undertaken to entrust such units to the labour to test how they work with their cooperative efforts. In such a situation, there will not be siphoning of the funds of the unit by the enterepreneurs, for self-aggrandisement, for, more often than not, sickness in such unites sets in, because the funds of the units are diverted to defeat both the government and the labour and only to benefit the owners of such units. 28.

1[ds]9. It is evident from the above discussion that the High Court completely overlooked the purpose of the Act and the limited period of operation of Section 5. It has to be borne in mind that the Act in question was enacted with a specific purpose. The preamble to the Act states that the Act has been enacted "to enable the State Government to make special provisions for a limited period in respect of industrial relations, financial obligations and other like matters in relation to industrial undertakings the running of which is considered essential as a measure of preventing, or of providing relief against, unemployment". It is necessary to note that the State Government and other financial institutions invest large sums of money to revive sick units or relief undertakings. The government and such institutions are interested in seeing that the amounts so invested are utilised for the purpose of running the relief undertakings so that it can be gradually revived and what is more important, to provide continuous employment to a large number of workers. The government is interested in making sure that the relief undertakings do not incur burdensome debts, engage in costly litigations and consequent attachment of their machineries and movable thus gradually destroying the units completely. The Act has been enacted to safeguard the interest of the general public, the workers and the amounts invested. It is for this purpose that relief was given to the unit against execution of decrees for a maximum period of seven years. If creditors of the relief undertakings ingeniously manage to obtain decrees against them from courts situated in areas where the Act is not in operation and thus try to circumvent the operation of the Act by getting such decrees transferred to the area where the Act is in operation and plead that their decrees are saved from the mischief of the Act, such actions would be to defeat the very purpose of the Act. When we say this, we do not want to encourage such relief undertakings not to pay current liabilities. We are only concerned here with the interpretation of the sections of the Act. We will presently refer to some of the relevant sections and consider their operation both for pre-notification and post-notificationSo read, the object of the section becomes clear. The section seeks to confer benefit to the relief undertakings from the ravages of litigation during the period it remains a relief undertaking. The expression decree is very material for our purpose. Inclusion of decrees in the section shows that the fact that decrees were validly obtained against a relief undertaking will not pose any danger to it during the period the declaration is in force. In other words, the section prevents execution of a decree validly obtained against the undertaking during the period mentioned above. That takes us to the question as to whether the words "other legal proceedings" in the section would take in execution proceedings. It is not disputed that the section bars institution of suits and starting of other proceedings. What is disputed is that the expression "other legal proceedings" will not take in execution proceedings. The contention is grounded on the general principle that the execution court cannot go behind a valid decree and that the execution court cannot, therefore, refuse to execute it. It is admitted that the decree obtained from the Bombay High Court is a valid decree. That being so, law should take its course and execution should proceed. It is by virtue of the enabling provisions contained in Sections 40 and 41 of the Civil Procedure Code that this validly obtained decree got transferred to the court in Madhya Pradesh. It is contended that by the mere transfer of this decree in accordance with the procedural law, its validity does not disappear nor its binding force cease to exist. We find difficulty in accepting this contention. If we are to accept this submission, it would be rendering Section 5 of the Act nugatory and to destroy the benefits sought to be conferred by that section. Nobody questions the validity of the decree. All that is sought to be done is to suspend its animation for the period mentioned in the notification. No court in Madhya Pradesh can question its validity, nor can refuse to execute it after the period is over. To direct execution of the decree in the teeth of Section 5 would be to encourage filing of suits in courts outside Madhya Pradesh, secure decrees and defeat the purpose of the Act. We do not think that such an abuse is permissible in the face of Section 5 of the Act. We have, therefore, to answer this question in favour of theFor the disposal of this case, we do not think it necessary to refer to the lengthy discussion made by the High Court on substantive and procedural law. We have to construe and interpret the section as it stands. The section is unambiguous and full import has to be given to its words and its intent. The non obstante clause in this section takes within its ambit, all the decrees passed against the relief undertaking. The bar of institution or commencement takes within its ambit suits or other legal proceedings which include execution petitionsAn attempt was made by the learned counsel for the respondent to contend that the expression "other legal proceedings" cannot take in proceedings to execute validly obtained decrees. It was further contended that if we give such a wide construction to the expression "other legal proceedings" institution of even claims of workers under the Industrial Disputes Act and other similar beneficial legislations, arising after the issue of notification, will be barred.On the wording of the section we feel such a conclusion isIf we look into the scheme of the Act and the various sections, it will be evident that Section 5 is an independent section uncontrolled by Sections 4, 6 and 7. Sections 4, 6 and 7, deal with suspension or modification of certain remedies, rights etc., stay of proceedings, their revival and continuance. Section 5 does not make any reference to Section 4. It has been enacted with a definite object and that is to protect the relief undertakings from litigations and consequent actions. The object is clear. The government want to relieve such undertakings from litigative pressure for a period of time. It is not a permanent relief. The government are interested to see that the investments made by it and other financial institutions do not get frittered away by avoidable litigation and other legal proceedings. The bar contained in Section 5 by way of suspension of suits or other legal proceedings is thus an absolute bar but only for the period contemplated by theThe limited question that we have to answer is as to whether Section 5 operates even against execution of decrees obtained against the relief undertaking by its creditors outside the State of MadhyaHere we are not confronted with such a situation. Nobody contends that the executing court has to change the terms of the decree. All that is stated is that its execution has to be suspended for a specified period. Section 5, therefore, does not come into conflict either with Section 40 or Section 42 of the Civil Procedure Code. In our view, and the bar under Section 5 is an absolute one for the duration of the period contemplated in theIf the relief undertakings are not protected by a provision like Section 5, the position will be distressing. The creditors will proceed against them. Their properties and goods will be attached. The workers will be rendered jobless. In this case, this unit is said to employ nearly 2000 workers. The creditors will not be in a more advantageous position either. If liquidation proceedings are initiated, the creditors will get only pro rata from the sale proceeding of the assets. If creditors are permitted to proceed against the assets and the products of the undertaking, that would be detrimental to the heavy investment made by the State and other financial institutions. The concern of the government in enacting this law is thus in the interest of the large number of workmen employed in these undertakings and in the revival, if possible, of a sick unit. It is to protect them and not to render them unemployed that such relief undertakings are financed by theA contention was raised that Section 5 cannot apply to. In other words, suits and other proceedings in relation to the debts incurred prior to the notification under Section 3 alone are barred and debts incurred subsequent to the notification under Section 3 are not barred under Section 5.In our view, the reading of the sections does not permit such an interpretation. The object of Section 5 is to protect the relief undertakings from all suits and legal proceedings. This protection is to end on November 18, 1987. We hold that the High Court was in error in allowing execution toBefore parting with this case, we wish to observe that the powers that be will have to evolve a more acceptable procedure while dealing with sick units. We share the concern expressed in high places about the loss that government incur in trying to rescue sick units. Invariably, the amounts pumped in are ultimately lost. The machineries of the unit in question are as old as 1920. One can easily imagine the nature of the products that come out of a unit like this. What purpose will be solved by giving life to such units by providing artificial respiration ? The concern for workers must be matched with the concern for modernisation also. The labour should not be left to the mercy of such sick units. The government will have to evolve a more acceptable and intelligent policy, to help the labour and for modernisation of industry. These units like "flaring tapers brightening as they waste" with temporary financial blood transfusion must, in the interest of all concerned, be subjected to euthanasia. The situation created must be met boldly. Such units with decrepit and antiquated machineries must be got rid of and public money must be saved. In their places new units must come into existence. We known that this would involve heavy financial liability. But in the long run, it would save (sic serve) public interest more. If government find it difficult to pump enough money, at least a trial must be undertaken to entrust such units to the labour to test how they work with their cooperative efforts. In such a situation, there will not be siphoning of the funds of the unit by the enterepreneurs, for self-aggrandisement, for, more often than not, sickness in such unites sets in, because the funds of the units are diverted to defeat both the government and the labour and only to benefit the owners of sucho read, the object of the section becomes clear. The section seeks to confer benefit to the relief undertakings from the ravages of litigation during the period it remains a relief undertaking. The expression decree is very material for our purpose. Inclusion of decrees in the section shows that the fact that decrees were validly obtained against a relief undertaking will not pose any danger to it during the period the declaration is in force. In other words, the section prevents execution of a decree validly obtained against the undertaking during the period mentioned above. That takes us to the question as to whether the words "other legal proceedings" in the section would take in execution proceedings. It is not disputed that the section bars institution of suits and starting of other proceedings. What is disputed is that the expression "other legal proceedings" will not take in execution proceedings. The contention is grounded on the general principle that the execution court cannot go behind a valid decree and that the execution court cannot, therefore, refuse to execute it. It is admitted that the decree obtained from the Bombay High Court is a valid decree. That being so, law should take its course and execution should proceed. It is by virtue of the enabling provisions contained in Sections 40 and 41 of the Civil Procedure Code that this validly obtained decree got transferred to the court in Madhya Pradesh. It is contended that by the mere transfer of this decree in accordance with the procedural law, its validity does not disappear nor its binding force cease to exist. We find difficulty in accepting this contention. If we are to accept this submission, it would be rendering Section 5 of the Act nugatory and to destroy the benefits sought to be conferred by that section. Nobody questions the validity of the decree. All that is sought to be done is to suspend its animation for the period mentioned in the notification. No court in Madhya Pradesh can question its validity, nor can refuse to execute it after the period is over. To direct execution of the decree in the teeth of Section 5 would be to encourage filing of suits in courts outside Madhya Pradesh, secure decrees and defeat the purpose of the Act. We do not think that such an abuse is permissible in the face of Section 5 of the Act. We have, therefore, to answer this question in favour of the, J.1. Special leaveThis is an appeal by special leave against the judgment and order dated January 5, 1987, of the High Court of Madhya Pradesh, Bench at Indore, in Civil Revision No. 382 of 1986, by which the High Court affirmed the order dated November 28, 1986 of the District Judge, Ujjain in Civil Execution Case No. 1249/86, filed by the respondent against theThe appellant is a textile undertaking at Agar Road, Ujjain. The Madhya Pradesh Government enacted the Madhya Pradesh Sahayata Upkram (Vishesh Upbandh) Adhiniyam, 1978 (32 of 1978), for short the Act, with the object of giving relief to sick undertakings. Relief was given to thefirst by notification No.dated November 15, 1980, extended from time to time by subsequent orders, the relief so given to continue till November 15,The respondent filed a summary suit against the appellant in the Bombay High Court on its original side, as Summary Suit No. 124/86, claiming a decree for Rs. 12, 12, 327.50, with interest and costs. The appellant did not contest the suit. The suit was accordingly decreed. The respondent got the decree transferred for execution to the District Judge, Ujjain on September 26, 1986 and then applied for execution of the decree. The appellant resisted execution by filing objection pleading that it was a relief undertaking under the Act, the benefits under which Act were available till November 15, 1986 at the time the objection was filed (now up to November 15, 1987) and that the decree could not therefore be executed against it in view of the bar contained in Section 5 of the Act. The respondent admitted the appellant to be a relief undertaking. However, it was contend that the District Judge had no jurisdiction to entertain any objection to the execution of decree, valid passed by the Bombay High Court. The execution court, it was contended, could not go behind the decree and the decree mandated execution on itse learned District Judge upheld the contentions of the respondent and held that the appellant could not take advantage of the notifications under the Act because the rights and liabilities of the parties had to be determined by the transferee court in accordance with the substantive law bearing on the question in the court that passed the decree. He further held that the execution of the decree could not be challenged before the transferee court unless it was shown that the transferor court had no jurisdiction to pass the decree. The objection of the appellant was thusThe appellant thereupon filed a revision in the High Court. The High Court rejected the revision and affirmed the order of the District Judge. Hence thise questions of law raised before us are asr on a true construction of Section 5 of the Act, execution of the ex parte decree obtained by the respondent against the petitioner at Bombay can be instituted, commenced or proceeded with by the respondent against the petitioner, even though the petitioners textile undertaking is admittedly a State Relief Undertaking under the Act ?(b) Whether Section 5 of the aforesaid Act is substantive law or procedural lawThe High Court considered this question and held that there was no bar against execution of the decree after considering the effect of Section 5 quoted above on the general law governing decrees and their execution as provided in the Civil Procedure Code. The High Court relied upon the settlement position that the executing court cannot go behind the decree even if it is erroneous on law or on facts. We extract below the finding by the High Court against the appellant in paragraphmay be stated that it was perhaps due to the position of the law as propounded in the Delhi decision that the suit in the Bombay High Court was not contested by the petitioner. With the determination of the rights of the parties by the Bombay High Court according to the substantive law applicable to the State of Maharashtra, thewas manifestly clothed with the absolute right to execute the decree unless some express provisions of law in Maharashtra empowered the court to restrain him from executing the same. Such right cannot again be subjected to and/or regulated by any law of the State of M.P. to which the decree sent only for execution. Any provision to suspend such right of execution of a valid decree does of the character of substantive law and cannot be interpreted as merely a rule of procedure within the meaning of Section 40 of theCPC prescribing the manner of execution. It has, therefore to be held on the authority of Ramavtars case that the provision in Section 5 of the Adhiniyam pertains to the domain of substantive law and cannot be said to relate to the realm of adjective or procedural law. The petitioner, therefore, has no locus standi to seek shelter under Section 5 of the Adhiniyam, against the execution of the decree passed by the Bombay High Court, it being a substantive law of the State of M.P. and not merely a procedural law, within the meaning of Section 40 of theCPC or procedural power under Section 42 ibid governing the mode of execution. The suit in the Bombay High Court was not liable to be stayed and so is the decree thereinIt is evident from the above discussion that the High Court completely overlooked the purpose of the Act and the limited period of operation of Section 5. It has to be borne in mind that the Act in question was enacted with a specific purpose. The preamble to the Act states that the Act has been enacted "to enable the State Government to make special provisions for a limited period in respect of industrial relations, financial obligations and other like matters in relation to industrial undertakings the running of which is considered essential as a measure of preventing, or of providing relief against, unemployment". It is necessary to note that the State Government and other financial institutions invest large sums of money to revive sick units or relief undertakings. The government and such institutions are interested in seeing that the amounts so invested are utilised for the purpose of running the relief undertakings so that it can be gradually revived and what is more important, to provide continuous employment to a large number of workers. The government is interested in making sure that the relief undertakings do not incur burdensome debts, engage in costly litigations and consequent attachment of their machineries and movable thus gradually destroying the units completely. The Act has been enacted to safeguard the interest of the general public, the workers and the amounts invested. It is for this purpose that relief was given to the unit against execution of decrees for a maximum period of seven years. If creditors of the relief undertakings ingeniously manage to obtain decrees against them from courts situated in areas where the Act is not in operation and thus try to circumvent the operation of the Act by getting such decrees transferred to the area where the Act is in operation and plead that their decrees are saved from the mischief of the Act, such actions would be to defeat the very purpose of the Act. When we say this, we do not want to encourage such relief undertakings not to pay current liabilities. We are only concerned here with the interpretation of the sections of the Act. We will presently refer to some of the relevant sections and consider their operation both for. Section 2(3) defines relief undertaking and Section 2(4) a state industrial undertaking, as"relief undertaking" means a State industrial undertaking in respect of which a declaration under Section 3 is in force2(4) "State industrial undertaking" means an industrialWhich is started or which, or the management of which is under any law or agreement acquired or otherwise taken over by the State Government or by a government company and is run or proposed to be run by, or under the authority of, the State Government or a government company; or(b) to which any loan, advance, or grant has been given, or in respect of any loan whereof, a guarantee has been given, by the State Government or government company; or(c) in respect of which a notified order underthe Industries (Development and Regulation) Act, 1951 (65 of 1951) is inof a relief undertaking is provided for in Section 3 which reads asState Government may, if it is satisfied that it is necessary or expedient so to do in the public interest, with a view to enabling the continued running or restarting of a State industrial undertaking as a measure of preventing, or of providing relief against, unemployment, declare, by notification, that the State industrial undertaking shall on and from such date and for such period as may be specified in the notification, be a reliefthat the period so specified shall not, in the first instance, exceed one year but may, by a like notification, be extended, from time to time, by any period not exceeding one year at any one time so however that such periods in the aggregate shall not exceed seven4 provides for suspension of certain enactments, contracts, agreements etc. to relief undertaking. The section reads asApplication of certain enactments and contracts, agreements, etc. to relief undertaking.The State Government may, if it is satisfied that it is necessary or expedient so to do for the purposes specified in Section 3, direct, bythat in relation to any relief undertaking all or any of the enactments specified in the Schedule to this Act shall not apply or shall apply with such adaptations whether by way of modification, addition or omission (which does not, however, affect the policy of the said enactments), as may be specified in such notification, or(b) that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force (to which any relief undertaking is a party or which may be applicable to any relief undertaking) immediately before the date on which the State industrial undertaking is declared to be a relief undertaking, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such modifications and in such manner as may be specified in suchSchedule to the Act mentions the six following Acts(1)The Industrial Employment (Standing Orders) Act, 1946 (20 of 1946)(2)The Industrial Disputes Act, 1947 (14 of 1947)(3)The Minimum Wages Act, 1948 (11 of 1948)(4)The Madhya Pradesh Shops and Establishments Act, 1958 (25 of 1958)(5)The Madhya Pradesh Industrial Relations Act, 1960 (27 of 1960)(6)The Madhya Pradesh Industrial Employment (Standing Orders) Act, 1961 (26 ofNow we come to the important section with which we are vitally concerned in this appeal and that is Section 5 which reads asSuspension of suits or other legal proceedings against relief undertakings.As from the date specified in the notification under(1) of Section 3, no suit or other legal proceeding shall be instituted or commenced or, if pending, shall be proceeded with against the industrial undertaking during the period in which it remains a relief undertaking any law, usage, custom, contract, instrument, decree, order, award, settlement or other provisions whatsoeverWhat we are called upon to decide in this case is whether proceedings taken in the Madhya Pradesh court for execution of a decree validly obtained in the Bombay court has to be or can be stayed under this section. We have already spend that the maximum period of the stay is several years and this period will expire on November 15, 1987. Section 7 deals with suspension or modification of certain remedies, rights etc. and reads asSuspension or modification of certain remedies, rights etc., stay of proceedings, their revival and continuance.Any remedy for the enforcement of any right, privilege, obligation or liability referred to in clause (b) of Section 4 and suspended or modified by a notification under that section shall, in accordance with the terms of the notification, be suspended or modified, and all proceedings relating thereto pending before any court, tribunal, officer or other authority shall accordingly be stayed or be continued subject to such modification, so however, that on the notification ceasing to haveany right privilege, obligation or liability so suspended or modified shall revive and be enforceable as if the notification had never been issued; and(b) any proceeding so stayed shall be proceeded with subject to the provisions of any law which may then be in force from the stage which had been reached when the proceeding wasA close scrutiny of the above section reveals that Section 5 has a free field of operation unfettered by any limitation. The section is not happily worded. What the section intends to convey, according to us, if the words are rearranged, would be asany law, usage, custom, contract, instrument, decree, order, award, settlement or other provisions, no suit of other legal proceedings shall be instituted or commenced or if pending shall be proceeded against the Industrial Undertaking as from the date specified in the notification under(1) of Section 3 during the period in which it remains a reliefo read, the object of the section becomes clear. The section seeks to confer benefit to the relief undertakings from the ravages of litigation during the period it remains a relief undertaking. The expression decree is very material for our purpose. Inclusion of decrees in the section shows that the fact that decrees were validly obtained against a relief undertaking will not pose any danger to it during the period the declaration is in force. In other words, the section prevents execution of a decree validly obtained against the undertaking during the period mentioned above. That takes us to the question as to whether the words "other legal proceedings" in the section would take in execution proceedings. It is not disputed that the section bars institution of suits and starting of other proceedings. What is disputed is that the expression "other legal proceedings" will not take in execution proceedings. The contention is grounded on the general principle that the execution court cannot go behind a valid decree and that the execution court cannot, therefore, refuse to execute it. It is admitted that the decree obtained from the Bombay High Court is a valid decree. That being so, law should take its course and execution should proceed. It is by virtue of the enabling provisions contained in Sections 40 and 41 of the Civil Procedure Code that this validly obtained decree got transferred to the court in Madhya Pradesh. It is contended that by the mere transfer of this decree in accordance with the procedural law, its validity does not disappear nor its binding force cease to exist. We find difficulty in accepting this contention. If we are to accept this submission, it would be rendering Section 5 of the Act nugatory and to destroy the benefits sought to be conferred by that section. Nobody questions the validity of the decree. All that is sought to be done is to suspend its animation for the period mentioned in the notification. No court in Madhya Pradesh can question its validity, nor can refuse to execute it after the period is over. To direct execution of the decree in the teeth of Section 5 would be to encourage filing of suits in courts outside Madhya Pradesh, secure decrees and defeat the purpose of the Act. We do not think that such an abuse is permissible in the face of Section 5 of the Act. We have, therefore, to answer this question in favour of ther the disposal of this case, we do not think it necessary to refer to the lengthy discussion made by the High Court on substantive and procedural law. We have to construe and interpret the section as it stands. The section is unambiguous and full import has to be given to its words and its intent. The non obstante clause in this section takes within its ambit, all the decrees passed against the relief undertaking. The bar of institution or commencement takes within its ambit suits or other legal proceedings which include execution petitionsthe wording of the section we feel such a conclusion isfind that the above decision has no application to our case. In that case, an attempt was made to block a suit filed in the Delhi court against a relief undertaking under the Rajasthan Relief Undertakings (Special Provisions) Act 9 of 1961, based on Sections 3 and 4. That contention was repelled and according to us rightly. There the State Bank of India brought a suit for the recovery of certain amount against Jaipur Udyog Limited, the principal debtor, a company based in Rajasthan, and the guarantors. This company had been declared by the State of Rajasthan as a relief undertaking under Section 3 of the Act. Section 2 of the Act barred institution or commencement of suit or other legal proceedings against a relief undertaking. This section contains an explanation as to what "legal proceedings" are. Relying upon this section, the company and the guarantors pleaded that the suit was liable to be stayed. The question before the High Court was whether the Act hadoperation. The case was heard by a Single Judge who referred it to a Division Bench in view of the conflict between the Allahabad High Court and the Punjab and Haryana High Court. The High Court referred to Section 1(2) of the Act which stated that the Act "extends to the whole of the State of Rajasthan" which was and explicit declaration of the legislature about the territorial application of the Act and held that the contention of the debtors that the suit in Delhi court ought to be stayed was unsustainable. We are here confronted with a different situation. If what is contented before us had been contended before the Bombay High Court, same result would have followed. We have here a situation entirely different and that is, steps to execute a decree in a territory over which the Madhya Pradesh Act has application. If the decree obtained by the Delhi High Court had been transferred to a Rajasthan court and a decision was rendered on an objection to its execution in favour of the decree holder, that would have helped the respondent. No support can be taken by the respondent from thisThere is no reason why the expression other legal proceedings in Section 5 should not include execution petitionsIf we look into the scheme of the Act and the various sections, it will be evident that Section 5 is an independent section uncontrolled by Sections 4, 6 and 7. Sections 4, 6 and 7, deal with suspension or modification of certain remedies, rights etc., stay of proceedings, their revival and continuance. Section 5 does not make any reference to Section 4. It has been enacted with a definite object and that is to protect the relief undertakings from litigations and consequent actions. The object is clear. The government want to relieve such undertakings from litigative pressure for a period of time. It is not a permanent relief. The government are interested to see that the investments made by it and other financial institutions do not get frittered away by avoidable litigation and other legal proceedings. The bar contained in Section 5 by way of suspension of suits or other legal proceedings is thus an absolute bar but only for the period contemplated by thee limited question that we have to answer is as to whether Section 5 operates even against execution of decrees obtained against the relief undertaking by its creditors outside the State of Madhyais settled law that the transferee court has to execute the decree in accordance with the law obtaining in the court that passed the decree and determine the rights and liabilities of the parties in accordance with the substantive law obtaining in the State where that court is situate. That being so thecannot move the execution court and get the benefit of the procedure available in the State in which the transferee court ise we are not confronted with such a situation. Nobody contends that the executing court has to change the terms of the decree. All that is stated is that its execution has to be suspended for a specified period. Section 5, therefore, does not come into conflict either with Section 40 or Section 42 of the Civil Procedure Code. In our view, and the bar under Section 5 is an absolute one for the duration of the period contemplated in theIf the relief undertakings are not protected by a provision like Section 5, the position will be distressing. The creditors will proceed against them. Their properties and goods will be attached. The workers will be rendered jobless. In this case, this unit is said to employ nearly 2000 workers. The creditors will not be in a more advantageous position either. If liquidation proceedings are initiated, the creditors will get only pro rata from the sale proceeding of the assets. If creditors are permitted to proceed against the assets and the products of the undertaking, that would be detrimental to the heavy investment made by the State and other financial institutions. The concern of the government in enacting this law is thus in the interest of the large number of workmen employed in these undertakings and in the revival, if possible, of a sick unit. It is to protect them and not to render them unemployed that such relief undertakings are financed by theour view, the reading of the sections does not permit such an interpretation. The object of Section 5 is to protect the relief undertakings from all suits and legal proceedings. This protection is to end on November 18, 1987. We hold that the High Court was in error in allowing execution toe parting with this case, we wish to observe that the powers that be will have to evolve a more acceptable procedure while dealing with sick units. We share the concern expressed in high places about the loss that government incur in trying to rescue sick units. Invariably, the amounts pumped in are ultimately lost. The machineries of the unit in question are as old as 1920. One can easily imagine the nature of the products that come out of a unit like this. What purpose will be solved by giving life to such units by providing artificial respiration ? The concern for workers must be matched with the concern for modernisation also. The labour should not be left to the mercy of such sick units. The government will have to evolve a more acceptable and intelligent policy, to help the labour and for modernisation of industry. These units like "flaring tapers brightening as they waste" with temporary financial blood transfusion must, in the interest of all concerned, be subjected to euthanasia. The situation created must be met boldly. Such units with decrepit and antiquated machineries must be got rid of and public money must be saved. In their places new units must come into existence. We known that this would involve heavy financial liability. But in the long run, it would save (sic serve) public interest more. If government find it difficult to pump enough money, at least a trial must be undertaken to entrust such units to the labour to test how they work with their cooperative efforts. In such a situation, there will not be siphoning of the funds of the unit by the enterepreneurs, forfor, more often than not, sickness in such unites sets in, because the funds of the units are diverted to defeat both the government and the labour and only to benefit the owners of such

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: The government are interested to see that the investments made by it and other financial institutions do not get frittered away by avoidable litigation and other legal proceedings. The bar contained in Section 5 by way of suspension of suits or other legal proceedings is thus an absolute bar but only for the period contemplated by the Act. 22. The limited question that we have to answer is as to whether Section 5 operates even against execution of decrees obtained against the relief undertaking by its creditors outside the State of Madhya Pradesh. 23. The learned counsel for the respondent brought to our notice decisions in Inderchand Kajriwal v. Bansropan Sahu (AIR 1948 Pat 245 ) and Basheer Ahmed v. G. Padmanabha Kamath (AIR 1953 Mys 37 : ILR 1952 Mys 312) and similar other decisions to contend that the execution court cannot, while executing decrees, adopt a procedure under any special law available in the State in which the execution court is situate, in relation to decrees obtained outside the State. For example, suppose a decree is obtained in Madras and it is transferred to Madhya Pradesh. Suppose again that in Madhya Pradesh, there is an enactment to scale down the decree amount either in instalments or to wipe out the debt of an agriculturist; will it be open to the executing court to take recourse to such enactments and give relief to debtors in the State in relation to a decree obtained in a court outside the State. It is settled law that the transferee court has to execute the decree in accordance with the law obtaining in the court that passed the decree and determine the rights and liabilities of the parties in accordance with the substantive law obtaining in the State where that court is situate. That being so the judgment-debtor cannot move the execution court and get the benefit of the procedure available in the State in which the transferee court is situated. 24. Here we are not confronted with such a situation. Nobody contends that the executing court has to change the terms of the decree. All that is stated is that its execution has to be suspended for a specified period. Section 5, therefore, does not come into conflict either with Section 40 or Section 42 of the Civil Procedure Code. In our view, and the bar under Section 5 is an absolute one for the duration of the period contemplated in the Act. 25. If the relief undertakings are not protected by a provision like Section 5, the position will be distressing. The creditors will proceed against them. Their properties and goods will be attached. The workers will be rendered jobless. In this case, this unit is said to employ nearly 2000 workers. The creditors will not be in a more advantageous position either. If liquidation proceedings are initiated, the creditors will get only pro rata from the sale proceeding of the assets. If creditors are permitted to proceed against the assets and the products of the undertaking, that would be detrimental to the heavy investment made by the State and other financial institutions. The concern of the government in enacting this law is thus in the interest of the large number of workmen employed in these undertakings and in the revival, if possible, of a sick unit. It is to protect them and not to render them unemployed that such relief undertakings are financed by the State. 26. A contention was raised that Section 5 cannot apply to post-notification liabilities. In other words, suits and other proceedings in relation to the debts incurred prior to the notification under Section 3 alone are barred and debts incurred subsequent to the notification under Section 3 are not barred under Section 5. In our view, the reading of the sections does not permit such an interpretation. The object of Section 5 is to protect the relief undertakings from all suits and legal proceedings. This protection is to end on November 18, 1987. We hold that the High Court was in error in allowing execution to proceed. 27. Before parting with this case, we wish to observe that the powers that be will have to evolve a more acceptable procedure while dealing with sick units. We share the concern expressed in high places about the loss that government incur in trying to rescue sick units. Invariably, the amounts pumped in are ultimately lost. The machineries of the unit in question are as old as 1920. One can easily imagine the nature of the products that come out of a unit like this. What purpose will be solved by giving life to such units by providing artificial respiration ? The concern for workers must be matched with the concern for modernisation also. The labour should not be left to the mercy of such sick units. The government will have to evolve a more acceptable and intelligent policy, to help the labour and for modernisation of industry. These units like "flaring tapers brightening as they waste" with temporary financial blood transfusion must, in the interest of all concerned, be subjected to euthanasia. The situation created must be met boldly. Such units with decrepit and antiquated machineries must be got rid of and public money must be saved. In their places new units must come into existence. We known that this would involve heavy financial liability. But in the long run, it would save (sic serve) public interest more. If government find it difficult to pump enough money, at least a trial must be undertaken to entrust such units to the labour to test how they work with their cooperative efforts. In such a situation, there will not be siphoning of the funds of the unit by the enterepreneurs, for self-aggrandisement, for, more often than not, sickness in such unites sets in, because the funds of the units are diverted to defeat both the government and the labour and only to benefit the owners of such units. 28. ### Response: 1 ### Explanation: ought to be stayed was unsustainable. We are here confronted with a different situation. If what is contented before us had been contended before the Bombay High Court, same result would have followed. We have here a situation entirely different and that is, steps to execute a decree in a territory over which the Madhya Pradesh Act has application. If the decree obtained by the Delhi High Court had been transferred to a Rajasthan court and a decision was rendered on an objection to its execution in favour of the decree holder, that would have helped the respondent. No support can be taken by the respondent from thisThere is no reason why the expression other legal proceedings in Section 5 should not include execution petitionsIf we look into the scheme of the Act and the various sections, it will be evident that Section 5 is an independent section uncontrolled by Sections 4, 6 and 7. Sections 4, 6 and 7, deal with suspension or modification of certain remedies, rights etc., stay of proceedings, their revival and continuance. Section 5 does not make any reference to Section 4. It has been enacted with a definite object and that is to protect the relief undertakings from litigations and consequent actions. The object is clear. The government want to relieve such undertakings from litigative pressure for a period of time. It is not a permanent relief. The government are interested to see that the investments made by it and other financial institutions do not get frittered away by avoidable litigation and other legal proceedings. The bar contained in Section 5 by way of suspension of suits or other legal proceedings is thus an absolute bar but only for the period contemplated by thee limited question that we have to answer is as to whether Section 5 operates even against execution of decrees obtained against the relief undertaking by its creditors outside the State of Madhyais settled law that the transferee court has to execute the decree in accordance with the law obtaining in the court that passed the decree and determine the rights and liabilities of the parties in accordance with the substantive law obtaining in the State where that court is situate. That being so thecannot move the execution court and get the benefit of the procedure available in the State in which the transferee court ise we are not confronted with such a situation. Nobody contends that the executing court has to change the terms of the decree. All that is stated is that its execution has to be suspended for a specified period. Section 5, therefore, does not come into conflict either with Section 40 or Section 42 of the Civil Procedure Code. In our view, and the bar under Section 5 is an absolute one for the duration of the period contemplated in theIf the relief undertakings are not protected by a provision like Section 5, the position will be distressing. The creditors will proceed against them. Their properties and goods will be attached. The workers will be rendered jobless. In this case, this unit is said to employ nearly 2000 workers. The creditors will not be in a more advantageous position either. If liquidation proceedings are initiated, the creditors will get only pro rata from the sale proceeding of the assets. If creditors are permitted to proceed against the assets and the products of the undertaking, that would be detrimental to the heavy investment made by the State and other financial institutions. The concern of the government in enacting this law is thus in the interest of the large number of workmen employed in these undertakings and in the revival, if possible, of a sick unit. It is to protect them and not to render them unemployed that such relief undertakings are financed by theour view, the reading of the sections does not permit such an interpretation. The object of Section 5 is to protect the relief undertakings from all suits and legal proceedings. This protection is to end on November 18, 1987. We hold that the High Court was in error in allowing execution toe parting with this case, we wish to observe that the powers that be will have to evolve a more acceptable procedure while dealing with sick units. We share the concern expressed in high places about the loss that government incur in trying to rescue sick units. Invariably, the amounts pumped in are ultimately lost. The machineries of the unit in question are as old as 1920. One can easily imagine the nature of the products that come out of a unit like this. What purpose will be solved by giving life to such units by providing artificial respiration ? The concern for workers must be matched with the concern for modernisation also. The labour should not be left to the mercy of such sick units. The government will have to evolve a more acceptable and intelligent policy, to help the labour and for modernisation of industry. These units like "flaring tapers brightening as they waste" with temporary financial blood transfusion must, in the interest of all concerned, be subjected to euthanasia. The situation created must be met boldly. Such units with decrepit and antiquated machineries must be got rid of and public money must be saved. In their places new units must come into existence. We known that this would involve heavy financial liability. But in the long run, it would save (sic serve) public interest more. If government find it difficult to pump enough money, at least a trial must be undertaken to entrust such units to the labour to test how they work with their cooperative efforts. In such a situation, there will not be siphoning of the funds of the unit by the enterepreneurs, forfor, more often than not, sickness in such unites sets in, because the funds of the units are diverted to defeat both the government and the labour and only to benefit the owners of such

Ram Piari & Others Vs. Rallia Ram & Others

R.S. Pathak, J.1. We have heard learned Counsel for the parties at length on this petition for special leave to appeal. The petitioners are aggrieved by the judgment dated August 7, 1980 of a Division Bench of the Delhi High Court affirming the judgment of a learned Single Judge of that Court allowing a writ petition filed by the respondent Rallia Ram.2. The subject of dispute is a residential evacuee property. Sarab Dayal, through whom the petitioners claim, occupied the ground floor, and the respondent, Rallia Ram, occupied the first floor. The Rehabilitation authorities ordered the sale of the property, and the auction for sale, with which we are concerned, was held on August 11, 1961. Rallia Rams bid of Rs. 11,050 was accepted.3. On September 8, 1961 Sarab Dayal filed an objection to the sale, in which he pleaded, inter alia, that he had been prevented from participating in the auction for want of notice. The proceedings took a protracted course, there being appeals followed by orders of remand and ultimately the sale in favour of Rallia Ram was set aside, the order being confirmed by the Joint Chief Settlement Commissioner in appeal. Rallia Ram applied in revision thereafter and the revision petition was dismissed on May 11, 1968 by the Joint Chief Settlement Commissioner.4. Rallia Ram then filed a writ petition in the Delhi High Court against the order of the Joint Chief Settlement Commissioner and on August 6, 1976 a learned Single Judge of that Court allowed the writ petition and quashed the order of May 11, 1967 and directed transfer of the property to Rallia Ram. The petitioners and the Union of India appealed, but the appeals were dismissed by a Division Bench of the High Court on August 7, 1980.5. The principal contention on behalf of the petitioners is that the High Court erred in interfering with the concurrent findings of fact reached by the statutory authorities. A further contention is that the reserve bid in respect of the property was fixed at Rs. 16,000, and therefore, the property could not be sold for Rs. 11,050. It seems to us that this petition must fail.6. The learned Single Judge as well as the Division Bench have found that the statutory authorities omitted to consider material evidence on the point whether publication of the auction had been duly effected in law and whether Sarab Dayal had notice of the auction. The High Court also held that the statutory authorities had misdirected themselves in relying on considerations which were of no relevance to whether the publication and the conduct of the sale had been vitiated by any material irregularity or fraud. We have considered the matter carefully and have also taken into regard the circumstance that the property was sold for less than the reserve bid, but we are not satisfied that this Court should interfere.

0[ds]6. The learned Single Judge as well as the Division Bench have found that the statutory authorities omitted to consider material evidence on the point whether publication of the auction had been duly effected in law and whether Sarab Dayal had notice of the auction. The High Court also held that the statutory authorities had misdirected themselves in relying on considerations which were of no relevance to whether the publication and the conduct of the sale had been vitiated by any material irregularity or fraud. We have considered the matter carefully and have also taken into regard the circumstance that the property was sold for less than the reserve bid, but we are not satisfied that this Court should interfere.

### 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: R.S. Pathak, J.1. We have heard learned Counsel for the parties at length on this petition for special leave to appeal. The petitioners are aggrieved by the judgment dated August 7, 1980 of a Division Bench of the Delhi High Court affirming the judgment of a learned Single Judge of that Court allowing a writ petition filed by the respondent Rallia Ram.2. The subject of dispute is a residential evacuee property. Sarab Dayal, through whom the petitioners claim, occupied the ground floor, and the respondent, Rallia Ram, occupied the first floor. The Rehabilitation authorities ordered the sale of the property, and the auction for sale, with which we are concerned, was held on August 11, 1961. Rallia Rams bid of Rs. 11,050 was accepted.3. On September 8, 1961 Sarab Dayal filed an objection to the sale, in which he pleaded, inter alia, that he had been prevented from participating in the auction for want of notice. The proceedings took a protracted course, there being appeals followed by orders of remand and ultimately the sale in favour of Rallia Ram was set aside, the order being confirmed by the Joint Chief Settlement Commissioner in appeal. Rallia Ram applied in revision thereafter and the revision petition was dismissed on May 11, 1968 by the Joint Chief Settlement Commissioner.4. Rallia Ram then filed a writ petition in the Delhi High Court against the order of the Joint Chief Settlement Commissioner and on August 6, 1976 a learned Single Judge of that Court allowed the writ petition and quashed the order of May 11, 1967 and directed transfer of the property to Rallia Ram. The petitioners and the Union of India appealed, but the appeals were dismissed by a Division Bench of the High Court on August 7, 1980.5. The principal contention on behalf of the petitioners is that the High Court erred in interfering with the concurrent findings of fact reached by the statutory authorities. A further contention is that the reserve bid in respect of the property was fixed at Rs. 16,000, and therefore, the property could not be sold for Rs. 11,050. It seems to us that this petition must fail.6. The learned Single Judge as well as the Division Bench have found that the statutory authorities omitted to consider material evidence on the point whether publication of the auction had been duly effected in law and whether Sarab Dayal had notice of the auction. The High Court also held that the statutory authorities had misdirected themselves in relying on considerations which were of no relevance to whether the publication and the conduct of the sale had been vitiated by any material irregularity or fraud. We have considered the matter carefully and have also taken into regard the circumstance that the property was sold for less than the reserve bid, but we are not satisfied that this Court should interfere. ### Response: 0 ### Explanation: 6. The learned Single Judge as well as the Division Bench have found that the statutory authorities omitted to consider material evidence on the point whether publication of the auction had been duly effected in law and whether Sarab Dayal had notice of the auction. The High Court also held that the statutory authorities had misdirected themselves in relying on considerations which were of no relevance to whether the publication and the conduct of the sale had been vitiated by any material irregularity or fraud. We have considered the matter carefully and have also taken into regard the circumstance that the property was sold for less than the reserve bid, but we are not satisfied that this Court should interfere.

Assistant Director of Income Tax-I, New Delhi Vs. M/s E-Funds IT Solution Inc

(to eFunds and 13% (to IT Solutions) for the AY 2004-05. In view of the above, the income attributor, as agreed upon is given below:- A.Y. 2003-04A.Y. 2004-05 Figures in US $ millionFigures in US $ million Apportionable base income25.1230.71 Percentage attributed to India10.48%11.11% Income attributed to India2.633.41 Allocation between IT Solutions and eFunds IT Solutions eFunds0.39 (15%) 2.24 (85%)0.45(13%) 2.96(87%) Interest will be chargeable as per provisions of the Income -Tax Act, 1961. 3. The Assessing Officer will give effect to this resolution in terms of clause 4 of Rule 44H of the Income Tax Rules, 1962. 4. Appeals, if any, filed by both the parties will be withdrawn. 25. However, Shri Ganesh stated that this was not the end of the matter as the Department of Treasury in Washington, by a letter dated 7th May, 2007, specifically stated, although we do not agree on the technical merits that e-Funds and IT Solutions had a PE in India, we reached a mutual agreement with a view to avoid double taxation. Equally the same document states: Effect on Future Years: The competent authority determination made herein is not binding on subsequent years. 26. To the same effect are the letters dated May 14, 2007 written by e-Funds Corp. to the Deputy Director of International Tax Circle in India. Shri Ganesh has also referred to and relied upon paragraph 3.6 of the OECD Manual on MAP Procedure, which reads as follows: 3.6. Competent Authority Agreements Competent authority agreements or resolutions are often case and time specific. They are not considered precedents for either the taxpayer or the tax administrations in regard to adjustments or issues relating to subsequent years or for competent authority discussions on the same issues for other taxpayers. In fact, the letters exchanged between competent authorities to resolve a case often state as much. This is because the competent authorities have reached an agreement that often takes into account the facts of the particular taxpayer, the differences in the provisions of the tax law in each country, as well as the effects of the economic indicators on the particular transactions at the relevant time. Any review or adjustments of subsequent years by a taxpayer or tax administration is best based upon the particular circumstances, facts and documentary evidence existing for those years. 27. However, the learned Attorney General relied upon paragraph 1.3.1 of the OECD Manual and Best Practice No.3, in particular, which reads as under: Best Practice NO3: Principled approach to resolution of cases In the resolution of MAP cases, a competent authority should engage in discussions with other competent authorities in a principled, fair, and objective manner, with each case being decided on its own merits and not by reference to any balance of results in other cases. To the extent applicable, the Commentary to the OECD Model Tax Convention and the OECD Transfer Pricing Guidelines are an appropriate basis for the development of a principled approach. As part of a principled approach to MAP cases, competent authorities should be consistent and reciprocal in the positions they take and not change position on an issue from case to case, depending on which side of the issue produces the most revenue. Although a principled approach is paramount, where an agreement is not otherwise achievable, both competent authorities should look for appropriate opportunities for compromise in order to eliminate double taxation. To the extent possible, competent authorities who face significant recurring issues in their bilateral relationship may wish to reach agreement on the consistent treatment of such issues. A perusal of the above would show that a competent authority should engage in discussion with the other competent authority in a principled, fair and objective manner, with each case being decided on its own merits. It is also specifically observed that where an agreement is not otherwise achievable, then both parties should look for appropriate opportunities for compromise in order to eliminate double taxation on the facts of the case, even though a principled approach is important. The learned Attorney General also relied upon Best Practice No.1 of the said OECD Manual, which requires the publication of mutual agreements reached that may apply to a general category of taxpayers which would then improve guidance for the future. Best Practice No.1 has no application on the facts of the present case, as the agreement reached applies only to the respondent companies, and not to any general category of taxpayers. It is clear, therefore, that Shri Ganesh is right in relying upon Article 3.6 of the OECD Manual. It is very clear, therefore, that such agreement cannot be considered as a precedent for subsequent years, and the High Courts conclusion on this aspect is also correct. 28. The learned Attorney General has also laid great emphasis on non-disclosure of documents and has relied upon a long list of documents that the assessees were asked to disclose and which they did not. From this, according to the learned Attorney General, an adverse inference should be drawn, and from this alone it should be inferred that a PE of the assessees, therefore, exists in India. We are afraid that this argument cannot be countenanced at this stage as it has never been raised before any of the authorities below and has not been raised before the High Court also. This being the case, we do not think it necessary to get into this aspect of the matter. 29. Having held in favour of the assessees that no permanent establishment in India can possibly be said to exist on the facts of the present case, we do not deem it necessary to go into the cross-appeals that were filed before the High Court, which were dismissed by the High Court agreeing with the ITAT that the calculation of the ITAT would lead to nil taxation. This point would not arise in view of our decision on the facts of the present case. It is, therefore, unnecessary to go into this aspect of the matter.

0[ds]Specific and detailed criteria are set out in the aforesaid provisions in order to fulfill the conditions of these PEs existing in India. The burden of proving the fact that a foreign assessee has a PE in India and must, therefore, suffer tax from the business generated from such PE is initially on the Revenue12. Thus, it is clear that there must exist a fixed place of business in India, which is at the disposal of the US companies, through which they carry on their own business. There is, in fact, no specific finding in the assessment order or the appellate orders that applying the aforesaid tests, any fixed place of business has been put at the disposal of these companies. The assessing officer, CIT (Appeals) and the ITAT have essentially adopted a fundamentally erroneous approach in saying that they were contracting with a 100% subsidiary and were outsourcing business to such subsidiary, which resulted in the creation of a PE13. It further went on to hold that the ITATs finding that the assessees were a joint venture or sort of partnership with the Indian subsidiary was wholly incorrect. Also, none of these arguments have been invoked by the Revenue and such a finding would, therefore, be perverse. After citing Klaus Vogel on Double Taxation Conventions, Arvid A. Skaar in Permanent Establishment: Erosion of a Tax Treaty Principle and Bollinger v. Commissioner, 108 S.Ct. 1173, the High Court found against the Revenue, holding that there is no fixed place PE on the facts of the present case. We agree with the findings of the High Court in this regard14. Reliance placed by the Revenue on the United States Securities and Exchange Commission Form 10K Report, as has been correctly pointed out by the High Court, is also misplaced. It is clear that the report speaks of theof companies worldwide as a whole, which is evident not only from going through the said report, but also from the consolidated financial statements appended to the report, which show the assets of the group worldwide16. This report would show that no part of the main business and revenue earning activity of the two American companies is carried on through a fixed business place in India which has been put at their disposal. It is clear from the above that the Indian company only renders support services which enable the assessees in turn to render services to their clients abroad. This outsourcing of work to India would not give rise to a fixed place PE and the High Court judgment is, therefore, correct on this score18. It has already been seen that none of the customers of the assessees are located in India or have received any services in India. This being the case, it is clear that the very first ingredient contained in Article 5(2)(l) is not satisfied. However, the learned Attorney General, relying upon paragraph 42.31 of the OECD Commentary, has argued that services have to be furnished within India, which does not mean that they have to be furnished to customers in India20. We entirely agree with the approach of the High Court in this regard. Article 42.31 of the OECD Commentary does not mean that services need not be rendered by the foreign assessees in India. If any customer is rendered a service in India, whether resident in India or outside India, a service PE would be established in India. As has been noticed by us hereinabove, no customer, resident or otherwise, receives any service in India from the assessees. All its customers receive services only in locations outside India. Only auxiliary operations that facilitate such services are carried out in India. This being so, it is not necessary to advert to the other ground namely, that other personnel would cover personnel employed by the Indian company as well, and that the US companies through such personnel are furnishing services in India. This being the case, it is clear that as the very first part of Article 5(2)(l) is not attracted, the question of going to any other part of the said Article does not arise. It is perhaps for this reason that the assessing officer did not give any finding on this scoreHe is right in this submission as no argument on this score is found before the ITAT. However, for the sake of completeness, it is only necessary to agree with the High Court, that it has never been the case of Revenue thatauthorized to or exercised any authority to conclude contracts on behalf of the US company, nor was any factual foundation laid to attract any of the said clauses contained in Article 5(4) of the DTAA. This aspect of the case, therefore, need not detain us any furtherShri Ganesh is correct in stating that as the arms length principle has been satisfied in the present case, no further profits would be attributable even if there exists a PE in IndiaA perusal of the above would show that a competent authority should engage in discussion with the other competent authority in a principled, fair and objective manner, with each case being decided on its own merits. It is also specifically observed that where an agreement is not otherwise achievable, then both parties should look for appropriate opportunities for compromise in order to eliminate double taxation on the facts of the case, even though a principled approach is important. The learned Attorney General also relied upon Best Practice No.1 of the said OECD Manual, which requires the publication of mutual agreements reached that may apply to a general category of taxpayers which would then improve guidance for the future. Best Practice No.1 has no application on the facts of the present case, as the agreement reached applies only to the respondent companies, and not to any general category of taxpayers. It is clear, therefore, that Shri Ganesh is right in relying upon Article 3.6 of the OECD Manual. It is very clear, therefore, that such agreement cannot be considered as a precedent for subsequent years, and the High Courts conclusion on this aspect is also correctWe are afraid that this argument cannot be countenanced at this stage as it has never been raised before any of the authorities below and has not been raised before the High Court also. This being the case, we do not think it necessary to get into this aspect of the matter29. Having held in favour of the assessees that no permanent establishment in India can possibly be said to exist on the facts of the present case, we do not deem it necessary to go into thes that were filed before the High Court, which were dismissed by the High Court agreeing with the ITAT that the calculation of the ITAT would lead to nil taxation. This point would not arise in view of our decision on the facts of the present case. It is, therefore, unnecessary to go into this aspect of the matter.

### 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: (to eFunds and 13% (to IT Solutions) for the AY 2004-05. In view of the above, the income attributor, as agreed upon is given below:- A.Y. 2003-04A.Y. 2004-05 Figures in US $ millionFigures in US $ million Apportionable base income25.1230.71 Percentage attributed to India10.48%11.11% Income attributed to India2.633.41 Allocation between IT Solutions and eFunds IT Solutions eFunds0.39 (15%) 2.24 (85%)0.45(13%) 2.96(87%) Interest will be chargeable as per provisions of the Income -Tax Act, 1961. 3. The Assessing Officer will give effect to this resolution in terms of clause 4 of Rule 44H of the Income Tax Rules, 1962. 4. Appeals, if any, filed by both the parties will be withdrawn. 25. However, Shri Ganesh stated that this was not the end of the matter as the Department of Treasury in Washington, by a letter dated 7th May, 2007, specifically stated, although we do not agree on the technical merits that e-Funds and IT Solutions had a PE in India, we reached a mutual agreement with a view to avoid double taxation. Equally the same document states: Effect on Future Years: The competent authority determination made herein is not binding on subsequent years. 26. To the same effect are the letters dated May 14, 2007 written by e-Funds Corp. to the Deputy Director of International Tax Circle in India. Shri Ganesh has also referred to and relied upon paragraph 3.6 of the OECD Manual on MAP Procedure, which reads as follows: 3.6. Competent Authority Agreements Competent authority agreements or resolutions are often case and time specific. They are not considered precedents for either the taxpayer or the tax administrations in regard to adjustments or issues relating to subsequent years or for competent authority discussions on the same issues for other taxpayers. In fact, the letters exchanged between competent authorities to resolve a case often state as much. This is because the competent authorities have reached an agreement that often takes into account the facts of the particular taxpayer, the differences in the provisions of the tax law in each country, as well as the effects of the economic indicators on the particular transactions at the relevant time. Any review or adjustments of subsequent years by a taxpayer or tax administration is best based upon the particular circumstances, facts and documentary evidence existing for those years. 27. However, the learned Attorney General relied upon paragraph 1.3.1 of the OECD Manual and Best Practice No.3, in particular, which reads as under: Best Practice NO3: Principled approach to resolution of cases In the resolution of MAP cases, a competent authority should engage in discussions with other competent authorities in a principled, fair, and objective manner, with each case being decided on its own merits and not by reference to any balance of results in other cases. To the extent applicable, the Commentary to the OECD Model Tax Convention and the OECD Transfer Pricing Guidelines are an appropriate basis for the development of a principled approach. As part of a principled approach to MAP cases, competent authorities should be consistent and reciprocal in the positions they take and not change position on an issue from case to case, depending on which side of the issue produces the most revenue. Although a principled approach is paramount, where an agreement is not otherwise achievable, both competent authorities should look for appropriate opportunities for compromise in order to eliminate double taxation. To the extent possible, competent authorities who face significant recurring issues in their bilateral relationship may wish to reach agreement on the consistent treatment of such issues. A perusal of the above would show that a competent authority should engage in discussion with the other competent authority in a principled, fair and objective manner, with each case being decided on its own merits. It is also specifically observed that where an agreement is not otherwise achievable, then both parties should look for appropriate opportunities for compromise in order to eliminate double taxation on the facts of the case, even though a principled approach is important. The learned Attorney General also relied upon Best Practice No.1 of the said OECD Manual, which requires the publication of mutual agreements reached that may apply to a general category of taxpayers which would then improve guidance for the future. Best Practice No.1 has no application on the facts of the present case, as the agreement reached applies only to the respondent companies, and not to any general category of taxpayers. It is clear, therefore, that Shri Ganesh is right in relying upon Article 3.6 of the OECD Manual. It is very clear, therefore, that such agreement cannot be considered as a precedent for subsequent years, and the High Courts conclusion on this aspect is also correct. 28. The learned Attorney General has also laid great emphasis on non-disclosure of documents and has relied upon a long list of documents that the assessees were asked to disclose and which they did not. From this, according to the learned Attorney General, an adverse inference should be drawn, and from this alone it should be inferred that a PE of the assessees, therefore, exists in India. We are afraid that this argument cannot be countenanced at this stage as it has never been raised before any of the authorities below and has not been raised before the High Court also. This being the case, we do not think it necessary to get into this aspect of the matter. 29. Having held in favour of the assessees that no permanent establishment in India can possibly be said to exist on the facts of the present case, we do not deem it necessary to go into the cross-appeals that were filed before the High Court, which were dismissed by the High Court agreeing with the ITAT that the calculation of the ITAT would lead to nil taxation. This point would not arise in view of our decision on the facts of the present case. It is, therefore, unnecessary to go into this aspect of the matter. ### Response: 0 ### Explanation: went on to hold that the ITATs finding that the assessees were a joint venture or sort of partnership with the Indian subsidiary was wholly incorrect. Also, none of these arguments have been invoked by the Revenue and such a finding would, therefore, be perverse. After citing Klaus Vogel on Double Taxation Conventions, Arvid A. Skaar in Permanent Establishment: Erosion of a Tax Treaty Principle and Bollinger v. Commissioner, 108 S.Ct. 1173, the High Court found against the Revenue, holding that there is no fixed place PE on the facts of the present case. We agree with the findings of the High Court in this regard14. Reliance placed by the Revenue on the United States Securities and Exchange Commission Form 10K Report, as has been correctly pointed out by the High Court, is also misplaced. It is clear that the report speaks of theof companies worldwide as a whole, which is evident not only from going through the said report, but also from the consolidated financial statements appended to the report, which show the assets of the group worldwide16. This report would show that no part of the main business and revenue earning activity of the two American companies is carried on through a fixed business place in India which has been put at their disposal. It is clear from the above that the Indian company only renders support services which enable the assessees in turn to render services to their clients abroad. This outsourcing of work to India would not give rise to a fixed place PE and the High Court judgment is, therefore, correct on this score18. It has already been seen that none of the customers of the assessees are located in India or have received any services in India. This being the case, it is clear that the very first ingredient contained in Article 5(2)(l) is not satisfied. However, the learned Attorney General, relying upon paragraph 42.31 of the OECD Commentary, has argued that services have to be furnished within India, which does not mean that they have to be furnished to customers in India20. We entirely agree with the approach of the High Court in this regard. Article 42.31 of the OECD Commentary does not mean that services need not be rendered by the foreign assessees in India. If any customer is rendered a service in India, whether resident in India or outside India, a service PE would be established in India. As has been noticed by us hereinabove, no customer, resident or otherwise, receives any service in India from the assessees. All its customers receive services only in locations outside India. Only auxiliary operations that facilitate such services are carried out in India. This being so, it is not necessary to advert to the other ground namely, that other personnel would cover personnel employed by the Indian company as well, and that the US companies through such personnel are furnishing services in India. This being the case, it is clear that as the very first part of Article 5(2)(l) is not attracted, the question of going to any other part of the said Article does not arise. It is perhaps for this reason that the assessing officer did not give any finding on this scoreHe is right in this submission as no argument on this score is found before the ITAT. However, for the sake of completeness, it is only necessary to agree with the High Court, that it has never been the case of Revenue thatauthorized to or exercised any authority to conclude contracts on behalf of the US company, nor was any factual foundation laid to attract any of the said clauses contained in Article 5(4) of the DTAA. This aspect of the case, therefore, need not detain us any furtherShri Ganesh is correct in stating that as the arms length principle has been satisfied in the present case, no further profits would be attributable even if there exists a PE in IndiaA perusal of the above would show that a competent authority should engage in discussion with the other competent authority in a principled, fair and objective manner, with each case being decided on its own merits. It is also specifically observed that where an agreement is not otherwise achievable, then both parties should look for appropriate opportunities for compromise in order to eliminate double taxation on the facts of the case, even though a principled approach is important. The learned Attorney General also relied upon Best Practice No.1 of the said OECD Manual, which requires the publication of mutual agreements reached that may apply to a general category of taxpayers which would then improve guidance for the future. Best Practice No.1 has no application on the facts of the present case, as the agreement reached applies only to the respondent companies, and not to any general category of taxpayers. It is clear, therefore, that Shri Ganesh is right in relying upon Article 3.6 of the OECD Manual. It is very clear, therefore, that such agreement cannot be considered as a precedent for subsequent years, and the High Courts conclusion on this aspect is also correctWe are afraid that this argument cannot be countenanced at this stage as it has never been raised before any of the authorities below and has not been raised before the High Court also. This being the case, we do not think it necessary to get into this aspect of the matter29. Having held in favour of the assessees that no permanent establishment in India can possibly be said to exist on the facts of the present case, we do not deem it necessary to go into thes that were filed before the High Court, which were dismissed by the High Court agreeing with the ITAT that the calculation of the ITAT would lead to nil taxation. This point would not arise in view of our decision on the facts of the present case. It is, therefore, unnecessary to go into this aspect of the matter.

MUNICIPAL CORPORATION OF GREATER MUMBAI (MCGM) Vs. ABHILASH LAL

constitutionality of directions issued by the Reserve Bank of India, through a circular of 12 th February, 2018 regulating resolution of stressed assets of debtors. This court elaborately dealt with provisions of the Banking Regulation Act, 1949 and the Reserve Bank of India Act, 1934 and held that the power to issue directions regarding initiation of insolvency proceedings vested in the RBI, subject to the approval of the Central Government. The court significantly held that the power was contained within the four corners of Section 35AA and observed as follows: A conspectus of all these provisions shows that the Banking Regulation Act specifies that the Central Government is either to exercise powers along with the RBI or by itself. The role assigned, therefore, by Section 35AA, when it comes to initiating the insolvency resolution process under the Insolvency Code, is thus, important. Without authorisation of the Central Government, obviously, no such directions can be issued. 30. The corollary of this is that prior to the enactment of Section 35AA, it may have been possible to say that when it comes to the RBI issuing directions to a banking company to initiate insolvency resolution process under the Insolvency Code, it could have issued such directions Under Sections 21 and 35A. But after Section 35AA, it may do so only within the four corners of Section 35AA. 31. The matter can be looked at from a slightly different angle. If a statute confers power to do a particular act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed. This is the well¬known Rule in Taylor v. Taylor, [1875] 1 Ch. D. 426, which has been repeatedly followed by this Court. Thus, in State of U.P. v. Singhara Singh, (1964) 4 SCR 485 , this Court held: The Rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the Rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of Accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. (at pp. 490¬491) Following this principle, therefore, it is clear that the RBI can only direct banking institutions to move under the Insolvency Code if two conditions precedent are specified, namely, (i) that there is a Central Government authorisation to do so; and (ii) that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35AA. 47. In the opinion of this court, Section 238 cannot be read as overriding the MCGMs right – indeed its public duty ¬ to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question- which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM). 48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the well¬known principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274 , Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345 , Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 , Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193 , Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.)

1[ds]32. A cumulative reading of the stipulations reveals that the contract/agreement contemplates that the lease deed was to be executed after the completion of the project. The contract reveals that (a) the project period was for 60 months starting from the date excluding the monsoon period; (b) by Clauses 5 and 17, SevenHills could mortgage the property for securing advances from financial institutions for the construction of the project and thereafter towards its working. Such mortgage/charge or interest was subject to approval by MCGM. In the event the contract was to be terminated, it was agreed that MCGM would not in any manner be liable towards the mortgaged amount and all its rights and ownership would continue to vest in it free from encumbrances (Clause 17)33. The show cause notice in this case preceded admission of the insolvency resolution process. In view of the clear conditions stipulated in the contract, MCGM reserved all its rights and its properties could not have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this Court, the adjudicating authority could not have approved the plan which implicates the assets of MCGM especially when SevenHills had not fulfilled its obligations under the contract34. The argument of the RP, the financial institutions (CoC), and the SNMC with regard to MCGMs interest not being affected, in this courts opinion is insubstantial. SNMCs proposed insolvency plan on the one hand no doubt provided for the liquidation of MCGMs liabilities initially to the tune of 102 crores (later revised to over ? 140 crores). However, the provisions of the resolution plan clearly ? contemplated infusion of capital to achieve its objectives. One of the modes spelt out in the plan for securing capital was mortgaging the land. Initially, no doubt, SNMC stepped into the shoes of SevenHills and assumed its control. What is important to notice is that the corporate restructuring was a way of taking over of the companys liquidation by SNMC as it was not only Seven Hills project with shares and liquidation of debts, but also the restructuring of the companys liabilities if necessary, by creating fresh debts and mortgage of the land which directly affected MCGMIt is a matter of record that in the present case, the resolution plan was never approved by the corporation and that it was put to vote. The contesting parties, including the RP and CoC were unable to point out to anything on the record to establish that a valid permission contemplated by Section 92 was ever obtained with regard to the proposal in the resolution plan. The proposal was approved by the NCLT and MCGMs appeal was rejected by NCLAT. The proposal could be approved only to the extent it did not result in encumbering the land belonging to MCGM36. It is evident from a plain reading of Section 92(c), that the Commissioner (of MCGM) is empowered to, with the sanction of the corporation, lease, sell or otherwise convey any immovable property belonging to the corporation. It is not in dispute that the original contract entered into on 20¬12¬2005 contemplated the fulfilment of some important conditions, including firstly, the completion of the hospital project within a time frame; and secondly, timely payment of annual lease rentals. It is a matter of record that the hospital project was scheduled to be completed by 24 th April, 2013. MCGM cites Clause 15(g) of the contract to urge that within a month of this event, i.e. completion of the hospital, a lease deed had to be executed. This event never took place. Therefore, the terms of the contract remained, in the opinion of the court, an agreement to enter into a lease; it did not per se confer any right or interest, except that in the event of MCGMs failure or omission to register the lease (in the event SevenHills had complied with its obligations under the contract), it could be sued for specific performance of the agreement, and compelled to execute a lease deed. That event did not occur; SevenHills did not complete construction of the 1600 bed hospital. Apparently, it did not even fulfill its commitment, or pay annual lease rentals. In these circumstances, MCGM was constrained to issue a show cause notice before the insolvency resolution process began, and before the moratorium was declared by NCLT on 13 th March, 2018. According to MCGM, in terms of Clause 26 (of the contract), even the agreement stood terminated due to default by SevenHills. This court does not propose to comment on that issue, as that is contentious and no finding has been recorded by either the adjudicating authority or the NCLAT41. The material placed on record by MCGM before this Court also reveals that the meeting held by the Corporation on 14 th December, 2018, referred back to the resolution proposal given by SNMC. The minutes of the meeting records that three members were unanimous in their view that since SevenHills had not complied with the terms and had even sought to encumber the property by mortgage, SNMC, a UAE based company, ought not be granted approval to take over the plot and proceed with its project47. In the opinion of this court, Section 238 cannot be read as overriding the MCGMs right – indeed its public duty ¬ to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question- which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM)48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the well¬known principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274 , Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345 , Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 , Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193 , Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.)

### 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: constitutionality of directions issued by the Reserve Bank of India, through a circular of 12 th February, 2018 regulating resolution of stressed assets of debtors. This court elaborately dealt with provisions of the Banking Regulation Act, 1949 and the Reserve Bank of India Act, 1934 and held that the power to issue directions regarding initiation of insolvency proceedings vested in the RBI, subject to the approval of the Central Government. The court significantly held that the power was contained within the four corners of Section 35AA and observed as follows: A conspectus of all these provisions shows that the Banking Regulation Act specifies that the Central Government is either to exercise powers along with the RBI or by itself. The role assigned, therefore, by Section 35AA, when it comes to initiating the insolvency resolution process under the Insolvency Code, is thus, important. Without authorisation of the Central Government, obviously, no such directions can be issued. 30. The corollary of this is that prior to the enactment of Section 35AA, it may have been possible to say that when it comes to the RBI issuing directions to a banking company to initiate insolvency resolution process under the Insolvency Code, it could have issued such directions Under Sections 21 and 35A. But after Section 35AA, it may do so only within the four corners of Section 35AA. 31. The matter can be looked at from a slightly different angle. If a statute confers power to do a particular act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed. This is the well¬known Rule in Taylor v. Taylor, [1875] 1 Ch. D. 426, which has been repeatedly followed by this Court. Thus, in State of U.P. v. Singhara Singh, (1964) 4 SCR 485 , this Court held: The Rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the Rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of Accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. (at pp. 490¬491) Following this principle, therefore, it is clear that the RBI can only direct banking institutions to move under the Insolvency Code if two conditions precedent are specified, namely, (i) that there is a Central Government authorisation to do so; and (ii) that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35AA. 47. In the opinion of this court, Section 238 cannot be read as overriding the MCGMs right – indeed its public duty ¬ to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question- which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM). 48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the well¬known principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274 , Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345 , Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 , Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193 , Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.) ### Response: 1 ### Explanation: the resolution plan clearly ? contemplated infusion of capital to achieve its objectives. One of the modes spelt out in the plan for securing capital was mortgaging the land. Initially, no doubt, SNMC stepped into the shoes of SevenHills and assumed its control. What is important to notice is that the corporate restructuring was a way of taking over of the companys liquidation by SNMC as it was not only Seven Hills project with shares and liquidation of debts, but also the restructuring of the companys liabilities if necessary, by creating fresh debts and mortgage of the land which directly affected MCGMIt is a matter of record that in the present case, the resolution plan was never approved by the corporation and that it was put to vote. The contesting parties, including the RP and CoC were unable to point out to anything on the record to establish that a valid permission contemplated by Section 92 was ever obtained with regard to the proposal in the resolution plan. The proposal was approved by the NCLT and MCGMs appeal was rejected by NCLAT. The proposal could be approved only to the extent it did not result in encumbering the land belonging to MCGM36. It is evident from a plain reading of Section 92(c), that the Commissioner (of MCGM) is empowered to, with the sanction of the corporation, lease, sell or otherwise convey any immovable property belonging to the corporation. It is not in dispute that the original contract entered into on 20¬12¬2005 contemplated the fulfilment of some important conditions, including firstly, the completion of the hospital project within a time frame; and secondly, timely payment of annual lease rentals. It is a matter of record that the hospital project was scheduled to be completed by 24 th April, 2013. MCGM cites Clause 15(g) of the contract to urge that within a month of this event, i.e. completion of the hospital, a lease deed had to be executed. This event never took place. Therefore, the terms of the contract remained, in the opinion of the court, an agreement to enter into a lease; it did not per se confer any right or interest, except that in the event of MCGMs failure or omission to register the lease (in the event SevenHills had complied with its obligations under the contract), it could be sued for specific performance of the agreement, and compelled to execute a lease deed. That event did not occur; SevenHills did not complete construction of the 1600 bed hospital. Apparently, it did not even fulfill its commitment, or pay annual lease rentals. In these circumstances, MCGM was constrained to issue a show cause notice before the insolvency resolution process began, and before the moratorium was declared by NCLT on 13 th March, 2018. According to MCGM, in terms of Clause 26 (of the contract), even the agreement stood terminated due to default by SevenHills. This court does not propose to comment on that issue, as that is contentious and no finding has been recorded by either the adjudicating authority or the NCLAT41. The material placed on record by MCGM before this Court also reveals that the meeting held by the Corporation on 14 th December, 2018, referred back to the resolution proposal given by SNMC. The minutes of the meeting records that three members were unanimous in their view that since SevenHills had not complied with the terms and had even sought to encumber the property by mortgage, SNMC, a UAE based company, ought not be granted approval to take over the plot and proceed with its project47. In the opinion of this court, Section 238 cannot be read as overriding the MCGMs right – indeed its public duty ¬ to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGMs objections and enabled the creation of a fresh interest in respect of its properties and lands. No doubt, the resolution plans talk of seeking MCGMs approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGMs properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in question- which undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGMs independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM)48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the well¬known principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274 , Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345 , Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398 , Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193 , Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.)

SK. RAJU @ ABDUL HAQUE @ JAGGA Vs. THE STATE OF WEST BENGAL

5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated.? The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. Further, if the first question is answered in the affirmative, whether the requirements of Section 50 were strictly complied with by PW-2 and PW-4. 11 As evidenced by Exhibit-3, a first option was given to the appellant. PW- 2 informed him that it was his legal right to be searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash in the denomination of 24 notes of Rs. 100/- each was found in the left pocket of the appellant?s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas. PW-2 conducted a search of the bag of the appellant as well as of the appellant?s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant?s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. From Exhibit-3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer, PW-4 inquired of the appellant whether he wished to search PW-2 before his own search was conducted by PW-2. The appellant agreed to search PW-2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant?s search was conducted, both PW- 2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a ‘third? alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. 12 As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Section 50 was complied with.

0[ds]On conducting the search, only personal belongings ofwere found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/cash in the denomination of 24 notes of Rs. 100/each was found in the left pocket of the appellant?s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.conducted a search of the bag of the appellant as well as of the appellant?s trousers. Therefore, the search conducted bywas not only of the bag which the appellant was carrying, but also of the appellant?s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly,was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative forto inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. Fromit can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative.is a record of the events after the arrival ofon the scene. After the arrival ofthe appellant was once again asked by him,whether he wished to be searched in the presence of a gazetted officer or aThis was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer,inquired of the appellant whether he wished to searchbefore his own search was conducted byThe appellant agreed to searchOnly the personal belongings ofwere found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant?s search was conducted, both PWon different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by bothwere unambiguous. Merely because the appellant was given an option of searchingbefore the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a ‘third? alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searchingin the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence ofa gazetted officer, in consonance with the voluntary communication made by the appellant to both4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. 12 As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Section 50 was complied with.

### 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: 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated.? The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. Further, if the first question is answered in the affirmative, whether the requirements of Section 50 were strictly complied with by PW-2 and PW-4. 11 As evidenced by Exhibit-3, a first option was given to the appellant. PW- 2 informed him that it was his legal right to be searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash in the denomination of 24 notes of Rs. 100/- each was found in the left pocket of the appellant?s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas. PW-2 conducted a search of the bag of the appellant as well as of the appellant?s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant?s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. From Exhibit-3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer, PW-4 inquired of the appellant whether he wished to search PW-2 before his own search was conducted by PW-2. The appellant agreed to search PW-2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant?s search was conducted, both PW- 2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a ‘third? alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. 12 As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Section 50 was complied with. ### Response: 0 ### Explanation: On conducting the search, only personal belongings ofwere found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/cash in the denomination of 24 notes of Rs. 100/each was found in the left pocket of the appellant?s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.conducted a search of the bag of the appellant as well as of the appellant?s trousers. Therefore, the search conducted bywas not only of the bag which the appellant was carrying, but also of the appellant?s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly,was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative forto inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. Fromit can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative.is a record of the events after the arrival ofon the scene. After the arrival ofthe appellant was once again asked by him,whether he wished to be searched in the presence of a gazetted officer or aThis was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer,inquired of the appellant whether he wished to searchbefore his own search was conducted byThe appellant agreed to searchOnly the personal belongings ofwere found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant?s search was conducted, both PWon different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by bothwere unambiguous. Merely because the appellant was given an option of searchingbefore the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a ‘third? alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searchingin the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence ofa gazetted officer, in consonance with the voluntary communication made by the appellant to both4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. 12 As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Section 50 was complied with.

Gurunath Alias Bhimaji Vs. Kamalabai, Kom Kenchangaudanadgaudar And Others

power of adoption to an end;(2) that the power to adopt does not depend upon any question of vesting or divesting of property; and(3) that a mothers authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence.16. The rule enunciated in Amarendras case was subsequently applied in Vijaysingji v. Shivsangji ([1935] L.R. 62 I.A. 161) and was again restated and reaffirmed as a sound rule enunciating the limitations on the widows power to adopt in Anant Bhikappa Patil v. Shankar Ramchandra Patil ([1943] L.R. 70 I.A. 232). One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1 S.C.R. 1), but that apart no doubt was cast in this decision on the above rule.17. The result of these series of decisions is, that now for about three quarters of a century the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson or the sons widow competent to adopt" has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to hold that the reasons stated in support of the rule are not consistent with these principles. During the arguments no substantial grounds have been suggested for holding that the rule is either inequitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widows power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widows power of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widows power to make an adoption comes to an end by the interposition of a grandson or the sons widow competent to continue the line by adoption.The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendras case had no application to the situation that has arisen in the present case and that on the death of the grandson the widows power to adopt which was in abeyance during his life revived. Reference in this connection was made to the decision of the Nagpur High Court in Bapuji v. Gangaram ([1941] I.L.R. Nagpur 178). There a Hindu died leaving a widow and his son and the son died leaving a widow only who re-married. It was held that the power of the mother revived on the re-marriage of the sons widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendras case as appears from the following quotation from that judgment :"If the observation quoted from Amarendra Mansingh v. Sanatan Singh ([1933] I.L.R. 12 Pat. 642, 658) be understood as limited to the case where the widow D or the grandson E stands between (is interposed) the grand widow C and her power, everything is clear except for the words "and can never be revived" quoted from Ramkrishna v. Shamrao ([1902] I.L.R. 26 Bom. 526). Strictly the above is the true meaning of their Lordships words. That amounts to nothing more than this : that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C. That leaves at large what happens when the "interposition" is ended. Logic says that as the death of the son removes his "interposition" whereupon Cs power revives so the death of D removes her interpositions and so Cs power revives".18. In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendras case. The reason for the rule in Amarendras case was "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone". If that is the true reason, obviously the duty having come to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji v. Gangaram ([1941] I.L.R. Nag. 178) was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer v. Harihar Bakhsh Singh ([1945] I.L.R. 21 Luck. 1). The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added (though under some misapprehension) that this decision had been approved by their Lordships of the Privy Council. As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and not the decision above referred to. The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case.

0[ds]8. The question of limitations upon the power of the widow to adopt thus stated in the Chundrabullee series of decisions was again affirmed by the Judicial Committee in Thayammal and Kuttiswami Aiyan v. Venkatarama Aiyan ([1887] L.R. 14 I.A. 67) decided in 1887 and in Tarachurn v. Suresh Chunder ([1889] L.R. 16 I.A. 166) decided in 1889.In the year 1902 this question came up for consideration before the Full Bench of the Bombay High Court in Ramkrishna Ramchandra v. Shamrao ([1902] I.L.R. 26 Bom 526). There a grandmother succeeded to her grandson who died unmarried and it was held that her power to make an adoption had come to an end and that the adoption was invalid. Chandavarkar, J., who delivered the judgment of the FullThe next and the most important decision of the Judicial Committee in regard to this matter was given in the year 1933 in Amarendra Mansingh v. Sanatan ([1933] L.R. 60 I.A. 242) where there was a departure from or at least a reorientation of the old doctrine, and stress was laid on the spiritual rather than on the temporal aspect of adoption, linking it up with the vesting and divesting of the estate. There a Hindu governed by the Benaras school was survived by an infant son and a widow, to whom he had given authority to adopt in the event of the son dying. The son succeeded to his fathers impartible zamindari but died unmarried at the age of 20 years and 6 months. By a custom of the family which excluded females from inheritance the estate did not go to his mother but became vested in a distant collateral. A week after the sons death she made an adoption. It was held that the adoption was valid and it divested the estate vested by inheritance in the collateral. All the previous decisions were reviewed in this case by Sir George Lowndes who delivered the judgment of the Board. At page 248 of the report it is said as follows :"In their Lordships opinion, it is clear that the foundation of the Brahminical doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the continuance of the line and the solemnization of the necessary rites. And it may well be that if this duty has been passed on to a new generation, capable itself of the continuance, the fathers duty had been performed and the means provided by him for its fulfilment spent : the "debt" he owed is discharged, and it is upon the new generation that the duty is now cast and the burden of the "debt" is now laid.11. It can, they think, hardly be doubted that in this doctrine the devolution of property, though recognised as the inherent right of the son, is altogether a secondary consideration....... that the validity of an adoption is to be determined by spiritual rather than temporal considerations; that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it.12. Having regard to thisdoctrine as to the religious efficacy of sonship, their Lordships feel that great caution should be observed in shutting the door upon any authorised adoption by the widow of a sonless man. The Hindu law itself sets no limit to the exercise of the power during the lifetime of the widow and the validity of successive adoptions in continuance of the line is now well recognised. Nor do the authoritative texts appear to limit the exercise of the power by any considerations of property. But that there must be some limit to its exercise, or at all events some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of other rights to allow it to take effect, has long been recognised both by the Courts in India and by this Board, and it is upon the difficult question of where the line should be drawn, and upon what principle, that the argument in the present case has mainly turned".In another part of the judgment their Lordships observed as followsbeing clear upon the decisions above referred to that the interposition of a grandson, or the sons widow, brings the mothers power of adoption to an end, but that the mere birth of a son does not do so, and that this is not based upon a question of vesting or divesting of property, their Lordships think that the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone. But if the son die himself sonless and unmarried, the duty will still be upon the mother, and the power in her which was necessarily suspended during the sons lifetime will revive".The learned counsel for the appellant placed reliance upon the last sentence in the passage in the Privy Council judgment quoted above and contended that if the power of the widow which remained suspended during the lifetime of the son could revive on the son dying sonless and unmarried, logically the power must also revive when the son and his widow and the grandson and his widow all died out. Reliance was also placed on the passage already cited in which their Lordships laid emphasis on the proposition that the substitution of a son of the deceased for spiritual reasons is the essence of the thing, and the consequent devolution of property a mere accessory to it and it was contended that the grounds on which an outside limit was laid on the exercise of the widows power in the Chundrabullee series of decisions no longer survived, in view of the ratio in Amarendras decision and that it having been held that the power of adoption did not depend on and was not linked with the devolution of property or with the question of vesting or divesting of property and could be exercised whenever necessity for continuing the line arose, it should be held that when the son and his widow were dead and the grandson to whom he handed the torch for continuing the line also died, the power of Gangabai to make the adoption revived and thus the adoption was valid. This argument, in our opinion, is not well founded as it is based on an incorrect apprehension of the true basis of the rule enunciated in this judgment, the rule being that "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to the grandson or to the sons widow, the mothers power is gone". In the words of Chandavarkar, J. affirmed by the Judicial Committee in Madana Mohana v. Purushothama Deo ([1918] L.R. 45 I.A. 156)"the power having once been extinguished it cannot afterwards be revived". In other words the true rule is this :"When a son dies before attaining full legal competence and does not leave either a widow or a son or an adopted son then the power of the mother which was in abeyance during his lifetime revives but the moment he hands over that torch to another, the mother can no longer take it".The contention of the learned counsel therefore that even if the second generation dies without taking steps to continue the line the grandmother still retains her authority and is still under a duty to continue the line cannot be sustained.The rule enunciated in Amarendras case was subsequently applied in Vijaysingji v. Shivsangji ([1935] L.R. 62 I.A. 161) and was again restated and reaffirmed as a sound rule enunciating the limitations on the widows power to adopt in Anant Bhikappa Patil v. Shankar Ramchandra Patil ([1943] L.R. 70 I.A. 232). One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1 S.C.R. 1), but that apart no doubt was cast in this decision on the above rule.17. The result of these series of decisions is, that now for about three quarters of a century the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson or the sons widow competent to adopt" has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to hold that the reasons stated in support of the rule are not consistent with these principles. During the arguments no substantial grounds have been suggested for holding that the rule is either inequitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widows power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widows power of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widows power to make an adoption comes to an end by the interposition of a grandson or the sons widow competent to continue the line by adoption.The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendras case had no application to the situation that has arisen in the present case and that on the death of the grandson the widows power to adopt which was in abeyance during his life revived. Reference in this connection was made to the decision of the Nagpur High Court in Bapuji v. Gangaram ([1941] I.L.R. Nagpur 178). There a Hindu died leaving a widow and his son and the son died leaving a widow only whoIt was held that the power of the mother revived on theof the sons widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendras case as appears from the following quotation from that judgmentthe observation quoted from Amarendra Mansingh v. Sanatan Singh ([1933] I.L.R. 12 Pat. 642, 658) be understood as limited to the case where the widow D or the grandson E stands between (is interposed) the grand widow C and her power, everything is clear except for the words "and can never be revived" quoted from Ramkrishna v. Shamrao ([1902] I.L.R. 26 Bom. 526). Strictly the above is the true meaning of their Lordships words. That amounts to nothing more than this : that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C. That leaves at large what happens when the "interposition" is ended. Logic says that as the death of the son removes his "interposition" whereupon Cs power revives so the death of D removes her interpositions and so Cs power revives".In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendras case. The reason for the rule in Amarendras case was "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone". If that is the true reason, obviously the duty having come to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji v. Gangaram ([1941] I.L.R. Nag. 178) was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer v. Harihar Bakhsh Singh ([1945] I.L.R. 21 Luck. 1). The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added (though under some misapprehension) that this decision had been approved by their Lordships of the Privy Council. As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and not the decision above referred to. The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case.

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: power of adoption to an end;(2) that the power to adopt does not depend upon any question of vesting or divesting of property; and(3) that a mothers authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence.16. The rule enunciated in Amarendras case was subsequently applied in Vijaysingji v. Shivsangji ([1935] L.R. 62 I.A. 161) and was again restated and reaffirmed as a sound rule enunciating the limitations on the widows power to adopt in Anant Bhikappa Patil v. Shankar Ramchandra Patil ([1943] L.R. 70 I.A. 232). One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1 S.C.R. 1), but that apart no doubt was cast in this decision on the above rule.17. The result of these series of decisions is, that now for about three quarters of a century the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson or the sons widow competent to adopt" has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to hold that the reasons stated in support of the rule are not consistent with these principles. During the arguments no substantial grounds have been suggested for holding that the rule is either inequitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widows power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widows power of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widows power to make an adoption comes to an end by the interposition of a grandson or the sons widow competent to continue the line by adoption.The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendras case had no application to the situation that has arisen in the present case and that on the death of the grandson the widows power to adopt which was in abeyance during his life revived. Reference in this connection was made to the decision of the Nagpur High Court in Bapuji v. Gangaram ([1941] I.L.R. Nagpur 178). There a Hindu died leaving a widow and his son and the son died leaving a widow only who re-married. It was held that the power of the mother revived on the re-marriage of the sons widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendras case as appears from the following quotation from that judgment :"If the observation quoted from Amarendra Mansingh v. Sanatan Singh ([1933] I.L.R. 12 Pat. 642, 658) be understood as limited to the case where the widow D or the grandson E stands between (is interposed) the grand widow C and her power, everything is clear except for the words "and can never be revived" quoted from Ramkrishna v. Shamrao ([1902] I.L.R. 26 Bom. 526). Strictly the above is the true meaning of their Lordships words. That amounts to nothing more than this : that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C. That leaves at large what happens when the "interposition" is ended. Logic says that as the death of the son removes his "interposition" whereupon Cs power revives so the death of D removes her interpositions and so Cs power revives".18. In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendras case. The reason for the rule in Amarendras case was "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone". If that is the true reason, obviously the duty having come to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji v. Gangaram ([1941] I.L.R. Nag. 178) was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer v. Harihar Bakhsh Singh ([1945] I.L.R. 21 Luck. 1). The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added (though under some misapprehension) that this decision had been approved by their Lordships of the Privy Council. As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and not the decision above referred to. The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case. ### Response: 0 ### Explanation: hands over that torch to another, the mother can no longer take it".The contention of the learned counsel therefore that even if the second generation dies without taking steps to continue the line the grandmother still retains her authority and is still under a duty to continue the line cannot be sustained.The rule enunciated in Amarendras case was subsequently applied in Vijaysingji v. Shivsangji ([1935] L.R. 62 I.A. 161) and was again restated and reaffirmed as a sound rule enunciating the limitations on the widows power to adopt in Anant Bhikappa Patil v. Shankar Ramchandra Patil ([1943] L.R. 70 I.A. 232). One of the propositions enunciated in this decision was not accepted by this court in Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1 S.C.R. 1), but that apart no doubt was cast in this decision on the above rule.17. The result of these series of decisions is, that now for about three quarters of a century the rule that "the power of a widow to adopt comes to an end by the interposition of a grandson or the sons widow competent to adopt" has become a part of Hindu Law, though the reasons for limiting the power may not be traceable to any Shastric text; and may have been differently stated in the several judgments. It is well known that in the absence of any clear Shastric text the courts have authority to decide cases on principles of justice, equity and good conscience and it is not possible to hold that the reasons stated in support of the rule are not consistent with these principles. During the arguments no substantial grounds have been suggested for holding that the rule is either inequitable or unjust or is repugnant to or inconsistent with any doctrine or theory of Hindu Law of adoption. In this situation we are bound to hold that it is too late in the day to say that there are no limitations of any kind on the widows power to adopt excepting those that limit the power of her husband to adopt, i.e. that she cannot adopt in the presence of a son, grandson or great grandson. Hindu Law generally and in particular in matters of inheritance, alienation and adoption gives to the widows power of a limited character and there is nothing in the limitations laid down by the course of decisions above referred to repugnant to that law. For the reasons given above, we are unable to depart from the rule that a widows power to make an adoption comes to an end by the interposition of a grandson or the sons widow competent to continue the line by adoption.The learned counsel for the appellant placed considerable reliance on two decisions of the Indian High Courts in support of his contention and suggested that the rule laid down in Amarendras case had no application to the situation that has arisen in the present case and that on the death of the grandson the widows power to adopt which was in abeyance during his life revived. Reference in this connection was made to the decision of the Nagpur High Court in Bapuji v. Gangaram ([1941] I.L.R. Nagpur 178). There a Hindu died leaving a widow and his son and the son died leaving a widow only whoIt was held that the power of the mother revived on theof the sons widow. Reliance for this proposition curiously enough was placed on the decision of the Judicial Committee in Amarendras case as appears from the following quotation from that judgmentthe observation quoted from Amarendra Mansingh v. Sanatan Singh ([1933] I.L.R. 12 Pat. 642, 658) be understood as limited to the case where the widow D or the grandson E stands between (is interposed) the grand widow C and her power, everything is clear except for the words "and can never be revived" quoted from Ramkrishna v. Shamrao ([1902] I.L.R. 26 Bom. 526). Strictly the above is the true meaning of their Lordships words. That amounts to nothing more than this : that while D or E is alive and competent to adopt his or her existence prevents any adoption being made by C. That leaves at large what happens when the "interposition" is ended. Logic says that as the death of the son removes his "interposition" whereupon Cs power revives so the death of D removes her interpositions and so Cs power revives".In our judgment there is not only an obvious fallacy in this reasoning but it is based on a wrong apprehension of the true reasons stated for the rule in Amarendras case. The reason for the rule in Amarendras case was "where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother, has been assumed by the son and by him passed on to a grandson or to the sons widow, the mothers power is gone". If that is the true reason, obviously the duty having come to an end cannot be revived on logical grounds. We are therefore clearly of opinion that the ratio of the decision in Bapuji v. Gangaram ([1941] I.L.R. Nag. 178) was erroneous. The second decision to which reference was made is a decision of the Lucknow Court reported in Prem Jagat Kuer v. Harihar Bakhsh Singh ([1945] I.L.R. 21 Luck. 1). The learned Judges in that case followed the decision of the Nagpur High Court above quoted, and further added (though under some misapprehension) that this decision had been approved by their Lordships of the Privy Council. As a matter of fact, there was another decision reported in the same report on a different question that had been upheld by the Privy Council and not the decision above referred to. The authority of this later decision therefore is considerably shaken by this error and even otherwise the decision gives no independent reasons of its own apart from those contained in the Nagpur case.

Parbati Kuer Vs. Sarangdhar Sinha & Others

with the Bank. It appears that the Bank had been advancing some sums from time to time to Ram Ran Vijaya Sinha, and at his death there was an overdraft which the two brothers said, was not binding on them, because the borrowings were not for legal necessity or for the benefit of the family. This contention of the two brothers prevailed with the Court, and the result was that the decree of the Bank was passed only against the widow. We have not been able to see why the coparceners could not raise the plea that the borrowings of the karta were not for legal necessity nor for family purpose, and if that plea succeeded, how it estopped them claiming other joint family properties by survivorship. No doubt, the two brother have, by this means, managed to cast the burden of the Bank upon the widow, but however unfortunate that circumstances may be, it cannot have any effect upon the merits of the present suit.The Bank account, as we now find, was not of the separate property of Ram Ran Vijaya Sinha but was meant to keep the money from the Press, and might well have been a joint family account. There is, however, evidence to show that Ram Ran Vijaya Sinha was in receipt of an allowance of Rs. 1,000 per month, and this also kept with the Bihar Bank. The entire family was thus dealing with the Bihar Bank as also Ram Ran Vijaya Sinha. Whether any portion of the liability should have fallen upon the two brothers or not is not a matter which we have to decide here, but it appears to us that whichever way one decides that question, the ownership of the three policies is not affected by the decision one way or the other.9. It was then argued, as a matter of law, that insurance was a special venture and was meant only for the benefit of the family of the assured and that the other coparceners had no interest in the policies. Reference was made to the proposal forms, Ex. 12 series, which were submitted by Ram Ran Vijaya Sinha to the companies, where the purpose of the insurance was shown to be for the benefit of the family of Ram Ran Vijaya Sinha. It was contended that by family was meant the wife and children of Ram Ran Vijaya Sinha. This might be true, but the question is not whether Ram Ran Vijaya Sinha took out the policies for the benefit of his own family but whether he did so without detriment to the joint family funds. If it was the latter, then anything obtained with the joint family funds would belong to the joint family, and this is the result, in view of our finding that it was the joint family which had paid for these policies and not Ram Ran Vijaya Sinha individually.It was also contended that the joint family was entitled to recoup the money which had been paid towards the purchase of the policies and not any additional sum which the insurance company had paid by reason of the early death of Ram Ran Vijaya Sinha. We do not know on what this proposition rests. If the joint family purchased some property and it appreciated or gained in value, the benefit would go to the family and not to any individual. No authority was cited in support of such proposition.10. It was then argued, as a matter of law, that insurance policies must be placed in a separate category by themselves and the proceeds from them must be treated as individual property of those members on whose lives insurance policies were taken, though learned counsel for the appellant did not cite any authority in support of this proposition. Learned counsel for the respondents drew our attention to the decision in Venkata Subba Rao v. Laksminarasamma, AIR 1954 Mad 222 , where Rajamannar, C. J. and Venkatarama Aiyar, J. (as he then was) observed as follows :"In our opinion, having regard to modern social conditions and the growth of individual consciousness in marked contrast to the more corporate outlook of an earlier day, the general presumption must be that when one of the members of a joint family insures his life, the amount of the policy belongs to the assured as his separate property and does not become a joint family asset. No doubt, if there is clear indication that the member did not intend to treat it as his separate asset, the position would be different. In a case where each of the several members of the family has taken a policy in his name the presumption becomes stronger that the policies were not part of the joint family assets. The premia must be treated as amounts drawn by the individual members and they must be debited with those amounts."We need not decide whether such a broad proposition should be accepted as being in consonance with the rules of Hindu law, but unfortunately for the appellant, there are clear indications that none of the three brothers intended to treat as a separate asset the income which would have accrued on the maturity or otherwise of the insurance policies. The case thus falls within the exception contemplated by the learned Judges themselves.11. We think that the fact that there were two other policies taken at the same time on the lives of the other brothers, makes no difference. It was suggested that these policies were also purchased by Ram Ran Vijaya Sinha with his private funds out of love and kindness for the two brothers. Unfortunately, the account books show that the payment for all these policies was made from the moneys of the Press, which admittedly was a joint family business, and the income of which belonged to the family as a whole.12. Nothing has been suggested, therefore, which militates against the judgment of the High Court, which, in the circumstances of the case, was correct.

0[ds]As regards Appeal No. 331 of 1955, it is sufficient to say that it was not pressed before us, and must, therefore, becontention that there was a partition between thein 1906 was abandoned in this Court, in view of the concurrent findings of the two Courtsheard these arguments, we are satisfied that the concession was properly made, and that there is no scope for inference, either in law or in fact, that the premia paid ceased to be the assets of the joint family and became the share of the income of the individual coparceners.We are also of the opinion that there is no proposition of law by which the insurance policies must be regarded as the separate property of the coparceners on whose lives the insurance is effected by a coparcenary, and that the proceeds of an insurance policy do not belong to the jointour opinion, learned counsel for the appellant in the High Court was justified in conceding that the joint family incurred expenses for purchasing the various policies, and the arguments which have been advanced before us on the basis of the account books have not shown in any way that this concession wasneed not decide whether such a broad proposition should be accepted as being in consonance with the rules of Hindu law, but unfortunately for the appellant, there are clear indications that none of the three brothers intended to treat as a separate asset the income which would have accrued on the maturity or otherwise of the insurance policies. The case thus falls within the exception contemplated by the learned Judges themselves.11. We think that the fact that there were two other policies taken at the same time on the lives of the other brothers, makes no difference. It was suggested that these policies were also purchased by Ram Ran Vijaya Sinha with his private funds out of love and kindness for the two brothers. Unfortunately, the account books show that the payment for all these policies was made from the moneys of the Press, which admittedly was a joint family business, and the income of which belonged to the family as a whole.12. Nothing has been suggested, therefore, which militates against the judgment of the High Court, which, in the circumstances of the case, was correct.

### 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: with the Bank. It appears that the Bank had been advancing some sums from time to time to Ram Ran Vijaya Sinha, and at his death there was an overdraft which the two brothers said, was not binding on them, because the borrowings were not for legal necessity or for the benefit of the family. This contention of the two brothers prevailed with the Court, and the result was that the decree of the Bank was passed only against the widow. We have not been able to see why the coparceners could not raise the plea that the borrowings of the karta were not for legal necessity nor for family purpose, and if that plea succeeded, how it estopped them claiming other joint family properties by survivorship. No doubt, the two brother have, by this means, managed to cast the burden of the Bank upon the widow, but however unfortunate that circumstances may be, it cannot have any effect upon the merits of the present suit.The Bank account, as we now find, was not of the separate property of Ram Ran Vijaya Sinha but was meant to keep the money from the Press, and might well have been a joint family account. There is, however, evidence to show that Ram Ran Vijaya Sinha was in receipt of an allowance of Rs. 1,000 per month, and this also kept with the Bihar Bank. The entire family was thus dealing with the Bihar Bank as also Ram Ran Vijaya Sinha. Whether any portion of the liability should have fallen upon the two brothers or not is not a matter which we have to decide here, but it appears to us that whichever way one decides that question, the ownership of the three policies is not affected by the decision one way or the other.9. It was then argued, as a matter of law, that insurance was a special venture and was meant only for the benefit of the family of the assured and that the other coparceners had no interest in the policies. Reference was made to the proposal forms, Ex. 12 series, which were submitted by Ram Ran Vijaya Sinha to the companies, where the purpose of the insurance was shown to be for the benefit of the family of Ram Ran Vijaya Sinha. It was contended that by family was meant the wife and children of Ram Ran Vijaya Sinha. This might be true, but the question is not whether Ram Ran Vijaya Sinha took out the policies for the benefit of his own family but whether he did so without detriment to the joint family funds. If it was the latter, then anything obtained with the joint family funds would belong to the joint family, and this is the result, in view of our finding that it was the joint family which had paid for these policies and not Ram Ran Vijaya Sinha individually.It was also contended that the joint family was entitled to recoup the money which had been paid towards the purchase of the policies and not any additional sum which the insurance company had paid by reason of the early death of Ram Ran Vijaya Sinha. We do not know on what this proposition rests. If the joint family purchased some property and it appreciated or gained in value, the benefit would go to the family and not to any individual. No authority was cited in support of such proposition.10. It was then argued, as a matter of law, that insurance policies must be placed in a separate category by themselves and the proceeds from them must be treated as individual property of those members on whose lives insurance policies were taken, though learned counsel for the appellant did not cite any authority in support of this proposition. Learned counsel for the respondents drew our attention to the decision in Venkata Subba Rao v. Laksminarasamma, AIR 1954 Mad 222 , where Rajamannar, C. J. and Venkatarama Aiyar, J. (as he then was) observed as follows :"In our opinion, having regard to modern social conditions and the growth of individual consciousness in marked contrast to the more corporate outlook of an earlier day, the general presumption must be that when one of the members of a joint family insures his life, the amount of the policy belongs to the assured as his separate property and does not become a joint family asset. No doubt, if there is clear indication that the member did not intend to treat it as his separate asset, the position would be different. In a case where each of the several members of the family has taken a policy in his name the presumption becomes stronger that the policies were not part of the joint family assets. The premia must be treated as amounts drawn by the individual members and they must be debited with those amounts."We need not decide whether such a broad proposition should be accepted as being in consonance with the rules of Hindu law, but unfortunately for the appellant, there are clear indications that none of the three brothers intended to treat as a separate asset the income which would have accrued on the maturity or otherwise of the insurance policies. The case thus falls within the exception contemplated by the learned Judges themselves.11. We think that the fact that there were two other policies taken at the same time on the lives of the other brothers, makes no difference. It was suggested that these policies were also purchased by Ram Ran Vijaya Sinha with his private funds out of love and kindness for the two brothers. Unfortunately, the account books show that the payment for all these policies was made from the moneys of the Press, which admittedly was a joint family business, and the income of which belonged to the family as a whole.12. Nothing has been suggested, therefore, which militates against the judgment of the High Court, which, in the circumstances of the case, was correct. ### Response: 0 ### Explanation: As regards Appeal No. 331 of 1955, it is sufficient to say that it was not pressed before us, and must, therefore, becontention that there was a partition between thein 1906 was abandoned in this Court, in view of the concurrent findings of the two Courtsheard these arguments, we are satisfied that the concession was properly made, and that there is no scope for inference, either in law or in fact, that the premia paid ceased to be the assets of the joint family and became the share of the income of the individual coparceners.We are also of the opinion that there is no proposition of law by which the insurance policies must be regarded as the separate property of the coparceners on whose lives the insurance is effected by a coparcenary, and that the proceeds of an insurance policy do not belong to the jointour opinion, learned counsel for the appellant in the High Court was justified in conceding that the joint family incurred expenses for purchasing the various policies, and the arguments which have been advanced before us on the basis of the account books have not shown in any way that this concession wasneed not decide whether such a broad proposition should be accepted as being in consonance with the rules of Hindu law, but unfortunately for the appellant, there are clear indications that none of the three brothers intended to treat as a separate asset the income which would have accrued on the maturity or otherwise of the insurance policies. The case thus falls within the exception contemplated by the learned Judges themselves.11. We think that the fact that there were two other policies taken at the same time on the lives of the other brothers, makes no difference. It was suggested that these policies were also purchased by Ram Ran Vijaya Sinha with his private funds out of love and kindness for the two brothers. Unfortunately, the account books show that the payment for all these policies was made from the moneys of the Press, which admittedly was a joint family business, and the income of which belonged to the family as a whole.12. Nothing has been suggested, therefore, which militates against the judgment of the High Court, which, in the circumstances of the case, was correct.

State Bank Of Bikaner & Jaipur Vs. Shri Hari Har Nath Bhargava

either the first or the second method or some times even a combination of both.9. According to the Labour Court the underlying idea behind the said award was that when one general scale for clerical service had been provided in the award, it was thought just and proper that persons with special qualifications or skill required for discharging work carrying with it greater responsibility than the usual work should definitely get higher emoluments than the ordinary workmen. The Labour Court said that "this did not mean that the person of the same qualifications and skill who had been granted the powers of attorney by the bank should be allowed special allowance only for any particular period unless a man was temporarily appointed to do supervisory work." In the result, the Labour Court allowed the respondent supervisory allowance at Rs. 40/- p.m. with effect from 6th April 1954 to 31st December, 1955 with consequential benefits.10. It is to be noted however that although a point had been taken in the written statement of the bank about the delay in the filing of the application under S. 33-C it had not been pressed before the Labour Court.11. Mr. Sanghi appearing for the appellant was prepared to concede that so far as the periods 6th April 1954 to 12th July 1955 and 27th December 1955 to 31st December, 1955 were concerned he was not contesting the claim. But in so far as the period 13th July, 1955 to 27th December, 1955 was concerned, his client was pressing the appeal as a matter of principle as this would constitute a test case by which other similar cases might fall to be decided.12. This Court had to deal with a case where an identical question arose. In State Bank of Hydrabad v. V. A. Bhide, (1968) 2 Lab LJ 713 (Andh Pra), this Court had to consider the claims of the respondents in that appeal for payment of special allowance granted to supervisors under what were known as the Sastry and Desai awards. It was there contended on behalf of the appellant bank that in order to claim the supervisory allowance the parties must establish that the main or essential duties entrusted to them and actually discharged by them were duties and functions of a supervisory nature. This Court considered the Sastry and Desai awards and observed (at p. 727):". . . . before a person can claim the supervisory special allowance, he must establish that he has discharged the duties and functions which are similar to or the same as the duties or functions assigned to supervisors coming under category 9. This decision (Lloyds Bank Ltd. v. Panna Lal Gupta, (1961) 1 Lab LJ 18 (SC) ) also makes it clear that in deciding the status of an employee claiming the special allowance, the designation of the employee is not decisive and what determines the status is a consideration of the nature of the duties and functions assigned to the employee concerned."In our view the payment of a special allowance is called for when an employee discharges duties of a supervisory nature or is accorded the status of a person competent to discharge functions of a supervisory character. If no power of attorney is executed as in this case but in fact the employee is asked to render services of a supervisory character and the employee does such work at the request of the bank, he becomes entitled to the allowance. Once however a power of attorney giving the wide powers of agency as was done in this case is executed, it should be held that the management had placed him in a category of persons with responsibility and the employee was to discharge the responsibility without any further request in that behalf. It may be that the initial giving of power of attorney was necessitated by the fact that at Kota there was only one officer besides the respondent who could discharges duties like endorsing hundies, drafts etc. and it became necessary for the bank to have a second officer who could carry on this kind of work. But the power of attorney does not show that the bank thought it necessary to clothe the respondent with the said Powers only for discharging his duties when he was at Kota. The power of attorney was operative at any branch of the bank irrespective of the capacity which might be occupied by the respondent at a particular point of time. It may be that at Jaipur there was a number of officers superior to the respondent who were empowered to discharge duties mentioned in the power of attorney but this does not necessarily lead to the inference that the respondent lost his responsibility or was denuded of the powers while he was at Jaipur. If he discharged any of the duties mentioned in the power of attorney the same would be lawful and would be binding on the bank. The fact that he was not actually called upon to discharge such functions did not take away from his responsibility or status of a person competent to discharge functions of a supervisory character and we see no reason why he should be deprived of supervisory allowance unless the bank gave him notice, that he was not to act on the power of attorney while at Jaipur. We therefore hold that the Labour Court had come to the correct conclusion.13. Mr. Sanghi tried to urge the point that the Labour Court should not have entertained the application as being inordinately belated and that even though the Labour Court did not adjudicate on this point it was open to the bank to urge it before us. We made it clear that we were not going to entertain this plea in view of the fact that although the point had been taken in the written statement of the bank, it was not agitated before the Labour Court and further was not taken even in the special leave petition.

0[ds]In our view the payment of a special allowance is called for when an employee discharges duties of a supervisory nature or is accorded the status of a person competent to discharge functions of a supervisory character. If no power of attorney is executed as in this case but in fact the employee is asked to render services of a supervisory character and the employee does such work at the request of the bank, he becomes entitled to the allowance. Once however a power of attorney giving the wide powers of agency as was done in this case is executed, it should be held that the management had placed him in a category of persons with responsibility and the employee was to discharge the responsibility without any further request in that behalf. It may be that the initial giving of power of attorney was necessitated by the fact that at Kota there was only one officer besides the respondent who could discharges duties like endorsing hundies, drafts etc. and it became necessary for the bank to have a second officer who could carry on this kind of work. But the power of attorney does not show that the bank thought it necessary to clothe the respondent with the said Powers only for discharging his duties when he was at Kota. The power of attorney was operative at any branch of the bank irrespective of the capacity which might be occupied by the respondent at a particular point of time. It may be that at Jaipur there was a number of officers superior to the respondent who were empowered to discharge duties mentioned in the power of attorney but this does not necessarily lead to the inference that the respondent lost his responsibility or was denuded of the powers while he was at Jaipur. If he discharged any of the duties mentioned in the power of attorney the same would be lawful and would be binding on the bank. The fact that he was not actually called upon to discharge such functions did not take away from his responsibility or status of a person competent to discharge functions of a supervisory character and we see no reason why he should be deprived of supervisory allowance unless the bank gave him notice, that he was not to act on the power of attorney while at Jaipur. We therefore hold that the Labour Court had come to the correctmade it clear that we were not going to entertain this plea in view of the fact that although the point had been taken in the written statement of the bank, it was not agitated before the Labour Court and further was not taken even in the special leave petition.

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: either the first or the second method or some times even a combination of both.9. According to the Labour Court the underlying idea behind the said award was that when one general scale for clerical service had been provided in the award, it was thought just and proper that persons with special qualifications or skill required for discharging work carrying with it greater responsibility than the usual work should definitely get higher emoluments than the ordinary workmen. The Labour Court said that "this did not mean that the person of the same qualifications and skill who had been granted the powers of attorney by the bank should be allowed special allowance only for any particular period unless a man was temporarily appointed to do supervisory work." In the result, the Labour Court allowed the respondent supervisory allowance at Rs. 40/- p.m. with effect from 6th April 1954 to 31st December, 1955 with consequential benefits.10. It is to be noted however that although a point had been taken in the written statement of the bank about the delay in the filing of the application under S. 33-C it had not been pressed before the Labour Court.11. Mr. Sanghi appearing for the appellant was prepared to concede that so far as the periods 6th April 1954 to 12th July 1955 and 27th December 1955 to 31st December, 1955 were concerned he was not contesting the claim. But in so far as the period 13th July, 1955 to 27th December, 1955 was concerned, his client was pressing the appeal as a matter of principle as this would constitute a test case by which other similar cases might fall to be decided.12. This Court had to deal with a case where an identical question arose. In State Bank of Hydrabad v. V. A. Bhide, (1968) 2 Lab LJ 713 (Andh Pra), this Court had to consider the claims of the respondents in that appeal for payment of special allowance granted to supervisors under what were known as the Sastry and Desai awards. It was there contended on behalf of the appellant bank that in order to claim the supervisory allowance the parties must establish that the main or essential duties entrusted to them and actually discharged by them were duties and functions of a supervisory nature. This Court considered the Sastry and Desai awards and observed (at p. 727):". . . . before a person can claim the supervisory special allowance, he must establish that he has discharged the duties and functions which are similar to or the same as the duties or functions assigned to supervisors coming under category 9. This decision (Lloyds Bank Ltd. v. Panna Lal Gupta, (1961) 1 Lab LJ 18 (SC) ) also makes it clear that in deciding the status of an employee claiming the special allowance, the designation of the employee is not decisive and what determines the status is a consideration of the nature of the duties and functions assigned to the employee concerned."In our view the payment of a special allowance is called for when an employee discharges duties of a supervisory nature or is accorded the status of a person competent to discharge functions of a supervisory character. If no power of attorney is executed as in this case but in fact the employee is asked to render services of a supervisory character and the employee does such work at the request of the bank, he becomes entitled to the allowance. Once however a power of attorney giving the wide powers of agency as was done in this case is executed, it should be held that the management had placed him in a category of persons with responsibility and the employee was to discharge the responsibility without any further request in that behalf. It may be that the initial giving of power of attorney was necessitated by the fact that at Kota there was only one officer besides the respondent who could discharges duties like endorsing hundies, drafts etc. and it became necessary for the bank to have a second officer who could carry on this kind of work. But the power of attorney does not show that the bank thought it necessary to clothe the respondent with the said Powers only for discharging his duties when he was at Kota. The power of attorney was operative at any branch of the bank irrespective of the capacity which might be occupied by the respondent at a particular point of time. It may be that at Jaipur there was a number of officers superior to the respondent who were empowered to discharge duties mentioned in the power of attorney but this does not necessarily lead to the inference that the respondent lost his responsibility or was denuded of the powers while he was at Jaipur. If he discharged any of the duties mentioned in the power of attorney the same would be lawful and would be binding on the bank. The fact that he was not actually called upon to discharge such functions did not take away from his responsibility or status of a person competent to discharge functions of a supervisory character and we see no reason why he should be deprived of supervisory allowance unless the bank gave him notice, that he was not to act on the power of attorney while at Jaipur. We therefore hold that the Labour Court had come to the correct conclusion.13. Mr. Sanghi tried to urge the point that the Labour Court should not have entertained the application as being inordinately belated and that even though the Labour Court did not adjudicate on this point it was open to the bank to urge it before us. We made it clear that we were not going to entertain this plea in view of the fact that although the point had been taken in the written statement of the bank, it was not agitated before the Labour Court and further was not taken even in the special leave petition. ### Response: 0 ### Explanation: In our view the payment of a special allowance is called for when an employee discharges duties of a supervisory nature or is accorded the status of a person competent to discharge functions of a supervisory character. If no power of attorney is executed as in this case but in fact the employee is asked to render services of a supervisory character and the employee does such work at the request of the bank, he becomes entitled to the allowance. Once however a power of attorney giving the wide powers of agency as was done in this case is executed, it should be held that the management had placed him in a category of persons with responsibility and the employee was to discharge the responsibility without any further request in that behalf. It may be that the initial giving of power of attorney was necessitated by the fact that at Kota there was only one officer besides the respondent who could discharges duties like endorsing hundies, drafts etc. and it became necessary for the bank to have a second officer who could carry on this kind of work. But the power of attorney does not show that the bank thought it necessary to clothe the respondent with the said Powers only for discharging his duties when he was at Kota. The power of attorney was operative at any branch of the bank irrespective of the capacity which might be occupied by the respondent at a particular point of time. It may be that at Jaipur there was a number of officers superior to the respondent who were empowered to discharge duties mentioned in the power of attorney but this does not necessarily lead to the inference that the respondent lost his responsibility or was denuded of the powers while he was at Jaipur. If he discharged any of the duties mentioned in the power of attorney the same would be lawful and would be binding on the bank. The fact that he was not actually called upon to discharge such functions did not take away from his responsibility or status of a person competent to discharge functions of a supervisory character and we see no reason why he should be deprived of supervisory allowance unless the bank gave him notice, that he was not to act on the power of attorney while at Jaipur. We therefore hold that the Labour Court had come to the correctmade it clear that we were not going to entertain this plea in view of the fact that although the point had been taken in the written statement of the bank, it was not agitated before the Labour Court and further was not taken even in the special leave petition.

DIRECTOR OF ELEMENTARY EDUCATION, ODISHA DIRECTOR Vs. SRI PRAMOD KUMAR SAHOO

of Pay?, the following scale of pay shall be substituted namely:-(a) Rs. 975-25—1, 150-E.B.-30-1,660 (For all posts except Trained Matric Teachers)?4. Thereafter, a corrigendum was issued on August 27, 1992 stating the scales of pay for the Untrained Intermediate Teacher and Trained Matric Teacher. The said corrigendum reads as under:table5. The respondent claimed that he is entitled to pay scale of Rs.840/- - Rs.1240/- from the very day of his appointment and pay scale of Rs. 1080-1800 after Orissa Revised Scales of Pay Rules, 1989 as amended in the year 1990. Since the said pay scale was not granted to him, he invoked the jurisdiction of the Tribunal when he filed O.A. No.831(C) of 1998. The basis of argument is that he is intermediate and, thus, he is to be treated as a Trained Teacher which will entitle him to the pay scale of Rs.1080/- - Rs.1800/-.6. Before the learned Tribunal, the counsel for the appellant conceded that the Teachers having intermediate qualification are entitled to the scale of pay as is available to Trained Matric Teachers. On the basis of such concession, the learned Tribunal allowed the Original Application on February 19, 2010.7. The appellant filed an application, inter alia, on the ground that wrong submission was made by the counsel for the appellant. Such application was dismissed on the ground that the remedy of the appellant was either by filing an application of review or modification but since such application has been filed after two years of the order having been passed by the Tribunal, the same was dismissed on the ground of laches as well as there is no error apparent on the face of the order. Thereafter, the appellant filed the review petition which was dismissed on January 22, 2015. It is thereafter the writ petition was filed which was dismissed vide the order impugned in the present appeal.8. Learned counsel for the appellant submitted that the separate pay scales are provided for Untrained Matric Teachers (Rs.975-25-1, 150-E.B.-30-1,660) and for Trained Matric Teachers (Rs.1,080-30- 1,440-EB-30-1,800). Merely because the respondent is intermediate, that is higher qualification than the Matric, does not make him a Trained Teacher. Therefore, the concession given by the State counsel is erroneous concession in law and, does not bind the appellant. Reference was made to Himalayan Coop. Group Housing Society v. Balwan Singh & Ors. (2015) 7 SCC 373 wherein, this Court held as under:?32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyers statements or admissions as to matters of law or legal conclusions….?(Emphasis supplied)9. On the other hand, it is argued that since the respondent is possessing higher qualification and is now graduate, therefore, he is entitled to the pay scale meant for Trained Matric Teachers and that State is bound by the concession given by its counsel before the Tribunal.10. We have heard learned counsel for the parties and find that the distinction between Trained Matric Teacher and Untrained Matric Teacher has not been appreciated by the Tribunal and the same error was committed by the High Court as well.11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.12. The Trained Matric Teacher is the one who has been trained for the purposes of teaching. In the absence of such training, the respondent cannot be said to be a Trained Matric Teacher entitled to the pay scale meant for such teachers. The classification based upon educational qualification for grant of higher pay scale to a trained person or a person possessing higher qualification is a valid classification. It has been so held in Shyam Babu Verma & Ors. v. Union of India & Ors. (1994) 2 SCC 521 , wherein this Court held as under:?9. … The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of ‘equal pay for equal work? should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ‘equal pay for equal work? to them….?13. The said decision has been quoted by another Bench of this Court in M.P . Rural Agriculture Extension Officers Association v. State of M.P. & Anr. (2004) 4 SCC 646 , wherein this Court held as under:?22. Furthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P . Narasinga Rao [AIR 1968 SC 349 :(1968) 1 SCR 407 ].?14. Therefore, we find that the order passed by the Tribunal as affirmed by the High Court is not sustainable in law.

1[ds]10. We have heard learned counsel for the parties and find that the distinction between Trained Matric Teacher and Untrained Matric Teacher has not been appreciated by the Tribunal and the same error was committed by the High Court as well.11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.12. The Trained Matric Teacher is the one who has been trained for the purposes of teaching. In the absence of such training, the respondent cannot be said to be a Trained Matric Teacher entitled to the pay scale meant for such teachers. The classification based upon educational qualification for grant of higher pay scale to a trained person or a person possessing higher qualification is a valid classification. It has been so held in Shyam Babu Verma & Ors. v. Union of India & Ors.(1994) 2 SCC 521 , wherein this Court held as… The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of ‘equal pay for equal work? should not beapplied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ‘equal pay for equal work? to them….The said decision has been quoted by another Bench of this Court in M.P . Rural Agriculture Extension Officers Association v. State of M.P. & Anr. (2004) 4 SCC 646 , wherein this Court held asFurthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P . Narasinga Rao [AIR 1968 SC 349 :(1968) 1 SCR 407 ].Therefore, we find that the order passed by the Tribunal as affirmed by the High Court is not sustainable in law.

### Instruction: First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document. ### Input: of Pay?, the following scale of pay shall be substituted namely:-(a) Rs. 975-25—1, 150-E.B.-30-1,660 (For all posts except Trained Matric Teachers)?4. Thereafter, a corrigendum was issued on August 27, 1992 stating the scales of pay for the Untrained Intermediate Teacher and Trained Matric Teacher. The said corrigendum reads as under:table5. The respondent claimed that he is entitled to pay scale of Rs.840/- - Rs.1240/- from the very day of his appointment and pay scale of Rs. 1080-1800 after Orissa Revised Scales of Pay Rules, 1989 as amended in the year 1990. Since the said pay scale was not granted to him, he invoked the jurisdiction of the Tribunal when he filed O.A. No.831(C) of 1998. The basis of argument is that he is intermediate and, thus, he is to be treated as a Trained Teacher which will entitle him to the pay scale of Rs.1080/- - Rs.1800/-.6. Before the learned Tribunal, the counsel for the appellant conceded that the Teachers having intermediate qualification are entitled to the scale of pay as is available to Trained Matric Teachers. On the basis of such concession, the learned Tribunal allowed the Original Application on February 19, 2010.7. The appellant filed an application, inter alia, on the ground that wrong submission was made by the counsel for the appellant. Such application was dismissed on the ground that the remedy of the appellant was either by filing an application of review or modification but since such application has been filed after two years of the order having been passed by the Tribunal, the same was dismissed on the ground of laches as well as there is no error apparent on the face of the order. Thereafter, the appellant filed the review petition which was dismissed on January 22, 2015. It is thereafter the writ petition was filed which was dismissed vide the order impugned in the present appeal.8. Learned counsel for the appellant submitted that the separate pay scales are provided for Untrained Matric Teachers (Rs.975-25-1, 150-E.B.-30-1,660) and for Trained Matric Teachers (Rs.1,080-30- 1,440-EB-30-1,800). Merely because the respondent is intermediate, that is higher qualification than the Matric, does not make him a Trained Teacher. Therefore, the concession given by the State counsel is erroneous concession in law and, does not bind the appellant. Reference was made to Himalayan Coop. Group Housing Society v. Balwan Singh & Ors. (2015) 7 SCC 373 wherein, this Court held as under:?32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyers statements or admissions as to matters of law or legal conclusions….?(Emphasis supplied)9. On the other hand, it is argued that since the respondent is possessing higher qualification and is now graduate, therefore, he is entitled to the pay scale meant for Trained Matric Teachers and that State is bound by the concession given by its counsel before the Tribunal.10. We have heard learned counsel for the parties and find that the distinction between Trained Matric Teacher and Untrained Matric Teacher has not been appreciated by the Tribunal and the same error was committed by the High Court as well.11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.12. The Trained Matric Teacher is the one who has been trained for the purposes of teaching. In the absence of such training, the respondent cannot be said to be a Trained Matric Teacher entitled to the pay scale meant for such teachers. The classification based upon educational qualification for grant of higher pay scale to a trained person or a person possessing higher qualification is a valid classification. It has been so held in Shyam Babu Verma & Ors. v. Union of India & Ors. (1994) 2 SCC 521 , wherein this Court held as under:?9. … The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of ‘equal pay for equal work? should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ‘equal pay for equal work? to them….?13. The said decision has been quoted by another Bench of this Court in M.P . Rural Agriculture Extension Officers Association v. State of M.P. & Anr. (2004) 4 SCC 646 , wherein this Court held as under:?22. Furthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P . Narasinga Rao [AIR 1968 SC 349 :(1968) 1 SCR 407 ].?14. Therefore, we find that the order passed by the Tribunal as affirmed by the High Court is not sustainable in law. ### Response: 1 ### Explanation: 10. We have heard learned counsel for the parties and find that the distinction between Trained Matric Teacher and Untrained Matric Teacher has not been appreciated by the Tribunal and the same error was committed by the High Court as well.11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.12. The Trained Matric Teacher is the one who has been trained for the purposes of teaching. In the absence of such training, the respondent cannot be said to be a Trained Matric Teacher entitled to the pay scale meant for such teachers. The classification based upon educational qualification for grant of higher pay scale to a trained person or a person possessing higher qualification is a valid classification. It has been so held in Shyam Babu Verma & Ors. v. Union of India & Ors.(1994) 2 SCC 521 , wherein this Court held as… The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of ‘equal pay for equal work? should not beapplied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of ‘equal pay for equal work? to them….The said decision has been quoted by another Bench of this Court in M.P . Rural Agriculture Extension Officers Association v. State of M.P. & Anr. (2004) 4 SCC 646 , wherein this Court held asFurthermore, as noticed hereinbefore, a valid classification based on educational qualification for the purpose of grant of pay has been upheld by the Constitution Bench of this Court in P . Narasinga Rao [AIR 1968 SC 349 :(1968) 1 SCR 407 ].Therefore, we find that the order passed by the Tribunal as affirmed by the High Court is not sustainable in law.

Wonder Projects Development Pvt. Ltd. & Anr. Vs. Union of India & Ors

on the report dated 23.09.2019 is not justified since the Committee had indicated that a separate report will be submitted in respect of the instant project. Though the respective learned counsel for the respondents sought to justify the order of NGT on merits by seeking to contend that there is violation of the zoning regulation and the construction being put up by the appellants in the buffer zone cannot be permitted and the learned Senior Counsel for the appellants while seeking to controvert the said position sought to refer to the project details, we are of the opinion that the merits of the rival contentions relating to the permissibility or otherwise of the project need not engage our attention at this juncture. We are of the said opinion for the reason that the point which requires consideration at the outset at this juncture is as to whether the entire material including the report of the Joint Committee which was relevant to consider the case of the parties herein was available before the NGT and as to whether the NGT was justified in proceeding with the matter in the manner as it has presently done. 7. In order to consider this aspect, a careful perusal of the order dated 03.02.2020 impugned herein would disclose that the reply filed by the BBMP is extensively extracted. It is no doubt true that contention has been urged by BBMP with regard to the project not being permissible. In the light of the rival pleadings since the tribunal was to render a factual finding the report by the Joint Committee after making a spot inspection was necessary so as to assist the NGT in arriving at a conclusion. As indicated above, the NGT has no doubt taken note of one of the reports submitted by the Joint Committee dated 23.09.2019. The said report has been extracted in the course of the impugned order which refers to the existing properties in Kaikondarahalli Lake buffer area and in the tabulated form the survey number, activity and violation of buffer if any is indicated as a remark. In respect of certain other properties, the remarks have been made either with regard to there being no violation or the activity not being a permitted activity. Insofar as the property bearing Survey No.62 of Kasavanahalli Village which is one of the survey numbers wherein the project of the appellants is being developed, a reference is made and in the remark; it is recorded as hereunder: table (emphasis supplied) 8. A perusal of the remark extracted and emphasised herein would indicate that a separate O.A. No.602/2019 is also filed in respect of the instant project and the Committee has indicated that a separate report will be submitted by it. The NGT in the course of the impugned order dated 03.02.2020 at para 7 has recorded that O.A. No.281/2019 and O.A. No.602/2019 which are also raised on an identical issue are being contemporaneously disposed of by separate orders. The same would disclose that as on the date when the appeal wherein the impugned order is passed was disposed of along with O.A. No.602/2019 the report relating to the project of the appellant was not available on record before the NGT if the remarks extracted above are kept in view, since the Joint Committee was yet to complete the inspection. 9. In this regard it is to be noted that while ordering notice in this appeal on 02.03.2020 the parties were permitted to file the report in O.A. No.602/2019 in the Registry of this Court. The respondent No.7 herein along with the affidavit has filed the report of the Joint Committee, which at the outset indicates that it is with regard to the project relating to the appellants herein. Further on referring to certain aspects relating to the project the details of the inspection carried out by the Joint Committee is referred at Clause 6.0. It is indicated therein that in order to finalize the report the Joint Committee comprising of the members whose details are indicated made another round of inspection and meeting on 05.02.2020. It is thus evident that as on the date the impugned order was passed i.e. 03.02.2020 the final round of inspection had not been completed and as such the NGT did not have the benefit of the final report by the Joint Committee for making a factual determination, to arrive at a conclusion keeping in view the legal position. Though the report of the Joint Committee is presently placed before this Court, it would not be appropriate for this Court to advert to the details of the report and in that background take note of the rival contentions on merits since first appellate authority, based on the same has not made a factual determination so as to consider the correctness or otherwise of the same in an appeal of the present nature. 10. Presently since the report of the Joint Committee is available in O.A. No.602/2019 relating to the same project, the said report is required to be taken as a part of the consideration of the Appeal No.54/2018 which is disposed of through the impugned order by the NGT and a factual determination in accordance with law is required to be made. To enable the same we find it appropriate to set aside the impugned order dated 03.02.2020 and restore Appeal No.54/2018 to the file of the NGT so as to enable it to reconsider the appeal by taking into consideration the report of the Joint Committee prepared in O.A. No.602/2019, which shall be made available to the NGT by respondent No.7 herein. It is made clear that in the circumstances under which the order dated 03.02.2020 is set aside, the validity or otherwise of the EC will remain subject to the fresh decision that would be taken by the NGT and the EC shall not stand revived at this juncture. This Court has not expressed any opinion on merits and all contentions are left open.

1[ds]hough the respective learned counsel for the respondents sought to justify the order of NGT on merits by seeking to contend that there is violation of the zoning regulation and the construction being put up by the appellants in the buffer zone cannot be permitted and the learned Senior Counsel for the appellants while seeking to controvert the said position sought to refer to the project details, we are of the opinion that the merits of the rival contentions relating to the permissibility or otherwise of the project need not engage our attention at this juncture.8. A perusal of the remark extracted and emphasised herein would indicate that a separate O.A. No.602/2019 is also filed in respect of the instant project and the Committee has indicated that a separate report will be submitted by it. The NGT in the course of the impugned order dated 03.02.2020 at para 7 has recorded that O.A. No.281/2019 and O.A. No.602/2019 which are also raised on an identical issue are being contemporaneously disposed of by separate orders. The same would disclose that as on the date when the appeal wherein the impugned order is passed was disposed of along with O.A. No.602/2019 the report relating to the project of the appellant was not available on record before the NGT if the remarks extracted above are kept in view, since the Joint Committee was yet to complete the inspection.9. In this regard it is to be noted that while ordering notice in this appeal on 02.03.2020 the parties were permitted to file the report in O.A. No.602/2019 in the Registry of this Court. The respondent No.7 herein along with the affidavit has filed the report of the Joint Committee, which at the outset indicates that it is with regard to the project relating to the appellants herein. Further on referring to certain aspects relating to the project the details of the inspection carried out by the Joint Committee is referred at Clause 6.0. It is indicated therein that in order to finalize the report the Joint Committee comprising of the members whose details are indicated made another round of inspection and meeting on 05.02.2020. It is thus evident that as on the date the impugned order was passed i.e. 03.02.2020 the final round of inspection had not been completed and as such the NGT did not have the benefit of the final report by the Joint Committee for making a factual determination, to arrive at a conclusion keeping in view the legal position. Though the report of the Joint Committee is presently placed before this Court, it would not be appropriate for this Court to advert to the details of the report and in that background take note of the rival contentions on merits since first appellate authority, based on the same has not made a factual determination so as to consider the correctness or otherwise of the same in an appeal of the present nature.10. Presently since the report of the Joint Committee is available in O.A. No.602/2019 relating to the same project, the said report is required to be taken as a part of the consideration of the Appeal No.54/2018 which is disposed of through the impugned order by the NGT and a factual determination in accordance with law is required to be made. To enable the same we find it appropriate to set aside the impugned order dated 03.02.2020 and restore Appeal No.54/2018 to the file of the NGT so as to enable it to reconsider the appeal by taking into consideration the report of the Joint Committee prepared in O.A. No.602/2019, which shall be made available to the NGT by respondent No.7 herein. It is made clear that in the circumstances under which the order dated 03.02.2020 is set aside, the validity or otherwise of the EC will remain subject to the fresh decision that would be taken by the NGT and the EC shall not stand revived at this juncture. This Court has not expressed any opinion on merits and all contentions are left open.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: on the report dated 23.09.2019 is not justified since the Committee had indicated that a separate report will be submitted in respect of the instant project. Though the respective learned counsel for the respondents sought to justify the order of NGT on merits by seeking to contend that there is violation of the zoning regulation and the construction being put up by the appellants in the buffer zone cannot be permitted and the learned Senior Counsel for the appellants while seeking to controvert the said position sought to refer to the project details, we are of the opinion that the merits of the rival contentions relating to the permissibility or otherwise of the project need not engage our attention at this juncture. We are of the said opinion for the reason that the point which requires consideration at the outset at this juncture is as to whether the entire material including the report of the Joint Committee which was relevant to consider the case of the parties herein was available before the NGT and as to whether the NGT was justified in proceeding with the matter in the manner as it has presently done. 7. In order to consider this aspect, a careful perusal of the order dated 03.02.2020 impugned herein would disclose that the reply filed by the BBMP is extensively extracted. It is no doubt true that contention has been urged by BBMP with regard to the project not being permissible. In the light of the rival pleadings since the tribunal was to render a factual finding the report by the Joint Committee after making a spot inspection was necessary so as to assist the NGT in arriving at a conclusion. As indicated above, the NGT has no doubt taken note of one of the reports submitted by the Joint Committee dated 23.09.2019. The said report has been extracted in the course of the impugned order which refers to the existing properties in Kaikondarahalli Lake buffer area and in the tabulated form the survey number, activity and violation of buffer if any is indicated as a remark. In respect of certain other properties, the remarks have been made either with regard to there being no violation or the activity not being a permitted activity. Insofar as the property bearing Survey No.62 of Kasavanahalli Village which is one of the survey numbers wherein the project of the appellants is being developed, a reference is made and in the remark; it is recorded as hereunder: table (emphasis supplied) 8. A perusal of the remark extracted and emphasised herein would indicate that a separate O.A. No.602/2019 is also filed in respect of the instant project and the Committee has indicated that a separate report will be submitted by it. The NGT in the course of the impugned order dated 03.02.2020 at para 7 has recorded that O.A. No.281/2019 and O.A. No.602/2019 which are also raised on an identical issue are being contemporaneously disposed of by separate orders. The same would disclose that as on the date when the appeal wherein the impugned order is passed was disposed of along with O.A. No.602/2019 the report relating to the project of the appellant was not available on record before the NGT if the remarks extracted above are kept in view, since the Joint Committee was yet to complete the inspection. 9. In this regard it is to be noted that while ordering notice in this appeal on 02.03.2020 the parties were permitted to file the report in O.A. No.602/2019 in the Registry of this Court. The respondent No.7 herein along with the affidavit has filed the report of the Joint Committee, which at the outset indicates that it is with regard to the project relating to the appellants herein. Further on referring to certain aspects relating to the project the details of the inspection carried out by the Joint Committee is referred at Clause 6.0. It is indicated therein that in order to finalize the report the Joint Committee comprising of the members whose details are indicated made another round of inspection and meeting on 05.02.2020. It is thus evident that as on the date the impugned order was passed i.e. 03.02.2020 the final round of inspection had not been completed and as such the NGT did not have the benefit of the final report by the Joint Committee for making a factual determination, to arrive at a conclusion keeping in view the legal position. Though the report of the Joint Committee is presently placed before this Court, it would not be appropriate for this Court to advert to the details of the report and in that background take note of the rival contentions on merits since first appellate authority, based on the same has not made a factual determination so as to consider the correctness or otherwise of the same in an appeal of the present nature. 10. Presently since the report of the Joint Committee is available in O.A. No.602/2019 relating to the same project, the said report is required to be taken as a part of the consideration of the Appeal No.54/2018 which is disposed of through the impugned order by the NGT and a factual determination in accordance with law is required to be made. To enable the same we find it appropriate to set aside the impugned order dated 03.02.2020 and restore Appeal No.54/2018 to the file of the NGT so as to enable it to reconsider the appeal by taking into consideration the report of the Joint Committee prepared in O.A. No.602/2019, which shall be made available to the NGT by respondent No.7 herein. It is made clear that in the circumstances under which the order dated 03.02.2020 is set aside, the validity or otherwise of the EC will remain subject to the fresh decision that would be taken by the NGT and the EC shall not stand revived at this juncture. This Court has not expressed any opinion on merits and all contentions are left open. ### Response: 1 ### Explanation: hough the respective learned counsel for the respondents sought to justify the order of NGT on merits by seeking to contend that there is violation of the zoning regulation and the construction being put up by the appellants in the buffer zone cannot be permitted and the learned Senior Counsel for the appellants while seeking to controvert the said position sought to refer to the project details, we are of the opinion that the merits of the rival contentions relating to the permissibility or otherwise of the project need not engage our attention at this juncture.8. A perusal of the remark extracted and emphasised herein would indicate that a separate O.A. No.602/2019 is also filed in respect of the instant project and the Committee has indicated that a separate report will be submitted by it. The NGT in the course of the impugned order dated 03.02.2020 at para 7 has recorded that O.A. No.281/2019 and O.A. No.602/2019 which are also raised on an identical issue are being contemporaneously disposed of by separate orders. The same would disclose that as on the date when the appeal wherein the impugned order is passed was disposed of along with O.A. No.602/2019 the report relating to the project of the appellant was not available on record before the NGT if the remarks extracted above are kept in view, since the Joint Committee was yet to complete the inspection.9. In this regard it is to be noted that while ordering notice in this appeal on 02.03.2020 the parties were permitted to file the report in O.A. No.602/2019 in the Registry of this Court. The respondent No.7 herein along with the affidavit has filed the report of the Joint Committee, which at the outset indicates that it is with regard to the project relating to the appellants herein. Further on referring to certain aspects relating to the project the details of the inspection carried out by the Joint Committee is referred at Clause 6.0. It is indicated therein that in order to finalize the report the Joint Committee comprising of the members whose details are indicated made another round of inspection and meeting on 05.02.2020. It is thus evident that as on the date the impugned order was passed i.e. 03.02.2020 the final round of inspection had not been completed and as such the NGT did not have the benefit of the final report by the Joint Committee for making a factual determination, to arrive at a conclusion keeping in view the legal position. Though the report of the Joint Committee is presently placed before this Court, it would not be appropriate for this Court to advert to the details of the report and in that background take note of the rival contentions on merits since first appellate authority, based on the same has not made a factual determination so as to consider the correctness or otherwise of the same in an appeal of the present nature.10. Presently since the report of the Joint Committee is available in O.A. No.602/2019 relating to the same project, the said report is required to be taken as a part of the consideration of the Appeal No.54/2018 which is disposed of through the impugned order by the NGT and a factual determination in accordance with law is required to be made. To enable the same we find it appropriate to set aside the impugned order dated 03.02.2020 and restore Appeal No.54/2018 to the file of the NGT so as to enable it to reconsider the appeal by taking into consideration the report of the Joint Committee prepared in O.A. No.602/2019, which shall be made available to the NGT by respondent No.7 herein. It is made clear that in the circumstances under which the order dated 03.02.2020 is set aside, the validity or otherwise of the EC will remain subject to the fresh decision that would be taken by the NGT and the EC shall not stand revived at this juncture. This Court has not expressed any opinion on merits and all contentions are left open.

Manmohan Lal Gupta (Dead) Thru Lrs Vs. Market Committee Bhikhi & Ors

lots of the properties which had been classified and bifurcated by keeping in view the location of the property from the main road. Though the formula adopted to determine market value was justified, the reliance on the said documents at Exhibits A-1 and A- 2 cannot be sustained since the sale deeds being dated 31.05.1995 and 03.06.1996 had come into existence much later than 30.11.1992, the date on which the preliminary notification was issued and the same was published in the newspapers on 11.12.1992 and 14.12.1992. This Court, in the order dated 13.09.2021 passed in C.A. Nos.3875-3876 of 2009 has referred to the turbulent period in Punjab prior to 1992 when the land value had crashed due to exodus. Since the position had improved only after 1992 the comparison of land value subsequent thereto to the value prior thereto would not be appropriate. Therefore, the sale consideration under the said documents cannot be the basis to determine the market value of the property in question, for which the date of the preliminary notification would be relevant. 9. In that view, we are of the opinion that the High Court was justified in discarding the sale exemplars at Exhibits A-1 and A-2. Further the High Court having taken into consideration the nature and location of the property was also of the opinion that the classification made by the Reference Court as first, second and third lot was not justified. When the different items of property in the different survey number were acquired for the same purpose of establishing the market yard and as observed by the High Court since all the lands had the road passing beside it, a common determination of the market value was the appropriate course. In that view, the said observation of the High Court is justified. In that background, the determination of the market value which would be applicable to all the lands which were the subject matter of the acquisition was to be made when the various land owners had also filed their appeals. The determination of the common market value which is applicable to all the lands as made by the High Court is justified. 10. In that regard to arrive at the appropriate market value, the High Court having discarded the documents at Exhibits A-1 and A-2 had taken note of the remaining documents. In order to rely upon Exhibits A-17 to A-24 as also Exhibit A-27 i.e., the sale deeds under which the properties were purchased by the land owners the High Court has referred to the decision of this Court in The Dollar Company, Madras vs. Collector of Madras (1975) 2 SCC 730 and in V. Subrahmanya Rao vs. Land Acquisition Officer (2004) 10 SCC 640. The said decisions have been extracted in detail and noted. It is to be noted that such sale exemplars of the very property in question would in a normal circumstance be appropriate if the sale instance is closer to the period of acquisition. In the case which was referred by the High Court the sale instances were around ten months prior to the notification. Be that as it may, in the absence of such sale instances which were closer to the date of the notification in the instant case, the High Court has taken guidance from the decisions of this Court in Shakuntalabai (Smt.) and Ors. vs. State of Maharashtra (1996) 2 SCC 152 and Om Prakash (Dead) by LRs. & Ors. vs. Union of India & Anr. (2004) 10 SCC 627 whereunder this Court had indicated the percentage of appreciation to be considered per year when earlier sale instances are taken into consideration and the acquisition notification is of a subsequent date. 11. It is in that light, the High Court, from the documents at Exhibits A-17 to A-27 has taken the document at Exhibit A-22 i.e., a sale deed dated 04.06.1981 whereunder the price paid for the extent of 1 kanal and 9 marlas at Rs.25,000/- (Rupees twenty-five thousand only) as the basis. On taking the said price into consideration, the amount was worked to Rs.1,31,931/- (Rupees one lakh thirty-one thousand nine hundred and thirty-one only) per acre, which on being divided would work out to Rs.34/- per sq. yard. To the said amount the High Court has added 12 percent appreciation per year from 1981 to 1992 and arrived at the market value at Rs.78/- per sq. yard. An additional value of Rs.12/- per sq. yard was added as escalation by taking note that the reference to Exhibits A-1 and A-2 would indicate that there was steep increase of the prices in Punjab after the situation had improved. Therefore, the total market value was arrived at Rs.90/- per sq. yard, in addition to which the statutory benefits were also ordered. The consideration as made by the High Court is in accordance with law, which would not call for interference. The method followed would indicate that the contentions raised by the learned senior counsel for the appellant would stand answered since the location of the property, the potentiality of the property and appreciation of the value has been kept in perspective while determining the market value with reference to the date of notification. 12. In addition to the above, it is also brought to our notice that one other land owner, namely, Shri Sudesh Kumar whose appeal bearing RFA No.2092/2004 was also considered under the same common judgment dated 15.07.2009 impugned herein was before this Court in SLP(C) No.15535/2010 assailing the very impugned judgment. This Court by the order dated 29.04.2011 has dismissed the special leave petition in limine. Further, though the appeal filed by the appellants herein in RFA No.2053/2004 (O&M) against the very judgment passed by the Reference Court dated 20.02.2004 was pending before the High Court without being tagged with RFA No.1586/2005 filed by the Market Committee against the same judgment of the Reference Court, the said RFA No.2053/2004 has however subsequently been dismissed by the High Court on 25.05.2015.

0[ds]8. In the light of the rival contentions, we have perused the appeal papers. The nature of consideration made by the Reference Court would indicate that the Reference Court has taken into consideration the documents at Exhibits A-1 and A-2 as the exemplar sale deeds. The sale consideration under the said documents at Rs.70,000/- (Rupees seventy thousand only) and Rs.1,44,000/- (Rupees one lakh forty-four thousand only) was taken note; keeping in view the extent purchased under the said sale deeds had worked out the sale consideration at Rs.400/- per sq. yard. From the said amount reduction was made for the difference in time gap and the value was determined at Rs.140/-, Rs.120/- and Rs.100/- per sq. yard in respect of the three lots of the properties which had been classified and bifurcated by keeping in view the location of the property from the main road. Though the formula adopted to determine market value was justified, the reliance on the said documents at Exhibits A-1 and A- 2 cannot be sustained since the sale deeds being dated 31.05.1995 and 03.06.1996 had come into existence much later than 30.11.1992, the date on which the preliminary notification was issued and the same was published in the newspapers on 11.12.1992 and 14.12.1992. This Court, in the order dated 13.09.2021 passed in C.A. Nos.3875-3876 of 2009 has referred to the turbulent period in Punjab prior to 1992 when the land value had crashed due to exodus. Since the position had improved only after 1992 the comparison of land value subsequent thereto to the value prior thereto would not be appropriate. Therefore, the sale consideration under the said documents cannot be the basis to determine the market value of the property in question, for which the date of the preliminary notification would be relevant.9. In that view, we are of the opinion that the High Court was justified in discarding the sale exemplars at Exhibits A-1 and A-2. Further the High Court having taken into consideration the nature and location of the property was also of the opinion that the classification made by the Reference Court as first, second and third lot was not justified. When the different items of property in the different survey number were acquired for the same purpose of establishing the market yard and as observed by the High Court since all the lands had the road passing beside it, a common determination of the market value was the appropriate course. In that view, the said observation of the High Court is justified. In that background, the determination of the market value which would be applicable to all the lands which were the subject matter of the acquisition was to be made when the various land owners had also filed their appeals. The determination of the common market value which is applicable to all the lands as made by the High Court is justified.10. In that regard to arrive at the appropriate market value, the High Court having discarded the documents at Exhibits A-1 and A-2 had taken note of the remaining documents. In order to rely upon Exhibits A-17 to A-24 as also Exhibit A-27 i.e., the sale deeds under which the properties were purchased by the land owners the High Court has referred to the decision of this Court in The Dollar Company, Madras vs. Collector of Madras (1975) 2 SCC 730 and in V. Subrahmanya Rao vs. Land Acquisition Officer (2004) 10 SCC 640. The said decisions have been extracted in detail and noted. It is to be noted that such sale exemplars of the very property in question would in a normal circumstance be appropriate if the sale instance is closer to the period of acquisition. In the case which was referred by the High Court the sale instances were around ten months prior to the notification. Be that as it may, in the absence of such sale instances which were closer to the date of the notification in the instant case, the High Court has taken guidance from the decisions of this Court in Shakuntalabai (Smt.) and Ors. vs. State of Maharashtra (1996) 2 SCC 152 and Om Prakash (Dead) by LRs. & Ors. vs. Union of India & Anr. (2004) 10 SCC 627 whereunder this Court had indicated the percentage of appreciation to be considered per year when earlier sale instances are taken into consideration and the acquisition notification is of a subsequent date.11. It is in that light, the High Court, from the documents at Exhibits A-17 to A-27 has taken the document at Exhibit A-22 i.e., a sale deed dated 04.06.1981 whereunder the price paid for the extent of 1 kanal and 9 marlas at Rs.25,000/- (Rupees twenty-five thousand only) as the basis. On taking the said price into consideration, the amount was worked to Rs.1,31,931/- (Rupees one lakh thirty-one thousand nine hundred and thirty-one only) per acre, which on being divided would work out to Rs.34/- per sq. yard. To the said amount the High Court has added 12 percent appreciation per year from 1981 to 1992 and arrived at the market value at Rs.78/- per sq. yard. An additional value of Rs.12/- per sq. yard was added as escalation by taking note that the reference to Exhibits A-1 and A-2 would indicate that there was steep increase of the prices in Punjab after the situation had improved. Therefore, the total market value was arrived at Rs.90/- per sq. yard, in addition to which the statutory benefits were also ordered. The consideration as made by the High Court is in accordance with law, which would not call for interference. The method followed would indicate that the contentions raised by the learned senior counsel for the appellant would stand answered since the location of the property, the potentiality of the property and appreciation of the value has been kept in perspective while determining the market value with reference to the date of notification.12. In addition to the above, it is also brought to our notice that one other land owner, namely, Shri Sudesh Kumar whose appeal bearing RFA No.2092/2004 was also considered under the same common judgment dated 15.07.2009 impugned herein was before this Court in SLP(C) No.15535/2010 assailing the very impugned judgment. This Court by the order dated 29.04.2011 has dismissed the special leave petition in limine. Further, though the appeal filed by the appellants herein in RFA No.2053/2004 (O&M) against the very judgment passed by the Reference Court dated 20.02.2004 was pending before the High Court without being tagged with RFA No.1586/2005 filed by the Market Committee against the same judgment of the Reference Court, the said RFA No.2053/2004 has however subsequently been dismissed by the High Court on 25.05.2015.

### 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: lots of the properties which had been classified and bifurcated by keeping in view the location of the property from the main road. Though the formula adopted to determine market value was justified, the reliance on the said documents at Exhibits A-1 and A- 2 cannot be sustained since the sale deeds being dated 31.05.1995 and 03.06.1996 had come into existence much later than 30.11.1992, the date on which the preliminary notification was issued and the same was published in the newspapers on 11.12.1992 and 14.12.1992. This Court, in the order dated 13.09.2021 passed in C.A. Nos.3875-3876 of 2009 has referred to the turbulent period in Punjab prior to 1992 when the land value had crashed due to exodus. Since the position had improved only after 1992 the comparison of land value subsequent thereto to the value prior thereto would not be appropriate. Therefore, the sale consideration under the said documents cannot be the basis to determine the market value of the property in question, for which the date of the preliminary notification would be relevant. 9. In that view, we are of the opinion that the High Court was justified in discarding the sale exemplars at Exhibits A-1 and A-2. Further the High Court having taken into consideration the nature and location of the property was also of the opinion that the classification made by the Reference Court as first, second and third lot was not justified. When the different items of property in the different survey number were acquired for the same purpose of establishing the market yard and as observed by the High Court since all the lands had the road passing beside it, a common determination of the market value was the appropriate course. In that view, the said observation of the High Court is justified. In that background, the determination of the market value which would be applicable to all the lands which were the subject matter of the acquisition was to be made when the various land owners had also filed their appeals. The determination of the common market value which is applicable to all the lands as made by the High Court is justified. 10. In that regard to arrive at the appropriate market value, the High Court having discarded the documents at Exhibits A-1 and A-2 had taken note of the remaining documents. In order to rely upon Exhibits A-17 to A-24 as also Exhibit A-27 i.e., the sale deeds under which the properties were purchased by the land owners the High Court has referred to the decision of this Court in The Dollar Company, Madras vs. Collector of Madras (1975) 2 SCC 730 and in V. Subrahmanya Rao vs. Land Acquisition Officer (2004) 10 SCC 640. The said decisions have been extracted in detail and noted. It is to be noted that such sale exemplars of the very property in question would in a normal circumstance be appropriate if the sale instance is closer to the period of acquisition. In the case which was referred by the High Court the sale instances were around ten months prior to the notification. Be that as it may, in the absence of such sale instances which were closer to the date of the notification in the instant case, the High Court has taken guidance from the decisions of this Court in Shakuntalabai (Smt.) and Ors. vs. State of Maharashtra (1996) 2 SCC 152 and Om Prakash (Dead) by LRs. & Ors. vs. Union of India & Anr. (2004) 10 SCC 627 whereunder this Court had indicated the percentage of appreciation to be considered per year when earlier sale instances are taken into consideration and the acquisition notification is of a subsequent date. 11. It is in that light, the High Court, from the documents at Exhibits A-17 to A-27 has taken the document at Exhibit A-22 i.e., a sale deed dated 04.06.1981 whereunder the price paid for the extent of 1 kanal and 9 marlas at Rs.25,000/- (Rupees twenty-five thousand only) as the basis. On taking the said price into consideration, the amount was worked to Rs.1,31,931/- (Rupees one lakh thirty-one thousand nine hundred and thirty-one only) per acre, which on being divided would work out to Rs.34/- per sq. yard. To the said amount the High Court has added 12 percent appreciation per year from 1981 to 1992 and arrived at the market value at Rs.78/- per sq. yard. An additional value of Rs.12/- per sq. yard was added as escalation by taking note that the reference to Exhibits A-1 and A-2 would indicate that there was steep increase of the prices in Punjab after the situation had improved. Therefore, the total market value was arrived at Rs.90/- per sq. yard, in addition to which the statutory benefits were also ordered. The consideration as made by the High Court is in accordance with law, which would not call for interference. The method followed would indicate that the contentions raised by the learned senior counsel for the appellant would stand answered since the location of the property, the potentiality of the property and appreciation of the value has been kept in perspective while determining the market value with reference to the date of notification. 12. In addition to the above, it is also brought to our notice that one other land owner, namely, Shri Sudesh Kumar whose appeal bearing RFA No.2092/2004 was also considered under the same common judgment dated 15.07.2009 impugned herein was before this Court in SLP(C) No.15535/2010 assailing the very impugned judgment. This Court by the order dated 29.04.2011 has dismissed the special leave petition in limine. Further, though the appeal filed by the appellants herein in RFA No.2053/2004 (O&M) against the very judgment passed by the Reference Court dated 20.02.2004 was pending before the High Court without being tagged with RFA No.1586/2005 filed by the Market Committee against the same judgment of the Reference Court, the said RFA No.2053/2004 has however subsequently been dismissed by the High Court on 25.05.2015. ### Response: 0 ### Explanation: three lots of the properties which had been classified and bifurcated by keeping in view the location of the property from the main road. Though the formula adopted to determine market value was justified, the reliance on the said documents at Exhibits A-1 and A- 2 cannot be sustained since the sale deeds being dated 31.05.1995 and 03.06.1996 had come into existence much later than 30.11.1992, the date on which the preliminary notification was issued and the same was published in the newspapers on 11.12.1992 and 14.12.1992. This Court, in the order dated 13.09.2021 passed in C.A. Nos.3875-3876 of 2009 has referred to the turbulent period in Punjab prior to 1992 when the land value had crashed due to exodus. Since the position had improved only after 1992 the comparison of land value subsequent thereto to the value prior thereto would not be appropriate. Therefore, the sale consideration under the said documents cannot be the basis to determine the market value of the property in question, for which the date of the preliminary notification would be relevant.9. In that view, we are of the opinion that the High Court was justified in discarding the sale exemplars at Exhibits A-1 and A-2. Further the High Court having taken into consideration the nature and location of the property was also of the opinion that the classification made by the Reference Court as first, second and third lot was not justified. When the different items of property in the different survey number were acquired for the same purpose of establishing the market yard and as observed by the High Court since all the lands had the road passing beside it, a common determination of the market value was the appropriate course. In that view, the said observation of the High Court is justified. In that background, the determination of the market value which would be applicable to all the lands which were the subject matter of the acquisition was to be made when the various land owners had also filed their appeals. The determination of the common market value which is applicable to all the lands as made by the High Court is justified.10. In that regard to arrive at the appropriate market value, the High Court having discarded the documents at Exhibits A-1 and A-2 had taken note of the remaining documents. In order to rely upon Exhibits A-17 to A-24 as also Exhibit A-27 i.e., the sale deeds under which the properties were purchased by the land owners the High Court has referred to the decision of this Court in The Dollar Company, Madras vs. Collector of Madras (1975) 2 SCC 730 and in V. Subrahmanya Rao vs. Land Acquisition Officer (2004) 10 SCC 640. The said decisions have been extracted in detail and noted. It is to be noted that such sale exemplars of the very property in question would in a normal circumstance be appropriate if the sale instance is closer to the period of acquisition. In the case which was referred by the High Court the sale instances were around ten months prior to the notification. Be that as it may, in the absence of such sale instances which were closer to the date of the notification in the instant case, the High Court has taken guidance from the decisions of this Court in Shakuntalabai (Smt.) and Ors. vs. State of Maharashtra (1996) 2 SCC 152 and Om Prakash (Dead) by LRs. & Ors. vs. Union of India & Anr. (2004) 10 SCC 627 whereunder this Court had indicated the percentage of appreciation to be considered per year when earlier sale instances are taken into consideration and the acquisition notification is of a subsequent date.11. It is in that light, the High Court, from the documents at Exhibits A-17 to A-27 has taken the document at Exhibit A-22 i.e., a sale deed dated 04.06.1981 whereunder the price paid for the extent of 1 kanal and 9 marlas at Rs.25,000/- (Rupees twenty-five thousand only) as the basis. On taking the said price into consideration, the amount was worked to Rs.1,31,931/- (Rupees one lakh thirty-one thousand nine hundred and thirty-one only) per acre, which on being divided would work out to Rs.34/- per sq. yard. To the said amount the High Court has added 12 percent appreciation per year from 1981 to 1992 and arrived at the market value at Rs.78/- per sq. yard. An additional value of Rs.12/- per sq. yard was added as escalation by taking note that the reference to Exhibits A-1 and A-2 would indicate that there was steep increase of the prices in Punjab after the situation had improved. Therefore, the total market value was arrived at Rs.90/- per sq. yard, in addition to which the statutory benefits were also ordered. The consideration as made by the High Court is in accordance with law, which would not call for interference. The method followed would indicate that the contentions raised by the learned senior counsel for the appellant would stand answered since the location of the property, the potentiality of the property and appreciation of the value has been kept in perspective while determining the market value with reference to the date of notification.12. In addition to the above, it is also brought to our notice that one other land owner, namely, Shri Sudesh Kumar whose appeal bearing RFA No.2092/2004 was also considered under the same common judgment dated 15.07.2009 impugned herein was before this Court in SLP(C) No.15535/2010 assailing the very impugned judgment. This Court by the order dated 29.04.2011 has dismissed the special leave petition in limine. Further, though the appeal filed by the appellants herein in RFA No.2053/2004 (O&M) against the very judgment passed by the Reference Court dated 20.02.2004 was pending before the High Court without being tagged with RFA No.1586/2005 filed by the Market Committee against the same judgment of the Reference Court, the said RFA No.2053/2004 has however subsequently been dismissed by the High Court on 25.05.2015.

NATIONAL INSURANCE SPECIAL VOLUNTARY RETIRED/RETIRED EMPLOYEES ASSOCIATION Vs. UNITED INDIA INSURANCE CO. LTD.; ORIENTAL INSURANCE COMPANY LIMITED; NEW INDIA INSURANCE COMPANY LIMITED; NATIONAL INSURANCE CO. LTD

of litigation" (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC 136 ). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.?17. The aforesaid paragraph was, once again, extracted with approval in Y. Sleebachen & Ors. v. State of Tamil Nadu through Superintending Engineer Water Resources Organisation/Public Works Department &Anr. (2015) 5 SCC 747 18. On the other hand, it was canvassed by the insurance companies that there could be no concession against law [Tripura Goods Transport Association & Anr. v. Commissioner of Taxes &Ors. (1998) 2 SCC 264 para 9 ].Learned counsel also referred to New India Assurance Company Limited v. Raghuvir Singh Narang & Anr. (2010) 5 SCC 335 to buttress the plea that if there is a scheme which has a statutory character, then there could not be any contention which could be permissibly raised, contrary to the Scheme. Even qua contractual schemes, if one has availed of the benefits, it would not be open to raise pleas and seek benefits beyond what is stipulated in the Scheme.19. The earlier judgments in Bank of India & Ors. v. O.P . Swarnakar & Ors. (2003) 2 SCC 721 And HEC Voluntary Retired Employees Welfare Society & Anr. v. Heavy Engineering Corporation Ltd. &Ors., (2006) 3 SCC 708 dealing with voluntary retirement schemes have been taken note of in the impugned judgment, to come to the conclusion that the terms of such schemes must be strictly followed, and the contract cannot be varied. We may add here that apparently there are certain observations in paras 33 and 34 of the impugned order, which may also run contrary to clause 5(1) of the SVRS-2004 Scheme, insofar as the Division Bench has opined that the words ?whichever is less? have been excluded from clause 5 of the SVRS-2004 Scheme. It may be noted that such is not the case, for clause 5 of the SVRS-2004 Scheme, as extracted above, explicitly provides, in clause 5(1), that an employee seeking special voluntary retirement, under the Scheme shall be entitled to the lower of the ex-gratia amounts as mentioned thereunder. We feel it suffice to clarify that what is binding between the parties is the statutory scheme itself, as per its terms.20. We have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS- 2004 Scheme have to be strictly adhered to, and the very objective of having such Schemes would be defeated, if parts of other Schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the Schemes of voluntary retirement, and that alone would be admissible.21. The issue which arose in Manojbhai N. Shah &Ors. Was qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of the SVRS-2004 Scheme. If there are certain observations made by that Bench while deciding so, qua aspects which are not forming the subject matter of that dispute, the same cannot be read to amount to grant of relief/benefits, contrary to the terms of the Scheme, and that too, in the absence of any specific directions.22. The intent of the SVRS-2004 Scheme was made even more explicitly clear by clause 8 specifying the general conditions in sub- clause(xiv), which reads as under:?8. General conditions:xxxx xxxx xxxx xxxx xxxx(xiv) Save as provided in para 5(2) the benefits payable under this scheme shall be in full and final settlement of all claims of whatsoever nature, whether arising under the regulation or otherwise to the employee (or to the nominee in case of death). An employee who voluntarily retires under this Scheme shall not have any claims against the Company for re-employment or compensation or employment of any of his or her relative on compassionate grounds in the service of the company or for any other like benefits.?23. It is, thus, abundantly clear that nothing more would be given than what is stated in the Scheme, and for that matter, nothing less. If the employees avail of the benefit of such a Scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the SVRS-2004 Scheme.

0[ds]It has to be appreciated that theScheme is statutory in character, being a Scheme under Sectionof the General Insurance Business (Nationalisation) Act, 1972. It would not be appropriate to add or subtract terms from the Scheme, which has a statutory flavour. There could not have been any concession contrary to the terms of the Scheme, and if such a concession was tenure for the benefit of the retirees, then it had to go through the process of a formal notification. In fact, post the decision inth the parties also understoodthat there was really no question of availing the benefit, contrary to clause 6(1)(c) of theScheme. This is what resulted in the review application, the clarification and modification application, etc. The rejection of the review application filed by the beneficiaries itself shows that post the judgment, clause 6(1)(c) was once again highlighted before the Bench. Despite this, the review application was dismissed, which clearly shows that this fact was not important for finally coming to the conclusion that the salary revision was not applicable to those who had already retired. Learned senior counsel for the appellant himself acknowledged that in the absence of any specific direction in this behalf, they could not have even filed a contempt petition and thus the fresh round of litigation began.18. On the other hand, it was canvassed by the insurance companies that there could be no concession against law [Tripura Goods Transport Association & Anr. v. Commissioner of Taxes &Ors.].Learned counsel also referred to New India Assurance Company Limited v. Raghuvir Singh Narang & Anr.to buttress the plea that if there is a scheme which has a statutory character, then there could not be any contention which could be permissibly raised, contrary to the Scheme. Even qua contractual schemes, if one has availed of the benefits, it would not be open to raise pleas and seek benefits beyond what is stipulated in the Scheme.19. The earlier judgments in Bank of India & Ors. v. O.P . Swarnakar & Ors.And HEC Voluntary Retired Employees Welfare Society & Anr. v. Heavy Engineering Corporation Ltd. &Ors.,dealing with voluntary retirement schemes have been taken note of in the impugned(2015) 5 SCC 747 (1998) 2 SCC 264 para 9(2010) 5 SCC 335 (2003) 2 SCC 721 (2006) 3 SCC 708 judgment, to come to the conclusion that the terms of such schemes must be strictly followed, and the contract cannot be varied. We may add here that apparently there are certain observations in paras 33 and 34 of the impugned order, which may also run contrary to clause 5(1) of theScheme, insofar as the Division Bench has opined that the words ?whichever is less? have been excluded from clause 5 of theScheme. It may be noted that such is not the case, for clause 5 of theScheme, as extracted above, explicitly provides, in clause 5(1), that an employee seeking special voluntary retirement, under the Scheme shall be entitled to the lower of theamounts as mentioned thereunder. We feel it suffice to clarify that what is binding between the parties is the statutory scheme itself, as per its terms.20. We have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS2004 Scheme have to be strictly adhered to, and the very objective of having such Schemes would be defeated, if parts of other Schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the Schemes of voluntary retirement, and that alone would be admissible.21. The issue which arose inWas qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of theScheme. If there are certain observations made by that Bench while deciding so, qua aspects which are not forming the subject matter of that dispute, the same cannotto amount to grant of relief/benefits, contrary to the terms of the Scheme, and that too, in the absence of any specific directions.It is, thus, abundantly clear that nothing more would be given than what is stated in the Scheme, and for that matter, nothing less. If the employees avail of the benefit of such a Scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: of litigation" (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC 136 ). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.?17. The aforesaid paragraph was, once again, extracted with approval in Y. Sleebachen & Ors. v. State of Tamil Nadu through Superintending Engineer Water Resources Organisation/Public Works Department &Anr. (2015) 5 SCC 747 18. On the other hand, it was canvassed by the insurance companies that there could be no concession against law [Tripura Goods Transport Association & Anr. v. Commissioner of Taxes &Ors. (1998) 2 SCC 264 para 9 ].Learned counsel also referred to New India Assurance Company Limited v. Raghuvir Singh Narang & Anr. (2010) 5 SCC 335 to buttress the plea that if there is a scheme which has a statutory character, then there could not be any contention which could be permissibly raised, contrary to the Scheme. Even qua contractual schemes, if one has availed of the benefits, it would not be open to raise pleas and seek benefits beyond what is stipulated in the Scheme.19. The earlier judgments in Bank of India & Ors. v. O.P . Swarnakar & Ors. (2003) 2 SCC 721 And HEC Voluntary Retired Employees Welfare Society & Anr. v. Heavy Engineering Corporation Ltd. &Ors., (2006) 3 SCC 708 dealing with voluntary retirement schemes have been taken note of in the impugned judgment, to come to the conclusion that the terms of such schemes must be strictly followed, and the contract cannot be varied. We may add here that apparently there are certain observations in paras 33 and 34 of the impugned order, which may also run contrary to clause 5(1) of the SVRS-2004 Scheme, insofar as the Division Bench has opined that the words ?whichever is less? have been excluded from clause 5 of the SVRS-2004 Scheme. It may be noted that such is not the case, for clause 5 of the SVRS-2004 Scheme, as extracted above, explicitly provides, in clause 5(1), that an employee seeking special voluntary retirement, under the Scheme shall be entitled to the lower of the ex-gratia amounts as mentioned thereunder. We feel it suffice to clarify that what is binding between the parties is the statutory scheme itself, as per its terms.20. We have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS- 2004 Scheme have to be strictly adhered to, and the very objective of having such Schemes would be defeated, if parts of other Schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the Schemes of voluntary retirement, and that alone would be admissible.21. The issue which arose in Manojbhai N. Shah &Ors. Was qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of the SVRS-2004 Scheme. If there are certain observations made by that Bench while deciding so, qua aspects which are not forming the subject matter of that dispute, the same cannot be read to amount to grant of relief/benefits, contrary to the terms of the Scheme, and that too, in the absence of any specific directions.22. The intent of the SVRS-2004 Scheme was made even more explicitly clear by clause 8 specifying the general conditions in sub- clause(xiv), which reads as under:?8. General conditions:xxxx xxxx xxxx xxxx xxxx(xiv) Save as provided in para 5(2) the benefits payable under this scheme shall be in full and final settlement of all claims of whatsoever nature, whether arising under the regulation or otherwise to the employee (or to the nominee in case of death). An employee who voluntarily retires under this Scheme shall not have any claims against the Company for re-employment or compensation or employment of any of his or her relative on compassionate grounds in the service of the company or for any other like benefits.?23. It is, thus, abundantly clear that nothing more would be given than what is stated in the Scheme, and for that matter, nothing less. If the employees avail of the benefit of such a Scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the SVRS-2004 Scheme. ### Response: 0 ### Explanation: It has to be appreciated that theScheme is statutory in character, being a Scheme under Sectionof the General Insurance Business (Nationalisation) Act, 1972. It would not be appropriate to add or subtract terms from the Scheme, which has a statutory flavour. There could not have been any concession contrary to the terms of the Scheme, and if such a concession was tenure for the benefit of the retirees, then it had to go through the process of a formal notification. In fact, post the decision inth the parties also understoodthat there was really no question of availing the benefit, contrary to clause 6(1)(c) of theScheme. This is what resulted in the review application, the clarification and modification application, etc. The rejection of the review application filed by the beneficiaries itself shows that post the judgment, clause 6(1)(c) was once again highlighted before the Bench. Despite this, the review application was dismissed, which clearly shows that this fact was not important for finally coming to the conclusion that the salary revision was not applicable to those who had already retired. Learned senior counsel for the appellant himself acknowledged that in the absence of any specific direction in this behalf, they could not have even filed a contempt petition and thus the fresh round of litigation began.18. On the other hand, it was canvassed by the insurance companies that there could be no concession against law [Tripura Goods Transport Association & Anr. v. Commissioner of Taxes &Ors.].Learned counsel also referred to New India Assurance Company Limited v. Raghuvir Singh Narang & Anr.to buttress the plea that if there is a scheme which has a statutory character, then there could not be any contention which could be permissibly raised, contrary to the Scheme. Even qua contractual schemes, if one has availed of the benefits, it would not be open to raise pleas and seek benefits beyond what is stipulated in the Scheme.19. The earlier judgments in Bank of India & Ors. v. O.P . Swarnakar & Ors.And HEC Voluntary Retired Employees Welfare Society & Anr. v. Heavy Engineering Corporation Ltd. &Ors.,dealing with voluntary retirement schemes have been taken note of in the impugned(2015) 5 SCC 747 (1998) 2 SCC 264 para 9(2010) 5 SCC 335 (2003) 2 SCC 721 (2006) 3 SCC 708 judgment, to come to the conclusion that the terms of such schemes must be strictly followed, and the contract cannot be varied. We may add here that apparently there are certain observations in paras 33 and 34 of the impugned order, which may also run contrary to clause 5(1) of theScheme, insofar as the Division Bench has opined that the words ?whichever is less? have been excluded from clause 5 of theScheme. It may be noted that such is not the case, for clause 5 of theScheme, as extracted above, explicitly provides, in clause 5(1), that an employee seeking special voluntary retirement, under the Scheme shall be entitled to the lower of theamounts as mentioned thereunder. We feel it suffice to clarify that what is binding between the parties is the statutory scheme itself, as per its terms.20. We have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS2004 Scheme have to be strictly adhered to, and the very objective of having such Schemes would be defeated, if parts of other Schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the Schemes of voluntary retirement, and that alone would be admissible.21. The issue which arose inWas qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of theScheme. If there are certain observations made by that Bench while deciding so, qua aspects which are not forming the subject matter of that dispute, the same cannotto amount to grant of relief/benefits, contrary to the terms of the Scheme, and that too, in the absence of any specific directions.It is, thus, abundantly clear that nothing more would be given than what is stated in the Scheme, and for that matter, nothing less. If the employees avail of the benefit of such a Scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the

FOOD CORPORATION OF INDIA Vs. GEN.SECY., FCI INDIA EMPLPYEES UNION

therefore entitled to claim the regularization of their services in the set up of the FCI.8. Since the aforementioned dispute could not be resolved amicably between the Appellant and the workers Union, the Government of India by order dated 06.04.1992 referred the said dispute to the Industrial Tribunal, Madras for its adjudication Under Section 10 of the Industrial Disputes Act, 1947.9. The following reference was made for adjudication:"Whether the action of the management of Food Corporation of India is denying to regularize 955 contract labourers engaged in management of Food Corporation of India, Godown, Avadi through TVK Cooperative Society in respect of names as given in Annexure is justified ? If not, to what relief they are entitled to?"10. Both the parties submitted their statements in ID No. 39/1992 & I.D. 55/1993 in support of their respective stand before the Industrial Tribunal. So far as the workers Union (Respondents herein) is concerned, they adduced the evidence to prove their case whereas the Appellant (FCI) did not adduce any evidence to prove their case despite affording them an opportunity to adduce.11. By awards dated 19.02.1997 & 29.07.1998, the Industrial Tribunal answered the reference in favour of the workers Union and against the Appellant. It was held that these 955 employees are entitled to be regularized in the services of the FCI.12. The Appellant (FCI) felt aggrieved and filed writ petitions before the High Court of Madras at Chennai. By order dated 07.08.2000, the Single Judge dismissed the writ petitions and upheld the award passed by the Industrial Tribunal. The Appellant felt aggrieved and filed intra court appeals before the Division Bench.13. By impugned order, the Division Bench dismissed the writ appeals and affirmed the order of the Single Judge and the awards of the Industrial Tribunal, which have given rise to filing of the present appeals by way of special leave by the FCI.14. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.15. We have perused the awards of the Industrial Tribunal, order of the Single Judge and the impugned order. Mere perusal of them would go to show that the Industrial Tribunal examined the question in right perspective on facts and the evidence adduced by the Union so also the Single Judge and lastly, the Division Bench.16. It is evident that the Tribunal, on appreciating the evidence in its original jurisdiction, rightly concluded that firstly, the agreement with the contract labourer for doing the work had come to an end in 1991 and thereafter it was not renewed; Secondly, all the 955 workers were being paid wages directly by the FCI; Thirdly, the nature of work, which these workers were performing, was of a perennial nature in the set up of the FCI; Fourthly, all 955 workmen were performing their duties as permanent workers; and lastly, no evidence was adduced by the FCI in rebuttal to prove their case against the workers Union.17. The writ Court then re-examined the issues so also the Division Bench in the appeals with a view to find out as to whether the findings of the Industrial Tribunal are factually and legally sustainable or not. The High Court, by reasoned orders, passed in writ petitions and appeals affirmed the findings observing that none of the findings recorded by the Industrial Tribunal, which were impugned in the writ petitions and appeals, suffer from any kind of perversity or illegality so as to call for any interference by the High Court in writ petitions and appeals.18. We are inclined to affirm the concurrent findings because, in our opinion, none of the findings though assailed in these appeals call for any interference.19. In our opinion, the very fact that the Appellant (FCI) failed to adduce any evidence to prove their case, the Industrial Tribunal was justified in drawing adverse inference against them. Indeed, nothing prevented the Appellant from adducing evidence to prove the real state of affairs prevailing in their set up relating to these workers. It was, however, not done by the FCI for the reasons best known to them. It was not the case of the Appellant (FCI) that they were not afforded any opportunity to adduce evidence and nor any attempt was made by the Appellant to adduce any evidence in the writ petitions or in the intra court appeals and lastly even in these appeals to prove their case.20. That apart, in our opinion, the four findings of fact recorded against the Appellant by the Industrial Tribunal were based on sufficient evidence adduced by the workers Union. Indeed, these findings being concurrent in nature are binding on this Court while hearing appeals Under Article 136 of the Constitution.21. These findings, in our opinion, were equally relevant for answering the question referred to the Tribunal and further they did not suffer from any kind of perversity or illegality so as to call for any interference as rightly held by the High Court.22. In the light of the foregoing discussion, the reference was rightly answered in favour of the workers Union.23. It was then brought to our notice that similar industrial reference alike the one in the present case was also made in relation to the FCI Branch at West Bengal and the said reference was answered in favour of workers Union. The matter was then taken to the High Court unsuccessfully and then carried to this Court at the instance of the FCI in Civil Appeal No. 7452 of 2008 and the appeal was dismissed on 20.07.2017 resulting in upholding the award of the Industrial Tribunal. It was stated that the FCI then implemented the award, as is clear from the notice on 05.10.2017, in favour of the concerned workers. Be that as it may, since we have upheld the impugned order in this case on the facts arising in the case at hand, we need not place reliance on any other matter, which was not before the High Court.24.

0[ds]We have perused the awards of the Industrial Tribunal, order of the Single Judge and the impugned order. Mere perusal of them would go to show that the Industrial Tribunal examined the question in right perspective on facts and the evidence adduced by the Union so also the Single Judge and lastly, the DivisionIt is evident that the Tribunal, on appreciating the evidence in its original jurisdiction, rightly concluded that firstly, the agreement with the contract labourer for doing the work had come to an end in 1991 and thereafter it was not renewed; Secondly, all the 955 workers were being paid wages directly by the FCI; Thirdly, the nature of work, which these workers were performing, was of a perennial nature in the set up of the FCI; Fourthly, all 955 workmen were performing their duties as permanent workers; and lastly, no evidence was adduced by the FCI in rebuttal to prove their case against thehe writ Court then re-examined the issues so also the Division Bench in the appeals with a view to find out as to whether the findings of the Industrial Tribunal are factually and legally sustainable or not. The High Court, by reasoned orders, passed in writ petitions and appeals affirmed the findings observing that none of the findings recorded by the Industrial Tribunal, which were impugned in the writ petitions and appeals, suffer from any kind of perversity or illegality so as to call for any interference by the High Court in writ petitions andWe are inclined to affirm the concurrent findings because, in our opinion, none of the findings though assailed in these appeals call for anyIn our opinion, the very fact that the(FCI) failed to adduce any evidence to prove their case, the Industrial Tribunal was justified in drawing adverse inference against them. Indeed, nothing prevented thefrom adducing evidence to prove the real state of affairs prevailing in their set up relating to these workers. It was, however, not done by the FCI for the reasons best known to them. It was not the case of the(FCI) that they were not afforded any opportunity to adduce evidence and nor any attempt was made by theto adduce any evidence in the writ petitions or in the intra court appeals and lastly even in these appeals to prove theirThat apart, in our opinion, the four findings of fact recorded against theby the Industrial Tribunal were based on sufficient evidence adduced by theUnion. Indeed, these findings being concurrent in nature are binding on this Court while hearing appealsArticle 136 of theThese findings, in our opinion, were equally relevant for answering the question referred to the Tribunal and further they did not suffer from any kind of perversity or illegality so as to call for any interference as rightly held by the HighIn the light of the foregoing discussion, the reference was rightly answered in favour of theIt was then brought to our notice that similar industrial reference alike the one in the present case was also made in relation to the FCI Branch at West Bengal and the said reference was answered in favour ofUnion. The matter was then taken to the High Court unsuccessfully and then carried to this Court at the instance of the FCI in Civil Appealof 2008 and the appeal was dismissed on 20.07.2017 resulting in upholding the award of the Industrial Tribunal. It was stated that the FCI then implemented the award, as is clear from the notice on 05.10.2017, in favour of the concerned workers. Be that as it may, since we have upheld the impugned order in this case on the facts arising in the case at hand, we need not place reliance on any other matter, which was not before the HighIn the light of the foregoing discussion and examining the issues arising in these appeals from all angles, we are of the considered opinion that the(FCI) failed to make out any case, which may call for any interference in the impugnedIn our considered opinion, the writ Court and the Division Bench were right in dismissing thewrit petitions and we do not find any reason to differ with the view taken by the two CourtsIn the first place, thefailed to adduce any evidence to prove existence of any relationship between them and the FCI; Second, when the documents on record showed that thewere appointed by the FCI Head Load Workers Co-Operative Society but not by the FCI then obviously the remedy of theif at all, in relation to their any service dispute was against the said Society being their employer but not against the FCI; Third, the FCI was able to prove with the aid of evidence that thewere in the employment of the said Society whereas thewere not able to prove with the aid of any documents that they were appointed by the FCI and how and on what basis they claimed to be in the employment of the FCI except to make an averment in the writ petitions in that behalf. It was, in our opinion, not sufficient to grant any relief to theSo far as the reference made by theto one litigation decided by the Industrial Tribunal between one set of persons and the FCI regarding the status of such persons is concerned, in our view, it has no relevance for deciding this case and nor it, in any way, helps thefor claiming relief against theIt is for the simple reasons that first, the case at hand arose out of the writ petitions whereas the case relied on arose out of industrial reference decided by the Industrial Tribunal; Second, the facts involved in the case at hand clearly prove that there did not exist any kind of employee and employer relationship between theand the FCI; and lastly, there is no parity of any nature noticed on facts in the case at hand and the case relied on by theWe also do not find any justifiable reason(s) to deny the relief granted by the High Court to the writs herein) insofar as these two appeals are concerned. It is more so when no distinguishing features were pointed out by theon the facts or law, which may persuade this Court to take a different view than the one taken by the High Court in the impugned order. What were pressed into service were only the technical issues arising in the case but we were not impressed by such issues. They did not go to the root of theHaving regard to the totality of the facts and circumstances of the case coupled with the judicial orders passed against thein relation to identical matters, we find no good ground to take any other view in the case than the one taken by Madras High Court in similar case and in the impugned orders.

### 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: therefore entitled to claim the regularization of their services in the set up of the FCI.8. Since the aforementioned dispute could not be resolved amicably between the Appellant and the workers Union, the Government of India by order dated 06.04.1992 referred the said dispute to the Industrial Tribunal, Madras for its adjudication Under Section 10 of the Industrial Disputes Act, 1947.9. The following reference was made for adjudication:"Whether the action of the management of Food Corporation of India is denying to regularize 955 contract labourers engaged in management of Food Corporation of India, Godown, Avadi through TVK Cooperative Society in respect of names as given in Annexure is justified ? If not, to what relief they are entitled to?"10. Both the parties submitted their statements in ID No. 39/1992 & I.D. 55/1993 in support of their respective stand before the Industrial Tribunal. So far as the workers Union (Respondents herein) is concerned, they adduced the evidence to prove their case whereas the Appellant (FCI) did not adduce any evidence to prove their case despite affording them an opportunity to adduce.11. By awards dated 19.02.1997 & 29.07.1998, the Industrial Tribunal answered the reference in favour of the workers Union and against the Appellant. It was held that these 955 employees are entitled to be regularized in the services of the FCI.12. The Appellant (FCI) felt aggrieved and filed writ petitions before the High Court of Madras at Chennai. By order dated 07.08.2000, the Single Judge dismissed the writ petitions and upheld the award passed by the Industrial Tribunal. The Appellant felt aggrieved and filed intra court appeals before the Division Bench.13. By impugned order, the Division Bench dismissed the writ appeals and affirmed the order of the Single Judge and the awards of the Industrial Tribunal, which have given rise to filing of the present appeals by way of special leave by the FCI.14. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.15. We have perused the awards of the Industrial Tribunal, order of the Single Judge and the impugned order. Mere perusal of them would go to show that the Industrial Tribunal examined the question in right perspective on facts and the evidence adduced by the Union so also the Single Judge and lastly, the Division Bench.16. It is evident that the Tribunal, on appreciating the evidence in its original jurisdiction, rightly concluded that firstly, the agreement with the contract labourer for doing the work had come to an end in 1991 and thereafter it was not renewed; Secondly, all the 955 workers were being paid wages directly by the FCI; Thirdly, the nature of work, which these workers were performing, was of a perennial nature in the set up of the FCI; Fourthly, all 955 workmen were performing their duties as permanent workers; and lastly, no evidence was adduced by the FCI in rebuttal to prove their case against the workers Union.17. The writ Court then re-examined the issues so also the Division Bench in the appeals with a view to find out as to whether the findings of the Industrial Tribunal are factually and legally sustainable or not. The High Court, by reasoned orders, passed in writ petitions and appeals affirmed the findings observing that none of the findings recorded by the Industrial Tribunal, which were impugned in the writ petitions and appeals, suffer from any kind of perversity or illegality so as to call for any interference by the High Court in writ petitions and appeals.18. We are inclined to affirm the concurrent findings because, in our opinion, none of the findings though assailed in these appeals call for any interference.19. In our opinion, the very fact that the Appellant (FCI) failed to adduce any evidence to prove their case, the Industrial Tribunal was justified in drawing adverse inference against them. Indeed, nothing prevented the Appellant from adducing evidence to prove the real state of affairs prevailing in their set up relating to these workers. It was, however, not done by the FCI for the reasons best known to them. It was not the case of the Appellant (FCI) that they were not afforded any opportunity to adduce evidence and nor any attempt was made by the Appellant to adduce any evidence in the writ petitions or in the intra court appeals and lastly even in these appeals to prove their case.20. That apart, in our opinion, the four findings of fact recorded against the Appellant by the Industrial Tribunal were based on sufficient evidence adduced by the workers Union. Indeed, these findings being concurrent in nature are binding on this Court while hearing appeals Under Article 136 of the Constitution.21. These findings, in our opinion, were equally relevant for answering the question referred to the Tribunal and further they did not suffer from any kind of perversity or illegality so as to call for any interference as rightly held by the High Court.22. In the light of the foregoing discussion, the reference was rightly answered in favour of the workers Union.23. It was then brought to our notice that similar industrial reference alike the one in the present case was also made in relation to the FCI Branch at West Bengal and the said reference was answered in favour of workers Union. The matter was then taken to the High Court unsuccessfully and then carried to this Court at the instance of the FCI in Civil Appeal No. 7452 of 2008 and the appeal was dismissed on 20.07.2017 resulting in upholding the award of the Industrial Tribunal. It was stated that the FCI then implemented the award, as is clear from the notice on 05.10.2017, in favour of the concerned workers. Be that as it may, since we have upheld the impugned order in this case on the facts arising in the case at hand, we need not place reliance on any other matter, which was not before the High Court.24. ### Response: 0 ### Explanation: their duties as permanent workers; and lastly, no evidence was adduced by the FCI in rebuttal to prove their case against thehe writ Court then re-examined the issues so also the Division Bench in the appeals with a view to find out as to whether the findings of the Industrial Tribunal are factually and legally sustainable or not. The High Court, by reasoned orders, passed in writ petitions and appeals affirmed the findings observing that none of the findings recorded by the Industrial Tribunal, which were impugned in the writ petitions and appeals, suffer from any kind of perversity or illegality so as to call for any interference by the High Court in writ petitions andWe are inclined to affirm the concurrent findings because, in our opinion, none of the findings though assailed in these appeals call for anyIn our opinion, the very fact that the(FCI) failed to adduce any evidence to prove their case, the Industrial Tribunal was justified in drawing adverse inference against them. Indeed, nothing prevented thefrom adducing evidence to prove the real state of affairs prevailing in their set up relating to these workers. It was, however, not done by the FCI for the reasons best known to them. It was not the case of the(FCI) that they were not afforded any opportunity to adduce evidence and nor any attempt was made by theto adduce any evidence in the writ petitions or in the intra court appeals and lastly even in these appeals to prove theirThat apart, in our opinion, the four findings of fact recorded against theby the Industrial Tribunal were based on sufficient evidence adduced by theUnion. Indeed, these findings being concurrent in nature are binding on this Court while hearing appealsArticle 136 of theThese findings, in our opinion, were equally relevant for answering the question referred to the Tribunal and further they did not suffer from any kind of perversity or illegality so as to call for any interference as rightly held by the HighIn the light of the foregoing discussion, the reference was rightly answered in favour of theIt was then brought to our notice that similar industrial reference alike the one in the present case was also made in relation to the FCI Branch at West Bengal and the said reference was answered in favour ofUnion. The matter was then taken to the High Court unsuccessfully and then carried to this Court at the instance of the FCI in Civil Appealof 2008 and the appeal was dismissed on 20.07.2017 resulting in upholding the award of the Industrial Tribunal. It was stated that the FCI then implemented the award, as is clear from the notice on 05.10.2017, in favour of the concerned workers. Be that as it may, since we have upheld the impugned order in this case on the facts arising in the case at hand, we need not place reliance on any other matter, which was not before the HighIn the light of the foregoing discussion and examining the issues arising in these appeals from all angles, we are of the considered opinion that the(FCI) failed to make out any case, which may call for any interference in the impugnedIn our considered opinion, the writ Court and the Division Bench were right in dismissing thewrit petitions and we do not find any reason to differ with the view taken by the two CourtsIn the first place, thefailed to adduce any evidence to prove existence of any relationship between them and the FCI; Second, when the documents on record showed that thewere appointed by the FCI Head Load Workers Co-Operative Society but not by the FCI then obviously the remedy of theif at all, in relation to their any service dispute was against the said Society being their employer but not against the FCI; Third, the FCI was able to prove with the aid of evidence that thewere in the employment of the said Society whereas thewere not able to prove with the aid of any documents that they were appointed by the FCI and how and on what basis they claimed to be in the employment of the FCI except to make an averment in the writ petitions in that behalf. It was, in our opinion, not sufficient to grant any relief to theSo far as the reference made by theto one litigation decided by the Industrial Tribunal between one set of persons and the FCI regarding the status of such persons is concerned, in our view, it has no relevance for deciding this case and nor it, in any way, helps thefor claiming relief against theIt is for the simple reasons that first, the case at hand arose out of the writ petitions whereas the case relied on arose out of industrial reference decided by the Industrial Tribunal; Second, the facts involved in the case at hand clearly prove that there did not exist any kind of employee and employer relationship between theand the FCI; and lastly, there is no parity of any nature noticed on facts in the case at hand and the case relied on by theWe also do not find any justifiable reason(s) to deny the relief granted by the High Court to the writs herein) insofar as these two appeals are concerned. It is more so when no distinguishing features were pointed out by theon the facts or law, which may persuade this Court to take a different view than the one taken by the High Court in the impugned order. What were pressed into service were only the technical issues arising in the case but we were not impressed by such issues. They did not go to the root of theHaving regard to the totality of the facts and circumstances of the case coupled with the judicial orders passed against thein relation to identical matters, we find no good ground to take any other view in the case than the one taken by Madras High Court in similar case and in the impugned orders.

Dattajirao bahirojirao Ghorpade Vs. Vijayasinhrao & Another

ceased to have any effect by reason of the act of a private party will be to go against the very nature of a Saranjam tenure.12. Let us now examine the claim of the plaintiff-respondent from the point of view of the custom pleaded in paragraph 6(b) of the plaint. The custom pleaded was the rule of final primogeniture. In its written statement Government said:"The family custom alleged in clause (b) is not admitted, and it is denied that such a custom can apply in respect of maintenance grants. Under Rule 7 of the Saranjam Rules, which merely embody the customary law relating to Saranjams, Government is given absolute discretion to determine whether or not to make an order and what provision to make and in whose favour."The appellant said:"The contents of para. 6(b) of the plaint are not correct. The custom of descent by the rule of primogeniture is denied. This defendant has become the owner by survivorship, after the death of Babasaheb".The learned Civil Judge found that the custom pleaded in paragraph 6(b) of the plaint was not proved. The High Court has not referred to any evidence on which the custom could be said to have been proved, but observed that "it is common ground that the properties which had been assigned to this branch for its maintenance is impartible and goes by primogeniture". Even if we assume that the High Court is right in its observation, though in face of the denial in the two written statements it is difficult to see how this could be common ground between the parties, we fail to appreciate how the assumption helps the plaintiff-respondent.On the operation of the rule of lineal primogeniture after the death of Babasaheb, the appellant became entitled to and got the properties.It was not pleaded in the plaint that the properties once vested by the customary rule of lineal primogeniture were divested on subsequent adoption by the widow. No such plea was specifically taken, but the High Court relied on the concession made by learned advocate for the appellant that under ordinary Hindu law the properties which were vested in the appellant were divested on a subsequent valid adoption by the widow.We consider it unnecessary to go into the vexed question of divesting of an estate on a subsequent valid adoption by the widow. It is enough to point out that the plaint disclosed no such case; no such issue was raised and it was not open to the plaintiff-respondent to make out a new case for the first time in appeal. The plaintiff-respondent set up a family custom of lineal primogeniture different from the ordinary law of inheritance; it was incumbent on him to allege and prove the custom on which he relied and to show its precise extent and how far it prevailed over ordinary Hindu law. In our opinion, he failed to plead or prove any family custom by which the properties devolved on him.Moreover, in order to succeed the plaintiff-respondent must further establish that the custom was such as would bind the Government.The appellant and the Government never conceded that the custom of lineal primogeniture, if it prevailed in the family, took away the right of Government to resume the maintenance grant which was part of a Saranjam and make a fresh grant thereof in accordance with the Saranjam Rules.13. Now, as to S. 4 of the Bombay Revenue Jurisdiction Act, 1876. The section, so far as it is relevant for our purpose, says:-"S. 4. - Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters:(a) claims against the Government relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act No. III of 1874 or any other law for the time being in force, or of any other village-officer or servant, or claims to perform the duties of any such officer or servant, or in respect of any injury caused by exclusion from such office or service, or suits to set aside or avoid any order under the same Act or any other law relating to the same subject for the time being in force passed by the State Government or any officer duly authorized in that behalf, or claims against the Government relating to lands held under treaty, or to lands granted or held as saranjam, or on other political tenure, or to lands declared by the Provincial Government or any officer duly authorized in that behalf to be held for service".In Mallappa Basvantrao v. Tukko Narshinha, ILR (1937) Bom 464 : (AIR 1937 Bom 307), it was pointed out that in the section a distinction has been made between claims and suits. The sub-clause we are concerned with is the fourth sub-clause which relates inter alia to "claims against the Government relating to lands granted or held as Saranjam". The High Court has taken the view that no claim was made against Government in the present case.We are unable to agree. In express terms, the plaintiff-respondent asked for a finding that the Government Resolution dated December 17, 1941, was null and void and did not affect the properties in suit because the Government had either no authority to make such an order or no occasion to do so. He asked for possession of those properties in spite of the orders of Government. In these circumstances we must hold that Government was more than a purely formal party, and a claim was made against it in respect of the orders contained in its Resolution dated December 17, 1941.Unless the Resolution is out of his way, the plaintiff-respondent is not entitled to claim recovery of possession from the appellant with mesne profits etc.The Civil Court has no jurisdiction to determine any claim against the Government in the matter of the Resolution of December 17, 1941, relating to Saranjam lands, and the suit was barred under S. 4 of the Bombay Revenue Jurisdiction Act, 1876.

1[ds]We do not think that this finding of the High Court has been or can be successfully assailed before us. Therefore, we have proceeded in this appeal on the basis that the plaintiff respondent was validly adopted by Abayabai on July 10, 1941.We are satisfied that these arguments are correct and should be accepted. The claim of the plaintiff-respondent that the properties in suit devolved on him on his adoption may be examined either from the point of view of the Saranjam Rules or the custom which he pleaded in paragraph 6(b) of the plaint. Let us examine the claim first from the point of view of the Saranjam Rules assuming here that they apply, as far as practicable, to maintenance grants (potgis) within the Saranjam. In the Resolution of June 7, 1932, quoted earlier the Government of Bombay treated the potgi holders as being within the Saranjam and made provision for them. The Resolution of December 17, 1941, also proceeded on that footing. Two earlier Resolutions, one of 1891 (Ex. 100) and the other of 1936 (Ex. 101), also treated the whole of Gajendragad and also parts thereof as a Saranjam. Babasaheb in his life time wanted to surrender the grant in his favour to the Saranjamdar, but Government refused to accept such relinquishment.Event Abayabai asked for permission of Government to take a boy in adoption which permission she did not obtain. All this shows that the potgi holding was part of the Saranjam and was treated as such by all the partiesseems to us manifestly clear that the Saranjam Rules furnish no basis for the claim of the plaintiff-respondent. Abayabai asked for sanction to her taking a boy in adoption. No such sanction was given.On the death of Babasaheb, it was open to Government to resume the grant and by its Resolution of December 17, 1941, Government directed that the Saranjam potgi holding of village Dindur and Survey No. 302 of Unachgeri should be continued to the appellant.This really amounted to a resumption and fresh grant and we do not agree with the High Court that the order passed amounted to no more than recognising the legal position according to the rule of succession and stood on the same footing as any order of ordinary mutation.The High Court has emphasised the use of the word "continued" in the Resolution dated December 17, 1941, and has contrasted that Resolution with the earlier Resolution dated June 7, 1932, which was clearly a Resolution giving effect to a resumption and regrant of the Gajendragad Saranjam. It may, however, be pointed out that in paragraph 2 of the earlier Resolution, Government used the same word "continued" in connection with the maintenance grants, namely, potgi holdings within a Saranjam. Nothing therefore, turns upon the use of the word "continued" and if the Resolution dated 17-12-1941, is read as a whole it is clear that the potgi of village Dindur and Survey field No. 302 of Unachgeri was granted to the present appellant. It was open to Government to pass such an order, and we see no reasons to hold that it was null and void. Indeed, the High Court did not say that it was an invalid order; on the contrary, it said that it was a good order and operated with effect from the death of Babasaheb. But it said erroneously in our opinion, that by reason of the subsequent event of adoption, the order ceased, for all practical purposes, to have any effect from that event. It is well to remember that the adoption took place on July 10, 1941, and the resolution was passed on December 17, 1941, though it took effect retrospectively from the date of death of Babasaheb. We see no reasons why a valid order made by Government will cease to have any effect because of an adoption made by Abayabai without sanction of Government. To hold that the Government Order ceased to have any effect by reason of the act of a private party will be to go against the very nature of a Saranjamif we assume that the High Court is right in its observation, though in face of the denial in the two written statements it is difficult to see how this could be common ground between the parties, we fail to appreciate how the assumption helps the plaintiff-respondent.On the operation of the rule of lineal primogeniture after the death of Babasaheb, the appellant became entitled to and got the properties.It was not pleaded in the plaint that the properties once vested by the customary rule of lineal primogeniture were divested on subsequent adoption by the widow. No such plea was specifically taken, but the High Court relied on the concession made by learned advocate for the appellant that under ordinary Hindu law the properties which were vested in the appellant were divested on a subsequent valid adoption by the widow.We consider it unnecessary to go into the vexed question of divesting of an estate on a subsequent valid adoption by the widow. It is enough to point out that the plaint disclosed no such case; no such issue was raised and it was not open to the plaintiff-respondent to make out a new case for the first time in appeal. The plaintiff-respondent set up a family custom of lineal primogeniture different from the ordinary law of inheritance; it was incumbent on him to allege and prove the custom on which he relied and to show its precise extent and how far it prevailed over ordinary Hindu law. In our opinion, he failed to plead or prove any family custom by which the properties devolved on him.Moreover, in order to succeed the plaintiff-respondent must further establish that the custom was such as would bind the Government.The appellant and the Government never conceded that the custom of lineal primogeniture, if it prevailed in the family, took away the right of Government to resume the maintenance grant which was part of a Saranjam and make a fresh grant thereof in accordance with the Saranjamare unable to agree. In express terms, the plaintiff-respondent asked for a finding that the Government Resolution dated December 17, 1941, was null and void and did not affect the properties in suit because the Government had either no authority to make such an order or no occasion to do so. He asked for possession of those properties in spite of the orders of Government. In these circumstances we must hold that Government was more than a purely formal party, and a claim was made against it in respect of the orders contained in its Resolution dated December 17, 1941.Unless the Resolution is out of his way, the plaintiff-respondent is not entitled to claim recovery of possession from the appellant with mesne profits etc.The Civil Court has no jurisdiction to determine any claim against the Government in the matter of the Resolution of December 17, 1941, relating to Saranjam lands, and the suit was barred under S. 4 of the Bombay Revenue Jurisdiction Act, 1876.

### 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: ceased to have any effect by reason of the act of a private party will be to go against the very nature of a Saranjam tenure.12. Let us now examine the claim of the plaintiff-respondent from the point of view of the custom pleaded in paragraph 6(b) of the plaint. The custom pleaded was the rule of final primogeniture. In its written statement Government said:"The family custom alleged in clause (b) is not admitted, and it is denied that such a custom can apply in respect of maintenance grants. Under Rule 7 of the Saranjam Rules, which merely embody the customary law relating to Saranjams, Government is given absolute discretion to determine whether or not to make an order and what provision to make and in whose favour."The appellant said:"The contents of para. 6(b) of the plaint are not correct. The custom of descent by the rule of primogeniture is denied. This defendant has become the owner by survivorship, after the death of Babasaheb".The learned Civil Judge found that the custom pleaded in paragraph 6(b) of the plaint was not proved. The High Court has not referred to any evidence on which the custom could be said to have been proved, but observed that "it is common ground that the properties which had been assigned to this branch for its maintenance is impartible and goes by primogeniture". Even if we assume that the High Court is right in its observation, though in face of the denial in the two written statements it is difficult to see how this could be common ground between the parties, we fail to appreciate how the assumption helps the plaintiff-respondent.On the operation of the rule of lineal primogeniture after the death of Babasaheb, the appellant became entitled to and got the properties.It was not pleaded in the plaint that the properties once vested by the customary rule of lineal primogeniture were divested on subsequent adoption by the widow. No such plea was specifically taken, but the High Court relied on the concession made by learned advocate for the appellant that under ordinary Hindu law the properties which were vested in the appellant were divested on a subsequent valid adoption by the widow.We consider it unnecessary to go into the vexed question of divesting of an estate on a subsequent valid adoption by the widow. It is enough to point out that the plaint disclosed no such case; no such issue was raised and it was not open to the plaintiff-respondent to make out a new case for the first time in appeal. The plaintiff-respondent set up a family custom of lineal primogeniture different from the ordinary law of inheritance; it was incumbent on him to allege and prove the custom on which he relied and to show its precise extent and how far it prevailed over ordinary Hindu law. In our opinion, he failed to plead or prove any family custom by which the properties devolved on him.Moreover, in order to succeed the plaintiff-respondent must further establish that the custom was such as would bind the Government.The appellant and the Government never conceded that the custom of lineal primogeniture, if it prevailed in the family, took away the right of Government to resume the maintenance grant which was part of a Saranjam and make a fresh grant thereof in accordance with the Saranjam Rules.13. Now, as to S. 4 of the Bombay Revenue Jurisdiction Act, 1876. The section, so far as it is relevant for our purpose, says:-"S. 4. - Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters:(a) claims against the Government relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act No. III of 1874 or any other law for the time being in force, or of any other village-officer or servant, or claims to perform the duties of any such officer or servant, or in respect of any injury caused by exclusion from such office or service, or suits to set aside or avoid any order under the same Act or any other law relating to the same subject for the time being in force passed by the State Government or any officer duly authorized in that behalf, or claims against the Government relating to lands held under treaty, or to lands granted or held as saranjam, or on other political tenure, or to lands declared by the Provincial Government or any officer duly authorized in that behalf to be held for service".In Mallappa Basvantrao v. Tukko Narshinha, ILR (1937) Bom 464 : (AIR 1937 Bom 307), it was pointed out that in the section a distinction has been made between claims and suits. The sub-clause we are concerned with is the fourth sub-clause which relates inter alia to "claims against the Government relating to lands granted or held as Saranjam". The High Court has taken the view that no claim was made against Government in the present case.We are unable to agree. In express terms, the plaintiff-respondent asked for a finding that the Government Resolution dated December 17, 1941, was null and void and did not affect the properties in suit because the Government had either no authority to make such an order or no occasion to do so. He asked for possession of those properties in spite of the orders of Government. In these circumstances we must hold that Government was more than a purely formal party, and a claim was made against it in respect of the orders contained in its Resolution dated December 17, 1941.Unless the Resolution is out of his way, the plaintiff-respondent is not entitled to claim recovery of possession from the appellant with mesne profits etc.The Civil Court has no jurisdiction to determine any claim against the Government in the matter of the Resolution of December 17, 1941, relating to Saranjam lands, and the suit was barred under S. 4 of the Bombay Revenue Jurisdiction Act, 1876. ### Response: 1 ### Explanation: and the other of 1936 (Ex. 101), also treated the whole of Gajendragad and also parts thereof as a Saranjam. Babasaheb in his life time wanted to surrender the grant in his favour to the Saranjamdar, but Government refused to accept such relinquishment.Event Abayabai asked for permission of Government to take a boy in adoption which permission she did not obtain. All this shows that the potgi holding was part of the Saranjam and was treated as such by all the partiesseems to us manifestly clear that the Saranjam Rules furnish no basis for the claim of the plaintiff-respondent. Abayabai asked for sanction to her taking a boy in adoption. No such sanction was given.On the death of Babasaheb, it was open to Government to resume the grant and by its Resolution of December 17, 1941, Government directed that the Saranjam potgi holding of village Dindur and Survey No. 302 of Unachgeri should be continued to the appellant.This really amounted to a resumption and fresh grant and we do not agree with the High Court that the order passed amounted to no more than recognising the legal position according to the rule of succession and stood on the same footing as any order of ordinary mutation.The High Court has emphasised the use of the word "continued" in the Resolution dated December 17, 1941, and has contrasted that Resolution with the earlier Resolution dated June 7, 1932, which was clearly a Resolution giving effect to a resumption and regrant of the Gajendragad Saranjam. It may, however, be pointed out that in paragraph 2 of the earlier Resolution, Government used the same word "continued" in connection with the maintenance grants, namely, potgi holdings within a Saranjam. Nothing therefore, turns upon the use of the word "continued" and if the Resolution dated 17-12-1941, is read as a whole it is clear that the potgi of village Dindur and Survey field No. 302 of Unachgeri was granted to the present appellant. It was open to Government to pass such an order, and we see no reasons to hold that it was null and void. Indeed, the High Court did not say that it was an invalid order; on the contrary, it said that it was a good order and operated with effect from the death of Babasaheb. But it said erroneously in our opinion, that by reason of the subsequent event of adoption, the order ceased, for all practical purposes, to have any effect from that event. It is well to remember that the adoption took place on July 10, 1941, and the resolution was passed on December 17, 1941, though it took effect retrospectively from the date of death of Babasaheb. We see no reasons why a valid order made by Government will cease to have any effect because of an adoption made by Abayabai without sanction of Government. To hold that the Government Order ceased to have any effect by reason of the act of a private party will be to go against the very nature of a Saranjamif we assume that the High Court is right in its observation, though in face of the denial in the two written statements it is difficult to see how this could be common ground between the parties, we fail to appreciate how the assumption helps the plaintiff-respondent.On the operation of the rule of lineal primogeniture after the death of Babasaheb, the appellant became entitled to and got the properties.It was not pleaded in the plaint that the properties once vested by the customary rule of lineal primogeniture were divested on subsequent adoption by the widow. No such plea was specifically taken, but the High Court relied on the concession made by learned advocate for the appellant that under ordinary Hindu law the properties which were vested in the appellant were divested on a subsequent valid adoption by the widow.We consider it unnecessary to go into the vexed question of divesting of an estate on a subsequent valid adoption by the widow. It is enough to point out that the plaint disclosed no such case; no such issue was raised and it was not open to the plaintiff-respondent to make out a new case for the first time in appeal. The plaintiff-respondent set up a family custom of lineal primogeniture different from the ordinary law of inheritance; it was incumbent on him to allege and prove the custom on which he relied and to show its precise extent and how far it prevailed over ordinary Hindu law. In our opinion, he failed to plead or prove any family custom by which the properties devolved on him.Moreover, in order to succeed the plaintiff-respondent must further establish that the custom was such as would bind the Government.The appellant and the Government never conceded that the custom of lineal primogeniture, if it prevailed in the family, took away the right of Government to resume the maintenance grant which was part of a Saranjam and make a fresh grant thereof in accordance with the Saranjamare unable to agree. In express terms, the plaintiff-respondent asked for a finding that the Government Resolution dated December 17, 1941, was null and void and did not affect the properties in suit because the Government had either no authority to make such an order or no occasion to do so. He asked for possession of those properties in spite of the orders of Government. In these circumstances we must hold that Government was more than a purely formal party, and a claim was made against it in respect of the orders contained in its Resolution dated December 17, 1941.Unless the Resolution is out of his way, the plaintiff-respondent is not entitled to claim recovery of possession from the appellant with mesne profits etc.The Civil Court has no jurisdiction to determine any claim against the Government in the matter of the Resolution of December 17, 1941, relating to Saranjam lands, and the suit was barred under S. 4 of the Bombay Revenue Jurisdiction Act, 1876.

Mafatlal Naraindas Barot Vs. Divisional Controller, State Transport Corporation And

directed to report for duty at Ambaji within 48 hours of the receipt of notice failing which, he was warned, he would be removed from service. On March 3, 1962, the appellant wrote a letter to the Divisional Controller intimating him of his liability to join duty as he was still not well; to this letter, he enclosed a medical certificate.4. By an order, dated March 9, 1962, the services of the appellant were terminated with effect from January 16, 1962, on the ground of long absence. The appellant made a representation to the Divisional Controller on March 17, 1962 and thereafter preferred an appeal to the General Manager of the Corporation. Both of them were rejected. A further appeal preferred by him to the appellate Committee was also unsuccessful. The Committee held that the leave applications of the appellant were made only with a view to evade joining duty at Ambaji.5. The appellant applied to the High Court of Gujarat under Arts. 226 and 227 of the Constitution, impleading the Divisional Controller as respondent, for the issue of a writ of certiorari to quash the order of dismissal. His petition was dismissed in limine on May 28, 1963. On June 17, 1963, the appellant applied for a certificate to appeal to this Court but it was refused. Thereafter, he applied for special leave and that was granted by this Court.6. It may be stated at the outset that the respondent is an autonomous statutory Corporation formed under the provisions of the Road Transport Corporations Act, 1950. It is not disputed that the appellant could not invoke the provisions of Art. 311 of the Constitution.7. The short question for determination in the appeal is whether the appellant was entitled to an opportunity to show cause against the proposed punishment as required by regulation No. 61 of the Regulations which governs the service conditions of the employees of the Corporation. It is admitted that no charge was framed against him nor was he given an opportunity to show cause.8. It is contended for the respondent that though the order of termination referred to long absence as the cause of termination, the termination itself was not by way of punishment and the only right of the appellant was to two months pay in lieu of notice under regulation No. 61, that assuming that the termination was by way of punishment, the appellant, as would be evident from the correspondence and the circumstances of the case, had been given an opportunity to show cause and that there was in fact and in substance compliance with the rules of natural justice.9. We may, at this stage, read the relevant regulations which admittedly govern the service conditions of the employees of the Corporation. Regulation No. 61 provides as follows:"The services of an employees, who does not hold a permanent appointment in State Transport or a lien on a permanent appointment in any Government Department from which he is transferred, are liable to be terminated by the Competent Authority by giving a calendar months notice or a calendar months pay in lieu :Provided that the services of casual workers and part-time workers may be terminated without any notice:Provided further that a permanent employee of State Transport shall be entitled to 60 days notice or 60 days pay in lieu." Clauses 38, 40 and 4 (b) of Sch. A to the Regulations provide :"38. Irregular attendance, absence without leave and without reasonable cause and absence without permission."40. Failure, without sufficient cause, to report, when directed, for duty, on the part of an employee to whom the leave he has applied for is refused.""4 (b). A person against whom action is proposed to be taken for any act of misconduct, shall be provided with a copy of the charge of charges as well as a statement of allegations that have been made against him, and over which enquiry is being held."10. Clause 3 defines two classes of offences named acts of mis-conduct and minor lapses and delinquencies, respectively, and sub-cl. (ii) of Cl. 3 states inter alia that the mis-conducts are those specified in Sch. A.11. Regulations 38 and 40 provide that irregular attendance, absence without leave and without reasonable cause and failure, without sufficient cause, to report, when directed, for duty amount to acts of misconduct. Clause 4 (b) is specific and clear. Under that clause, it is obligatory on the part of the respondent, to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges, as well as the statement of the allegations that have been made against him. Admittedly, the respondent did not frame a charge against the appellant nor conduct any enquiry.12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him.13. The order of termination passed against the appellant is bad in law since it contravenes the provisions of Cl. 4 (b) of the Regulations and also the principles of natural justice. In all the circumstances of the case, we are satisfied that the impugned order must be quashed. A writ of certiorari will accordingly issue quashing the order of dismissal, but this will not preclude the respondent from making a fresh enquiry against the appellant after giving him reasonable opportunity to show cause as provided under Cl. 4 (b) of the regulations.

1[ds]11. Regulations 38 and 40 provide that irregular attendance, absence without leave and without reasonable cause and failure, without sufficient cause, to report, when directed, for duty amount to acts of misconduct. Clause 4 (b) is specific and clear. Under that clause, it is obligatory on the part of the respondent, to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges, as well as the statement of the allegations that have been made against him. Admittedly, the respondent did not frame a charge against the appellant nor conduct any enquiry.12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him.13. The order of termination passed against the appellant is bad in law since it contravenes the provisions of Cl. 4 (b) of the Regulations and also the principles of natural justice. In all the circumstances of the case, we are satisfied that the impugned order must be quashed. A writ of certiorari will accordingly issue quashing the order of dismissal, but this will not preclude the respondent from making a fresh enquiry against the appellant after giving him reasonable opportunity to show cause as provided under Cl. 4 (b) of the regulations.Regulations 38 and 40 provide that irregular attendance, absence without leave and without reasonable cause and failure, without sufficient cause, to report, when directed, for duty amount to acts of misconduct. Clause 4 (b) is specific and clear. Under that clause, it is obligatory on the part of the respondent, to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges, as well as the statement of the allegations that have been made against him. Admittedly, the respondent did not frame a charge against the appellant nor conduct any enquiry.12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him.13. The order of termination passed against the appellant is bad in law since it contravenes the provisions of Cl. 4 (b) of the Regulations and also the principles of natural justice. In all the circumstances of the case, we are satisfied that the impugned order must be quashed. A writ of certiorari will accordingly issue quashing the order of dismissal, but this will not preclude the respondent from making a fresh enquiry against the appellant after giving him reasonable opportunity to show cause as provided under Cl. 4 (b) of the regulations.

### 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: directed to report for duty at Ambaji within 48 hours of the receipt of notice failing which, he was warned, he would be removed from service. On March 3, 1962, the appellant wrote a letter to the Divisional Controller intimating him of his liability to join duty as he was still not well; to this letter, he enclosed a medical certificate.4. By an order, dated March 9, 1962, the services of the appellant were terminated with effect from January 16, 1962, on the ground of long absence. The appellant made a representation to the Divisional Controller on March 17, 1962 and thereafter preferred an appeal to the General Manager of the Corporation. Both of them were rejected. A further appeal preferred by him to the appellate Committee was also unsuccessful. The Committee held that the leave applications of the appellant were made only with a view to evade joining duty at Ambaji.5. The appellant applied to the High Court of Gujarat under Arts. 226 and 227 of the Constitution, impleading the Divisional Controller as respondent, for the issue of a writ of certiorari to quash the order of dismissal. His petition was dismissed in limine on May 28, 1963. On June 17, 1963, the appellant applied for a certificate to appeal to this Court but it was refused. Thereafter, he applied for special leave and that was granted by this Court.6. It may be stated at the outset that the respondent is an autonomous statutory Corporation formed under the provisions of the Road Transport Corporations Act, 1950. It is not disputed that the appellant could not invoke the provisions of Art. 311 of the Constitution.7. The short question for determination in the appeal is whether the appellant was entitled to an opportunity to show cause against the proposed punishment as required by regulation No. 61 of the Regulations which governs the service conditions of the employees of the Corporation. It is admitted that no charge was framed against him nor was he given an opportunity to show cause.8. It is contended for the respondent that though the order of termination referred to long absence as the cause of termination, the termination itself was not by way of punishment and the only right of the appellant was to two months pay in lieu of notice under regulation No. 61, that assuming that the termination was by way of punishment, the appellant, as would be evident from the correspondence and the circumstances of the case, had been given an opportunity to show cause and that there was in fact and in substance compliance with the rules of natural justice.9. We may, at this stage, read the relevant regulations which admittedly govern the service conditions of the employees of the Corporation. Regulation No. 61 provides as follows:"The services of an employees, who does not hold a permanent appointment in State Transport or a lien on a permanent appointment in any Government Department from which he is transferred, are liable to be terminated by the Competent Authority by giving a calendar months notice or a calendar months pay in lieu :Provided that the services of casual workers and part-time workers may be terminated without any notice:Provided further that a permanent employee of State Transport shall be entitled to 60 days notice or 60 days pay in lieu." Clauses 38, 40 and 4 (b) of Sch. A to the Regulations provide :"38. Irregular attendance, absence without leave and without reasonable cause and absence without permission."40. Failure, without sufficient cause, to report, when directed, for duty, on the part of an employee to whom the leave he has applied for is refused.""4 (b). A person against whom action is proposed to be taken for any act of misconduct, shall be provided with a copy of the charge of charges as well as a statement of allegations that have been made against him, and over which enquiry is being held."10. Clause 3 defines two classes of offences named acts of mis-conduct and minor lapses and delinquencies, respectively, and sub-cl. (ii) of Cl. 3 states inter alia that the mis-conducts are those specified in Sch. A.11. Regulations 38 and 40 provide that irregular attendance, absence without leave and without reasonable cause and failure, without sufficient cause, to report, when directed, for duty amount to acts of misconduct. Clause 4 (b) is specific and clear. Under that clause, it is obligatory on the part of the respondent, to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges, as well as the statement of the allegations that have been made against him. Admittedly, the respondent did not frame a charge against the appellant nor conduct any enquiry.12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him.13. The order of termination passed against the appellant is bad in law since it contravenes the provisions of Cl. 4 (b) of the Regulations and also the principles of natural justice. In all the circumstances of the case, we are satisfied that the impugned order must be quashed. A writ of certiorari will accordingly issue quashing the order of dismissal, but this will not preclude the respondent from making a fresh enquiry against the appellant after giving him reasonable opportunity to show cause as provided under Cl. 4 (b) of the regulations. ### Response: 1 ### Explanation: 11. Regulations 38 and 40 provide that irregular attendance, absence without leave and without reasonable cause and failure, without sufficient cause, to report, when directed, for duty amount to acts of misconduct. Clause 4 (b) is specific and clear. Under that clause, it is obligatory on the part of the respondent, to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges, as well as the statement of the allegations that have been made against him. Admittedly, the respondent did not frame a charge against the appellant nor conduct any enquiry.12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him.13. The order of termination passed against the appellant is bad in law since it contravenes the provisions of Cl. 4 (b) of the Regulations and also the principles of natural justice. In all the circumstances of the case, we are satisfied that the impugned order must be quashed. A writ of certiorari will accordingly issue quashing the order of dismissal, but this will not preclude the respondent from making a fresh enquiry against the appellant after giving him reasonable opportunity to show cause as provided under Cl. 4 (b) of the regulations.Regulations 38 and 40 provide that irregular attendance, absence without leave and without reasonable cause and failure, without sufficient cause, to report, when directed, for duty amount to acts of misconduct. Clause 4 (b) is specific and clear. Under that clause, it is obligatory on the part of the respondent, to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges, as well as the statement of the allegations that have been made against him. Admittedly, the respondent did not frame a charge against the appellant nor conduct any enquiry.12. It is true that the respondent may visit the punishment of discharge or removal from service on a person who has absented himself without leave and without reasonable cause, but this cannot entail automatic removal from service without giving such person reasonable opportunity to show cause why he be not removed. The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him.13. The order of termination passed against the appellant is bad in law since it contravenes the provisions of Cl. 4 (b) of the Regulations and also the principles of natural justice. In all the circumstances of the case, we are satisfied that the impugned order must be quashed. A writ of certiorari will accordingly issue quashing the order of dismissal, but this will not preclude the respondent from making a fresh enquiry against the appellant after giving him reasonable opportunity to show cause as provided under Cl. 4 (b) of the regulations.

A. K. Singhania Vs. Gujarat State Fertilizer Company Ltd. and Anr

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. From a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed is in charge of and responsible to the Company shall be deemed to be guilty of the offence under Section 138 of the Act. In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the Company? In our opinion, in the case of offence by Company, to bring its Directors within the mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the Company. It is necessary ingredient which would be sufficient to proceed against such Directors. However, we may add that as no particular form is prescribed, it may not be necessary to reproduce the words of the section. If reading of the complaint shows and substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. However, it may not be necessary to allege and prove that, in fact, such of the Directors have any specific role in respect of the transaction leading to issuance of cheque. Section 141 of the Act makes the Directors in charge and responsible to Company for the conduct of the business of the Company within the mischief of Section 138 of the Act and not particular business for which the cheque was issued. We cannot read more than what has been mandated in Section 141 of the Act. A large number of authorities of this Court have been cited by the counsel representing the party to bring home their point. We deem it inexpedient to refer to all of them. Suffice it to say that this question has been answered eloquently by a three-Judge Bench decision of this Court in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 , in the following words: 19. In view of the above discussion, our answers to the questions posed in the reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in-charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. This Court in the case of National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330 , after reviewing all its earlier judgments summarized the legal position as follows: 39. From the above discussion, the following principles emerge: (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If the accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. (vi) If the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in the complaint. (vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. In Harshendra Kumar D. v. Rebatilata Koley, (2011) 3 SCC 351 , afterreferring to its earlier decisions in S.M.S. Pharmaceuticals Ltd.(supra),National Small Industries Corpn. Ltd.(supra), N. Rangachari v. BharatSanchar Nigam Ltd., (2007) 5 SCC 108 and K.K. Ahuja v. V.K. Vora, (2009) 10SCC 48, this Court reiterated the same view. We have found on fact that there is no averment that the two accused herein were in charge of and responsible for the conduct of the business of the company at the time the offence was committed. Hence, there is no essential averment in the complaints. In view of what we have observed above, the prosecution of accused A.K. Singhania and accused Vikram Prakash cannot be allowed to continue. Accordingly, the order of the High Court quashing the prosecution of the accused Vikram Prakash is not fit to be interfered with. For the same reason the order passed by the High Court declining the prayer of A.K. Singhania for quashing of the prosecution cannot be sustained and the appeals preferred by him deserve to be allowed.

0[ds]From a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed is in charge of and responsible to the Company shall be deemed to be guilty of the offence under Section 138 of the Act. In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the Company? In our opinion, in the case of offence by Company, to bring its Directors within the mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the Company. It is necessary ingredient which would be sufficient to proceed against such Directors. However, we may add that as no particular form is prescribed, it may not be necessary to reproduce the words of the section. If reading of the complaint shows and substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. However, it may not be necessary to allege and prove that, in fact, such of the Directors have any specific role in respect of the transaction leading to issuance of cheque. Section 141 of the Act makes the Directors in charge and responsible to Company for the conduct of the business of the Company within the mischief of Section 138 of the Act and not particular business for which the cheque was issued. We cannot read more than what has been mandated in Section 141 of the ActFrom a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed is in charge of and responsible to the Company shall be deemed to be guilty of the offence under Section 138 of the Act. In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the Company? In our opinion, in the case of offence by Company, to bring its Directors within the mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the Company. It is necessary ingredient which would be sufficient to proceed against such Directors. However, we may add that as no particular form is prescribed, it may not be necessary to reproduce the words of the section. If reading of the complaint shows and substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. However, it may not be necessary to allege and prove that, in fact, such of the Directors have any specific role in respect of the transaction leading to issuance of cheque. Section 141 of the Act makes the Directors in charge and responsible to Company for the conduct of the business of the Company within the mischief of Section 138 of the Act and not particular business for which the cheque was issued. We cannot read more than what has been mandated in Section 141 of the ActWe have found on fact that there is no averment that the two accused herein were in charge of and responsible for the conduct of the business of the company at the time the offence was committed. Hence, there is no essential averment in the complaints. In view of what we have observed above, the prosecution of accused A.K. Singhania and accused Vikram Prakash cannot be allowed to continue. Accordingly, the order of the High Court quashing the prosecution of the accused Vikram Prakash is not fit to be interfered with. For the same reason the order passed by the High Court declining the prayer of A.K. Singhania for quashing of the prosecution cannot be sustained and the appeals preferred by him deserve to be allowed.

### 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: 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. From a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed is in charge of and responsible to the Company shall be deemed to be guilty of the offence under Section 138 of the Act. In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the Company? In our opinion, in the case of offence by Company, to bring its Directors within the mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the Company. It is necessary ingredient which would be sufficient to proceed against such Directors. However, we may add that as no particular form is prescribed, it may not be necessary to reproduce the words of the section. If reading of the complaint shows and substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. However, it may not be necessary to allege and prove that, in fact, such of the Directors have any specific role in respect of the transaction leading to issuance of cheque. Section 141 of the Act makes the Directors in charge and responsible to Company for the conduct of the business of the Company within the mischief of Section 138 of the Act and not particular business for which the cheque was issued. We cannot read more than what has been mandated in Section 141 of the Act. A large number of authorities of this Court have been cited by the counsel representing the party to bring home their point. We deem it inexpedient to refer to all of them. Suffice it to say that this question has been answered eloquently by a three-Judge Bench decision of this Court in the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89 , in the following words: 19. In view of the above discussion, our answers to the questions posed in the reference are as under: (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in-charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. This Court in the case of National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal, (2010) 3 SCC 330 , after reviewing all its earlier judgments summarized the legal position as follows: 39. From the above discussion, the following principles emerge: (i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction. (ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. (iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with. (iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred. (v) If the accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with. (vi) If the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in the complaint. (vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases. In Harshendra Kumar D. v. Rebatilata Koley, (2011) 3 SCC 351 , afterreferring to its earlier decisions in S.M.S. Pharmaceuticals Ltd.(supra),National Small Industries Corpn. Ltd.(supra), N. Rangachari v. BharatSanchar Nigam Ltd., (2007) 5 SCC 108 and K.K. Ahuja v. V.K. Vora, (2009) 10SCC 48, this Court reiterated the same view. We have found on fact that there is no averment that the two accused herein were in charge of and responsible for the conduct of the business of the company at the time the offence was committed. Hence, there is no essential averment in the complaints. In view of what we have observed above, the prosecution of accused A.K. Singhania and accused Vikram Prakash cannot be allowed to continue. Accordingly, the order of the High Court quashing the prosecution of the accused Vikram Prakash is not fit to be interfered with. For the same reason the order passed by the High Court declining the prayer of A.K. Singhania for quashing of the prosecution cannot be sustained and the appeals preferred by him deserve to be allowed. ### Response: 0 ### Explanation: From a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed is in charge of and responsible to the Company shall be deemed to be guilty of the offence under Section 138 of the Act. In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the Company? In our opinion, in the case of offence by Company, to bring its Directors within the mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the Company. It is necessary ingredient which would be sufficient to proceed against such Directors. However, we may add that as no particular form is prescribed, it may not be necessary to reproduce the words of the section. If reading of the complaint shows and substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. However, it may not be necessary to allege and prove that, in fact, such of the Directors have any specific role in respect of the transaction leading to issuance of cheque. Section 141 of the Act makes the Directors in charge and responsible to Company for the conduct of the business of the Company within the mischief of Section 138 of the Act and not particular business for which the cheque was issued. We cannot read more than what has been mandated in Section 141 of the ActFrom a plain reading of the aforesaid provision it is evident that every person who at the time the offence was committed is in charge of and responsible to the Company shall be deemed to be guilty of the offence under Section 138 of the Act. In the face of it, will it be necessary to specifically state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the Company? In our opinion, in the case of offence by Company, to bring its Directors within the mischief of Section 138 of the Act, it shall be necessary to allege that they were in charge of and responsible to the conduct of the business of the Company. It is necessary ingredient which would be sufficient to proceed against such Directors. However, we may add that as no particular form is prescribed, it may not be necessary to reproduce the words of the section. If reading of the complaint shows and substance of accusation discloses necessary averments, that would be sufficient to proceed against such of the Directors and no particular form is necessary. However, it may not be necessary to allege and prove that, in fact, such of the Directors have any specific role in respect of the transaction leading to issuance of cheque. Section 141 of the Act makes the Directors in charge and responsible to Company for the conduct of the business of the Company within the mischief of Section 138 of the Act and not particular business for which the cheque was issued. We cannot read more than what has been mandated in Section 141 of the ActWe have found on fact that there is no averment that the two accused herein were in charge of and responsible for the conduct of the business of the company at the time the offence was committed. Hence, there is no essential averment in the complaints. In view of what we have observed above, the prosecution of accused A.K. Singhania and accused Vikram Prakash cannot be allowed to continue. Accordingly, the order of the High Court quashing the prosecution of the accused Vikram Prakash is not fit to be interfered with. For the same reason the order passed by the High Court declining the prayer of A.K. Singhania for quashing of the prosecution cannot be sustained and the appeals preferred by him deserve to be allowed.

Chairman of the Municipal Commissioners of Howrah Vs. Shalimar Wood Products & Another

and powers made, issued or conferred under the portions of this Act which have been so extended and in force at the date of such extension, shall apply to the said municipality or part, in supersession, of all corresponding rules, by-laws, orders, directions and powers made, issued or conferred under the said Bengal Municipal Act, 1932"and by explanation to that Section the extension of the Act did not put the Municipality of Howrah under the authority of the Corporation of Calcutta. By a Gazette Notification No. 260M of January 18, 1932 practically the whole of the Act, excepting the provisions which are not necessary, was extended to the Municipality of Howrah. The language extending the Act was as follows:Howrah. - No. 260M. - 18th January 1932. - In exercise of the power conferred by sub-section (2) of Section 541 of the Calcutta Municipal Act, 1923 (Bengal Act III of 1923), the Government of Bengal (Ministry of Local Self-Government) are pleased to extend to the Municipality of Howrah the following provisions of the Calcutta Municipal Act 1923, subject to the modifications and restrictions specified therein, which are shown in antique type."As a result of this extension S. 386 was extended to the Municipality of Howrah with this modification that in place of the word Corporation of Calcutta" the word "Commissioners" was substituted. In 1951 the Calcutta Municipal Act 1951 being West Bengal Act 33 of 1951 was enacted thus replacing Act 3 of 1923 which was therefore repealed. In the new Act corresponding provision to Ss. 540, 541 and 542 are Ss. 589, 590 and 591. Section 614 of the new Act provides that the provisions of Act III of 1923 as extended to the Municipality of Howrah shall continue to be in force until the provisions of the new Act are extended to that Municipality under the new Act. Thus the effect of the extension by the Notification under Ss. 540 and 541 of the Calcutta Municipal Act is that to the Municipality of Howrah an amended Act with an amended S. 386 is applicable and not S. 386 of the Act III of 1923.Keeping this in view we have then to see how far S. 38 of the West Bengal Fire Services Act 1950 (Act 18 of 1950) has affected the operation of S. 386 as it applies to the Municipality of Howrah. Section 38 provides that that section repeals S. 386 of the Act III of 1923 to the extent therein mentioned. It also repeals S. 370 of the Bengal Municipal Act as it applies to the Commissioners of Municipalities in Bengal. It does not apply to S. 386 as modified and is inapplicable to the Municipality of Howrah because in S. 386 as applicable to the Corporation of Calcutta the word used is "Corporation" and not "Commissioners" and wherever the word "Corporation" is used in S. 386 it is replaced by the word "Commissioners" in S. 386 as it applies to the Howrah Municipality. It cannot be said therefore that S. 38 repeals S. 386 of the Act III of 1923 as it applies to the Howrah Municipality.7. In a somewhat similar case a similar view was taken by the Privy Council. See Secretary of State v. Hindusthan Cooperative Insurance Society Ltd., 58 Ind App 259 : (AIR 1931 PC 149 ). In that case certain provisions of the Land Acquisition Act were incorporated by reference into the Calcutta Improvement Act 1911. By an amendment of 1921 the right of appeal to the Privy Council from the decision of the High Court was provided in matters falling under the Land Acquisition Act.It was held that the right of appeal so given was not applicable to the award of a tribunal under the Calcutta Improvement Act assessing compensation in respect of land acquired under the provisions of the Land Acquisition Act. Dealing with this matter Sir George Lowndes quoted with approval the observations of Lord Westbury in Ex parte , St. Sepulchre, (1863) 33 LJ (Ch) 372 at p. 376, and observed:"It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition."8. Although S. 38 of the West Bengal Fire Services Act extends to the whole of Bengal and to the extent there set out it repeals S. 386 of the Calcutta Municipal Act which applies to the Corporation of Calcutta and S. 370 which applies to the other Municipalities of Bengal yet it does not affect the operation of S. 386 of the former Act as modified and extended to the Municipality of Howrah by the notification which has been set out above. The reason for that is that the language of S. 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word "Corporation" the word "Commissioners" has been substituted. Thus modified it is not S. 386 of the Calcutta Municipal Act but a different Section. Therefore what S. 38 of the West Bengal Fire Services Act repeals is S. 386 of the Calcutta Municipal Act and not S. 386 of that as modified and applied to the Municipality of Howrah. It may look rather anomalous but that is what the effect of the modification of the language is. In our opinion therefore the contention of the appellant is well founded and S. 38 of the West Bengal Fire Services Act does not repeal S. 386 as modified and as applicable to the Municipality of Howrah. From the point of view of the respondent the result may be unfortunate but that is the interpretation of the language of the various Sections which are relevant in the present case.

1[ds]As a result of this extension S. 386 was extended to the Municipality of Howrah with this modification that in place of the word Corporation of Calcutta" the word "Commissioners" was substituted. In 1951 the Calcutta Municipal Act 1951 being West Bengal Act 33 of 1951 was enacted thus replacing Act 3 of 1923 which was therefore repealed. In the new Act corresponding provision to Ss. 540, 541 and 542 are Ss. 589, 590 and 591. Section 614 of the new Act provides that the provisions of Act III of 1923 as extended to the Municipality of Howrah shall continue to be in force until the provisions of the new Act are extended to that Municipality under the new Act. Thus the effect of the extension by the Notification under Ss. 540 and 541 of the Calcutta Municipal Act is that to the Municipality of Howrah an amended Act with an amended S. 386 is applicable and not S. 386 of the Act III of 1923.Keeping this in view we have then to see how far S. 38 of the West Bengal Fire Services Act 1950 (Act 18 of 1950) has affected the operation of S. 386 as it applies to the Municipality of Howrah. Section 38 provides that that section repeals S. 386 of the Act III of 1923 to the extent therein mentioned. It also repeals S. 370 of the Bengal Municipal Act as it applies to the Commissioners of Municipalities in Bengal. It does not apply to S. 386 as modified and is inapplicable to the Municipality of Howrah because in S. 386 as applicable to the Corporation of Calcutta the word used is "Corporation" and not "Commissioners" and wherever the word "Corporation" is used in S. 386 it is replaced by the word "Commissioners" in S. 386 as it applies to the Howrah Municipality. It cannot be said therefore that S. 38 repeals S. 386 of the Act III of 1923 as it applies to the Howrah Municipality.Although S. 38 of the West Bengal Fire Services Act extends to the whole of Bengal and to the extent there set out it repeals S. 386 of the Calcutta Municipal Act which applies to the Corporation of Calcutta and S. 370 which applies to the other Municipalities of Bengal yet it does not affect the operation of S. 386 of the former Act as modified and extended to the Municipality of Howrah by the notification which has been set out above. The reason for that is that the language of S. 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word "Corporation" the word "Commissioners" has been substituted. Thus modified it is not S. 386 of the Calcutta Municipal Act but a different Section. Therefore what S. 38 of the West Bengal Fire Services Act repeals is S. 386 of the Calcutta Municipal Act and not S. 386 of that as modified and applied to the Municipality of Howrah. It may look rather anomalous but that is what the effect of the modification of the language is. In our opinion therefore the contention of the appellant is well founded and S. 38 of the West Bengal Fire Services Act does not repeal S. 386 as modified and as applicable to the Municipality of Howrah. From the point of view of the respondent the result may be unfortunate but that is the interpretation of the language of the various Sections which are relevant in the present case.

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: and powers made, issued or conferred under the portions of this Act which have been so extended and in force at the date of such extension, shall apply to the said municipality or part, in supersession, of all corresponding rules, by-laws, orders, directions and powers made, issued or conferred under the said Bengal Municipal Act, 1932"and by explanation to that Section the extension of the Act did not put the Municipality of Howrah under the authority of the Corporation of Calcutta. By a Gazette Notification No. 260M of January 18, 1932 practically the whole of the Act, excepting the provisions which are not necessary, was extended to the Municipality of Howrah. The language extending the Act was as follows:Howrah. - No. 260M. - 18th January 1932. - In exercise of the power conferred by sub-section (2) of Section 541 of the Calcutta Municipal Act, 1923 (Bengal Act III of 1923), the Government of Bengal (Ministry of Local Self-Government) are pleased to extend to the Municipality of Howrah the following provisions of the Calcutta Municipal Act 1923, subject to the modifications and restrictions specified therein, which are shown in antique type."As a result of this extension S. 386 was extended to the Municipality of Howrah with this modification that in place of the word Corporation of Calcutta" the word "Commissioners" was substituted. In 1951 the Calcutta Municipal Act 1951 being West Bengal Act 33 of 1951 was enacted thus replacing Act 3 of 1923 which was therefore repealed. In the new Act corresponding provision to Ss. 540, 541 and 542 are Ss. 589, 590 and 591. Section 614 of the new Act provides that the provisions of Act III of 1923 as extended to the Municipality of Howrah shall continue to be in force until the provisions of the new Act are extended to that Municipality under the new Act. Thus the effect of the extension by the Notification under Ss. 540 and 541 of the Calcutta Municipal Act is that to the Municipality of Howrah an amended Act with an amended S. 386 is applicable and not S. 386 of the Act III of 1923.Keeping this in view we have then to see how far S. 38 of the West Bengal Fire Services Act 1950 (Act 18 of 1950) has affected the operation of S. 386 as it applies to the Municipality of Howrah. Section 38 provides that that section repeals S. 386 of the Act III of 1923 to the extent therein mentioned. It also repeals S. 370 of the Bengal Municipal Act as it applies to the Commissioners of Municipalities in Bengal. It does not apply to S. 386 as modified and is inapplicable to the Municipality of Howrah because in S. 386 as applicable to the Corporation of Calcutta the word used is "Corporation" and not "Commissioners" and wherever the word "Corporation" is used in S. 386 it is replaced by the word "Commissioners" in S. 386 as it applies to the Howrah Municipality. It cannot be said therefore that S. 38 repeals S. 386 of the Act III of 1923 as it applies to the Howrah Municipality.7. In a somewhat similar case a similar view was taken by the Privy Council. See Secretary of State v. Hindusthan Cooperative Insurance Society Ltd., 58 Ind App 259 : (AIR 1931 PC 149 ). In that case certain provisions of the Land Acquisition Act were incorporated by reference into the Calcutta Improvement Act 1911. By an amendment of 1921 the right of appeal to the Privy Council from the decision of the High Court was provided in matters falling under the Land Acquisition Act.It was held that the right of appeal so given was not applicable to the award of a tribunal under the Calcutta Improvement Act assessing compensation in respect of land acquired under the provisions of the Land Acquisition Act. Dealing with this matter Sir George Lowndes quoted with approval the observations of Lord Westbury in Ex parte , St. Sepulchre, (1863) 33 LJ (Ch) 372 at p. 376, and observed:"It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition."8. Although S. 38 of the West Bengal Fire Services Act extends to the whole of Bengal and to the extent there set out it repeals S. 386 of the Calcutta Municipal Act which applies to the Corporation of Calcutta and S. 370 which applies to the other Municipalities of Bengal yet it does not affect the operation of S. 386 of the former Act as modified and extended to the Municipality of Howrah by the notification which has been set out above. The reason for that is that the language of S. 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word "Corporation" the word "Commissioners" has been substituted. Thus modified it is not S. 386 of the Calcutta Municipal Act but a different Section. Therefore what S. 38 of the West Bengal Fire Services Act repeals is S. 386 of the Calcutta Municipal Act and not S. 386 of that as modified and applied to the Municipality of Howrah. It may look rather anomalous but that is what the effect of the modification of the language is. In our opinion therefore the contention of the appellant is well founded and S. 38 of the West Bengal Fire Services Act does not repeal S. 386 as modified and as applicable to the Municipality of Howrah. From the point of view of the respondent the result may be unfortunate but that is the interpretation of the language of the various Sections which are relevant in the present case. ### Response: 1 ### Explanation: As a result of this extension S. 386 was extended to the Municipality of Howrah with this modification that in place of the word Corporation of Calcutta" the word "Commissioners" was substituted. In 1951 the Calcutta Municipal Act 1951 being West Bengal Act 33 of 1951 was enacted thus replacing Act 3 of 1923 which was therefore repealed. In the new Act corresponding provision to Ss. 540, 541 and 542 are Ss. 589, 590 and 591. Section 614 of the new Act provides that the provisions of Act III of 1923 as extended to the Municipality of Howrah shall continue to be in force until the provisions of the new Act are extended to that Municipality under the new Act. Thus the effect of the extension by the Notification under Ss. 540 and 541 of the Calcutta Municipal Act is that to the Municipality of Howrah an amended Act with an amended S. 386 is applicable and not S. 386 of the Act III of 1923.Keeping this in view we have then to see how far S. 38 of the West Bengal Fire Services Act 1950 (Act 18 of 1950) has affected the operation of S. 386 as it applies to the Municipality of Howrah. Section 38 provides that that section repeals S. 386 of the Act III of 1923 to the extent therein mentioned. It also repeals S. 370 of the Bengal Municipal Act as it applies to the Commissioners of Municipalities in Bengal. It does not apply to S. 386 as modified and is inapplicable to the Municipality of Howrah because in S. 386 as applicable to the Corporation of Calcutta the word used is "Corporation" and not "Commissioners" and wherever the word "Corporation" is used in S. 386 it is replaced by the word "Commissioners" in S. 386 as it applies to the Howrah Municipality. It cannot be said therefore that S. 38 repeals S. 386 of the Act III of 1923 as it applies to the Howrah Municipality.Although S. 38 of the West Bengal Fire Services Act extends to the whole of Bengal and to the extent there set out it repeals S. 386 of the Calcutta Municipal Act which applies to the Corporation of Calcutta and S. 370 which applies to the other Municipalities of Bengal yet it does not affect the operation of S. 386 of the former Act as modified and extended to the Municipality of Howrah by the notification which has been set out above. The reason for that is that the language of S. 386 has been modified to make it appropriate in its application to the Municipality of Howrah and for that purpose in place of the word "Corporation" the word "Commissioners" has been substituted. Thus modified it is not S. 386 of the Calcutta Municipal Act but a different Section. Therefore what S. 38 of the West Bengal Fire Services Act repeals is S. 386 of the Calcutta Municipal Act and not S. 386 of that as modified and applied to the Municipality of Howrah. It may look rather anomalous but that is what the effect of the modification of the language is. In our opinion therefore the contention of the appellant is well founded and S. 38 of the West Bengal Fire Services Act does not repeal S. 386 as modified and as applicable to the Municipality of Howrah. From the point of view of the respondent the result may be unfortunate but that is the interpretation of the language of the various Sections which are relevant in the present case.

M/S Kulja Industries Ltd Vs. Chief Gen.Manager W.T.Proj.Bsnl

and recipients who are non-responsible, lack business integrity or engage in dishonest or illegal conduct or are otherwise unable to perform satisfactorily. These guidelines prescribe the following among other grounds for debarment: a) Conviction of or civil judgment for -- (1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction;(2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging;(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice; or(4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility;(b) Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as—(1) A willful failure to perform in accordance with the terms of one or more public agreements or transactions;(2) A history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or(3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction;(c) xxxx(d) Any other cause of so serious or compelling a nature that it affects your present responsibility. 21. The guidelines also stipulate the factors that may influence the debarring official’s decision which include the following: a) The actual or potential harm or impact that results or may result from the wrongdoing.b) The frequency of incidents and/or duration of the wrongdoing.c) Whether there is a pattern or prior history of wrongdoing.d) Whether contractor has been excluded or disqualified by an agency of the Federal Government or have not been allowed to participate in State or local contracts or assistance agreements on a basis of conduct similar to one or more of the causes for debarment specified in this part.(e) Whether and to what extent did the contractor plan, initiate or carry out the wrongdoing.(f) Whether the contractor has accepted responsibility for the wrongdoing and recognized the seriousness of the misconduct.(g) Whether the contractor has paid or agreed to pay all criminal, civil and administrative liabilities for the improper activity, including any investigative or administrative costs incurred by the government, and have made or agreed to make full restitution.((h) Whether contractor has cooperated fully with the government agencies during the investigation and any court or administrative action.(i) Whether the wrongdoing was pervasive within the contractor’s organization.(j) The kind of positions held by the individuals involved in the wrongdoing.(k) Whether the contractor has taken appropriate corrective action or remedial measures, such as establishing ethics training and implementing programs to prevent recurrence.(l) Whether the contractor fully investigated the circumstances surrounding the cause for debarment and, if so, made the result of the investigation available to the debarring official.” 22. As regards the period for which the order of debarment will remain effective, the guidelines state that the same would depend upon the seriousness of the case leading to such debarment. 23. Similarly in England, Wales and Northern Ireland, there are statutory provisions that make operators ineligible on several grounds including fraud, fraudulent trading or conspiracy to defraud, bribery etc. 24. Suffice it to say that ‘debarment’ is recognised and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission or frauds including misrepresentations, falsification of records and other breaches of the regulations under which such contracts were allotted. What is notable is that the ‘debarment’ is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor. 25. In the case at hand according to the respondent-BSNL, the appellant had fraudulently withdrawn a huge amount of money which was not due to it in collusion and conspiracy with the officials of the respondent-corporation. Even so permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable especially when (a) the appellant is supplying bulk of its manufactured products to the respondent-BSNL and (b) The excess amount received by it has already been paid back.26. The next question then is whether this Court ought to itself determine the time period for which the appellant should be blacklisted or remit the matter back to the authority to do so having regard to the attendant facts and circumstances. A remand back to the competent authority has appealed to us to be a more appropriate option than an order by which we may ourselves determine the period for which the appellant would remain blacklisted. We say so for two precise reasons. Firstly, because blacklisting is in the nature of penalty the quantum whereof is a matter that rests primarily with the authority competent to impose the same. In the realm of service jurisprudence this Court has no doubt cut short the agony of a delinquent employee in exceptional circumstances to prevent delay and further litigation by modifying the quantum of punishment but such considerations do not apply to a company engaged in a lucrative business like supply of optical fibre/HDPE pipes to BSNL. Secondly, because while determining the period for which the blacklisting should be effective the respondent-Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While, it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent-Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor. 27.

1[ds]In the case at hand according to the respondent-BSNL, the appellant had fraudulently withdrawn a huge amount of money which was not due to it in collusion and conspiracy with the officials of the respondent-corporation. Even so permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable especially when (a) the appellant is supplying bulk of its manufactured products to the respondent-BSNL and (b) The excess amount received by it has already been paid back.26. The next question then is whether this Court ought to itself determine the time period for which the appellant should be blacklisted or remit the matter back to the authority to do so having regard to the attendant facts and circumstances. A remand back to the competent authority has appealed to us to be a more appropriate option than an order by which we may ourselves determine the period for which the appellant would remain blacklisted. We say so for two precise reasons. Firstly, because blacklisting is in the nature of penalty the quantum whereof is a matter that rests primarily with the authority competent to impose the same. In the realm of service jurisprudence this Court has no doubt cut short the agony of a delinquent employee in exceptional circumstances to prevent delay and further litigation by modifying the quantum of punishment but such considerations do not apply to a company engaged in a lucrative business like supply of optical fibre/HDPE pipes to BSNL. Secondly, because while determining the period for which the blacklisting should be effective the respondent-Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While, it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent-Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor.

### 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: and recipients who are non-responsible, lack business integrity or engage in dishonest or illegal conduct or are otherwise unable to perform satisfactorily. These guidelines prescribe the following among other grounds for debarment: a) Conviction of or civil judgment for -- (1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction;(2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging;(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice; or(4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility;(b) Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as—(1) A willful failure to perform in accordance with the terms of one or more public agreements or transactions;(2) A history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or(3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction;(c) xxxx(d) Any other cause of so serious or compelling a nature that it affects your present responsibility. 21. The guidelines also stipulate the factors that may influence the debarring official’s decision which include the following: a) The actual or potential harm or impact that results or may result from the wrongdoing.b) The frequency of incidents and/or duration of the wrongdoing.c) Whether there is a pattern or prior history of wrongdoing.d) Whether contractor has been excluded or disqualified by an agency of the Federal Government or have not been allowed to participate in State or local contracts or assistance agreements on a basis of conduct similar to one or more of the causes for debarment specified in this part.(e) Whether and to what extent did the contractor plan, initiate or carry out the wrongdoing.(f) Whether the contractor has accepted responsibility for the wrongdoing and recognized the seriousness of the misconduct.(g) Whether the contractor has paid or agreed to pay all criminal, civil and administrative liabilities for the improper activity, including any investigative or administrative costs incurred by the government, and have made or agreed to make full restitution.((h) Whether contractor has cooperated fully with the government agencies during the investigation and any court or administrative action.(i) Whether the wrongdoing was pervasive within the contractor’s organization.(j) The kind of positions held by the individuals involved in the wrongdoing.(k) Whether the contractor has taken appropriate corrective action or remedial measures, such as establishing ethics training and implementing programs to prevent recurrence.(l) Whether the contractor fully investigated the circumstances surrounding the cause for debarment and, if so, made the result of the investigation available to the debarring official.” 22. As regards the period for which the order of debarment will remain effective, the guidelines state that the same would depend upon the seriousness of the case leading to such debarment. 23. Similarly in England, Wales and Northern Ireland, there are statutory provisions that make operators ineligible on several grounds including fraud, fraudulent trading or conspiracy to defraud, bribery etc. 24. Suffice it to say that ‘debarment’ is recognised and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission or frauds including misrepresentations, falsification of records and other breaches of the regulations under which such contracts were allotted. What is notable is that the ‘debarment’ is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor. 25. In the case at hand according to the respondent-BSNL, the appellant had fraudulently withdrawn a huge amount of money which was not due to it in collusion and conspiracy with the officials of the respondent-corporation. Even so permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable especially when (a) the appellant is supplying bulk of its manufactured products to the respondent-BSNL and (b) The excess amount received by it has already been paid back.26. The next question then is whether this Court ought to itself determine the time period for which the appellant should be blacklisted or remit the matter back to the authority to do so having regard to the attendant facts and circumstances. A remand back to the competent authority has appealed to us to be a more appropriate option than an order by which we may ourselves determine the period for which the appellant would remain blacklisted. We say so for two precise reasons. Firstly, because blacklisting is in the nature of penalty the quantum whereof is a matter that rests primarily with the authority competent to impose the same. In the realm of service jurisprudence this Court has no doubt cut short the agony of a delinquent employee in exceptional circumstances to prevent delay and further litigation by modifying the quantum of punishment but such considerations do not apply to a company engaged in a lucrative business like supply of optical fibre/HDPE pipes to BSNL. Secondly, because while determining the period for which the blacklisting should be effective the respondent-Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While, it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent-Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor. 27. ### Response: 1 ### Explanation: In the case at hand according to the respondent-BSNL, the appellant had fraudulently withdrawn a huge amount of money which was not due to it in collusion and conspiracy with the officials of the respondent-corporation. Even so permanent debarment from future contracts for all times to come may sound too harsh and heavy a punishment to be considered reasonable especially when (a) the appellant is supplying bulk of its manufactured products to the respondent-BSNL and (b) The excess amount received by it has already been paid back.26. The next question then is whether this Court ought to itself determine the time period for which the appellant should be blacklisted or remit the matter back to the authority to do so having regard to the attendant facts and circumstances. A remand back to the competent authority has appealed to us to be a more appropriate option than an order by which we may ourselves determine the period for which the appellant would remain blacklisted. We say so for two precise reasons. Firstly, because blacklisting is in the nature of penalty the quantum whereof is a matter that rests primarily with the authority competent to impose the same. In the realm of service jurisprudence this Court has no doubt cut short the agony of a delinquent employee in exceptional circumstances to prevent delay and further litigation by modifying the quantum of punishment but such considerations do not apply to a company engaged in a lucrative business like supply of optical fibre/HDPE pipes to BSNL. Secondly, because while determining the period for which the blacklisting should be effective the respondent-Corporation may for the sake of objectivity and transparency formulate broad guidelines to be followed in such cases. Different periods of debarment depending upon the gravity of the offences, violations and breaches may be prescribed by such guidelines. While, it may not be possible to exhaustively enumerate all types of offences and acts of misdemeanour, or violations of contractual obligations by a contractor, the respondent-Corporation may do so as far as possible to reduce if not totally eliminate arbitrariness in the exercise of the power vested in it and inspire confidence in the fairness of the order which the competent authority may pass against a defaulting contractor.

AUTHORISED OFFICER, STATE BANK OF INDIA Vs. M/S ALLWYN ALLOYS PVT. LT

pleadings and for full and complete adjudication of the matters in issue, it is apposite to give liberty to the writ petitioners to contest the matter before a proper forum where all the issues could be agitated. For, indisputably, respondent No.5 (writ petitioner No.1) is in physical possession of the stated flat. The High Court proceeded to pass the following operative order in the said writ petition: 6] Accordingly, we dispose of the writ petition with the following directions: a] Period of 8 weeks is granted for the writ petitioners to approach proper forum to get adjudication of the rights of the writ petitioners as contended in the writ petition and within the said period of 8 weeks, they shall file and seek proper interim relief in their favour. Till expiry of 8 weeks, the 1 st respondent bank shall not proceed with the matter in terms of the order obtained by them before Debts Recovery Tribunal so far as the property in question; b] Amount of Rs.25 Lacs shall be deposited in an interest earning deposit, by the respondent No.1 bank and profits of the said deposit shall enure to the benefits of the parties, who become successful in the litigation; and c] No order as to costs. 4. The Bank has assailed the aforesaid decision of the High Court primarily on the ground that all issues concerning the mortgaged/secured property are required to be decided only by the DRT; and not in any civil proceedings as has been observed by the High Court in the impugned judgment. For, filing of a civil suit in respect of secured assets is barred by law. Secondly, the DRT as well as DRAT have examined the merits of the controversy and justly answered the same against the writ petitioners. The concurrent finding of fact recorded by the said Tribunals is that the writ petitioners have failed to establish any right, title or interest in the subject flat. That finding has neither been disturbed nor is it assailable. According to the Bank, the High Court judgment under appeal is untenable and deserves to be set aside. 5. The contesting respondent Nos.5 and 6 (writ petitioners), however, supported the view taken by the High Court and would contend that it is indisputable that respondent No.5 (writ petitioner No.1) is in physical possession of the subject flat and was entitled to pursue his claim about the right, title and interest in the subject flat in view of the Memorandum of Understanding dated 13 th March, 2011, executed between the writ petitioners and respondent Nos.2 to 4 regarding re-sale of the subject flat in their (writ petitioners) favour. The respondent Nos.5 and 6 would also contend that the original share certificate and few receipts of payments made to the Society were still in their possession and that the entries effected in the Societys record to transfer the share certificate in favour of respondent Nos. 2 to 4 are fabricated. 6. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 2002 Act), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the respondent Nos. 5 and 6 (writ petitioners) in favour of respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the respondent Nos.5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and a full-fledged trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law. 7. The learned counsel appearing on behalf of the Bank persuaded us to decide the merits of the controversy between the parties but as noted earlier, the High Court has not analysed the same at all but chose to dispose of the writ petition by giving liberty to the writ petitioners to pursue their remedy before a proper forum. The respondent Nos.5 and 6 (writ petitioners) would, however, contend that crucial aspects have been glossed over by the DRT and DRAT including the effect of admitted position that respondent No.5 (writ petitioner No.1) is in possession of the subject property and also having custody of the original share certificate and few receipts issued by the Society. In these circumstances, we deem it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law. 8. We find force in the submission made on behalf of the Bank that the High Court could not have directed the Bank to deposit Rs.25 Lacs in an interest earning deposit and the profits of the said deposit to enure to the benefit of the successful party. Such a direction, in our view, was wholly uncalled for.

0[ds]6. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 2002 Act), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the respondent Nos. 5 and 6 (writ petitioners) in favour of respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the respondent Nos.5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and ad trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law7. The learned counsel appearing on behalf of the Bank persuaded us to decide the merits of the controversy between the parties but as noted earlier, the High Court has not analysed the same at all but chose to dispose of the writ petition by giving liberty to the writ petitioners to pursue their remedy before a proper forumIn these circumstances, we deem it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law8. We find force in the submission made on behalf of the Bank that the High Court could not have directed the Bank to deposit Rs.25 Lacs in an interest earning deposit and the profits of the said deposit to enure to the benefit of the successful party. Such a direction, in our view, was wholly uncalled for.

### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: pleadings and for full and complete adjudication of the matters in issue, it is apposite to give liberty to the writ petitioners to contest the matter before a proper forum where all the issues could be agitated. For, indisputably, respondent No.5 (writ petitioner No.1) is in physical possession of the stated flat. The High Court proceeded to pass the following operative order in the said writ petition: 6] Accordingly, we dispose of the writ petition with the following directions: a] Period of 8 weeks is granted for the writ petitioners to approach proper forum to get adjudication of the rights of the writ petitioners as contended in the writ petition and within the said period of 8 weeks, they shall file and seek proper interim relief in their favour. Till expiry of 8 weeks, the 1 st respondent bank shall not proceed with the matter in terms of the order obtained by them before Debts Recovery Tribunal so far as the property in question; b] Amount of Rs.25 Lacs shall be deposited in an interest earning deposit, by the respondent No.1 bank and profits of the said deposit shall enure to the benefits of the parties, who become successful in the litigation; and c] No order as to costs. 4. The Bank has assailed the aforesaid decision of the High Court primarily on the ground that all issues concerning the mortgaged/secured property are required to be decided only by the DRT; and not in any civil proceedings as has been observed by the High Court in the impugned judgment. For, filing of a civil suit in respect of secured assets is barred by law. Secondly, the DRT as well as DRAT have examined the merits of the controversy and justly answered the same against the writ petitioners. The concurrent finding of fact recorded by the said Tribunals is that the writ petitioners have failed to establish any right, title or interest in the subject flat. That finding has neither been disturbed nor is it assailable. According to the Bank, the High Court judgment under appeal is untenable and deserves to be set aside. 5. The contesting respondent Nos.5 and 6 (writ petitioners), however, supported the view taken by the High Court and would contend that it is indisputable that respondent No.5 (writ petitioner No.1) is in physical possession of the subject flat and was entitled to pursue his claim about the right, title and interest in the subject flat in view of the Memorandum of Understanding dated 13 th March, 2011, executed between the writ petitioners and respondent Nos.2 to 4 regarding re-sale of the subject flat in their (writ petitioners) favour. The respondent Nos.5 and 6 would also contend that the original share certificate and few receipts of payments made to the Society were still in their possession and that the entries effected in the Societys record to transfer the share certificate in favour of respondent Nos. 2 to 4 are fabricated. 6. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 2002 Act), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the respondent Nos. 5 and 6 (writ petitioners) in favour of respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the respondent Nos.5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and a full-fledged trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law. 7. The learned counsel appearing on behalf of the Bank persuaded us to decide the merits of the controversy between the parties but as noted earlier, the High Court has not analysed the same at all but chose to dispose of the writ petition by giving liberty to the writ petitioners to pursue their remedy before a proper forum. The respondent Nos.5 and 6 (writ petitioners) would, however, contend that crucial aspects have been glossed over by the DRT and DRAT including the effect of admitted position that respondent No.5 (writ petitioner No.1) is in possession of the subject property and also having custody of the original share certificate and few receipts issued by the Society. In these circumstances, we deem it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law. 8. We find force in the submission made on behalf of the Bank that the High Court could not have directed the Bank to deposit Rs.25 Lacs in an interest earning deposit and the profits of the said deposit to enure to the benefit of the successful party. Such a direction, in our view, was wholly uncalled for. ### Response: 0 ### Explanation: 6. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 2002 Act), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the respondent Nos. 5 and 6 (writ petitioners) in favour of respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the respondent Nos.5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and ad trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law7. The learned counsel appearing on behalf of the Bank persuaded us to decide the merits of the controversy between the parties but as noted earlier, the High Court has not analysed the same at all but chose to dispose of the writ petition by giving liberty to the writ petitioners to pursue their remedy before a proper forumIn these circumstances, we deem it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law8. We find force in the submission made on behalf of the Bank that the High Court could not have directed the Bank to deposit Rs.25 Lacs in an interest earning deposit and the profits of the said deposit to enure to the benefit of the successful party. Such a direction, in our view, was wholly uncalled for.

Sakharam Bapusaheb Narayan Sanas And Another Vs. Manikchand Motichand Shah And Another

right of the original grantee was a right but it was not a right accrued within the meaning of the repealed statute. It was held not to have accrued because the option given to the original grantee to make additional purchases had not been exercised before the repeal. In other words, the right which was sought to be exercised was not in existence at the date of the repealing Act, which had restricted those rights.In the instant case, the right of a protected tenant had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary. That right had been recognised by the public authorities by making the relevant entries in the Record of Rights, as aforesaid. On the other hand as already indicated, S. 3A(1) of the Act of 1939 had given the right to the landlord-respondent to take proceedings to have the necessary declaration made by the mamlatdar that the tenant had not acquired the status of a protected tenant. He did not proceed in that behalf. Hence, it is clear that so far as the appellants were concerned, their status as protected tenants had been recognised by the public authorities under the Act of 1939, and they had to do nothing more to bring their case within the expression right accrued, in cl. (b) of S. 89(2) of the Act of 1948. 6. It having been held that the second ground of attack against the claim made by the appellants is not well-founded in law, it now remains to consider whether the first ground, namely, that there is an express provision in S. 88, within the meaning of S. 89 (2) (b), taking away the appellants right, is supported by the terms of Ss. 88 and 89. In this connection, it was pointed out on behalf of the respondent that S. 88(1) in terms provides that Ss. 1 to 87 of the Act of 1948 stall not apply to lands of the situation of the disputed lands; and S. 31 has been further pressed in aid of this argument. Section 31 has already been quote and it begins with the words "For the purposes of this Act." The provisions of the Act of 1948 relating to the rights and liabilities of a protected tenant are not the same as those under the Act of 1939. Hence, though the provisions of Ss. 3, 3-A and 4 of the earlier Act of 1939 have been adopted by the later Act, it has been so done in the context of the later Act, granting greater facilities and larger rights to what are described as protected tenants. In other words S. 31 has been enacted not to do away with the rights contained in Ss. 3, 3-A and 4 of the earlier statute, but with a view to apply that nomenclature to larger rights conferred under the Act of 1948. The provisions of S. 88 are entirely prospective. They apply to lands of the description contained in cls. (a) to (d) of S. 88(1) from the date on which the Act came into operation, that is to say, from December 28, 1948. They are not intended in any sense to be of a confiscatory character. They do not show an intention to take away what had already accrued to tenants acquiring, the status of protected tenants. On the other hand, S. 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had been acquired or had accrued before the commencement of the repealing Act.But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub-cl. (ii) of cl. (b) of S. 89 (2) would indicate that the legislature did not intend completely to re-enact the provisions of S. 7 of the Bombay General Clauses Act. This argument is based on the absence of the word instituted before the words continued and disposed of. In our opinion there are several answers to this contention. In the first place, sub-cl (i) is independent of sub-cl. (ii) of cl. (b) of S. 89(2). Therefore sub-cl. (ii), which has reference to pending litigation, cannot cut down the legal significance and ambit of the words used in sub-cl (i). Sub- cl. (ii) may have reference to the forum of the proceedings, whether the Civil Court or the Revenue Court shall have seizin of proceedings taken under the repealed Act. We have already held that the expression right accrued in sub-cl (i) does not exclude the rights of protected tenants claimed by the appellants. It is well settled that where there is a right recognised by law, there is a remedy, and, therefore, in the absence of any special provisions indicating the particular forum for enforcing a particular right the general law of the land will naturally take its course. In this connection it is relevant to refer to the observations of the High Court that even if it were to be assumed that the right as a protected tenant remained vested in the defendants even after the enactment of S. 88(1), that Fight, in its enforcement against the plaintiff, must be regarded as illusory." In our opinion, those observations are not well-founded. Courts will be very slow to assume a right and then to regard it as illusory, because no particular forum has been indicated. Lastly, the legal effect of the provisions of sub-cl. (ii) aforesaid is only this that any legal proceeding in respect of the right claimed by the defendants shall be continued and disposed of as if the Act of 1948 had not been passed. Applying those words to the present litigation the inference is clear that the controversy has to be resolved with reference to the provisions of the repealed statute. That being so, in our opinion, the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939.

0[ds]In our opinion there is no substance in this contention. The observations, quoted above made by the Lord Chancellor, with all respect, are entirely correct, but have been made in the context of the statute under which the controversy had arisenIt is, thusr that the context in which the observations relied upon by the respondent, as quoted above, were made is entirely different from the context of the present controversy. That decision is only authority for the proposition that the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a right accrued within the meaning of the usual saving clauseIn the instant case, the right of a protected tenant had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary. That right had been recognised by the public authorities by making the relevant entries in the Record of Rights, as aforesaid. On the other hand as already indicated, S. 3A(1) of the Act of 1939 had given the right to the landlord-respondent to take proceedings to have the necessary declaration made by the mamlatdar that the tenant had not acquired the status of a protected tenant. He did not proceed in that behalf. Hence, it is clear that so far as the appellants were concerned, their status as protected tenants had been recognised by the public authorities under the Act of 1939, and they had to do nothing more to bring their case within the expression right accrued, in cl. (b) of S. 89(2) of the Act of 1948On the other hand, S. 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had been acquired or had accrued before the commencement of the repealing Act.But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub-cl. (ii) of cl. (b) of S. 89 (2) would indicate that the legislature did not intend completely to re-enact the provisions of S. 7 of the Bombay General Clauses Act. This argument is based on the absence of the word instituted before the words continued and disposed of. In our opinion there are several answers to this contention. In the first place, sub-cl (i) is independent of sub-cl. (ii) of cl. (b) of S. 89(2). Therefore sub-cl. (ii), which has reference to pending litigation, cannot cut down the legal significance and ambit of the words used in sub-cl (i). Sub- cl. (ii) may have reference to the forum of the proceedings, whether the Civil Court or the Revenue Court shall have seizin of proceedings taken under the repealed Act. We have already held that the expression right accrued in sub-cl (i) does not exclude the rights of protected tenants claimed by the appellants. It is well settled that where there is a right recognised by law, there is a remedy, and, therefore, in the absence of any special provisions indicating the particular forum for enforcing a particular right the general law of the land will naturally take its courseIn our opinion, those observations are not well-founded. Courts will be very slow to assume a right and then to regard it as illusory, because no particular forum has been indicated. Lastly, the legal effect of the provisions of sub-cl. (ii) aforesaid is only this that any legal proceeding in respect of the right claimed by the defendants shall be continued and disposed of as if the Act of 1948 had not been passed. Applying those words to the present litigation the inference is clear that the controversy has to be resolved with reference to the provisions of the repealed statute. That being so, in our opinion, the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939.

### 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: right of the original grantee was a right but it was not a right accrued within the meaning of the repealed statute. It was held not to have accrued because the option given to the original grantee to make additional purchases had not been exercised before the repeal. In other words, the right which was sought to be exercised was not in existence at the date of the repealing Act, which had restricted those rights.In the instant case, the right of a protected tenant had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary. That right had been recognised by the public authorities by making the relevant entries in the Record of Rights, as aforesaid. On the other hand as already indicated, S. 3A(1) of the Act of 1939 had given the right to the landlord-respondent to take proceedings to have the necessary declaration made by the mamlatdar that the tenant had not acquired the status of a protected tenant. He did not proceed in that behalf. Hence, it is clear that so far as the appellants were concerned, their status as protected tenants had been recognised by the public authorities under the Act of 1939, and they had to do nothing more to bring their case within the expression right accrued, in cl. (b) of S. 89(2) of the Act of 1948. 6. It having been held that the second ground of attack against the claim made by the appellants is not well-founded in law, it now remains to consider whether the first ground, namely, that there is an express provision in S. 88, within the meaning of S. 89 (2) (b), taking away the appellants right, is supported by the terms of Ss. 88 and 89. In this connection, it was pointed out on behalf of the respondent that S. 88(1) in terms provides that Ss. 1 to 87 of the Act of 1948 stall not apply to lands of the situation of the disputed lands; and S. 31 has been further pressed in aid of this argument. Section 31 has already been quote and it begins with the words "For the purposes of this Act." The provisions of the Act of 1948 relating to the rights and liabilities of a protected tenant are not the same as those under the Act of 1939. Hence, though the provisions of Ss. 3, 3-A and 4 of the earlier Act of 1939 have been adopted by the later Act, it has been so done in the context of the later Act, granting greater facilities and larger rights to what are described as protected tenants. In other words S. 31 has been enacted not to do away with the rights contained in Ss. 3, 3-A and 4 of the earlier statute, but with a view to apply that nomenclature to larger rights conferred under the Act of 1948. The provisions of S. 88 are entirely prospective. They apply to lands of the description contained in cls. (a) to (d) of S. 88(1) from the date on which the Act came into operation, that is to say, from December 28, 1948. They are not intended in any sense to be of a confiscatory character. They do not show an intention to take away what had already accrued to tenants acquiring, the status of protected tenants. On the other hand, S. 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had been acquired or had accrued before the commencement of the repealing Act.But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub-cl. (ii) of cl. (b) of S. 89 (2) would indicate that the legislature did not intend completely to re-enact the provisions of S. 7 of the Bombay General Clauses Act. This argument is based on the absence of the word instituted before the words continued and disposed of. In our opinion there are several answers to this contention. In the first place, sub-cl (i) is independent of sub-cl. (ii) of cl. (b) of S. 89(2). Therefore sub-cl. (ii), which has reference to pending litigation, cannot cut down the legal significance and ambit of the words used in sub-cl (i). Sub- cl. (ii) may have reference to the forum of the proceedings, whether the Civil Court or the Revenue Court shall have seizin of proceedings taken under the repealed Act. We have already held that the expression right accrued in sub-cl (i) does not exclude the rights of protected tenants claimed by the appellants. It is well settled that where there is a right recognised by law, there is a remedy, and, therefore, in the absence of any special provisions indicating the particular forum for enforcing a particular right the general law of the land will naturally take its course. In this connection it is relevant to refer to the observations of the High Court that even if it were to be assumed that the right as a protected tenant remained vested in the defendants even after the enactment of S. 88(1), that Fight, in its enforcement against the plaintiff, must be regarded as illusory." In our opinion, those observations are not well-founded. Courts will be very slow to assume a right and then to regard it as illusory, because no particular forum has been indicated. Lastly, the legal effect of the provisions of sub-cl. (ii) aforesaid is only this that any legal proceeding in respect of the right claimed by the defendants shall be continued and disposed of as if the Act of 1948 had not been passed. Applying those words to the present litigation the inference is clear that the controversy has to be resolved with reference to the provisions of the repealed statute. That being so, in our opinion, the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939. ### Response: 0 ### Explanation: In our opinion there is no substance in this contention. The observations, quoted above made by the Lord Chancellor, with all respect, are entirely correct, but have been made in the context of the statute under which the controversy had arisenIt is, thusr that the context in which the observations relied upon by the respondent, as quoted above, were made is entirely different from the context of the present controversy. That decision is only authority for the proposition that the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a right accrued within the meaning of the usual saving clauseIn the instant case, the right of a protected tenant had accrued to the appellants while the Act of 1939 was still in force, without any act on their part being necessary. That right had been recognised by the public authorities by making the relevant entries in the Record of Rights, as aforesaid. On the other hand as already indicated, S. 3A(1) of the Act of 1939 had given the right to the landlord-respondent to take proceedings to have the necessary declaration made by the mamlatdar that the tenant had not acquired the status of a protected tenant. He did not proceed in that behalf. Hence, it is clear that so far as the appellants were concerned, their status as protected tenants had been recognised by the public authorities under the Act of 1939, and they had to do nothing more to bring their case within the expression right accrued, in cl. (b) of S. 89(2) of the Act of 1948On the other hand, S. 89(2)(b), quoted above, clearly shows an intention to conserve such rights as had been acquired or had accrued before the commencement of the repealing Act.But it has further been contended on behalf of the respondent, in ground 3 of the attack, that sub-cl. (ii) of cl. (b) of S. 89 (2) would indicate that the legislature did not intend completely to re-enact the provisions of S. 7 of the Bombay General Clauses Act. This argument is based on the absence of the word instituted before the words continued and disposed of. In our opinion there are several answers to this contention. In the first place, sub-cl (i) is independent of sub-cl. (ii) of cl. (b) of S. 89(2). Therefore sub-cl. (ii), which has reference to pending litigation, cannot cut down the legal significance and ambit of the words used in sub-cl (i). Sub- cl. (ii) may have reference to the forum of the proceedings, whether the Civil Court or the Revenue Court shall have seizin of proceedings taken under the repealed Act. We have already held that the expression right accrued in sub-cl (i) does not exclude the rights of protected tenants claimed by the appellants. It is well settled that where there is a right recognised by law, there is a remedy, and, therefore, in the absence of any special provisions indicating the particular forum for enforcing a particular right the general law of the land will naturally take its courseIn our opinion, those observations are not well-founded. Courts will be very slow to assume a right and then to regard it as illusory, because no particular forum has been indicated. Lastly, the legal effect of the provisions of sub-cl. (ii) aforesaid is only this that any legal proceeding in respect of the right claimed by the defendants shall be continued and disposed of as if the Act of 1948 had not been passed. Applying those words to the present litigation the inference is clear that the controversy has to be resolved with reference to the provisions of the repealed statute. That being so, in our opinion, the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939.

Commnr. Of Customs, New Delhi Vs. M/S. Phoenix International Ltd.

four components did constitute synthetic shoe in SKD condition and in order to circumvent 156(A) the entire device was arranged by the importer to evade duty. Further, we find that in the reply to the show cause notices there were no details supplied by the importer regarding the number of units under M/s. PIL. The statement of Bhupinder Nagpal in the preliminary enquiry shows that there were three units in Noida under M/s. PIL. One Unit is in B-1C Sector 10 manufacturing "Phoenix" brand of shoes for exports. There was one more Unit in A-4, Sector 5 manufacturing "Reebok" brand of shoes for exports. It also undertook manufacturing of shoes for domestic sales on job work basis at Sector A-37, Sector 60 for M/s. PIND. The third unit was M/s. PIL. No details of the turnover have been furnished. No details of the number of employees have been furnished. The bifurcation of the turnover between manufacture of synthetic shoes exported and shoes sold in the domestic market was not given. The functional connectivity of the three units was not given. No reason have been given as to why M/s. PIL did not import all the four items particularly when M/s. PIL, as stated herein below, has been in complete charge of manufacturing. The obvious reason behind the said bifurcation was to obtain the benefit of the Notification No.45/94-Cus dated 1.3.94. However, the clinching circumstance is that M/s. PIL was not only manufacturing export quality synthetic shoes but it also manufactured as job-worker of M/s. PIND domestic quality synthetic shoes. Soles, insoles and sock liners were imported by M/s. PIND and supplied as raw-material to M/s. PIL who manufactured the synthetic shoes which were routed through M/s. PIND to M/s. Reebok India for sale in the domestic market. In the circumstances, the complete manufacturing activity was in the hands of M/s. PIL. They manufactured synthetic shoes sold in the export market and they also manufactured synthetic shoes which were sold in the domestic market. The shoe uppers constituted an important part of the footwear. That part was imported under the advance licence by M/s. PIL. The same company got the outer soles, insoles and sock liners in the name of M/s. PIND. It is M/s. PIL which ultimately manufactured synthetic shoes. Therefore, the entire manufacturing activity was carried out by M/s. PIL. Therefore, it is clear that the above device of importation of one item by M/s. PIL and three items by M/s. PIND was a subterfuge/fictitious arrangement intended to deceive the Department and fraud on para 156(A) of the EXIM Policy 1992-97. The above circumstances have not at all been considered by the Tribunal. In cases of the present nature, the Tribunal should look at the entire composite picture in order to ascertain the real intention behind the arrangement on which the importer relies. Lastly, the shoe uppers were imported by M/s. PIL whereas soles, insoles and sock liners were imported by M/s. PIND and given to M/s. PIL who along with 28 other items (peripherals), procured domestically, manufactured the finished product, viz., synthetic shoes. The entire device was undertaken to show that what was imported were parts and not the footwear in the SKD condition. Therefore, M/s. PIL was the only real importer of all the four items and, in the circumstances, the Department was right in clubbing.12. It was urged vehemently even if the said four items were clubbed together it would not result in the manufacture of the synthetic shoes as an intricate process is required to be adopted before the finished product stood emerged. As stated above, if the transaction of M/s. PIND and M/s. PIL are looked at separately then the question of subterfuge cannot be examined. In the present case, interest-free loans had been advanced by M/s. PIL to M/s. PIND. The real importer was only M/s. PIL. The manufacturer was also M/s. PIL. The entire transaction was completed by M/s. PIL. No reason has been given as to why M/s. PIL could not have imported the outer soles, insoles and sock liners under para 22 of the EXIM Policy 1992-97 by payment of duty at the concessional rate under Notification No.45/94-Cus dated 1.3.94. The obvious intention was to bypass the EXIM Policy 1992-97 and claim benefit of exemption Notification No.45/94-Cus dated 1.3.94. Lastly, as stated above, all four items plus 28 other items (peripherals), domestically procured, were used in the manufacturing process undertaken by M/s. PIL either on its own account (in case of export) or as job-worker (incase of domestic sales) which led to the emergence of the final product. Therefore, the importer was liable to be assessed under tariff Heading 64.04 and consequently not entitled to the benefit of exemption Notification No.45/94-Cus dated 1.3.94. Lastly, soles and insoles as also sock liners were imported by M/s. PIL in the name of M/s. PIND; that M/s. PIL had an agreement with Reebok International Ltd. which had its subsidiary in India, viz., Reebok India to whom synthetic shoes were sold by M/s. PIL through M/s. PIND and, therefore, the Department was right in invoking rule 8 of the Customs Valuation Rules. Unfortunately, none of these aspects have been considered by the Tribunal.13. We, therefore, set aside the impugned judgment of the Tribunal. We hold that the respondents were guilty of violating para 156(A) of the EXIM Policy 1992-97; that the respondents were liable to be assessed under tariff Heading 64.04 and, accordingly, they were liable to pay duty of customs at 50% + CVD at 15% ad valorem; that the respondents were not entitled to the benefit of concessional rate of duty under Notification No.45/94-Cus dated 1.3.94 and that the Department was right in invoking rule 8 of the Customs Valuation Rules. Accordingly, we remit only the question of re-quantification of differential duty, redemption fine and penalties, payable by the respondents herein, to the Commissioner of Customs, Inland Container Depot, Tughalkabad, New Delhi, who will decide the said issue in accordance with law.

1[ds]10. We find merit in the present civil appeals filed by the Department. For the sake of convenience we reproduce para 22 and 156(A) of the EXIM Policy 1992-97 which read asVImportsFreeImportability22. Capital goods, raw materials, intermediates, components, consumables, spares, parts, accessories, instruments and other goods may be imported without any restriction except to the extent such imports are regulated by the Negative List of Imports or any other provision of this Policy or any other law for the time being inII156. RESTRICTED ITEMSA. CONSUMER GOODSSl.No. Description of ItemsNature of restrictionAll consumer goods, howsoever described, of industrial, agricultural mineral or animal origin, whether in SKD/CKD condition or ready to assemble sets or in finished formNot permitted to be imported except against a licence or in accordance with a Public Notice Issued in this behalf.In the case of excise duty, the taxable event is "manufacture". In the present case, however, we are concerned with the levy of customs duty. That duty is levied on the "act" of importation. Therefore, intention plays an important role in matters in which there is an allegation of duty evasion. In the present case, the Department has alleged that a device was evolved by the importer showing import of shoe uppers by M/s. PIL whereas outer soles, insoles and sock liners imported by M/s. PIND. A subterfuge was, therefore, created to show that two independent companies had imported separate parts of the footwear in order to bypass para 156(A) of the EXIM Policy 1992-97. Under the said paragraph, importation of synthetic shoes in SKD condition could only be made against specific import licence. M/s. PIL was aware of the restrictions. It was the only real importer of all the four items. M/s. PIL had funded M/s. PIND with interest free loans running into Rs.18 crores (approximately). M/s. PIND was the factory of M/s. PIL (See the DEEC certificate). When there is an allegation of subterfuge, the court has to examine the circumstances surrounding the import to ascertain whether the importer had entered into fictitious arrangement to evade customs duty. The intention behind the act of importation has to be probed. In this case, the most clinching circumstance is that there is manufacture of the finished products, namely, "synthetic shoe" for domestic and export markets. M/s. PIL manufactured export quality synthetic shoes on their own account whereas those sold in the domestic market by M/s. PIND was also manufactured by M/s PIL for M/s PIND. Further, in his statement, B. Nagpal, on behalf of the importer, has categorically stated that synthetic uppers (imported by M/s PIL), soles, insoles and sock liners (imported by M/s PIND) did constitute complete shoe in SKD condition. Therefore, when we come to the question of "intention" in the present case it becomes clear that the entire device of bifurcation was arranged in order to bypass the restriction imposed vide para 156(A) of the EXIM Policy. The reply of B. Nagpal indicates that, according to the importer, the said four components did constitute synthetic shoe in SKD condition and in order to circumvent 156(A) the entire device was arranged by the importer to evade duty. Further, we find that in the reply to the show cause notices there were no details supplied by the importer regarding the number of units under M/s. PIL. The statement of Bhupinder Nagpal in the preliminary enquiry shows that there were three units in Noida under M/s. PIL. One Unit is in B-1C Sector 10 manufacturing "Phoenix" brand of shoes for exports. There was one more Unit in A-4, Sector 5 manufacturing "Reebok" brand of shoes for exports. It also undertook manufacturing of shoes for domestic sales on job work basis at Sector A-37, Sector 60 for M/s. PIND. The third unit was M/s. PIL. No details of the turnover have been furnished. No details of the number of employees have been furnished. The bifurcation of the turnover between manufacture of synthetic shoes exported and shoes sold in the domestic market was not given. The functional connectivity of the three units was not given. No reason have been given as to why M/s. PIL did not import all the four items particularly when M/s. PIL, as stated herein below, has been in complete charge of manufacturing. The obvious reason behind the said bifurcation was to obtain the benefit of the Notification No.45/94-Cus dated 1.3.94. However, the clinching circumstance is that M/s. PIL was not only manufacturing export quality synthetic shoes but it also manufactured as job-worker of M/s. PIND domestic quality synthetic shoes. Soles, insoles and sock liners were imported by M/s. PIND and supplied as raw-material to M/s. PIL who manufactured the synthetic shoes which were routed through M/s. PIND to M/s. Reebok India for sale in the domestic market. In the circumstances, the complete manufacturing activity was in the hands of M/s. PIL. They manufactured synthetic shoes sold in the export market and they also manufactured synthetic shoes which were sold in the domestic market. The shoe uppers constituted an important part of the footwear. That part was imported under the advance licence by M/s. PIL. The same company got the outer soles, insoles and sock liners in the name of M/s. PIND. It is M/s. PIL which ultimately manufactured synthetic shoes. Therefore, the entire manufacturing activity was carried out by M/s. PIL. Therefore, it is clear that the above device of importation of one item by M/s. PIL and three items by M/s. PIND was a subterfuge/fictitious arrangement intended to deceive the Department and fraud on para 156(A) of the EXIM Policy 1992-97. The above circumstances have not at all been considered by the Tribunal. In cases of the present nature, the Tribunal should look at the entire composite picture in order to ascertain the real intention behind the arrangement on which the importer relies. Lastly, the shoe uppers were imported by M/s. PIL whereas soles, insoles and sock liners were imported by M/s. PIND and given to M/s. PIL who along with 28 other items (peripherals), procured domestically, manufactured the finished product, viz., synthetic shoes. The entire device was undertaken to show that what was imported were parts and not the footwear in the SKD condition. Therefore, M/s. PIL was the only real importer of all the four items and, in the circumstances, the Department was right in clubbing.12. It was urged vehemently even if the said four items were clubbed together it would not result in the manufacture of the synthetic shoes as an intricate process is required to be adopted before the finished product stood emerged. As stated above, if the transaction of M/s. PIND and M/s. PIL are looked at separately then the question of subterfuge cannot be examined. In the present case, interest-free loans had been advanced by M/s. PIL to M/s. PIND. The real importer was only M/s. PIL. The manufacturer was also M/s. PIL. The entire transaction was completed by M/s. PIL. No reason has been given as to why M/s. PIL could not have imported the outer soles, insoles and sock liners under para 22 of the EXIM Policy 1992-97 by payment of duty at the concessional rate under Notification No.45/94-Cus dated 1.3.94. The obvious intention was to bypass the EXIM Policy 1992-97 and claim benefit of exemption Notification No.45/94-Cus dated 1.3.94. Lastly, as stated above, all four items plus 28 other items (peripherals), domestically procured, were used in the manufacturing process undertaken by M/s. PIL either on its own account (in case of export) or as job-worker (incase of domestic sales) which led to the emergence of the final product. Therefore, the importer was liable to be assessed under tariff Heading 64.04 and consequently not entitled to the benefit of exemption Notification No.45/94-Cus dated 1.3.94. Lastly, soles and insoles as also sock liners were imported by M/s. PIL in the name of M/s. PIND; that M/s. PIL had an agreement with Reebok International Ltd. which had its subsidiary in India, viz., Reebok India to whom synthetic shoes were sold by M/s. PIL through M/s. PIND and, therefore, the Department was right in invoking rule 8 of the Customs Valuation Rules. Unfortunately, none of these aspects have been considered by the Tribunal.13. We, therefore, set aside the impugned judgment of the Tribunal. We hold that the respondents were guilty of violating para 156(A) of the EXIM Policy 1992-97; that the respondents were liable to be assessed under tariff Heading 64.04 and, accordingly, they were liable to pay duty of customs at 50% + CVD at 15% ad valorem; that the respondents were not entitled to the benefit of concessional rate of duty under Notification No.45/94-Cus dated 1.3.94 and that the Department was right in invoking rule 8 of the Customs Valuation Rules. Accordingly, we remit only the question of re-quantification of differential duty, redemption fine and penalties, payable by the respondents herein, to the Commissioner of Customs, Inland Container Depot, Tughalkabad, New Delhi, who will decide the said issue in accordance with law.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: four components did constitute synthetic shoe in SKD condition and in order to circumvent 156(A) the entire device was arranged by the importer to evade duty. Further, we find that in the reply to the show cause notices there were no details supplied by the importer regarding the number of units under M/s. PIL. The statement of Bhupinder Nagpal in the preliminary enquiry shows that there were three units in Noida under M/s. PIL. One Unit is in B-1C Sector 10 manufacturing "Phoenix" brand of shoes for exports. There was one more Unit in A-4, Sector 5 manufacturing "Reebok" brand of shoes for exports. It also undertook manufacturing of shoes for domestic sales on job work basis at Sector A-37, Sector 60 for M/s. PIND. The third unit was M/s. PIL. No details of the turnover have been furnished. No details of the number of employees have been furnished. The bifurcation of the turnover between manufacture of synthetic shoes exported and shoes sold in the domestic market was not given. The functional connectivity of the three units was not given. No reason have been given as to why M/s. PIL did not import all the four items particularly when M/s. PIL, as stated herein below, has been in complete charge of manufacturing. The obvious reason behind the said bifurcation was to obtain the benefit of the Notification No.45/94-Cus dated 1.3.94. However, the clinching circumstance is that M/s. PIL was not only manufacturing export quality synthetic shoes but it also manufactured as job-worker of M/s. PIND domestic quality synthetic shoes. Soles, insoles and sock liners were imported by M/s. PIND and supplied as raw-material to M/s. PIL who manufactured the synthetic shoes which were routed through M/s. PIND to M/s. Reebok India for sale in the domestic market. In the circumstances, the complete manufacturing activity was in the hands of M/s. PIL. They manufactured synthetic shoes sold in the export market and they also manufactured synthetic shoes which were sold in the domestic market. The shoe uppers constituted an important part of the footwear. That part was imported under the advance licence by M/s. PIL. The same company got the outer soles, insoles and sock liners in the name of M/s. PIND. It is M/s. PIL which ultimately manufactured synthetic shoes. Therefore, the entire manufacturing activity was carried out by M/s. PIL. Therefore, it is clear that the above device of importation of one item by M/s. PIL and three items by M/s. PIND was a subterfuge/fictitious arrangement intended to deceive the Department and fraud on para 156(A) of the EXIM Policy 1992-97. The above circumstances have not at all been considered by the Tribunal. In cases of the present nature, the Tribunal should look at the entire composite picture in order to ascertain the real intention behind the arrangement on which the importer relies. Lastly, the shoe uppers were imported by M/s. PIL whereas soles, insoles and sock liners were imported by M/s. PIND and given to M/s. PIL who along with 28 other items (peripherals), procured domestically, manufactured the finished product, viz., synthetic shoes. The entire device was undertaken to show that what was imported were parts and not the footwear in the SKD condition. Therefore, M/s. PIL was the only real importer of all the four items and, in the circumstances, the Department was right in clubbing.12. It was urged vehemently even if the said four items were clubbed together it would not result in the manufacture of the synthetic shoes as an intricate process is required to be adopted before the finished product stood emerged. As stated above, if the transaction of M/s. PIND and M/s. PIL are looked at separately then the question of subterfuge cannot be examined. In the present case, interest-free loans had been advanced by M/s. PIL to M/s. PIND. The real importer was only M/s. PIL. The manufacturer was also M/s. PIL. The entire transaction was completed by M/s. PIL. No reason has been given as to why M/s. PIL could not have imported the outer soles, insoles and sock liners under para 22 of the EXIM Policy 1992-97 by payment of duty at the concessional rate under Notification No.45/94-Cus dated 1.3.94. The obvious intention was to bypass the EXIM Policy 1992-97 and claim benefit of exemption Notification No.45/94-Cus dated 1.3.94. Lastly, as stated above, all four items plus 28 other items (peripherals), domestically procured, were used in the manufacturing process undertaken by M/s. PIL either on its own account (in case of export) or as job-worker (incase of domestic sales) which led to the emergence of the final product. Therefore, the importer was liable to be assessed under tariff Heading 64.04 and consequently not entitled to the benefit of exemption Notification No.45/94-Cus dated 1.3.94. Lastly, soles and insoles as also sock liners were imported by M/s. PIL in the name of M/s. PIND; that M/s. PIL had an agreement with Reebok International Ltd. which had its subsidiary in India, viz., Reebok India to whom synthetic shoes were sold by M/s. PIL through M/s. PIND and, therefore, the Department was right in invoking rule 8 of the Customs Valuation Rules. Unfortunately, none of these aspects have been considered by the Tribunal.13. We, therefore, set aside the impugned judgment of the Tribunal. We hold that the respondents were guilty of violating para 156(A) of the EXIM Policy 1992-97; that the respondents were liable to be assessed under tariff Heading 64.04 and, accordingly, they were liable to pay duty of customs at 50% + CVD at 15% ad valorem; that the respondents were not entitled to the benefit of concessional rate of duty under Notification No.45/94-Cus dated 1.3.94 and that the Department was right in invoking rule 8 of the Customs Valuation Rules. Accordingly, we remit only the question of re-quantification of differential duty, redemption fine and penalties, payable by the respondents herein, to the Commissioner of Customs, Inland Container Depot, Tughalkabad, New Delhi, who will decide the said issue in accordance with law. ### Response: 1 ### Explanation: four components did constitute synthetic shoe in SKD condition and in order to circumvent 156(A) the entire device was arranged by the importer to evade duty. Further, we find that in the reply to the show cause notices there were no details supplied by the importer regarding the number of units under M/s. PIL. The statement of Bhupinder Nagpal in the preliminary enquiry shows that there were three units in Noida under M/s. PIL. One Unit is in B-1C Sector 10 manufacturing "Phoenix" brand of shoes for exports. There was one more Unit in A-4, Sector 5 manufacturing "Reebok" brand of shoes for exports. It also undertook manufacturing of shoes for domestic sales on job work basis at Sector A-37, Sector 60 for M/s. PIND. The third unit was M/s. PIL. No details of the turnover have been furnished. No details of the number of employees have been furnished. The bifurcation of the turnover between manufacture of synthetic shoes exported and shoes sold in the domestic market was not given. The functional connectivity of the three units was not given. No reason have been given as to why M/s. PIL did not import all the four items particularly when M/s. PIL, as stated herein below, has been in complete charge of manufacturing. The obvious reason behind the said bifurcation was to obtain the benefit of the Notification No.45/94-Cus dated 1.3.94. However, the clinching circumstance is that M/s. PIL was not only manufacturing export quality synthetic shoes but it also manufactured as job-worker of M/s. PIND domestic quality synthetic shoes. Soles, insoles and sock liners were imported by M/s. PIND and supplied as raw-material to M/s. PIL who manufactured the synthetic shoes which were routed through M/s. PIND to M/s. Reebok India for sale in the domestic market. In the circumstances, the complete manufacturing activity was in the hands of M/s. PIL. They manufactured synthetic shoes sold in the export market and they also manufactured synthetic shoes which were sold in the domestic market. The shoe uppers constituted an important part of the footwear. That part was imported under the advance licence by M/s. PIL. The same company got the outer soles, insoles and sock liners in the name of M/s. PIND. It is M/s. PIL which ultimately manufactured synthetic shoes. Therefore, the entire manufacturing activity was carried out by M/s. PIL. Therefore, it is clear that the above device of importation of one item by M/s. PIL and three items by M/s. PIND was a subterfuge/fictitious arrangement intended to deceive the Department and fraud on para 156(A) of the EXIM Policy 1992-97. The above circumstances have not at all been considered by the Tribunal. In cases of the present nature, the Tribunal should look at the entire composite picture in order to ascertain the real intention behind the arrangement on which the importer relies. Lastly, the shoe uppers were imported by M/s. PIL whereas soles, insoles and sock liners were imported by M/s. PIND and given to M/s. PIL who along with 28 other items (peripherals), procured domestically, manufactured the finished product, viz., synthetic shoes. The entire device was undertaken to show that what was imported were parts and not the footwear in the SKD condition. Therefore, M/s. PIL was the only real importer of all the four items and, in the circumstances, the Department was right in clubbing.12. It was urged vehemently even if the said four items were clubbed together it would not result in the manufacture of the synthetic shoes as an intricate process is required to be adopted before the finished product stood emerged. As stated above, if the transaction of M/s. PIND and M/s. PIL are looked at separately then the question of subterfuge cannot be examined. In the present case, interest-free loans had been advanced by M/s. PIL to M/s. PIND. The real importer was only M/s. PIL. The manufacturer was also M/s. PIL. The entire transaction was completed by M/s. PIL. No reason has been given as to why M/s. PIL could not have imported the outer soles, insoles and sock liners under para 22 of the EXIM Policy 1992-97 by payment of duty at the concessional rate under Notification No.45/94-Cus dated 1.3.94. The obvious intention was to bypass the EXIM Policy 1992-97 and claim benefit of exemption Notification No.45/94-Cus dated 1.3.94. Lastly, as stated above, all four items plus 28 other items (peripherals), domestically procured, were used in the manufacturing process undertaken by M/s. PIL either on its own account (in case of export) or as job-worker (incase of domestic sales) which led to the emergence of the final product. Therefore, the importer was liable to be assessed under tariff Heading 64.04 and consequently not entitled to the benefit of exemption Notification No.45/94-Cus dated 1.3.94. Lastly, soles and insoles as also sock liners were imported by M/s. PIL in the name of M/s. PIND; that M/s. PIL had an agreement with Reebok International Ltd. which had its subsidiary in India, viz., Reebok India to whom synthetic shoes were sold by M/s. PIL through M/s. PIND and, therefore, the Department was right in invoking rule 8 of the Customs Valuation Rules. Unfortunately, none of these aspects have been considered by the Tribunal.13. We, therefore, set aside the impugned judgment of the Tribunal. We hold that the respondents were guilty of violating para 156(A) of the EXIM Policy 1992-97; that the respondents were liable to be assessed under tariff Heading 64.04 and, accordingly, they were liable to pay duty of customs at 50% + CVD at 15% ad valorem; that the respondents were not entitled to the benefit of concessional rate of duty under Notification No.45/94-Cus dated 1.3.94 and that the Department was right in invoking rule 8 of the Customs Valuation Rules. Accordingly, we remit only the question of re-quantification of differential duty, redemption fine and penalties, payable by the respondents herein, to the Commissioner of Customs, Inland Container Depot, Tughalkabad, New Delhi, who will decide the said issue in accordance with law.

General Fibre Dealers Limited Vs. Commissioner of Income Tax (Central), Calcutta

assessee had received payment upto full invoice price from the buyers who never made any claim on account of the reduction in the export duty. The sum of Rs.5,72,081/- was treated as revenue receipt and included in the income of the assessee. The Appellate Assistant Commissioner confirmed the disallowance. The Tribunal referred to the entire evidence including the documents relating to the contract and the correspondence that passed between the assessee and the agent and came to the conclusion that at no stage during the course of the execution of the contract or thereafter the I. A. P. I. made any demand from the appellant on account of reduction in export duty.In all the bills which had been presented by the assessee to the I. A. P. I. the full amount of the sale price was charged without any reduction and the I. A. P. I. made the entire payments without any demur or protest although it was fully aware that the Export Duty had been reduced. The Tribunal put its conclusions in the following words: "The course of dealings between the parties would thus show clearly as to what was intended by them when they had entered into a contract. It is evident that the appellant entered into the contract on the footing that the price to be paid was not subject to any variation and that the IAPI also understood the contract in the same sense". The assessee sought reference of the following question which was allowed by the Tribunal: "Whether on the facts and in the circumstances of the case the sum of Rs. 5,72,081/- was rightly treated as the Income of the assessee of the relevant previous years?" The High Court answered the question in the affirmative and against the assessee. The High Court give a summary of its conclusion as follows: "(1) Liability in terms of contract did certainly arise when there was a variation in the rate of export duty but since the contractual liability was not accepted and admitted it cannot be said to have arisen. (2) As the assessee had no intention of accepting the liability and as the assessee by its own conduct disowned the liability by realising full price, nothing was deductible from the money received as contractual price, during the accounting year. (3) The Tribunal came to a finding of fact that the second set of invoices prepared for accounting purposes were fictitious and that they were created for the purpose of avoiding tax liability. No material was placed before this Court from the record for discountenancing this finding of fact and accordingly the said second set of invoices cannot go to show that the contractual liability was subsequently accepted. (4) The factum of billing for the contractual price as many as on 19 occasions after the decrease in the rate of export duty as found by the Tribunal as a fact and the total withdrawal of the same from the bank would inevitably go to show that the assessee treated the contractual price as inflexible. (5) The express terms in the contract "export duty based on current rates; any alterations to be on buyers account" were finally disregarded by the assessee, as will be evident from correspondence; accordingly it cannot be said that it was holding the disputed money on behalf of the buyer in a fiduciary capacity".The principal contention addressed before us on behalf of the assessee is that since according to the terms of the contract a liability had been incurred by it to the extent of the amount by which the export duty was reduced it could not be treated as income earned during the relevant year as any subsequent stage. In other words, the liability being contractual obligation to pay the amount of the rebate arose from the contract and unless its terms were varied by mutual assent it could not be said that the amount in question could be treated as income accruing to the assessee from its trading account. In our opinion the High Court was bound by the finding of fact given by the Tribunal and since no question had been referred involving a challenge to those findings it was hardly open to the High Court to express any views of its own on the points of fact. As stated before, the Tribunal had found, on a consideration of the evidence, that according to the terms of contract the stipulated price of ?136-19-9 was the net price payable by the I. A. P. I. to the assessee and that there was no intention of varying it on increase or decrease of export duty. The assessee itself had interpreted the contract in that sense and had sent as many as 19 bills to the buyers at the full contractual price despite reduction in the duty.It had received payment of the full amount charged for in all the bills. In the opinion of the Tribunal the set of invoices charging the sale price as reduced by the amount of reduction in export duty were fictitious and were prepared only to avoid taxation. The I. A. P. I. never made any demand from the assessee on account of reduction in export duty although it was fully aware of such reduction.The assessee was, therefore, entitled under the contract to receive the entire amount of the money paid by the I. A. P. I. On these findings which were based on the materials which have been placed before the Tribunal by the parties the only conclusion possible was that a sum of Rs. 5,72,081/- formed a part of the price which the assessee received for the sale of the Hessian cloth. On that view no question of any liability on the part of the assessee to pay the aforesaid amount to the buyers could arise.We have no doubt that the answer given by the High Court to the question referred was correctly given although we are not inclined to concur in all its conclusion or reasoning.

0[ds]In our opinion the High Court was bound by the finding of fact given by the Tribunal and since no question had been referred involving a challenge to those findings it was hardly open to the High Court to express any views of its own on the points of fact. As stated before, the Tribunal had found, on a consideration of the evidence, that according to the terms of contract the stipulated price of9 was the net price payable by the I. A. P. I. to the assessee and that there was no intention of varying it on increase or decrease of export duty. The assessee itself had interpreted the contract in that sense and had sent as many as 19 bills to the buyers at the full contractual price despite reduction in the duty.It had received payment of the full amount charged for in all the bills. In the opinion of the Tribunal the set of invoices charging the sale price as reduced by the amount of reduction in export duty were fictitious and were prepared only to avoid taxation. The I. A. P. I. never made any demand from the assessee on account of reduction in export duty although it was fully aware of such reduction.The assessee was, therefore, entitled under the contract to receive the entire amount of the money paid by the I. A. P. I. On these findings which were based on the materials which have been placed before the Tribunal by the parties the only conclusion possible was that a sum of Rs. 5,72,081/formed a part of the price which the assessee received for the sale of the Hessian cloth. On that view no question of any liability on the part of the assessee to pay the aforesaid amount to the buyers could arise.We have no doubt that the answer given by the High Court to the question referred was correctly given although we are not inclined to concur in all its conclusion or reasoning.

### 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: assessee had received payment upto full invoice price from the buyers who never made any claim on account of the reduction in the export duty. The sum of Rs.5,72,081/- was treated as revenue receipt and included in the income of the assessee. The Appellate Assistant Commissioner confirmed the disallowance. The Tribunal referred to the entire evidence including the documents relating to the contract and the correspondence that passed between the assessee and the agent and came to the conclusion that at no stage during the course of the execution of the contract or thereafter the I. A. P. I. made any demand from the appellant on account of reduction in export duty.In all the bills which had been presented by the assessee to the I. A. P. I. the full amount of the sale price was charged without any reduction and the I. A. P. I. made the entire payments without any demur or protest although it was fully aware that the Export Duty had been reduced. The Tribunal put its conclusions in the following words: "The course of dealings between the parties would thus show clearly as to what was intended by them when they had entered into a contract. It is evident that the appellant entered into the contract on the footing that the price to be paid was not subject to any variation and that the IAPI also understood the contract in the same sense". The assessee sought reference of the following question which was allowed by the Tribunal: "Whether on the facts and in the circumstances of the case the sum of Rs. 5,72,081/- was rightly treated as the Income of the assessee of the relevant previous years?" The High Court answered the question in the affirmative and against the assessee. The High Court give a summary of its conclusion as follows: "(1) Liability in terms of contract did certainly arise when there was a variation in the rate of export duty but since the contractual liability was not accepted and admitted it cannot be said to have arisen. (2) As the assessee had no intention of accepting the liability and as the assessee by its own conduct disowned the liability by realising full price, nothing was deductible from the money received as contractual price, during the accounting year. (3) The Tribunal came to a finding of fact that the second set of invoices prepared for accounting purposes were fictitious and that they were created for the purpose of avoiding tax liability. No material was placed before this Court from the record for discountenancing this finding of fact and accordingly the said second set of invoices cannot go to show that the contractual liability was subsequently accepted. (4) The factum of billing for the contractual price as many as on 19 occasions after the decrease in the rate of export duty as found by the Tribunal as a fact and the total withdrawal of the same from the bank would inevitably go to show that the assessee treated the contractual price as inflexible. (5) The express terms in the contract "export duty based on current rates; any alterations to be on buyers account" were finally disregarded by the assessee, as will be evident from correspondence; accordingly it cannot be said that it was holding the disputed money on behalf of the buyer in a fiduciary capacity".The principal contention addressed before us on behalf of the assessee is that since according to the terms of the contract a liability had been incurred by it to the extent of the amount by which the export duty was reduced it could not be treated as income earned during the relevant year as any subsequent stage. In other words, the liability being contractual obligation to pay the amount of the rebate arose from the contract and unless its terms were varied by mutual assent it could not be said that the amount in question could be treated as income accruing to the assessee from its trading account. In our opinion the High Court was bound by the finding of fact given by the Tribunal and since no question had been referred involving a challenge to those findings it was hardly open to the High Court to express any views of its own on the points of fact. As stated before, the Tribunal had found, on a consideration of the evidence, that according to the terms of contract the stipulated price of ?136-19-9 was the net price payable by the I. A. P. I. to the assessee and that there was no intention of varying it on increase or decrease of export duty. The assessee itself had interpreted the contract in that sense and had sent as many as 19 bills to the buyers at the full contractual price despite reduction in the duty.It had received payment of the full amount charged for in all the bills. In the opinion of the Tribunal the set of invoices charging the sale price as reduced by the amount of reduction in export duty were fictitious and were prepared only to avoid taxation. The I. A. P. I. never made any demand from the assessee on account of reduction in export duty although it was fully aware of such reduction.The assessee was, therefore, entitled under the contract to receive the entire amount of the money paid by the I. A. P. I. On these findings which were based on the materials which have been placed before the Tribunal by the parties the only conclusion possible was that a sum of Rs. 5,72,081/- formed a part of the price which the assessee received for the sale of the Hessian cloth. On that view no question of any liability on the part of the assessee to pay the aforesaid amount to the buyers could arise.We have no doubt that the answer given by the High Court to the question referred was correctly given although we are not inclined to concur in all its conclusion or reasoning. ### Response: 0 ### Explanation: In our opinion the High Court was bound by the finding of fact given by the Tribunal and since no question had been referred involving a challenge to those findings it was hardly open to the High Court to express any views of its own on the points of fact. As stated before, the Tribunal had found, on a consideration of the evidence, that according to the terms of contract the stipulated price of9 was the net price payable by the I. A. P. I. to the assessee and that there was no intention of varying it on increase or decrease of export duty. The assessee itself had interpreted the contract in that sense and had sent as many as 19 bills to the buyers at the full contractual price despite reduction in the duty.It had received payment of the full amount charged for in all the bills. In the opinion of the Tribunal the set of invoices charging the sale price as reduced by the amount of reduction in export duty were fictitious and were prepared only to avoid taxation. The I. A. P. I. never made any demand from the assessee on account of reduction in export duty although it was fully aware of such reduction.The assessee was, therefore, entitled under the contract to receive the entire amount of the money paid by the I. A. P. I. On these findings which were based on the materials which have been placed before the Tribunal by the parties the only conclusion possible was that a sum of Rs. 5,72,081/formed a part of the price which the assessee received for the sale of the Hessian cloth. On that view no question of any liability on the part of the assessee to pay the aforesaid amount to the buyers could arise.We have no doubt that the answer given by the High Court to the question referred was correctly given although we are not inclined to concur in all its conclusion or reasoning.

Suleman Noormohamed Etc Vs. Umarbhai Janubhai

those materials, there is abundant intrinsic material in the compromise itself to indicate that the decree passed upon its basis was not in violation of the Act but was, in accordance with it.7. In Vora Abbasbhai Alimahmomed v. Haji Gulamnabi Haji Safibhai ([1964] 5 S.C.R. 157.) Shah J, as he then was, delivering the judgment of this Court pointed out that when the conditions of clause (a) of sub-section (3) of section 12 of the Act are fulfilled the Court is bound to pass a decree in ejectment against the tenant. But in relation to clause (b) it has been said at page 166:-"The clause deals with cases not falling within cl. (3) (a) i.e. cases (i) in which rent is not payable by the month (ii) in which there is a dispute regarding the standard rent and permitted increases, (iii) in which rent is not due for six months or more. In these cases the, tenant may claim protection by paying or tendering in Court on the first day of the hearing of the suit o r such other date as the Court may fix, the standard rent and permitted increases and continuing to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also by paying costs of the suit as directed by the Court."8. It clause (b) is attracted as being any other case of the type (ii) i.e. "in which there is a dispute regarding the standard rent and permitted increases", then in such a case, "the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing of another date by the Court for payment or tender would be ineffectual, until the standard rent is fixed." Hence the Court, on the application of the tenant, has to fix the standard rent first. But if there is no dispute or no bona fide dispute, or the dispute raised is a mere pretence of it, a decree can follow under clause (b) of subsection (3) of section 12 of the Act in a suit in which rent is not due for six months or more but is due even for a lesser period. The tenant will get the protection against eviction in such a case only if he pays or tenders in Court on the first date of the hearing of the suit or such other date as the Court may fix the rent due (leaving aside the question of costs). In the instant case the High Court was not right that on the face of the compromise pursis or the order passed thereon, there was n o material to show that the tenant had either expressly or impliedly suffered a decree for eviction as being liable to be evicted in accordance with section 12 (3) (b) of the Act. While recording the compromise under Order XXIII Rule 3 of the Code, it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have, done so, unless the contrary is shown. But that apart, on examination of the plaint which certainly could be looked into and which must have been in the records of the Court at the time of the passing of the compromise decree, it would be found that the landlords had claimed arrears of rent for two months @ Rs. 17/- per month and mesne profit also for one month upto the date of the suit at the same rate. They had also claimed light charges @ Rs. 2/- per month. In, the compromise petition, paragraph 2, the same amount of rent, mesne profit and electric charges are admitted by the tenants to be payable to the landlords There is nothing to indicate that any genuine dispute was raised by the tenant in regard to be standard rent or the electric charges Nor is there anything to show that he had ever filed a petition under section 11 of the Act or any other provision of law for fixation of standard rent. In other words, there is nothing to show that the tenant could claim protection from eviction in accordance with clause (b) of sub-section (3) of section 12 of the Act on the ground that he was not in a position to pay or tender the rent due on the first date of the hearing of the suit, which must have been fixed before the passing of the ex-parte decree. Nor was he able to show that the Court at his request bad ever fixed any other date for payment of the said amount In paragraph 3 of the compromise petition also it is admitted that the standard rent would be Rs 17/- per month plus Rs 2/- electric charges and the defendant would pay the mesne profits at the aforesaid rates from 1-3-1967. It is, therefore manifest that there was no such dispute in this case in regard to standard rent which could give any protection to the tenant against his eviction under section 12 (3) (b) of the Act The facts clearly show that he had incurred the liability to be evicted under the said provisions, of law and the compromise decree was passed on the tenants impliedly admitting such liability If a decree for possession Would have been passed in inviting the tenant would not have got three years time to vacate the premises. He, therefore, agreed to suffer a decree by consent and gained three years time under it. But the unavoidable uncertainties of litigation and the delay in disposal of cases at all stages have enabled him to gain a period of about 11 years. more by now. In our judgment the decree under execution is not a nullity and has got to be executed by the Execution Court without any further loss of time, as quickly as possible.9.

1[ds]In the instant case the High Court was not right that on the face of the compromise pursis or the order passed thereon, there was n o material to show that the tenant had either expressly or impliedly suffered a decree for eviction as being liable to be evicted in accordance with section 12 (3) (b) of the Act. While recording the compromise under Order XXIII Rule 3 of the Code, it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have, done so, unless the contrary is shown. But that apart, on examination of the plaint which certainly could be looked into and which must have been in the records of the Court at the time of the passing of the compromise decree, it would be found that the landlords had claimed arrears of rent for two months @ Rs. 17/- per month and mesne profit also for one month upto the date of the suit at the same rate. They had also claimed light charges @ Rs. 2/- per month. In, the compromise petition, paragraph 2, the same amount of rent, mesne profit and electric charges are admitted by the tenants to be payable to the landlords There is nothing to indicate that any genuine dispute was raised by the tenant in regard to be standard rent or the electric charges Nor is there anything to show that he had ever filed a petition under section 11 of the Act or any other provision of law for fixation of standard rent. In other words, there is nothing to show that the tenant could claim protection from eviction in accordance with clause (b) of sub-section (3) of section 12 of the Act on the ground that he was not in a position to pay or tender the rent due on the first date of the hearing of the suit, which must have been fixed before the passing of the ex-parte decree. Nor was he able to show that the Court at his request bad ever fixed any other date for payment of the said amount In paragraph 3 of the compromise petition also it is admitted that the standard rent would be Rs 17/- per month plus Rs 2/- electric charges and the defendant would pay the mesne profits at the aforesaid rates from 1-3-1967. It is, therefore manifest that there was no such dispute in this case in regard to standard rent which could give any protection to the tenant against his eviction under section 12 (3) (b) of the Act The facts clearly show that he had incurred the liability to be evicted under the said provisions, of law and the compromise decree was passed on the tenants impliedly admitting such liability If a decree for possession Would have been passed in inviting the tenant would not have got three years time to vacate the premises. He, therefore, agreed to suffer a decree by consent and gained three years time under it. But the unavoidable uncertainties of litigation and the delay in disposal of cases at all stages have enabled him to gain a period of about 11 years. more by now. In our judgment the decree under execution is not a nullity and has got to be executed by the Execution Court without any further loss of time, as quickly asHigh Court has held the decree to be a nullity on the followingAdmittedly, the order passed by the learned Judge does not disclose any satisfaction recorded by him about the existence of one or more grounds of eviction under the Act. Naturally, therefore, the decree does not disclose that the learned Judge, who passed the eviction decree, was satisfied about the existence of any of the grounds forIn the compromise pursis also, there is no admission on the part of the defendant, express or implied, under section 12 or section 13 of thearriving at the said conclusions the High Court has left out of consideration the affidavit filed on behalf of the appellants at the time, the suit was taken up for hearing ex-parte and the ex-parte decree followingclause (b) is attracted as being any other case of the type (ii) i.e. "in which there is a dispute regarding the standard rent and permitted increases", then in such a case, "the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing of another date by the Court for payment or tender would be ineffectual, until the standard rent is fixed." Hence the Court, on the application of the tenant, has to fix the standard rent first. But if there is no dispute or no bona fide dispute, or the dispute raised is a mere pretence of it, a decree can follow under clause (b) of subsection (3) of section 12 of the Act in a suit in which rent is not due for six months or more but is due even for a lesser period. The tenant will get the protection against eviction in such a case only if he pays or tenders in Court on the first date of the hearing of the suit or such other date as the Court may fix the rent due (leaving aside the question of costs).In the instant case the High Court was not right that on the face of the compromise pursis or the order passed thereon, there was n o material to show that the tenant had either expressly or impliedly suffered a decree for eviction as being liable to be evicted in accordance with section 12 (3) (b) of the Act. While recording the compromise under Order XXIII Rule 3 of the Code, it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have, done so, unless the contrary is shown. But that apart, on examination of the plaint which certainly could be looked into and which must have been in the records of the Court at the time of the passing of the compromise decree, it would be found that the landlords had claimed arrears of rent for two months @ Rs. 17/- per month and mesne profit also for one month upto the date of the suit at the same rate. They had also claimed light charges @ Rs. 2/- per month. In, the compromise petition, paragraph 2, the same amount of rent, mesne profit and electric charges are admitted by the tenants to be payable to the landlords There is nothing to indicate that any genuine dispute was raised by the tenant in regard to be standard rent or the electric charges Nor is there anything to show that he had ever filed a petition under section 11 of the Act or any other provision of law for fixation of standard rent. In other words, there is nothing to show that the tenant could claim protection from eviction in accordance with clause (b) of sub-section (3) of section 12 of the Act on the ground that he was not in a position to pay or tender the rent due on the first date of the hearing of the suit, which must have been fixed before the passing of the ex-parte decree. Nor was he able to show that the Court at his request bad ever fixed any other date for payment of the said amount In paragraph 3 of the compromise petition also it is admitted that the standard rent would be Rs 17/- per month plus Rs 2/- electric charges and the defendant would pay the mesne profits at the aforesaid rates from 1-3-1967. It is, therefore manifest that there was no such dispute in this case in regard to standard rent which could give any protection to the tenant against his eviction under section 12 (3) (b) of the Act The facts clearly show that he had incurred the liability to be evicted under the said provisions, of law and the compromise decree was passed on the tenants impliedly admitting such liability If a decree for possession Would have been passed in inviting the tenant would not have got three years time to vacate the premises. He, therefore, agreed to suffer a decree by consent and gained three years time under it. But the unavoidable uncertainties of litigation and the delay in disposal of cases at all stages have enabled him to gain a period of about 11 years. more by now. In our judgment the decree under execution is not a nullity and has got to be executed by the Execution Court without any further loss of time, as quickly aswill be sufficient to refer only to two namely, Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and Ors([1974] 2 S.C.R.t which is noticed by the High Court also in its order under appeal and the case of Roshan Lal v. Madan Lal([1976] 1 S.C.R. 878,was pointed out in Nagindass case (supra) by one of us (SarKaria J) that the existence of one of the. statutory grounds mentioned in sections 12 and 13 of the Act, as in the case of other similar States Statutes, is a; sine qua non to the exercise of jurisdiction by the Rent Court in order to enable it to make a decree for eviction. Parties by their consent cannot confer jurisdiction on the Rent Court to do something which according to the legislative mandate it could not do. The Court while recording a compromise under Order XXIII, Rule 3 of the Code has to satisfy itself that the agreement between the parties is lawful; in other words is not contrary to the provisions of the Act But it has been clearly laid down in Nagindass case at pagethat if at the time of the passing of the decree, there was some material before the Court, onof which, the Court could be prima facie satisfied, , about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself, . . .Roshan Lals case, one of us (Untwalia J.) following Nagindaes case reiterated the same view. At page 882 delivering the judgment of this Court, it has beenCourt can pass a decree, on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenants eviction merely by agreement without anything more. The compromise must indicate either on its. face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under thereference to the requirement of the law under Order XXIII Rule 3 of the Code, it has been observed further on the samethe agreement or compromise for the eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the compromise and pass a decree in accordance therewith. Passings a decree for eviction on adjudication of the requisite facts or on their admission in a compromise either express or implied, is not different."

### 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: those materials, there is abundant intrinsic material in the compromise itself to indicate that the decree passed upon its basis was not in violation of the Act but was, in accordance with it.7. In Vora Abbasbhai Alimahmomed v. Haji Gulamnabi Haji Safibhai ([1964] 5 S.C.R. 157.) Shah J, as he then was, delivering the judgment of this Court pointed out that when the conditions of clause (a) of sub-section (3) of section 12 of the Act are fulfilled the Court is bound to pass a decree in ejectment against the tenant. But in relation to clause (b) it has been said at page 166:-"The clause deals with cases not falling within cl. (3) (a) i.e. cases (i) in which rent is not payable by the month (ii) in which there is a dispute regarding the standard rent and permitted increases, (iii) in which rent is not due for six months or more. In these cases the, tenant may claim protection by paying or tendering in Court on the first day of the hearing of the suit o r such other date as the Court may fix, the standard rent and permitted increases and continuing to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also by paying costs of the suit as directed by the Court."8. It clause (b) is attracted as being any other case of the type (ii) i.e. "in which there is a dispute regarding the standard rent and permitted increases", then in such a case, "the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing of another date by the Court for payment or tender would be ineffectual, until the standard rent is fixed." Hence the Court, on the application of the tenant, has to fix the standard rent first. But if there is no dispute or no bona fide dispute, or the dispute raised is a mere pretence of it, a decree can follow under clause (b) of subsection (3) of section 12 of the Act in a suit in which rent is not due for six months or more but is due even for a lesser period. The tenant will get the protection against eviction in such a case only if he pays or tenders in Court on the first date of the hearing of the suit or such other date as the Court may fix the rent due (leaving aside the question of costs). In the instant case the High Court was not right that on the face of the compromise pursis or the order passed thereon, there was n o material to show that the tenant had either expressly or impliedly suffered a decree for eviction as being liable to be evicted in accordance with section 12 (3) (b) of the Act. While recording the compromise under Order XXIII Rule 3 of the Code, it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have, done so, unless the contrary is shown. But that apart, on examination of the plaint which certainly could be looked into and which must have been in the records of the Court at the time of the passing of the compromise decree, it would be found that the landlords had claimed arrears of rent for two months @ Rs. 17/- per month and mesne profit also for one month upto the date of the suit at the same rate. They had also claimed light charges @ Rs. 2/- per month. In, the compromise petition, paragraph 2, the same amount of rent, mesne profit and electric charges are admitted by the tenants to be payable to the landlords There is nothing to indicate that any genuine dispute was raised by the tenant in regard to be standard rent or the electric charges Nor is there anything to show that he had ever filed a petition under section 11 of the Act or any other provision of law for fixation of standard rent. In other words, there is nothing to show that the tenant could claim protection from eviction in accordance with clause (b) of sub-section (3) of section 12 of the Act on the ground that he was not in a position to pay or tender the rent due on the first date of the hearing of the suit, which must have been fixed before the passing of the ex-parte decree. Nor was he able to show that the Court at his request bad ever fixed any other date for payment of the said amount In paragraph 3 of the compromise petition also it is admitted that the standard rent would be Rs 17/- per month plus Rs 2/- electric charges and the defendant would pay the mesne profits at the aforesaid rates from 1-3-1967. It is, therefore manifest that there was no such dispute in this case in regard to standard rent which could give any protection to the tenant against his eviction under section 12 (3) (b) of the Act The facts clearly show that he had incurred the liability to be evicted under the said provisions, of law and the compromise decree was passed on the tenants impliedly admitting such liability If a decree for possession Would have been passed in inviting the tenant would not have got three years time to vacate the premises. He, therefore, agreed to suffer a decree by consent and gained three years time under it. But the unavoidable uncertainties of litigation and the delay in disposal of cases at all stages have enabled him to gain a period of about 11 years. more by now. In our judgment the decree under execution is not a nullity and has got to be executed by the Execution Court without any further loss of time, as quickly as possible.9. ### Response: 1 ### Explanation: compromise decree, it would be found that the landlords had claimed arrears of rent for two months @ Rs. 17/- per month and mesne profit also for one month upto the date of the suit at the same rate. They had also claimed light charges @ Rs. 2/- per month. In, the compromise petition, paragraph 2, the same amount of rent, mesne profit and electric charges are admitted by the tenants to be payable to the landlords There is nothing to indicate that any genuine dispute was raised by the tenant in regard to be standard rent or the electric charges Nor is there anything to show that he had ever filed a petition under section 11 of the Act or any other provision of law for fixation of standard rent. In other words, there is nothing to show that the tenant could claim protection from eviction in accordance with clause (b) of sub-section (3) of section 12 of the Act on the ground that he was not in a position to pay or tender the rent due on the first date of the hearing of the suit, which must have been fixed before the passing of the ex-parte decree. Nor was he able to show that the Court at his request bad ever fixed any other date for payment of the said amount In paragraph 3 of the compromise petition also it is admitted that the standard rent would be Rs 17/- per month plus Rs 2/- electric charges and the defendant would pay the mesne profits at the aforesaid rates from 1-3-1967. It is, therefore manifest that there was no such dispute in this case in regard to standard rent which could give any protection to the tenant against his eviction under section 12 (3) (b) of the Act The facts clearly show that he had incurred the liability to be evicted under the said provisions, of law and the compromise decree was passed on the tenants impliedly admitting such liability If a decree for possession Would have been passed in inviting the tenant would not have got three years time to vacate the premises. He, therefore, agreed to suffer a decree by consent and gained three years time under it. But the unavoidable uncertainties of litigation and the delay in disposal of cases at all stages have enabled him to gain a period of about 11 years. more by now. In our judgment the decree under execution is not a nullity and has got to be executed by the Execution Court without any further loss of time, as quickly aswill be sufficient to refer only to two namely, Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and Ors([1974] 2 S.C.R.t which is noticed by the High Court also in its order under appeal and the case of Roshan Lal v. Madan Lal([1976] 1 S.C.R. 878,was pointed out in Nagindass case (supra) by one of us (SarKaria J) that the existence of one of the. statutory grounds mentioned in sections 12 and 13 of the Act, as in the case of other similar States Statutes, is a; sine qua non to the exercise of jurisdiction by the Rent Court in order to enable it to make a decree for eviction. Parties by their consent cannot confer jurisdiction on the Rent Court to do something which according to the legislative mandate it could not do. The Court while recording a compromise under Order XXIII, Rule 3 of the Code has to satisfy itself that the agreement between the parties is lawful; in other words is not contrary to the provisions of the Act But it has been clearly laid down in Nagindass case at pagethat if at the time of the passing of the decree, there was some material before the Court, onof which, the Court could be prima facie satisfied, , about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself, . . .Roshan Lals case, one of us (Untwalia J.) following Nagindaes case reiterated the same view. At page 882 delivering the judgment of this Court, it has beenCourt can pass a decree, on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenants eviction merely by agreement without anything more. The compromise must indicate either on its. face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under thereference to the requirement of the law under Order XXIII Rule 3 of the Code, it has been observed further on the samethe agreement or compromise for the eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the compromise and pass a decree in accordance therewith. Passings a decree for eviction on adjudication of the requisite facts or on their admission in a compromise either express or implied, is not different."

State of Maharashtra & Others Vs. Lok Shikshan Sansatha & Others

mentioned in Rule 2.1 of the Code. So the said writ petitioner did not comply with Rule 2.1 read along with the press note and the circular letter, referred to above. That clearly shows that the application filed by the writ petitioner was not in the first instance in the prescribed form and that when it was sent in the prescribed form it was beyond time. Further, we have also referred to R. 86.2 which specifically says that the schools which are not registered under the Societies Registration Act, will not be eligible for any kind of grant from the public funds. Even in the application filed by the writ petitioner in the prescribed form on November 3, 1965, it was stated under head No. 4 that the management was not registered and that it intends to get itself registered within a month. So apart from two infirmities pointed out above there was this additional infirmity of non-registration. Even on the date when the appeal was filed to the State Government on April 26, 1966, the society was not registered. As admitted by the said society in its writ petition, it was registered under the Societies Registration Act, 1860, only on April 27, 1966. The order dated April 11, 1966 of the Deputy Director of Education rejecting the application was based on two grounds : (a) that the application was sent after the prescribed date and (b) that the society was not registered. That these two reasons are valid is clear from the facts mentioned above. The appeal taken to the State Government was unsuccessful. From the above circumstances it is clear that the rejection of the application was on valid grounds. The High Court, so far as we could see, has not found that these reasons are not based on the materials on record. No such contention has also been taken before us by the said writ petitioner. If so, it follows that the order of the High Court directing the State Government to issue permission to the two writ petitioners ignoring the above circumstances is clearly erroneous.30. From what is stated above, the judgment of the High Court allowing Special Civil Application Nos. 420 and 421 of 1966 cannot be sustained.31. Coming to Appeal No. 878 of 1968, the facts lie within a very narrow compass. For the year 1965-66, the third respondent in Special Civil Application No. 694 of 1965, out of which the appeal arises, had made an application on October 29, 1964 for starting a new school at Sakharkherda during the year 1965-66. The writ petitioner filed objections to the grant of permission to the third respondent. On the recommendation of the District Committee, the third respondent was allowed to open standards VIII and IX with one division only during the year 1965-66. The writ petitioner was filed to quash the permission granted to the third respondent. The State Government in its counter-affidavit has very elaborately referred to the various matters mentioned by the third respondent in his application and also to the recommendation made by the District Committee. The District Committee had recommended permission being granted to the third respondent on the ground that the management had very good experience in running schools and that it was also financially sound. It was also stated that at the place in question even when the writ petitioner was concucting a school with standards V to X, there was another school run by the Zila Parishad with standards run by the Zila Parishad with standards V to VII. It was pointed out by the State that the population in the area demanded additional school with standard VIII onwards and it was an absolute necessity. They had also given details regarding the long experience that the third respondent had in running schools in several places as also the soundness of its financial position.32. Before the High Court the attack made by the writ petitioner was slightly different from that of the other two writ petitioners in Special Civil Applications Nos. 420 and 421 of 1966. The attack on the grant of permission to the third respondent was made by this writ petitioner really based on clauses (1) and (2) of Rule 3. According to the writ petitioner the locality was not in need of any additional school as it will involve unhealthy competition. The High Court rejected the writ petition on the ground that the petitioner therein cannot make any grievance of the grant made to the third respondent to start a school after a proper consideration of the merits of the claim of the latter.33. Dr. Barlingay, learned counsel for the writ petitioner, who is appellant in this appeal, found considerable difficulty to satisfy us that any legal rights of the appellant herein had been infringed by grant of permission to the third respondent. We have already referred to the fact that the State has pointed out that even when the writ petitioner was running a school with classes V to X, the Zila Parishad was running another school in the same area with classes V to VII. The State had also pointed out that the population of the area demanded an additional school. From the mere fact that by the opening of another school some of the students of the appellant school may seek admission in the new school, it cannot be stated that any of the appellants legal rights have been infringed. Dr. Barlingay has not been able to satisfy us that in granting permission to the third respondent any extraneous or irrelevant matters have been taken into account by the District Committee or the educational authorities. Nor was he able to satisfy us that the reasons given by the District Committee for the grant of permission to the third respondent on the ground that it had a long experience in running schools and that his financial position is also good, are erroneous. If so, it follows that there is no merit in this appeal.

1[ds]23. Coming to Art. 14, it is accepted by the High Court that the writ petitioners did not make in their petitions any attack on clauses (1) and (2) of Rule 3 based upon the said Article. It was only during the course of arguments that Art. 14 appears to have been invoked. The High Court struck down the two sub-clauses on the ground that unless a school is started in accordance with the rules contained in the Code, they will not be recognised by the Secondary Schools Boards and the students studying in such schools cannot appear for the examinations held by the Board and the University. The approach made by the High Court in our view in this regard is erroneous. The provisions regarding grant of permission and recognition of schools under the Code are mainly intended for the purpose of receiving grant from the Government. We are not concerned in these proceedings regarding the effect of starting a school without complying with the requirements of the provisions of the Code or in the face of refusal of permission by the educational authorities when such schools so stated do not require or receive any grant from the State. That problem does not arise for consideration before us. Hence we do not think it necessary to refer to the provisions of the Maharashtra Secondary Education Board Regulation, 1966, the effect of which may be that no student having education in a school for the starting of which no permission has been given or such permission has been refused, may not be able to appear for the examinations held by the Boards concerned. So far as the distribution of grant to the schools recognised under the Code is concerned, it is not the case of any of the petitioners that such grants are being made arbitrarily or any discrimination is shown in thatdo not think it necessary to go into the question whether the Courts have got powers to strike down even executive instructions on the ground of their being vague when such executive instructions are admittedly issued by authorities concerned for the guidance and for being acted upon. We express no opinion on that point in these proceedings. We are of the view that the two clauses in question are not vague or ambiguous in any respect. The fallacy committed by the High Court consist in considering clauses (1) and (2) of Rule 3 in isolation. We have already pointed out that Rule 3 of the Code consists of as many as 16 clauses, which are conditions to be fulfilled for recognition being accorded. We have also referred to the circular letter dated October 5, 1965 issued by the State Government enumerating the various matters to be taken into account by the District Committees when considering applications for grant of permission to start a school or for having an additional school in the area or the locality. Rule 3 will have to be read along with these instructions as well as the various particulars which have to be filled up in the prescribed form. If clauses (1) and (2) of Rule 3 are interpreted having due regard to the various others matters, referred to above, the District Committee has got ample guidance to decide the need of a particular locality to have a school or an additional school as also the further question regarding the competency and reliability of the management. There will be sufficient material before the District Committee to consider whether the starting of a school or an additional school in a particular area or locality will involve any unhealthy competition. In view of the clear and detailed guidance furnished not only by Rule 3 but also by the instructions contained in the circular letter dated October 5, 1965, it is clear that there is no ambiguity in either clauses (1) or (2) of Rule 3. In considering the question of vagueness the High Court has not adverted to the various matters referred to by us earlier. Therefore, we are of the opinion that the striking down of clauses (1) and (2) of Rule 3 by the High Court as being, vague, isapplication of the petitioner in Special Civil Application No. 420 of 1966 which is the subject-matter of Civil Appeal No. 160 of 1968 was rejected by the Deputy Director of Education on the ground that the need of the place has been fulfilled by permitting another society to open the school at the place. The appeal filed to the State Government was unsuccessful. In the counter-affidavit filed by the State in the writ petition they had categorically referred to the recommendations of the District Committee on the applications filed by the said writ petitioner as also the third respondent therein. Regarding the writ petitioner the report of the District Committee was that it had no funds and that it was recommending another society with good financial position and experience. In this view the District Committee stated that it was not recommending the writ petitioner for the grant of permission. On the other hand the District Committee recommended the application of Ashok Education Society, Ashoknagar (third respondent) on the ground that it was financially sound and it was a very good and experienced society and that it was also a popular society. For these reasons the application of this society was recommended to be granted by the District Committee. It was on the basis of this recommendation of the District Committee that the Deputy Director of Education rejected the application of the writ petitioner and granted permission to the third respondent therein. The applications of both the writ petitioner and the third respondent were before the District Committee. The High Court has not found fault with these recommendations. On the other hand it has held that it is open to the authorities to refuse permission of the school is not in a financially sound position. The writ petitioner also was not able to satisfy us that the conclusions arrived at by the District Committee, which were accepted by the Deputy Director of Education were not based upon particulars furnished in thehave already referred to the fact that the State has pointed out that even when the writ petitioner was running a school with classes V to X, the Zila Parishad was running another school in the same area with classes V to VII. The State had also pointed out that the population of the area demanded an additional school. From the mere fact that by the opening of another school some of the students of the appellant school may seek admission in the new school, it cannot be stated that any of the appellants legal rights have been infringed. Dr. Barlingay has not been able to satisfy us that in granting permission to the third respondent any extraneous or irrelevant matters have been taken into account by the District Committee or the educational authorities. Nor was he able to satisfy us that the reasons given by the District Committee for the grant of permission to the third respondent on the ground that it had a long experience in running schools and that his financial position is also good, are erroneous. If so, it follows that there is no merit in this appeal.

### 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: mentioned in Rule 2.1 of the Code. So the said writ petitioner did not comply with Rule 2.1 read along with the press note and the circular letter, referred to above. That clearly shows that the application filed by the writ petitioner was not in the first instance in the prescribed form and that when it was sent in the prescribed form it was beyond time. Further, we have also referred to R. 86.2 which specifically says that the schools which are not registered under the Societies Registration Act, will not be eligible for any kind of grant from the public funds. Even in the application filed by the writ petitioner in the prescribed form on November 3, 1965, it was stated under head No. 4 that the management was not registered and that it intends to get itself registered within a month. So apart from two infirmities pointed out above there was this additional infirmity of non-registration. Even on the date when the appeal was filed to the State Government on April 26, 1966, the society was not registered. As admitted by the said society in its writ petition, it was registered under the Societies Registration Act, 1860, only on April 27, 1966. The order dated April 11, 1966 of the Deputy Director of Education rejecting the application was based on two grounds : (a) that the application was sent after the prescribed date and (b) that the society was not registered. That these two reasons are valid is clear from the facts mentioned above. The appeal taken to the State Government was unsuccessful. From the above circumstances it is clear that the rejection of the application was on valid grounds. The High Court, so far as we could see, has not found that these reasons are not based on the materials on record. No such contention has also been taken before us by the said writ petitioner. If so, it follows that the order of the High Court directing the State Government to issue permission to the two writ petitioners ignoring the above circumstances is clearly erroneous.30. From what is stated above, the judgment of the High Court allowing Special Civil Application Nos. 420 and 421 of 1966 cannot be sustained.31. Coming to Appeal No. 878 of 1968, the facts lie within a very narrow compass. For the year 1965-66, the third respondent in Special Civil Application No. 694 of 1965, out of which the appeal arises, had made an application on October 29, 1964 for starting a new school at Sakharkherda during the year 1965-66. The writ petitioner filed objections to the grant of permission to the third respondent. On the recommendation of the District Committee, the third respondent was allowed to open standards VIII and IX with one division only during the year 1965-66. The writ petitioner was filed to quash the permission granted to the third respondent. The State Government in its counter-affidavit has very elaborately referred to the various matters mentioned by the third respondent in his application and also to the recommendation made by the District Committee. The District Committee had recommended permission being granted to the third respondent on the ground that the management had very good experience in running schools and that it was also financially sound. It was also stated that at the place in question even when the writ petitioner was concucting a school with standards V to X, there was another school run by the Zila Parishad with standards run by the Zila Parishad with standards V to VII. It was pointed out by the State that the population in the area demanded additional school with standard VIII onwards and it was an absolute necessity. They had also given details regarding the long experience that the third respondent had in running schools in several places as also the soundness of its financial position.32. Before the High Court the attack made by the writ petitioner was slightly different from that of the other two writ petitioners in Special Civil Applications Nos. 420 and 421 of 1966. The attack on the grant of permission to the third respondent was made by this writ petitioner really based on clauses (1) and (2) of Rule 3. According to the writ petitioner the locality was not in need of any additional school as it will involve unhealthy competition. The High Court rejected the writ petition on the ground that the petitioner therein cannot make any grievance of the grant made to the third respondent to start a school after a proper consideration of the merits of the claim of the latter.33. Dr. Barlingay, learned counsel for the writ petitioner, who is appellant in this appeal, found considerable difficulty to satisfy us that any legal rights of the appellant herein had been infringed by grant of permission to the third respondent. We have already referred to the fact that the State has pointed out that even when the writ petitioner was running a school with classes V to X, the Zila Parishad was running another school in the same area with classes V to VII. The State had also pointed out that the population of the area demanded an additional school. From the mere fact that by the opening of another school some of the students of the appellant school may seek admission in the new school, it cannot be stated that any of the appellants legal rights have been infringed. Dr. Barlingay has not been able to satisfy us that in granting permission to the third respondent any extraneous or irrelevant matters have been taken into account by the District Committee or the educational authorities. Nor was he able to satisfy us that the reasons given by the District Committee for the grant of permission to the third respondent on the ground that it had a long experience in running schools and that his financial position is also good, are erroneous. If so, it follows that there is no merit in this appeal. ### Response: 1 ### Explanation: to refer to the provisions of the Maharashtra Secondary Education Board Regulation, 1966, the effect of which may be that no student having education in a school for the starting of which no permission has been given or such permission has been refused, may not be able to appear for the examinations held by the Boards concerned. So far as the distribution of grant to the schools recognised under the Code is concerned, it is not the case of any of the petitioners that such grants are being made arbitrarily or any discrimination is shown in thatdo not think it necessary to go into the question whether the Courts have got powers to strike down even executive instructions on the ground of their being vague when such executive instructions are admittedly issued by authorities concerned for the guidance and for being acted upon. We express no opinion on that point in these proceedings. We are of the view that the two clauses in question are not vague or ambiguous in any respect. The fallacy committed by the High Court consist in considering clauses (1) and (2) of Rule 3 in isolation. We have already pointed out that Rule 3 of the Code consists of as many as 16 clauses, which are conditions to be fulfilled for recognition being accorded. We have also referred to the circular letter dated October 5, 1965 issued by the State Government enumerating the various matters to be taken into account by the District Committees when considering applications for grant of permission to start a school or for having an additional school in the area or the locality. Rule 3 will have to be read along with these instructions as well as the various particulars which have to be filled up in the prescribed form. If clauses (1) and (2) of Rule 3 are interpreted having due regard to the various others matters, referred to above, the District Committee has got ample guidance to decide the need of a particular locality to have a school or an additional school as also the further question regarding the competency and reliability of the management. There will be sufficient material before the District Committee to consider whether the starting of a school or an additional school in a particular area or locality will involve any unhealthy competition. In view of the clear and detailed guidance furnished not only by Rule 3 but also by the instructions contained in the circular letter dated October 5, 1965, it is clear that there is no ambiguity in either clauses (1) or (2) of Rule 3. In considering the question of vagueness the High Court has not adverted to the various matters referred to by us earlier. Therefore, we are of the opinion that the striking down of clauses (1) and (2) of Rule 3 by the High Court as being, vague, isapplication of the petitioner in Special Civil Application No. 420 of 1966 which is the subject-matter of Civil Appeal No. 160 of 1968 was rejected by the Deputy Director of Education on the ground that the need of the place has been fulfilled by permitting another society to open the school at the place. The appeal filed to the State Government was unsuccessful. In the counter-affidavit filed by the State in the writ petition they had categorically referred to the recommendations of the District Committee on the applications filed by the said writ petitioner as also the third respondent therein. Regarding the writ petitioner the report of the District Committee was that it had no funds and that it was recommending another society with good financial position and experience. In this view the District Committee stated that it was not recommending the writ petitioner for the grant of permission. On the other hand the District Committee recommended the application of Ashok Education Society, Ashoknagar (third respondent) on the ground that it was financially sound and it was a very good and experienced society and that it was also a popular society. For these reasons the application of this society was recommended to be granted by the District Committee. It was on the basis of this recommendation of the District Committee that the Deputy Director of Education rejected the application of the writ petitioner and granted permission to the third respondent therein. The applications of both the writ petitioner and the third respondent were before the District Committee. The High Court has not found fault with these recommendations. On the other hand it has held that it is open to the authorities to refuse permission of the school is not in a financially sound position. The writ petitioner also was not able to satisfy us that the conclusions arrived at by the District Committee, which were accepted by the Deputy Director of Education were not based upon particulars furnished in thehave already referred to the fact that the State has pointed out that even when the writ petitioner was running a school with classes V to X, the Zila Parishad was running another school in the same area with classes V to VII. The State had also pointed out that the population of the area demanded an additional school. From the mere fact that by the opening of another school some of the students of the appellant school may seek admission in the new school, it cannot be stated that any of the appellants legal rights have been infringed. Dr. Barlingay has not been able to satisfy us that in granting permission to the third respondent any extraneous or irrelevant matters have been taken into account by the District Committee or the educational authorities. Nor was he able to satisfy us that the reasons given by the District Committee for the grant of permission to the third respondent on the ground that it had a long experience in running schools and that his financial position is also good, are erroneous. If so, it follows that there is no merit in this appeal.

Commissioner Of Income-Tax, Madras Vs. Indian Bank Lid

trade by itself."15. Mr. Sastri urges that the authority of the above decision has been shaken in Mitchell and Edon v. Ross (1961) 40 Tax Cas 11, but we are unable to accept this contention. The point urged in this case was that the authority of Fry v. Salisbury House Estate, 1930 AC 482, had been qualified by the decision in (1937) 21 Tax Cas 472, but this was negatived.16. A number of Indian cases have been cited before us and we will now proceed to examine them.17. The Madars High Courts decision in Commissioner of income-tax, Madras v. Somasundaran Chettiar, AIR 1928 Mad 487 does not assist Mr. Sastri. The assessee carried on business at Madras, where his head office was, and Ipoh a place in the Federated Malay. Money was borrowed at Madras and part of it sent to Ipoh where it was used as capital in the conduct of Ipoh business. The High Court held that interest on the part of the borrowed money used at Ipoh was rightly disallowed as a deduction because at business which was being taxed was the business at Madras and not the business at Ipoh. No exception can be taken to the decision but it does not advance the appellants case because we are concerned with one indivisible business.18. In Provident Investment Co. Ltd., In re 6 ITC 21: (AIR 1932 Bom 94), the assessee, an Indian Finance Company borrowed some money in India and purchased sterling securities out of it and retained them in India. The Bombay High Court held that interest on the borrowed money could not be deducted because" qua the capital which it (the company ) is using outside British India and retaining for that length of time outside British India, is not carrying on business in respect of which profits assessable to Indian Income-tax can be earned so that allowance can be claimed for interest on capital borrowed within the meaning of S.10 (2) (iii)" It appears to us that the Bombay High Court divided the business in two separate businesses. But the business of the present assessee cannot be divided into two separate businesses. It is one and indivisible.19. In Chellappa Chettiar v. Commissioner of Income-tax, Madras, 1937-5 ITR 97 : (AIR 1937 Mad 393 ) the assessee carrying on business as a moneylender had borrowed money and lent it out to constituents. He was obliged to receive agricultural lands in repayment of his debts from such constituents. The question arose whether he was entitled to a deduction in respect of the interest paid by him on capital represented by the agricultural lands. The Court following (1937) 21 Tax Cas 472, held that he was entitled notwithstanding that agricultural income was not taxable under the Income-tax Act. Mr. Sastri says that this was wrongly, decided and was in fact dissented from by the Rangoon High Court in C. I. T. Burma v. N. S. A. R. Concern (1938) 6 ITR 194: (AIR 1938 Rang 151). Dunkley. J., in the Rangoon case, distinguished (1937) 21 Tax Cas 472. because he thought that the scheme of the Burma Income-tax Act was entirely different from the scheme of the English Income-tax Act 1918. He observed that"in England a person is assessed to income-tax in respect of his income while under the Burma Act it is the income which is taxed. Under the English Act no class of income it outside the scope of the Act whereas by S. 4 (3) of the Burma Act the Act is made inapplicable to a number of classes of income. The English Act merely confers certain exemptions on a person in respect of his income up to a certain amount or certain kinds, similar to the exemptions conferred on certain classes of income by the provisos to Ss. 8 and 9 at the Burma Act.Then he noted the difference between the wording of S. 10 (2) (ix) of the Burma Act and the corresponding clause in the English Act. But we are unable to appreciate that these differences necessitate the rejection of the principle laid down in (1937) 21 Tax Cas 472. It is true that under the Indian Income-tax Act it is income that is taxed but it is not taxed in vacuo. It is taxed in the hands of a person. In England, the Interest of tax-free securities was exempted much in the same way as in India. It did not matter there who held them. (1937) 21 Tax Cas 472 cannot be distinguished on the grounds mentioned by the Rangoon High Court. In our judgment, 1937-5 ITR 97 : (AIR 1937 Mad 393 ) was correctly decided.20. The decision of this Court in Indore Malwa United Mills v. Commr. of Income-tax, (Central) Bombay, 1962-45. ITR 210 (SC), is distinguishable. It appears to us that it was because S. 14 (2) (c) and S. 4 (1) (a) and (c) existe at the relevant time that the words profits and gains in S. 24 were limited to such profits and gains as would have been assessable in British India or the taxable territories. This is apparent from the judgment and from the fol1owing observations of Das, J.,"Reading the provisions in S. 24 with the provision in S. 4 (1) (a) and (c) and S. 14 (2) (e) it seems clear to us that S. 24 (1) when it talks of profits or gains has reference to taxable profits and gains; in other words, it has reference to such profits and gains as would have been assessable in British India or the taxable territories. It has no reference to income accruing or arising without British India or without taxable territories which were not liable to be assessed in the case of non-residents"21. We cannot imply from this judgment that there is a general principle that if a part of the income of a business is tax-free, expenditure incurred for the purpose of earning this income is outside the purview of S. 10.

0[ds]20. The decision of this Court in Indore Malwa United Mills v. Commr. of Income-tax, (Central) Bombay, 1962-45. ITR 210 (SC), is distinguishable. It appears to us that it was because S. 14 (2) (c) and S. 4 (1) (a) and (c) existe at the relevant time that the words profits and gains in S. 24 were limited to such profits and gains as would have been assessable in British India or the taxable territories. This is apparent from the judgment and from the fol1owing observations of Das,the provisions in S. 24 with the provision in S. 4 (1) (a) and (c) and S. 14 (2) (e) it seems clear to us that S. 24 (1) when it talks of profits or gains has reference to taxable profits and gains; in other words, it has reference to such profits and gains as would have been assessable in British India or the taxable territories. It has no reference to income accruing or arising without British India or without taxable territories which were not liable to be assessed in the case ofWe cannot imply from this judgment that there is a general principle that if a part of the income of a business is tax-free, expenditure incurred for the purpose of earning this income is outside the purview of S.is force in the contention of Mr. Venkatram and the appeal must fail on this ground alone. But as the question has been debated before the High Court and before us. we do not desire to rest our decision on this narrow ground.Then is there such a principle as has been formulated above ? If there is one, can it be invoked to cut down the express language of S. 10 (2) (iii), which expressly allows as a deduction interest on capital borrowed for the purpose of the business? In our opinion, in construing the Act, we must adhere closely to the language of the Act.If there is ambiguity in the terms of a provision, recourse must naturally be had toprinciples of construction but it is not permission first to create an artificial ambiguity and then try to resolve the ambiguity by resort to some generalit seems to its that their is nothing in the language of S. 10 from which it can be fairly implied that an expenditure or allowance falling without the section must fulfil some other condition before it can be allowed.

### 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: trade by itself."15. Mr. Sastri urges that the authority of the above decision has been shaken in Mitchell and Edon v. Ross (1961) 40 Tax Cas 11, but we are unable to accept this contention. The point urged in this case was that the authority of Fry v. Salisbury House Estate, 1930 AC 482, had been qualified by the decision in (1937) 21 Tax Cas 472, but this was negatived.16. A number of Indian cases have been cited before us and we will now proceed to examine them.17. The Madars High Courts decision in Commissioner of income-tax, Madras v. Somasundaran Chettiar, AIR 1928 Mad 487 does not assist Mr. Sastri. The assessee carried on business at Madras, where his head office was, and Ipoh a place in the Federated Malay. Money was borrowed at Madras and part of it sent to Ipoh where it was used as capital in the conduct of Ipoh business. The High Court held that interest on the part of the borrowed money used at Ipoh was rightly disallowed as a deduction because at business which was being taxed was the business at Madras and not the business at Ipoh. No exception can be taken to the decision but it does not advance the appellants case because we are concerned with one indivisible business.18. In Provident Investment Co. Ltd., In re 6 ITC 21: (AIR 1932 Bom 94), the assessee, an Indian Finance Company borrowed some money in India and purchased sterling securities out of it and retained them in India. The Bombay High Court held that interest on the borrowed money could not be deducted because" qua the capital which it (the company ) is using outside British India and retaining for that length of time outside British India, is not carrying on business in respect of which profits assessable to Indian Income-tax can be earned so that allowance can be claimed for interest on capital borrowed within the meaning of S.10 (2) (iii)" It appears to us that the Bombay High Court divided the business in two separate businesses. But the business of the present assessee cannot be divided into two separate businesses. It is one and indivisible.19. In Chellappa Chettiar v. Commissioner of Income-tax, Madras, 1937-5 ITR 97 : (AIR 1937 Mad 393 ) the assessee carrying on business as a moneylender had borrowed money and lent it out to constituents. He was obliged to receive agricultural lands in repayment of his debts from such constituents. The question arose whether he was entitled to a deduction in respect of the interest paid by him on capital represented by the agricultural lands. The Court following (1937) 21 Tax Cas 472, held that he was entitled notwithstanding that agricultural income was not taxable under the Income-tax Act. Mr. Sastri says that this was wrongly, decided and was in fact dissented from by the Rangoon High Court in C. I. T. Burma v. N. S. A. R. Concern (1938) 6 ITR 194: (AIR 1938 Rang 151). Dunkley. J., in the Rangoon case, distinguished (1937) 21 Tax Cas 472. because he thought that the scheme of the Burma Income-tax Act was entirely different from the scheme of the English Income-tax Act 1918. He observed that"in England a person is assessed to income-tax in respect of his income while under the Burma Act it is the income which is taxed. Under the English Act no class of income it outside the scope of the Act whereas by S. 4 (3) of the Burma Act the Act is made inapplicable to a number of classes of income. The English Act merely confers certain exemptions on a person in respect of his income up to a certain amount or certain kinds, similar to the exemptions conferred on certain classes of income by the provisos to Ss. 8 and 9 at the Burma Act.Then he noted the difference between the wording of S. 10 (2) (ix) of the Burma Act and the corresponding clause in the English Act. But we are unable to appreciate that these differences necessitate the rejection of the principle laid down in (1937) 21 Tax Cas 472. It is true that under the Indian Income-tax Act it is income that is taxed but it is not taxed in vacuo. It is taxed in the hands of a person. In England, the Interest of tax-free securities was exempted much in the same way as in India. It did not matter there who held them. (1937) 21 Tax Cas 472 cannot be distinguished on the grounds mentioned by the Rangoon High Court. In our judgment, 1937-5 ITR 97 : (AIR 1937 Mad 393 ) was correctly decided.20. The decision of this Court in Indore Malwa United Mills v. Commr. of Income-tax, (Central) Bombay, 1962-45. ITR 210 (SC), is distinguishable. It appears to us that it was because S. 14 (2) (c) and S. 4 (1) (a) and (c) existe at the relevant time that the words profits and gains in S. 24 were limited to such profits and gains as would have been assessable in British India or the taxable territories. This is apparent from the judgment and from the fol1owing observations of Das, J.,"Reading the provisions in S. 24 with the provision in S. 4 (1) (a) and (c) and S. 14 (2) (e) it seems clear to us that S. 24 (1) when it talks of profits or gains has reference to taxable profits and gains; in other words, it has reference to such profits and gains as would have been assessable in British India or the taxable territories. It has no reference to income accruing or arising without British India or without taxable territories which were not liable to be assessed in the case of non-residents"21. We cannot imply from this judgment that there is a general principle that if a part of the income of a business is tax-free, expenditure incurred for the purpose of earning this income is outside the purview of S. 10. ### Response: 0 ### Explanation: 20. The decision of this Court in Indore Malwa United Mills v. Commr. of Income-tax, (Central) Bombay, 1962-45. ITR 210 (SC), is distinguishable. It appears to us that it was because S. 14 (2) (c) and S. 4 (1) (a) and (c) existe at the relevant time that the words profits and gains in S. 24 were limited to such profits and gains as would have been assessable in British India or the taxable territories. This is apparent from the judgment and from the fol1owing observations of Das,the provisions in S. 24 with the provision in S. 4 (1) (a) and (c) and S. 14 (2) (e) it seems clear to us that S. 24 (1) when it talks of profits or gains has reference to taxable profits and gains; in other words, it has reference to such profits and gains as would have been assessable in British India or the taxable territories. It has no reference to income accruing or arising without British India or without taxable territories which were not liable to be assessed in the case ofWe cannot imply from this judgment that there is a general principle that if a part of the income of a business is tax-free, expenditure incurred for the purpose of earning this income is outside the purview of S.is force in the contention of Mr. Venkatram and the appeal must fail on this ground alone. But as the question has been debated before the High Court and before us. we do not desire to rest our decision on this narrow ground.Then is there such a principle as has been formulated above ? If there is one, can it be invoked to cut down the express language of S. 10 (2) (iii), which expressly allows as a deduction interest on capital borrowed for the purpose of the business? In our opinion, in construing the Act, we must adhere closely to the language of the Act.If there is ambiguity in the terms of a provision, recourse must naturally be had toprinciples of construction but it is not permission first to create an artificial ambiguity and then try to resolve the ambiguity by resort to some generalit seems to its that their is nothing in the language of S. 10 from which it can be fairly implied that an expenditure or allowance falling without the section must fulfil some other condition before it can be allowed.

Deoki Nandan Vs. Murlidhar

idol of Sri Radhakrishanji were made with great solemnity and in accordance with the Sastras. P.W.10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending withSthapanaorPrathistawere duly performed and the idols of Sri Radhakrishnaji, Sri Shivaji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the public. 15. In the court below, the appellant raised the contention that the performance ofUthsargaceremony at the time of the consecration was conclusive to show that the dedication was to the public, and that as P.W. 10 stated thatPrasadothsargawas performed, the endowment must be held to be public. The learned Judges considered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under S.109 of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension.The ceremonies relating to dedication are Sankalpa,UthsargaandPrathista.Sankalpameans determination, and is really formal declaration by the settler of his intention to dedicate the property.Uthsargais the formal renunciation by the founder of his ownership on the property, the result thereof being that it becomes impressed with the trust for which he dedicates it.Vide the Hindu Law of Religious and Charitable Trusts by B.K.Mukherjea, 1952 Edition, p.36.the formula to be adopted inSankalpaandUthsargaare set out in Kanes History of Dharmasasatra, Vol.II, p.892. It will be seen therefrom that while theSankalpastates the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhatebyab).It would, therefore, follow that ifUthsargais proved to have been performed, the dedication must be held to have been to the public.But the difficulty in the way of the appellant is that the formula which according to P.W.10 was recited on the occasion of the foundation was not Uthsarga butPrasadothsarga,which is something totally different.Prasadais themandira, wherein the deity is placed before the final installation orPrathista takes place, and the PrathistaMayukha prescribes the ceremonies that have to be performed when the idol is installed in thePrasada. Prasadothsargais the formula to be used on that occasion and the text relating to it as given in the Mayukha runs as follows: It will be seen that this is merely the Sankalpa without theUthsarga,and there are no words therein showing that the dedication is to the public. Indeed, according to the texts,Uthsargais to be performed only for charitable endowments,like construction of tanks, rearing of gardens and the like, and not for religious foundations. It is observed by Mr. Mandlik in the Vyavahara Mayukha, Part II, Appendix II, p.339 that "there is noutsargaof a temple except in the case of repair of old temples".In the History of Dharmasastras, Vol.II, part II, p. 893,it is pointed out by Mr. Kane that in the case of temples the proper word to use isPrathistaand notUthsarga.Therefore, the question of inferring a dedication to the public by reason of the pefromance of theUthsargaceremony cannot arise in the case of temples.The appellant is correct in his contention that ifUthsargais performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga withUthsarga.But it is also clear from the texts thatPrathistatakes the place ofUthsargain dedication of temples, and that there wasprathistaof Sri Radhakrishnaji as spoken to by P.W.10, is not in dispute. In our opinion, this establishes that the dedication was to the public. 16. (4) We may now refer to certain facts admitted or established in the evidence, which indicate thatthe endowment is to the public. Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site.And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, 15 Beng L R 167 at p. 186(J) it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts.That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. And lastly, there is the fact that there was no temple in the village, and there is evidence on the side of the plaintiff that the, Thakurdwara was built at the instance of the villagers for providing a place of worship for them.This evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public. 17. It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower Court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaj in Bhadesia is a public temple.

1[ds]In the present case, it was admitted that there was a formal dedication; and the controversy is only as to the scope of the dedication, and that is also a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found, and is open to consideration in this appealUnder the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in itThough such a notion had a vogue at one time, and there is an echo of it in these proceedings (vide para 15 of the plaint), it is now established beyond all controversy that this is not the true position.It has been repeatedly held that it is only in an ideal sense that the idol is the owner of the endowed propertiesIt cannot itself make use of them; it cannot enjoy them or dispose of them, or even protect them. In short, the idol can have no beneficial interest in the endowment. This was clearly laid down in the Sanskrit text7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshipers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers, the question whether an endowment is private or public presents no difficultyIt is implicit in this provision that after the lifetime of the wives, the whole of the income is to be utilised for the purpose of the ThakurdwaraIt is further provided in that clause that after the death of the two wives the committee"mayappoint my nephew Murlidhar as Mutawalli by their unanimous opinion". This Murlidhar is a divided nephew of the testator and he is the first defendant in this actionWe are unable to endorse this opinion. We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of his familyIt is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations, he would have entrusted the management thereof to a body consisting of strangersIt is inconceivable that with such scant solicitude for his relations, Sheo Ghulam would have endowed a temple for their benefitIf we are to hold that the endowment was in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects. But it is clear from the provisions of the will that the testator contemplated the continuance of the endowment beyond the lifetime of his wives. He directed that the properties should be endowed in the name of the diety, and that lands are to be purchased in future in the name of the deity. He also provides for the management of the trust after the lifetime of his wives. And to effectuate this intentions, it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public, and not merely of his family. In deciding that the endowment was a private one, the learned Judges of the Chief Court failed to advert to these aspects, and we are unable to accept their decision as correct13. (2) In the absence of a deed of endowment consituting the Thakurdwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference, and indeed, it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers, as there was no temple in the village. The trial Judge did not discard this evidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of P. W. 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace. P.W. 2 was a pujari in the temple, and he deposed that while Sheo Gbulams wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside. We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right.It is nothing unusual even in well-known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is an expression of the regard which the entire villagers must have had for the wife of the founder, who was a pardanashin lady, when she came in for worship, and cannot be construed as a denial of their rightsBut, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it was a private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the publicWe are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment14. (3)It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settler has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it.In the present case, it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishanji were made with great solemnity and in accordance with the Sastras. P.W.10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending withSthapanaorPrathistawere duly performed and the idols of Sri Radhakrishnaji, Sri Shivaji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the publicWe have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension.The ceremonies relating to dedication are Sankalpa,UthsargaandPrathista.Sankalpameans determination, and is really formal declaration by the settler of his intention to dedicate the propertyThe appellant is correct in his contention that ifUthsargais performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga withUthsarga.But it is also clear from the texts thatPrathistatakes the place ofUthsargain dedication of temples, and that there wasprathistaof Sri Radhakrishnaji as spoken to by P.W.10, is not in dispute. In our opinion, this establishes that the dedication was to the publicThis evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public17. It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower Court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaj in Bhadesia is a public temple.

### 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: idol of Sri Radhakrishanji were made with great solemnity and in accordance with the Sastras. P.W.10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending withSthapanaorPrathistawere duly performed and the idols of Sri Radhakrishnaji, Sri Shivaji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the public. 15. In the court below, the appellant raised the contention that the performance ofUthsargaceremony at the time of the consecration was conclusive to show that the dedication was to the public, and that as P.W. 10 stated thatPrasadothsargawas performed, the endowment must be held to be public. The learned Judges considered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under S.109 of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension.The ceremonies relating to dedication are Sankalpa,UthsargaandPrathista.Sankalpameans determination, and is really formal declaration by the settler of his intention to dedicate the property.Uthsargais the formal renunciation by the founder of his ownership on the property, the result thereof being that it becomes impressed with the trust for which he dedicates it.Vide the Hindu Law of Religious and Charitable Trusts by B.K.Mukherjea, 1952 Edition, p.36.the formula to be adopted inSankalpaandUthsargaare set out in Kanes History of Dharmasasatra, Vol.II, p.892. It will be seen therefrom that while theSankalpastates the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhatebyab).It would, therefore, follow that ifUthsargais proved to have been performed, the dedication must be held to have been to the public.But the difficulty in the way of the appellant is that the formula which according to P.W.10 was recited on the occasion of the foundation was not Uthsarga butPrasadothsarga,which is something totally different.Prasadais themandira, wherein the deity is placed before the final installation orPrathista takes place, and the PrathistaMayukha prescribes the ceremonies that have to be performed when the idol is installed in thePrasada. Prasadothsargais the formula to be used on that occasion and the text relating to it as given in the Mayukha runs as follows: It will be seen that this is merely the Sankalpa without theUthsarga,and there are no words therein showing that the dedication is to the public. Indeed, according to the texts,Uthsargais to be performed only for charitable endowments,like construction of tanks, rearing of gardens and the like, and not for religious foundations. It is observed by Mr. Mandlik in the Vyavahara Mayukha, Part II, Appendix II, p.339 that "there is noutsargaof a temple except in the case of repair of old temples".In the History of Dharmasastras, Vol.II, part II, p. 893,it is pointed out by Mr. Kane that in the case of temples the proper word to use isPrathistaand notUthsarga.Therefore, the question of inferring a dedication to the public by reason of the pefromance of theUthsargaceremony cannot arise in the case of temples.The appellant is correct in his contention that ifUthsargais performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga withUthsarga.But it is also clear from the texts thatPrathistatakes the place ofUthsargain dedication of temples, and that there wasprathistaof Sri Radhakrishnaji as spoken to by P.W.10, is not in dispute. In our opinion, this establishes that the dedication was to the public. 16. (4) We may now refer to certain facts admitted or established in the evidence, which indicate thatthe endowment is to the public. Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site.And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, 15 Beng L R 167 at p. 186(J) it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts.That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. And lastly, there is the fact that there was no temple in the village, and there is evidence on the side of the plaintiff that the, Thakurdwara was built at the instance of the villagers for providing a place of worship for them.This evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public. 17. It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower Court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaj in Bhadesia is a public temple. ### Response: 1 ### Explanation: Ghulam would have endowed a temple for their benefitIf we are to hold that the endowment was in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects. But it is clear from the provisions of the will that the testator contemplated the continuance of the endowment beyond the lifetime of his wives. He directed that the properties should be endowed in the name of the diety, and that lands are to be purchased in future in the name of the deity. He also provides for the management of the trust after the lifetime of his wives. And to effectuate this intentions, it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public, and not merely of his family. In deciding that the endowment was a private one, the learned Judges of the Chief Court failed to advert to these aspects, and we are unable to accept their decision as correct13. (2) In the absence of a deed of endowment consituting the Thakurdwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference, and indeed, it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers, as there was no temple in the village. The trial Judge did not discard this evidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of P. W. 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace. P.W. 2 was a pujari in the temple, and he deposed that while Sheo Gbulams wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside. We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right.It is nothing unusual even in well-known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is an expression of the regard which the entire villagers must have had for the wife of the founder, who was a pardanashin lady, when she came in for worship, and cannot be construed as a denial of their rightsBut, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it was a private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the publicWe are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment14. (3)It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settler has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it.In the present case, it is common ground that the consecration of the temple and the installation of the idol of Sri Radhakrishanji were made with great solemnity and in accordance with the Sastras. P.W.10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending withSthapanaorPrathistawere duly performed and the idols of Sri Radhakrishnaji, Sri Shivaji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the publicWe have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension.The ceremonies relating to dedication are Sankalpa,UthsargaandPrathista.Sankalpameans determination, and is really formal declaration by the settler of his intention to dedicate the propertyThe appellant is correct in his contention that ifUthsargais performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga withUthsarga.But it is also clear from the texts thatPrathistatakes the place ofUthsargain dedication of temples, and that there wasprathistaof Sri Radhakrishnaji as spoken to by P.W.10, is not in dispute. In our opinion, this establishes that the dedication was to the publicThis evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public17. It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower Court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaj in Bhadesia is a public temple.

Sun Pharmaceutical Industries Limited Vs. The Union of India & Others

of action arose in Delhi since the notification under challenge was issued by the DGFT in Delhi and all representations were made to and considered by the authorities in Delhi. Therefore, the judgment in Agri Trade India Services Pvt.Ltd. (supra), cannot come to the assistance of the petitioners herein."28. We fully concur with the above view. 29. The Division Bench of this Court also had an occasion to consider, more or less, similar issue in the case of Standard Industries Ltd. (supra); wherein this Court has observed as under:-"Extending the aforesaid principle of law enunciated by the Apex Court that even if the authority is dealing with the case arising in the State could be deemed principal authority located in the State, though, factually, its office may be outside the State, such authority could be amenable to the jurisdiction of the High Court from where the original proceedings were initiated, it is, thus, clear that the High Court, whether or not original authority located, will have jurisdiction to deal with the matter."30. In the view of the above, even if the respondent no.3 is physically located at Mumbai, however, since it is dealing with the case arising in the State of Tamil Nadu, it could be deemed to be located in that State amenable to the writ jurisdiction of the Madras High Court.31. The above case was principally decided on the touchstone of doctrine of merger; wherein the order of the first Appellate Authority had merged in the order of the Tribunal. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by the inferior Court, Tribunal or Authority was subjected to a remedy available under law before superior forum; then the order of superior forum disposing of lis before it either way - whether decree or order under appeal set aside or modified or simply confirmed, it is the decree or order of the superior court, Tribunal or Authority which is the final, binding and operative decree or order; wherein merges the decree or order passed by the Court, Tribunal or Authority below. Thus, invoking the doctrine of merger, the view was taken that the substantial cause of action giving rise to the proceedings was based on the order of the Tribunal located at Mumbai. The ultimate adverse order affecting the revenue was that of the Tribunal located at Mumbai. In this view of the matter, the observations were made observing that if two courts have jurisdiction, then it is for the suitor to choose forum. The issue involved in this petition was not involved in the above case.32. In the case on hand, the doctrine of merger is not applicable. The order passed by the Authority below did not merge into the order of the Settlement Commission. The order of Settlement Commission can neither be said to be an order in appeal or revision. The Settlement Commission is altogether a different special forum created under the Act for settlement of the disputes. If the settlement is not accepted by the parties then the original proceeding gets revived and reopened. In this view of the matter, the reliance placed by the learned counsel for the petitioner on the judgment of this Court in the case of Ltd. Standard Industries Ltd.(supra) is mis-placed. 33. We must point out that the issue in this petition is not whether this Court lacks jurisdiction to entertain this writ petition. This Court certainly has a jurisdiction. The real question is whether this Court should entertain this petition only because a small part of cause of action arises within the jurisdiction of this Court. In other words, the issue is :"Whether this Court should decline to entertain this petition considering the doctrine of "forum conveniens" when the substantial and intrinsic cause of action has arisen within the jurisdiction of the Madras High Court"34. We are unable to persuade ourselves to exercise territorial jurisdiction in the matter. It may at once be noticed that the judgment in Kusum Ingots and Alloys Ltd. (supra) does not lay down that a High Court should invariably exercise jurisdiction when an order, challenged before it, is passed by an authority or Tribunal located within its territorial jurisdiction. The following observations in the said judgment would bear this out:"27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of original authority merges with that of the appellate authority." "30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases,the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens."35. In other words, the above judgment in Kusum Ingots and Alloys Ltd., leaves it to the High Court to decide, on the facts of each case, whether it is required to exercise jurisdiction; if a part of the cause of action arises within its territorial jurisdiction.36. On the above canvas of law, in exercise of our discretion, for all the above reasons, we decline to entertain this petition. However, the dismissal of the Writ Petition is without prejudice to the rights of the petitioner to approach appropriate forum to seek appropriate relief sought in the present petition.

0[ds]28. We fully concur with the above view.In the view of the above, even if the respondent no.3 is physically located at Mumbai, however, since it is dealing with the case arising in the State of Tamil Nadu, it could be deemed to be located in that State amenable to the writ jurisdiction of the Madras High Court.31. The above case was principally decided on the touchstone of doctrine of merger; wherein the order of the first Appellate Authority had merged in the order of the Tribunal. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the sameat a given point of time. When a decree or order passed by the inferior Court, Tribunal or Authority was subjected to a remedy available under law before superior forum; then the order of superior forum disposing of lis before it either wayWe are unable to persuade ourselves to exercise territorial jurisdiction in the matter. It may at once be noticed that the judgment in Kusum Ingots and Alloys Ltd. (supra) does not lay down that a High Court should invariably exercise jurisdiction when an order, challenged before it, is passed by an authority or Tribunal located within its territorial jurisdiction.In other words, the above judgment in Kusum Ingots and Alloys Ltd., leaves it to the High Court to decide, on the facts of each case, whether it is required to exercise jurisdiction; if a part of the cause of action arises within its territorial jurisdiction.36. On the above canvas of law, in exercise of our discretion, for all the above reasons, we decline to entertain this petition. However, the dismissal of the Writ Petition is without prejudice to the rights of the petitioner to approach appropriate forum to seek appropriate relief sought in the present petition.

### Instruction: Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding. ### Input: of action arose in Delhi since the notification under challenge was issued by the DGFT in Delhi and all representations were made to and considered by the authorities in Delhi. Therefore, the judgment in Agri Trade India Services Pvt.Ltd. (supra), cannot come to the assistance of the petitioners herein."28. We fully concur with the above view. 29. The Division Bench of this Court also had an occasion to consider, more or less, similar issue in the case of Standard Industries Ltd. (supra); wherein this Court has observed as under:-"Extending the aforesaid principle of law enunciated by the Apex Court that even if the authority is dealing with the case arising in the State could be deemed principal authority located in the State, though, factually, its office may be outside the State, such authority could be amenable to the jurisdiction of the High Court from where the original proceedings were initiated, it is, thus, clear that the High Court, whether or not original authority located, will have jurisdiction to deal with the matter."30. In the view of the above, even if the respondent no.3 is physically located at Mumbai, however, since it is dealing with the case arising in the State of Tamil Nadu, it could be deemed to be located in that State amenable to the writ jurisdiction of the Madras High Court.31. The above case was principally decided on the touchstone of doctrine of merger; wherein the order of the first Appellate Authority had merged in the order of the Tribunal. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by the inferior Court, Tribunal or Authority was subjected to a remedy available under law before superior forum; then the order of superior forum disposing of lis before it either way - whether decree or order under appeal set aside or modified or simply confirmed, it is the decree or order of the superior court, Tribunal or Authority which is the final, binding and operative decree or order; wherein merges the decree or order passed by the Court, Tribunal or Authority below. Thus, invoking the doctrine of merger, the view was taken that the substantial cause of action giving rise to the proceedings was based on the order of the Tribunal located at Mumbai. The ultimate adverse order affecting the revenue was that of the Tribunal located at Mumbai. In this view of the matter, the observations were made observing that if two courts have jurisdiction, then it is for the suitor to choose forum. The issue involved in this petition was not involved in the above case.32. In the case on hand, the doctrine of merger is not applicable. The order passed by the Authority below did not merge into the order of the Settlement Commission. The order of Settlement Commission can neither be said to be an order in appeal or revision. The Settlement Commission is altogether a different special forum created under the Act for settlement of the disputes. If the settlement is not accepted by the parties then the original proceeding gets revived and reopened. In this view of the matter, the reliance placed by the learned counsel for the petitioner on the judgment of this Court in the case of Ltd. Standard Industries Ltd.(supra) is mis-placed. 33. We must point out that the issue in this petition is not whether this Court lacks jurisdiction to entertain this writ petition. This Court certainly has a jurisdiction. The real question is whether this Court should entertain this petition only because a small part of cause of action arises within the jurisdiction of this Court. In other words, the issue is :"Whether this Court should decline to entertain this petition considering the doctrine of "forum conveniens" when the substantial and intrinsic cause of action has arisen within the jurisdiction of the Madras High Court"34. We are unable to persuade ourselves to exercise territorial jurisdiction in the matter. It may at once be noticed that the judgment in Kusum Ingots and Alloys Ltd. (supra) does not lay down that a High Court should invariably exercise jurisdiction when an order, challenged before it, is passed by an authority or Tribunal located within its territorial jurisdiction. The following observations in the said judgment would bear this out:"27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of original authority merges with that of the appellate authority." "30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases,the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens."35. In other words, the above judgment in Kusum Ingots and Alloys Ltd., leaves it to the High Court to decide, on the facts of each case, whether it is required to exercise jurisdiction; if a part of the cause of action arises within its territorial jurisdiction.36. On the above canvas of law, in exercise of our discretion, for all the above reasons, we decline to entertain this petition. However, the dismissal of the Writ Petition is without prejudice to the rights of the petitioner to approach appropriate forum to seek appropriate relief sought in the present petition. ### Response: 0 ### Explanation: 28. We fully concur with the above view.In the view of the above, even if the respondent no.3 is physically located at Mumbai, however, since it is dealing with the case arising in the State of Tamil Nadu, it could be deemed to be located in that State amenable to the writ jurisdiction of the Madras High Court.31. The above case was principally decided on the touchstone of doctrine of merger; wherein the order of the first Appellate Authority had merged in the order of the Tribunal. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the sameat a given point of time. When a decree or order passed by the inferior Court, Tribunal or Authority was subjected to a remedy available under law before superior forum; then the order of superior forum disposing of lis before it either wayWe are unable to persuade ourselves to exercise territorial jurisdiction in the matter. It may at once be noticed that the judgment in Kusum Ingots and Alloys Ltd. (supra) does not lay down that a High Court should invariably exercise jurisdiction when an order, challenged before it, is passed by an authority or Tribunal located within its territorial jurisdiction.In other words, the above judgment in Kusum Ingots and Alloys Ltd., leaves it to the High Court to decide, on the facts of each case, whether it is required to exercise jurisdiction; if a part of the cause of action arises within its territorial jurisdiction.36. On the above canvas of law, in exercise of our discretion, for all the above reasons, we decline to entertain this petition. However, the dismissal of the Writ Petition is without prejudice to the rights of the petitioner to approach appropriate forum to seek appropriate relief sought in the present petition.

Sahib Singh Vs. State Of Haryana

is based on the Maxim "habemus optimum testem canfitentem renum" which means that confession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, normal and sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience.47. Under this Act, although a confession recorded by a Police Officer, not below the rank of Superintendent of Police, is admissible in evidence, such Confessional Statement, if challenged, has to be shown, before a conviction can be based upon it, to have been made voluntarily and that it was truthful. 48. In the instant case, Confession of the appellant was recorded by Superintendent of Police, Jind, on 14.12.1991, which was accompanied by a certificate by the S.P. Jind, in compliance of the requirement of Section 15 of the Act. The Confessional Statement has been proved and has been marked as Exh. W-14/A. The relevant portion of the Confessional Statement is as under : "My father Sucha Singh and Om Parkash Mahajan, R/o Pipaltha purchased some agricultural land in village Pipaltha since long. After that there was dispute between them. Om Parkash was a rich man. Om Parkash got implicated my father in false cases and got challaned through police on the basis of which grudge increased.There is one Kala Singh @ Rukha in our village who has committed two murders in our village and he is intenglled (entangled ?) in the group of terrorists and is residing in Punjab. Kala Singh was on visiting terms with us 3-4 days. Before committing the murder of Om Parkash, Kala Singh @ Rukha had come to us. I had asked Kala Singh @ Rukha to commit the murder of Om Parkash Mahajan R/o Pipaltha. Kala Singh @ Rukha told me that he has no need of money but he had to pay Rs. 15,000/- to the other terrorist for committing the murder. I promised to pay Rs. 15,000/- and Kala Singh had asked me to hand over Rs. 15,000/- to him in Makord Gurdwara. On 18.11.1991 Kala Singh @ Rukha R/o Pipaltha accompanied by six terrorists, one of them was Nachhatar Singh, names of other not known, came to my house. Kala Singh @ Rukha had asked me to see as to whether Om Parkash Mahajan is present at the house or not. On his asking I went to the house of Om Parkash. Om Parkash was present at his shop. I told Kala Singh @ Rukha that Om Parkash is present at a shop. Kala Singh @ Rukha along with his companion terrorist committed the murder of Om Parkash Mahajan by shots going at his house. Firing in the street they ran away on the Hero Honda motor-cycle No. HR-32-0218 after taking the same from the shop of motor-cycle, (Om Parkash ?) I went to my home after making information of Om Parkash Mahajan to Kala Singh @ Rukha and started drinks. On hearing the noise of fires I ran away from my house due to fear. That the sons of Om Parkash may not name me for the murder of Om Parkash, I had promised to pay Rs. 15,000/- for the murder of Om Parkash Mahajan." 49. A perusal of the Confessional Statement would indicate that three or four days prior to the date of incident, which incidentally is 18.11.1991, Kala Singh had come to the appellant and the appellant had requested Kala Singh to commit the murder of Om Prakash, for which Kala Singh wanted Rs. 15,000/- to be paid to other terrorists who would be hired for that job. It was on the basis of this arrangement that Kala Singh came along with six other terrorists, including Nachhatar Singh, on 18.11.1991 and committed the murder of Om Prakash. The terrorists, including Kala Singh, went away on the Hero Honda motor-cycle. 50. It has been held above that Kala Singh had already been killed in a police encounter on 31.10.1991. There was, therefore, no occasion of his coming to the appellant and the appellant asking Kala Singh to commit the murder of Om Prakash on Rs. 15,000/- being paid to him. 51. The story of Hallucination is repeated in the so-called Confessional Statement by saying that a dead person came to the appellant, talked to the appellant, asked the appellant to pay Rs. 15,000/- so that that "dead person" may pay it to other terrorists through whom the job of killing Om Prakash would be performed; the dead person came to the spot along with other terrorists on 18.11.1991 and committed the murder of Om Prakash. The Confessional Statement further makes that dead person to ride on a motor-cycle and drive away along with other terrorists on the same motor- cycle. The dead also drives ! 52. The Confessional Statement does not admit even substantially the basic facts of the prosecution story, inasmuch as in the Confessional Statement, no role is assigned to the appellant while in the prosecution story an active role has been assigned to him by showing that he too was armed with a gun and had gone at the spot and participated in the commission of the crime by firing his gun specially at the injured witness. The Confessional Statement is not truthful and is part of the Hallucination with which prosecution and its witnesses were suffering. It is accordingly discarded and cannot be acted upon.53. A little effort on the part of the trial court would have revealed to it the falsity of the prosecution case, but it proceeded in a mechanical manner and ultimately convicted the appellant ignoring that there was a deliberately delayed FIR and the case set out therein was sought to be proved through highly interested witnesses, instead of independent witnesses, and also by bringing on record a Confessional Statement which contained false facts. This leads to the conclusion that the trial judge was sitting only to convict forgetting that judiciary holds the SCALES seven, not titled.

1[ds]41. In view of these decisions, it is now certain that a "Confession" must either be an express acknowledgement of guilt of the offence charged, certain and complete in itself, or it must admit substantially all the facts which constitute the offence.According to these requirements, confession has to be made before a Police Officer not below the rank of a Superintendent of Police. Before recording the confession, the Police Officer has to explain to the person concerned that he is not bound to make the confession and that if he makes the confession, it may be used as evidence against him. The Police Officer has also to satisfy himself, after questioning the person concerned, that he is making the confession voluntarily. The Officer recording the confession has also to record a certificate of having observed the requirements of law.46. The Act, like the Evidence Act, does not define "Confession" and, therefore, the principles enunciated by this Court with regard to the meaning of "Confession" under the Evidence Act shall also apply to a "Confession" made under this Act. Under this Act also, "Confession" has either to be an express acknowledgement of guilt of the offence charged or it must admit substantially all the facts which constitute the offence. Conviction on "Confession" is based on the Maxim "habemus optimum testem canfitentem renum" which means that confession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, normal and sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience.47. Under this Act, although a confession recorded by a Police Officer, not below the rank of Superintendent of Police, is admissible in evidence, such Confessional Statement, if challenged, has to be shown, before a conviction can be based upon it, to have been made voluntarily and that it was truthful.A perusal of the Confessional Statement would indicate that three or four days prior to the date of incident, which incidentally is 18.11.1991, Kala Singh had come to the appellant and the appellant had requested Kala Singh to commit the murder of Om Prakash, for which Kala Singh wanted Rs. 15,000/- to be paid to other terrorists who would be hired for that job. It was on the basis of this arrangement that Kala Singh came along with six other terrorists, including Nachhatar Singh, on 18.11.1991 and committed the murder of Om Prakash. The terrorists, including Kala Singh, went away on the Hero Honda motor-cycle.The Confessional Statement does not admit even substantially the basic facts of the prosecution story, inasmuch as in the Confessional Statement, no role is assigned to the appellant while in the prosecution story an active role has been assigned to him by showing that he too was armed with a gun and had gone at the spot and participated in the commission of the crime by firing his gun specially at the injured witness. The Confessional Statement is not truthful and is part of the Hallucination with which prosecution and its witnesses were suffering. It is accordingly discarded and cannot be acted upon.53. A little effort on the part of the trial court would have revealed to it the falsity of the prosecution case, but it proceeded in a mechanical manner and ultimately convicted the appellant ignoring that there was a deliberately delayed FIR and the case set out therein was sought to be proved through highly interested witnesses, instead of independent witnesses, and also by bringing on record a Confessional Statement which contained false facts. This leads to the conclusion that the trial judge was sitting only to convict forgetting that judiciary holds the SCALES seven, not titled.

### 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: is based on the Maxim "habemus optimum testem canfitentem renum" which means that confession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, normal and sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience.47. Under this Act, although a confession recorded by a Police Officer, not below the rank of Superintendent of Police, is admissible in evidence, such Confessional Statement, if challenged, has to be shown, before a conviction can be based upon it, to have been made voluntarily and that it was truthful. 48. In the instant case, Confession of the appellant was recorded by Superintendent of Police, Jind, on 14.12.1991, which was accompanied by a certificate by the S.P. Jind, in compliance of the requirement of Section 15 of the Act. The Confessional Statement has been proved and has been marked as Exh. W-14/A. The relevant portion of the Confessional Statement is as under : "My father Sucha Singh and Om Parkash Mahajan, R/o Pipaltha purchased some agricultural land in village Pipaltha since long. After that there was dispute between them. Om Parkash was a rich man. Om Parkash got implicated my father in false cases and got challaned through police on the basis of which grudge increased.There is one Kala Singh @ Rukha in our village who has committed two murders in our village and he is intenglled (entangled ?) in the group of terrorists and is residing in Punjab. Kala Singh was on visiting terms with us 3-4 days. Before committing the murder of Om Parkash, Kala Singh @ Rukha had come to us. I had asked Kala Singh @ Rukha to commit the murder of Om Parkash Mahajan R/o Pipaltha. Kala Singh @ Rukha told me that he has no need of money but he had to pay Rs. 15,000/- to the other terrorist for committing the murder. I promised to pay Rs. 15,000/- and Kala Singh had asked me to hand over Rs. 15,000/- to him in Makord Gurdwara. On 18.11.1991 Kala Singh @ Rukha R/o Pipaltha accompanied by six terrorists, one of them was Nachhatar Singh, names of other not known, came to my house. Kala Singh @ Rukha had asked me to see as to whether Om Parkash Mahajan is present at the house or not. On his asking I went to the house of Om Parkash. Om Parkash was present at his shop. I told Kala Singh @ Rukha that Om Parkash is present at a shop. Kala Singh @ Rukha along with his companion terrorist committed the murder of Om Parkash Mahajan by shots going at his house. Firing in the street they ran away on the Hero Honda motor-cycle No. HR-32-0218 after taking the same from the shop of motor-cycle, (Om Parkash ?) I went to my home after making information of Om Parkash Mahajan to Kala Singh @ Rukha and started drinks. On hearing the noise of fires I ran away from my house due to fear. That the sons of Om Parkash may not name me for the murder of Om Parkash, I had promised to pay Rs. 15,000/- for the murder of Om Parkash Mahajan." 49. A perusal of the Confessional Statement would indicate that three or four days prior to the date of incident, which incidentally is 18.11.1991, Kala Singh had come to the appellant and the appellant had requested Kala Singh to commit the murder of Om Prakash, for which Kala Singh wanted Rs. 15,000/- to be paid to other terrorists who would be hired for that job. It was on the basis of this arrangement that Kala Singh came along with six other terrorists, including Nachhatar Singh, on 18.11.1991 and committed the murder of Om Prakash. The terrorists, including Kala Singh, went away on the Hero Honda motor-cycle. 50. It has been held above that Kala Singh had already been killed in a police encounter on 31.10.1991. There was, therefore, no occasion of his coming to the appellant and the appellant asking Kala Singh to commit the murder of Om Prakash on Rs. 15,000/- being paid to him. 51. The story of Hallucination is repeated in the so-called Confessional Statement by saying that a dead person came to the appellant, talked to the appellant, asked the appellant to pay Rs. 15,000/- so that that "dead person" may pay it to other terrorists through whom the job of killing Om Prakash would be performed; the dead person came to the spot along with other terrorists on 18.11.1991 and committed the murder of Om Prakash. The Confessional Statement further makes that dead person to ride on a motor-cycle and drive away along with other terrorists on the same motor- cycle. The dead also drives ! 52. The Confessional Statement does not admit even substantially the basic facts of the prosecution story, inasmuch as in the Confessional Statement, no role is assigned to the appellant while in the prosecution story an active role has been assigned to him by showing that he too was armed with a gun and had gone at the spot and participated in the commission of the crime by firing his gun specially at the injured witness. The Confessional Statement is not truthful and is part of the Hallucination with which prosecution and its witnesses were suffering. It is accordingly discarded and cannot be acted upon.53. A little effort on the part of the trial court would have revealed to it the falsity of the prosecution case, but it proceeded in a mechanical manner and ultimately convicted the appellant ignoring that there was a deliberately delayed FIR and the case set out therein was sought to be proved through highly interested witnesses, instead of independent witnesses, and also by bringing on record a Confessional Statement which contained false facts. This leads to the conclusion that the trial judge was sitting only to convict forgetting that judiciary holds the SCALES seven, not titled. ### Response: 1 ### Explanation: 41. In view of these decisions, it is now certain that a "Confession" must either be an express acknowledgement of guilt of the offence charged, certain and complete in itself, or it must admit substantially all the facts which constitute the offence.According to these requirements, confession has to be made before a Police Officer not below the rank of a Superintendent of Police. Before recording the confession, the Police Officer has to explain to the person concerned that he is not bound to make the confession and that if he makes the confession, it may be used as evidence against him. The Police Officer has also to satisfy himself, after questioning the person concerned, that he is making the confession voluntarily. The Officer recording the confession has also to record a certificate of having observed the requirements of law.46. The Act, like the Evidence Act, does not define "Confession" and, therefore, the principles enunciated by this Court with regard to the meaning of "Confession" under the Evidence Act shall also apply to a "Confession" made under this Act. Under this Act also, "Confession" has either to be an express acknowledgement of guilt of the offence charged or it must admit substantially all the facts which constitute the offence. Conviction on "Confession" is based on the Maxim "habemus optimum testem canfitentem renum" which means that confession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, normal and sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience.47. Under this Act, although a confession recorded by a Police Officer, not below the rank of Superintendent of Police, is admissible in evidence, such Confessional Statement, if challenged, has to be shown, before a conviction can be based upon it, to have been made voluntarily and that it was truthful.A perusal of the Confessional Statement would indicate that three or four days prior to the date of incident, which incidentally is 18.11.1991, Kala Singh had come to the appellant and the appellant had requested Kala Singh to commit the murder of Om Prakash, for which Kala Singh wanted Rs. 15,000/- to be paid to other terrorists who would be hired for that job. It was on the basis of this arrangement that Kala Singh came along with six other terrorists, including Nachhatar Singh, on 18.11.1991 and committed the murder of Om Prakash. The terrorists, including Kala Singh, went away on the Hero Honda motor-cycle.The Confessional Statement does not admit even substantially the basic facts of the prosecution story, inasmuch as in the Confessional Statement, no role is assigned to the appellant while in the prosecution story an active role has been assigned to him by showing that he too was armed with a gun and had gone at the spot and participated in the commission of the crime by firing his gun specially at the injured witness. The Confessional Statement is not truthful and is part of the Hallucination with which prosecution and its witnesses were suffering. It is accordingly discarded and cannot be acted upon.53. A little effort on the part of the trial court would have revealed to it the falsity of the prosecution case, but it proceeded in a mechanical manner and ultimately convicted the appellant ignoring that there was a deliberately delayed FIR and the case set out therein was sought to be proved through highly interested witnesses, instead of independent witnesses, and also by bringing on record a Confessional Statement which contained false facts. This leads to the conclusion that the trial judge was sitting only to convict forgetting that judiciary holds the SCALES seven, not titled.

COMMISSIONER OF CUSTOMS, BANGALORE I Vs. M/S MOTOROLA INDIA LTD

Tribunal) may go beyond the inter se dispute between the parties and effect upon a large number of assessees. The issue, in such an event, surely will be one of general/public importance. Alternatively, the question raised or arising may require interpretation of the provisions of the Constitution. Such interpreta- tion may involve a fresh or a relook or even an attempt to understand the true and correct purport of a laid down meaning of the constitutional provisions that may come into focus in a given case. It is only such questions of importance, alone, that are required to be decided by the Supreme Court and by the very nature of the questions raised or arising, the same necessarily have to involve issues of law going beyond the inter partes rights and extending to a class or category of assessees as a whole. This is the limitation that has to be understood to be inbuilt in Section 130-E(b) of the Act which, in our con- sidered view, would also be consistent with the role and jurisdiction of the Supreme Court of India as envisaged under the Constitution. Viewed from the aforesaid per- spective, the jurisdiction of the Supreme Court under Section 130-E(b) of the Act or the pari materia provi- sions of any other statute would be in harmony with those contained in Chapter IV of Part V of the Constitution.?14. It could thus be seen that, this Court has found that when an order of the Appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of general public importance. It has further been found that certain questions raised or arising may require interpretation of the Constitution. It is held that only such questions of general public importance alone are required to be decided by this Court. It has further been held that, by the very nature of a question raised or arising, the same necessarily has to involve issue of law going beyond the inter partes rights and extending to a class or category of assessees as a whole.15. This Court in the case of Steel Authority (supra), after considering the earlier judgments of this Court, carved out certain conditions which are required to be satisfied before admitting an appeal under Section 130E of the Customs Act. It will be apposite to refer to paragraphs 21 and 22 of the said judgment. Paragraphs 21 and 22 read thus:"21. On the basis of the discussion that has preceded, it must therefore be held that before admitting an appeal under Section 130-E(b) of the Customs Act, the following conditions must be satisfied:(i) The question raised or arising must have a direct and/or proximate nexus to the question of determi- nation of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty. This is a sine qua non for the admission of the appeal before this Court under Section 130-E(b) of the Act.(ii) The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessi- tating a resolution.(iii) If the Tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter.(iv) The Tribunal had acted in gross violation of the procedure or principles of natural justice occa- sioning a failure of justice."22. The above parameters, which by no means should be considered to be exhaustive, may now be applied to the case of the parties before us to decide the pri- mary question indicated at the outset of the present or- der, namely, whether this appeal deserves to be admit- ted.16. We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to this court."(i) determination of a question relating to a rate of duty;(ii) determination of a question relating to the valuation of goods for the purpose of assessment;(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for."17. Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classification of goods, nor do they involve the question as to whether they are covered by the exemption notification or not. Undisputedly, the goods are covered by the said notification. The only question is as to whether the assessee has breached the conditions which are imposed by the notification for getting exemption from payment of the customs duty or not. The appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available.18. In that view of the matter, we find that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Customs Act but are tenable before this Court under Section 130E of the Customs Act.

1[ds]9. Upon a conjoint reading of the aforesaid provisions, it could thus be seen that an appeal shall lie to the High Court against every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. The only exception carved out is that an appeal shall lie before this Court and shall not lie before the High Court against the order relating, amongst other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment.10. It could thus clearly be seen that, only if any question having relation to the rate of duty is involved in an appeal or if it relates to value of goods for the purpose of assessment, the appeal would lie to this Court and in all other cases it would lie before the High Court.It could thus clearly be seen that, this Court, while considering the provisions of Section 130 and Section 130E of the Customs Act, has held that where an appeal involves determination of any question that has relation to customs duty for the purpose of assessment or where an appeal involves determination of any question that has relation to the value of goods for the purposes of assessment, such cases will have to be treated separately and have to be given special treatment.It could thus be seen that, this Court has found that when an order of the Appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of general public importance. It has further been found that certain questions raised or arising may require interpretation of the Constitution. It is held that only such questions of general public importance alone are required to be decided by this Court. It has further been held that, by the very nature of a question raised or arising, the same necessarily has to involve issue of law going beyond the inter partes rights and extending to a class or category of assessees as a whole.We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to thisdetermination of a question relating to a rate of duty;(ii) determination of a question relating to the valuation of goods for the purpose of assessment;(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for.Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classification of goods, nor do they involve the question as to whether they are covered by the exemption notification or not. Undisputedly, the goods are covered by the said notification. The only question is as to whether the assessee has breached the conditions which are imposed by the notification for getting exemption from payment of the customs duty or not. The appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available.18. In that view of the matter, we find that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Customs Act but are tenable before this Court under Section 130E of the Customs Act.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: Tribunal) may go beyond the inter se dispute between the parties and effect upon a large number of assessees. The issue, in such an event, surely will be one of general/public importance. Alternatively, the question raised or arising may require interpretation of the provisions of the Constitution. Such interpreta- tion may involve a fresh or a relook or even an attempt to understand the true and correct purport of a laid down meaning of the constitutional provisions that may come into focus in a given case. It is only such questions of importance, alone, that are required to be decided by the Supreme Court and by the very nature of the questions raised or arising, the same necessarily have to involve issues of law going beyond the inter partes rights and extending to a class or category of assessees as a whole. This is the limitation that has to be understood to be inbuilt in Section 130-E(b) of the Act which, in our con- sidered view, would also be consistent with the role and jurisdiction of the Supreme Court of India as envisaged under the Constitution. Viewed from the aforesaid per- spective, the jurisdiction of the Supreme Court under Section 130-E(b) of the Act or the pari materia provi- sions of any other statute would be in harmony with those contained in Chapter IV of Part V of the Constitution.?14. It could thus be seen that, this Court has found that when an order of the Appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of general public importance. It has further been found that certain questions raised or arising may require interpretation of the Constitution. It is held that only such questions of general public importance alone are required to be decided by this Court. It has further been held that, by the very nature of a question raised or arising, the same necessarily has to involve issue of law going beyond the inter partes rights and extending to a class or category of assessees as a whole.15. This Court in the case of Steel Authority (supra), after considering the earlier judgments of this Court, carved out certain conditions which are required to be satisfied before admitting an appeal under Section 130E of the Customs Act. It will be apposite to refer to paragraphs 21 and 22 of the said judgment. Paragraphs 21 and 22 read thus:"21. On the basis of the discussion that has preceded, it must therefore be held that before admitting an appeal under Section 130-E(b) of the Customs Act, the following conditions must be satisfied:(i) The question raised or arising must have a direct and/or proximate nexus to the question of determi- nation of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty. This is a sine qua non for the admission of the appeal before this Court under Section 130-E(b) of the Act.(ii) The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessi- tating a resolution.(iii) If the Tribunal, on consideration of the material and relevant facts, had arrived at a conclusion which is a possible conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter.(iv) The Tribunal had acted in gross violation of the procedure or principles of natural justice occa- sioning a failure of justice."22. The above parameters, which by no means should be considered to be exhaustive, may now be applied to the case of the parties before us to decide the pri- mary question indicated at the outset of the present or- der, namely, whether this appeal deserves to be admit- ted.16. We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to this court."(i) determination of a question relating to a rate of duty;(ii) determination of a question relating to the valuation of goods for the purpose of assessment;(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for."17. Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classification of goods, nor do they involve the question as to whether they are covered by the exemption notification or not. Undisputedly, the goods are covered by the said notification. The only question is as to whether the assessee has breached the conditions which are imposed by the notification for getting exemption from payment of the customs duty or not. The appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available.18. In that view of the matter, we find that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Customs Act but are tenable before this Court under Section 130E of the Customs Act. ### Response: 1 ### Explanation: 9. Upon a conjoint reading of the aforesaid provisions, it could thus be seen that an appeal shall lie to the High Court against every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. The only exception carved out is that an appeal shall lie before this Court and shall not lie before the High Court against the order relating, amongst other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment.10. It could thus clearly be seen that, only if any question having relation to the rate of duty is involved in an appeal or if it relates to value of goods for the purpose of assessment, the appeal would lie to this Court and in all other cases it would lie before the High Court.It could thus clearly be seen that, this Court, while considering the provisions of Section 130 and Section 130E of the Customs Act, has held that where an appeal involves determination of any question that has relation to customs duty for the purpose of assessment or where an appeal involves determination of any question that has relation to the value of goods for the purposes of assessment, such cases will have to be treated separately and have to be given special treatment.It could thus be seen that, this Court has found that when an order of the Appellate Tribunal would go beyond inter se disputes between the parties and may affect a large number of cases, such an issue will be one of general public importance. It has further been found that certain questions raised or arising may require interpretation of the Constitution. It is held that only such questions of general public importance alone are required to be decided by this Court. It has further been held that, by the very nature of a question raised or arising, the same necessarily has to involve issue of law going beyond the inter partes rights and extending to a class or category of assessees as a whole.We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to thisdetermination of a question relating to a rate of duty;(ii) determination of a question relating to the valuation of goods for the purpose of assessment;(iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification;(iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for.Reverting to the present case, it could clearly be seen that the only question that is involved is whether the assessee had violated the conditions of the exemption notification by not utilizing the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. Neither any question with regard to determination of rate of duty arises nor a question relating to valuation of goods for the purposes of assessment arises in the present case. The appeals also do not involve determination of any question relating to the classification of goods, nor do they involve the question as to whether they are covered by the exemption notification or not. Undisputedly, the goods are covered by the said notification. The only question is as to whether the assessee has breached the conditions which are imposed by the notification for getting exemption from payment of the customs duty or not. The appeals do not involve any question of law of general public importance which would be applicable to a class or category of assessees as a whole. The question is purely inter-se between the parties and is required to be adjudicated upon the facts available.18. In that view of the matter, we find that the High Court was not justified in holding that the appeals are not maintainable under Section 130 of the Customs Act but are tenable before this Court under Section 130E of the Customs Act.

M/s. Jacsons Thevara Vs. Collector of Customs & Central Excise

or employee of the importer or exporter. Here the relevant date was December 7, 1979, the date on which the duty was paid and the enhanced period of five years prescribed under the proviso to sub-section (1) of Section 28 was invoked by the customs authorities to issue the show cause notice dated June 4, 1982, to the appellant. The present case falls within the ambit of the said proviso because the appellant had cleared the goods from the customs on payment of concessional rate of duty under Heading No. 84.66 of the Customs Tariff by making a misstatement in the application form dated November 21, 1979, for registration under the Project Import (Registration of Contracts) Regulations, 1965, that the machinery that had been imported was for substantial expansion of the existing industrial unit of the appellant and by suppressing the fact that under Agreement dated July 31, 1979, the appellant had agreed had agreed to transfer the said machinery to the Company. In the circumstances the Collector was justified in directing that the goods in question should be re-assessed to duty on merits under the appropriate heading of the Customs Tariff without giving the benefit of the assessment under Heading 84.66 and to collect the short levy from the appellant. The demand for the additional amount of Rs. 1, 26, 163.45 paise made on the basis of such re-assessment in pursuance of the aforesaid direction given by the Collector, does not, therefore, suffer from any legal infirmity. 11. We may now come to the penalty of Rs. 50, 000/- which has been imposed by the Collector and which imposition has been upheld by the Appellate Tribunal. The penalty has been imposed under Section 112 of the Act which provides for levy of penalty on a person who in relation to any goods does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111 or abets the doing or omission of such an act. The Collector and the Appellate Tribunal have proceeded on the basis that the appellant has done an act which renders the goods imported by it liable to confiscation under Clause (m) and (o) of Section 111 of the Act and for that reason the said penalty has been imposed on the appellant. Since we are of the view that the instant case is covered by Clause (o) of Section 111 we do not consider it necessary to go into the question whether Clause (m) of Section 111 would be applicable to the present case. Clause (o) of Section 111 provides as under : "111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation - XXXXX XXXXX XXXXX (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;" * 12. Shri Avadh Bihari has urged that Clause (o) of Section 111 envisages that the goods are exempted from payment of duty or any prohibition in respect of import thereof and that in the present case the goods that were imported by the appellant were not exempted from duty but were chargeable to duty and, therefore, it cannot be said that the present case falls under the said Clause and the goods imported by the appellant were liable to be confiscated under it. We are unable to agree with this submission. The expression "exempted" in Clause (o) does not mean full exemption from duty because under Section 25 of the Act power has been conferred to grant exemption from the whole or any part of the duty of customs leviable on the goods specified in the notification. This means that Clause (o) would also cover cases where partial exemption from duty has been granted in respect of the goods in question. This was a case where partial exemption from duty, in the form of concessional rate had been granted under Heading No. 84.66 of the Customs Tariff and the said exemption was available subject to the conditions laid down in the said Heading. The appellant obtained the benefit of the said concession and got the goods cleared from customs on payment of concessional rate of duty by making a declaration that the goods were required for substantial expansion of the existing industrial unit of the appellant. The said declaration of the appellant was not correct inasmuch as the goods were not to be used for substantial expansion of the unit of the appellant but were to be used for setting up a new unit by the Company. The appellant after getting goods cleared from the customs transferred the same to the Company and thereby the appellant failed to observe the condition on the basis of which the benefit of concessional rate of duty under Heading 84.66 of the Customs Tariff was obtained. The goods were, therefore, liable to confiscation under Clause (o) of Section 111 of the Act and penalty could be imposed under Section 112 of the Act. nd13. The maximum amount of penalty that can be levied under Section 112 in the case of dutiable goods other that prohibited goods is five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater. As mentioned earlier the difference between the duty payable and the duty actually paid by the appellant was Rs. 1, 26, 163.45 and the maximum amount of penalty that could be imposed was five times of that amount. Keeping in view the facts and circumstances of the case the Collector has imposed a penalty of Rs. 50, 000/- which imposition has been upheld by the Appellate Tribunal. We find no ground for interfering with the said direction about imposition of penalty.

0[ds]The submission of Shri Avadh Bihari is that from the aforesaid documents, it is clear that the appellant has not committed any breach of any condition of the import licence dated February 14, 1979, and that the import authorities have also not found that the appellant has contravened the conditions on the basis of which the import licence was granted to the appellant that in these circumstances, it was not open to the authorities under the Act to proceed against the appellant.These contentions, in our view, are misconceived because here the customs authorities have not taken action against the appellant for breach of any condition of the import licence dated February 14, 1979. Action had been taken against the appellant under the provisions of the Act for obtaining clearance of the goods by paying customs duty on a concessional rate under Heading 84.66 of the Customs Tariff by suppression and wilful misstatement of facts. What is of relevance is whether before obtaining clearance of the machinery imported under import licence dated February 14, 1979, the appellant had informed the customs authorities that the said machinery had been transferred to the Company under agreement dated July 31, 1979. The office of the Deputy Chief Controller of Imports and Exports, Cochin, had no role in the matter of levy of customs duty on the imported machinery and, therefore, the conduct of the appellant in informing the Deputy Chief Controller of ImportsExports about the agreement dated July 31, 1979, entered into by the appellant and the Company with regard to transfer of business can have no bearing on the action taken by the customs authorities for the contravention of the provisions of the Act. The decision of this Court in East India Commercial Company Ltd., Calcutta and Another (supra) is not applicable because the action that has been taken by the customs authorities is not for breach of the conditions of the import licence but for the contravention of the provisions of the Act.It appears that under various other headings of the Customs Tariff Act a higher rate of customs duty was prescribed for the various items of machinery that were imported by the appellant. Under Heading No. 84.66 duty at a concessional rate was provided in respect of machinery, etc., imported for substantial expansion of an existing unit of a specified industrial plant. In order to avail this concessional rate of customs duty it was necessary to have the contract registered with the appropriate Customs House in the manner prescribed by the Regulations made by the Central Board of Excise and Customs under Section 157 of that a notice shall be served on the person chargeable with the duty requiring him to show cause why he should not pay the amount specified in the notice. The said notice has to be served within one year of the relevant date in cases when import is made by an individual for his personal use or by Government or by an educational, research or charitable institution or hospital and the period for service of such notice is six months in other cases. The proviso to(1) of Section 28 enhances the aforementioned that a notice shall be served on the person chargeable with the duty requiring him to show cause why he should not pay the amount specified in the notice. The said notice has to be served within one year of the relevant date in cases when import is made by an individual for his personal use or by Government or by an educational, research or charitable institution or hospital and the period for service of such notice is six months in other cases. The proviso to(1) of Section 28 enhances the aforementioned periods for service of the notice to five years in cases where any duty has not been levied or has been short levied or erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter. Here the relevant date was December 7, 1979, the date on which the duty was paid and the enhanced period of five years prescribed under the proviso to(1) of Section 28 was invoked by the customs authorities to issue the show cause notice dated June 4, 1982, to the appellant. The present case falls within the ambit of the said proviso because the appellant had cleared the goods from the customs on payment of concessional rate of duty under Heading No. 84.66 of the Customs Tariff by making a misstatement in the application form dated November 21, 1979, for registration under the Project Import (Registration of Contracts) Regulations, 1965, that the machinery that had been imported was for substantial expansion of the existing industrial unit of the appellant and by suppressing the fact that under Agreement dated July 31, 1979, the appellant had agreed had agreed to transfer the said machinery to the Company. In the circumstances the Collector was justified in directing that the goods in question should beto duty on merits under the appropriate heading of the Customs Tariff without giving the benefit of the assessment under Heading 84.66 and to collect the short levy from the appellant. The demand for the additional amount of Rs. 1, 26, 163.45 paise made on the basis of suchin pursuance of the aforesaid direction given by the Collector, does not, therefore, suffer from any legal infirmity.Shri Avadh Bihari has urged that Clause (o) of Section 111 envisages that the goods are exempted from payment of duty or any prohibition in respect of import thereof and that in the present case the goods that were imported by the appellant were not exempted from duty but were chargeable to duty and, therefore, it cannot be said that the present case falls under the said Clause and the goods imported by the appellant were liable to be confiscated under it. We are unable to agree with this submission. The expression "exempted" in Clause (o) does not mean full exemption from duty because under Section 25 of the Act power has been conferred to grant exemption from the whole or any part of the duty of customs leviable on the goods specified in the notification. This means that Clause (o) would also cover cases where partial exemption from duty has been granted in respect of the goods in question. This was a case where partial exemption from duty, in the form of concessional rate had been granted under Heading No. 84.66 of the Customs Tariff and the said exemption was available subject to the conditions laid down in the said Heading. The appellant obtained the benefit of the said concession and got the goods cleared from customs on payment of concessional rate of duty by making a declaration that the goods were required for substantial expansion of the existing industrial unit of the appellant. The said declaration of the appellant was not correct inasmuch as the goods were not to be used for substantial expansion of the unit of the appellant but were to be used for setting up a new unit by the Company. The appellant after getting goods cleared from the customs transferred the same to the Company and thereby the appellant failed to observe the condition on the basis of which the benefit of concessional rate of duty under Heading 84.66 of the Customs Tariff was obtained. The goods were, therefore, liable to confiscation under Clause (o) of Section 111 of the Act and penalty could be imposed under Section 112 of the Act. nd13. The maximum amount of penalty that can be levied under Section 112 in the case of dutiable goods other that prohibited goods is five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater. As mentioned earlier the difference between the duty payable and the duty actually paid by the appellant was Rs. 1, 26, 163.45 and the maximum amount of penalty that could be imposed was five times of that amount. Keeping in view the facts and circumstances of the case the Collector has imposed a penalty of Rs. 50, 000/which imposition has been upheld by the Appellate Tribunal. We find no ground for interfering with the said direction about imposition of penalty.

### 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: or employee of the importer or exporter. Here the relevant date was December 7, 1979, the date on which the duty was paid and the enhanced period of five years prescribed under the proviso to sub-section (1) of Section 28 was invoked by the customs authorities to issue the show cause notice dated June 4, 1982, to the appellant. The present case falls within the ambit of the said proviso because the appellant had cleared the goods from the customs on payment of concessional rate of duty under Heading No. 84.66 of the Customs Tariff by making a misstatement in the application form dated November 21, 1979, for registration under the Project Import (Registration of Contracts) Regulations, 1965, that the machinery that had been imported was for substantial expansion of the existing industrial unit of the appellant and by suppressing the fact that under Agreement dated July 31, 1979, the appellant had agreed had agreed to transfer the said machinery to the Company. In the circumstances the Collector was justified in directing that the goods in question should be re-assessed to duty on merits under the appropriate heading of the Customs Tariff without giving the benefit of the assessment under Heading 84.66 and to collect the short levy from the appellant. The demand for the additional amount of Rs. 1, 26, 163.45 paise made on the basis of such re-assessment in pursuance of the aforesaid direction given by the Collector, does not, therefore, suffer from any legal infirmity. 11. We may now come to the penalty of Rs. 50, 000/- which has been imposed by the Collector and which imposition has been upheld by the Appellate Tribunal. The penalty has been imposed under Section 112 of the Act which provides for levy of penalty on a person who in relation to any goods does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111 or abets the doing or omission of such an act. The Collector and the Appellate Tribunal have proceeded on the basis that the appellant has done an act which renders the goods imported by it liable to confiscation under Clause (m) and (o) of Section 111 of the Act and for that reason the said penalty has been imposed on the appellant. Since we are of the view that the instant case is covered by Clause (o) of Section 111 we do not consider it necessary to go into the question whether Clause (m) of Section 111 would be applicable to the present case. Clause (o) of Section 111 provides as under : "111. Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation - XXXXX XXXXX XXXXX (o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;" * 12. Shri Avadh Bihari has urged that Clause (o) of Section 111 envisages that the goods are exempted from payment of duty or any prohibition in respect of import thereof and that in the present case the goods that were imported by the appellant were not exempted from duty but were chargeable to duty and, therefore, it cannot be said that the present case falls under the said Clause and the goods imported by the appellant were liable to be confiscated under it. We are unable to agree with this submission. The expression "exempted" in Clause (o) does not mean full exemption from duty because under Section 25 of the Act power has been conferred to grant exemption from the whole or any part of the duty of customs leviable on the goods specified in the notification. This means that Clause (o) would also cover cases where partial exemption from duty has been granted in respect of the goods in question. This was a case where partial exemption from duty, in the form of concessional rate had been granted under Heading No. 84.66 of the Customs Tariff and the said exemption was available subject to the conditions laid down in the said Heading. The appellant obtained the benefit of the said concession and got the goods cleared from customs on payment of concessional rate of duty by making a declaration that the goods were required for substantial expansion of the existing industrial unit of the appellant. The said declaration of the appellant was not correct inasmuch as the goods were not to be used for substantial expansion of the unit of the appellant but were to be used for setting up a new unit by the Company. The appellant after getting goods cleared from the customs transferred the same to the Company and thereby the appellant failed to observe the condition on the basis of which the benefit of concessional rate of duty under Heading 84.66 of the Customs Tariff was obtained. The goods were, therefore, liable to confiscation under Clause (o) of Section 111 of the Act and penalty could be imposed under Section 112 of the Act. nd13. The maximum amount of penalty that can be levied under Section 112 in the case of dutiable goods other that prohibited goods is five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater. As mentioned earlier the difference between the duty payable and the duty actually paid by the appellant was Rs. 1, 26, 163.45 and the maximum amount of penalty that could be imposed was five times of that amount. Keeping in view the facts and circumstances of the case the Collector has imposed a penalty of Rs. 50, 000/- which imposition has been upheld by the Appellate Tribunal. We find no ground for interfering with the said direction about imposition of penalty. ### Response: 0 ### Explanation: a specified industrial plant. In order to avail this concessional rate of customs duty it was necessary to have the contract registered with the appropriate Customs House in the manner prescribed by the Regulations made by the Central Board of Excise and Customs under Section 157 of that a notice shall be served on the person chargeable with the duty requiring him to show cause why he should not pay the amount specified in the notice. The said notice has to be served within one year of the relevant date in cases when import is made by an individual for his personal use or by Government or by an educational, research or charitable institution or hospital and the period for service of such notice is six months in other cases. The proviso to(1) of Section 28 enhances the aforementioned that a notice shall be served on the person chargeable with the duty requiring him to show cause why he should not pay the amount specified in the notice. The said notice has to be served within one year of the relevant date in cases when import is made by an individual for his personal use or by Government or by an educational, research or charitable institution or hospital and the period for service of such notice is six months in other cases. The proviso to(1) of Section 28 enhances the aforementioned periods for service of the notice to five years in cases where any duty has not been levied or has been short levied or erroneously refunded by reason of collusion or any wilful misstatement or suppression of facts by the importer or the exporter or the agent or employee of the importer or exporter. Here the relevant date was December 7, 1979, the date on which the duty was paid and the enhanced period of five years prescribed under the proviso to(1) of Section 28 was invoked by the customs authorities to issue the show cause notice dated June 4, 1982, to the appellant. The present case falls within the ambit of the said proviso because the appellant had cleared the goods from the customs on payment of concessional rate of duty under Heading No. 84.66 of the Customs Tariff by making a misstatement in the application form dated November 21, 1979, for registration under the Project Import (Registration of Contracts) Regulations, 1965, that the machinery that had been imported was for substantial expansion of the existing industrial unit of the appellant and by suppressing the fact that under Agreement dated July 31, 1979, the appellant had agreed had agreed to transfer the said machinery to the Company. In the circumstances the Collector was justified in directing that the goods in question should beto duty on merits under the appropriate heading of the Customs Tariff without giving the benefit of the assessment under Heading 84.66 and to collect the short levy from the appellant. The demand for the additional amount of Rs. 1, 26, 163.45 paise made on the basis of suchin pursuance of the aforesaid direction given by the Collector, does not, therefore, suffer from any legal infirmity.Shri Avadh Bihari has urged that Clause (o) of Section 111 envisages that the goods are exempted from payment of duty or any prohibition in respect of import thereof and that in the present case the goods that were imported by the appellant were not exempted from duty but were chargeable to duty and, therefore, it cannot be said that the present case falls under the said Clause and the goods imported by the appellant were liable to be confiscated under it. We are unable to agree with this submission. The expression "exempted" in Clause (o) does not mean full exemption from duty because under Section 25 of the Act power has been conferred to grant exemption from the whole or any part of the duty of customs leviable on the goods specified in the notification. This means that Clause (o) would also cover cases where partial exemption from duty has been granted in respect of the goods in question. This was a case where partial exemption from duty, in the form of concessional rate had been granted under Heading No. 84.66 of the Customs Tariff and the said exemption was available subject to the conditions laid down in the said Heading. The appellant obtained the benefit of the said concession and got the goods cleared from customs on payment of concessional rate of duty by making a declaration that the goods were required for substantial expansion of the existing industrial unit of the appellant. The said declaration of the appellant was not correct inasmuch as the goods were not to be used for substantial expansion of the unit of the appellant but were to be used for setting up a new unit by the Company. The appellant after getting goods cleared from the customs transferred the same to the Company and thereby the appellant failed to observe the condition on the basis of which the benefit of concessional rate of duty under Heading 84.66 of the Customs Tariff was obtained. The goods were, therefore, liable to confiscation under Clause (o) of Section 111 of the Act and penalty could be imposed under Section 112 of the Act. nd13. The maximum amount of penalty that can be levied under Section 112 in the case of dutiable goods other that prohibited goods is five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater. As mentioned earlier the difference between the duty payable and the duty actually paid by the appellant was Rs. 1, 26, 163.45 and the maximum amount of penalty that could be imposed was five times of that amount. Keeping in view the facts and circumstances of the case the Collector has imposed a penalty of Rs. 50, 000/which imposition has been upheld by the Appellate Tribunal. We find no ground for interfering with the said direction about imposition of penalty.

The Sales Tax Officer Vs. Hanuman Prasad

was also the further addition that subject thereto, anything done or any action taken (including any appointment, notification, notice, order rule, form. Regulation certificate or licence in the exercise of any power conferred by or under the said Act shall, in so far as it is Act inconsistent with the provisions of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken. In view of this proviso it has to be held that when this new Act came into force on 1st April. 1959, all rights title, obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained affected and intact. The rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force. The repealed Act laid down what turnover was taxable, how it was to be computed, and at what rate the tax was to be charged. These provisions clearly created rights as well as liabilities of dealers. Those rights and liabilities were thus preserved by S. 52 of the new Act. The assessment which was completed in the case of the respondent on 23rd May, 1959 was therefore, an assessment in accordance with the rights and liabilities of the respondent under the repealed Act: and this being so, it has to be held that the proviso to S. 19 (l) of the new Act was applicable to the case of the respondent. As a result of this proviso, the period of re-assessment on the ground of under-assessment, escapement or wrong deduction in the case of the respondent had to be as provided in S. 11-A (1) of the repealed Act, so that the period was three years and not five years as laid down by S. 19 (1) of the new Act. The notice dated 23rd October, 1962, was clearly issued beyond the period of limitation prescribed by S. 11-A (1) of the repealed Act and the proceedings in pursuance of it were time-barred.4. In the alternative, this question may be examined in another aspect. Section 11-A (1) of the repealed Act itself created a right in favour of the respondent not to be assessed in respect of turnover that was under assessed or had escaped assessment after the expiry of the period prescribed in that subsection. The proviso to S. 52 of the new Act preserved this right of the respondent, and on this ground also, the Sales-tax Officer was not competent to issue the notice for reassessment after that period of limitation had expired.5. In this connection, learned counsel for the Sales-tax Officer drew our attention to two subsequent pieces of legislation that amended the new Act. The first one of these is the Madhya Pradesh General. Sales Tax (Second Amendment) Act, 1963 (Act 23 of 1963) (hereinafter referred to as "the Amending Act").By Section 3 of this Amending Act, Section 19 (1) of the new Act was amended, so as to introduce some words in the principal clause of S. 19 (1) The words introduced were: "or any Act repealed by Section 52", and they were to be inserted at both the places where the word "this Act" occurred in the principal clause. It was urged that, as a result of this amendment this principal clause became applicable even to cases in which assessment had been made under the repealed Act, and taking into account the effect of this subsequent amendment, we should hold that the Sales-tax Officer was not incompetent to make the assessment when he purported issue the notice on 23rd October 1962, as the notice was issued within the period of five years laid down in the principal clause of S. 19 (1) of the new Act. It is, however significant that, though the principal clause of S. 19 (1) was amended, the proviso to was not deleted by the Amending Act. The proviso therefore, continued to remain in force. It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the Legislature desires should be excluded. Consequently, even if it be held that the effect of the Amending Act was that, under the principal clause of S. 19 (1), the reassessment of the under-assessed or escaped turnover in the case of the respondent could be taken up within a period of five calendar years, that provision became ineffective because of the continued existence of the proviso. The Amending Act had not come into force when the High Court decided the petition, and consequently, the High Court had no occasion to consider its effect. However, as we have indicated above, the order made by the High Court remains unaffected even after this amendment, and the decision given that the limitation applicable to the case of the respondent is that laid down by S. 11-A (1) of the repealed Act is correct. It is true that the amendment in S. 19 (1) of the new Act made by the Amending Act was given retrospective effect under S. 5 of the Amending Act, but that also is immaterial, because, even after the amendment, the provision contained in the proviso had to prevail over the principal clause of S. 19 (1).6. The brought to our second piece of legislation notice was the Madhya Pradesh General Sales Tax (Second Amendment) Act, 1964 (Act 20 of 1964) by which also S. 19 (1) of the new Act was slightly amended. That amendment, however, has no hearing on the point which we are called upon to decide in this appeal, and consequently, needs no consideration.

0[ds]3. The facts given by us above clearly show that the original assessment of the respondent was in respect of a period when the new Act had not come into force. The respondent had filed the return, and even the notice in that connection was issued by the Sales-tax Officer prior to the enforcement of the new Act. The actual order of assessment was made on 23rd May, 1959 shortly after the new Act had come into force. The mere enforcement of that Act by the time the order of assessment was passed by the Sales-tax Officer cannot lead to the conclusion that the assessment of the respondent was made under the new Act and not under the repealed Act. It was under S. 52 of the new Act that the repealed Act was repealed, and that Section itself under the proviso laid down that such repeal shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder. There was also the further addition that subject thereto, anything done or any action taken (including any appointment, notification, notice, order rule, form. Regulation certificate or licence in the exercise of any power conferred by or under the said Act shall, in so far as it is Act inconsistent with the provisions of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken. In view of this proviso it has to be held that when this new Act came into force on 1st April. 1959, all rights title, obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained affected and intact. The rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force. The repealed Act laid down what turnover was taxable, how it was to be computed, and at what rate the tax was to be charged. These provisions clearly created rights as well as liabilities of dealers. Those rights and liabilities were thus preserved by S. 52 of the new Act. The assessment which was completed in the case of the respondent on 23rd May, 1959 was therefore, an assessment in accordance with the rights and liabilities of the respondent under the repealed Act: and this being so, it has to be held that the proviso to S. 19 (l) of the new Act was applicable to the case of the respondent. As a result of this proviso, the period of re-assessment on the ground of under-assessment, escapement or wrong deduction in the case of the respondent had to be as provided in S. 11-A(1) of the repealedAct, so that theperiod was three years and not five years as laid down by S. 19 (1) of the new Act. The notice dated 23rd October, 1962, was clearly issued beyond the period of limitation prescribed by S. 11-A(1) of the repealedAct and theproceedings in pursuance of it wereis, however significant that, though the principal clause of S. 19 (1) was amended, the proviso to was not deleted by the Amending Act. The proviso therefore, continued to remain in force. It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the Legislature desires should be excluded. Consequently, even if it be held that the effect of the Amending Act was that, under the principal clause of S. 19 (1), the reassessment of the under-assessed or escaped turnover in the case of the respondent could be taken up within a period of five calendar years, that provision became ineffective because of the continued existence of the proviso. The Amending Act had not come into force when the High Court decided the petition, and consequently, the High Court had no occasion to consider its effect. However, as we have indicated above, the order made by the High Court remains unaffected even after this amendment, and the decision given that the limitation applicable to the case of the respondent is that laid down by S. 11-A(1) of the repealedis correct. It is true that the amendment in S. 19 (1) of the new Act made by the Amending Act was given retrospective effect under S. 5 of the Amending Act, but that also is immaterial, because, even after the amendment, the provision contained in the proviso had to prevail over the principal clause of S. 19 (1).6. The brought to our second piece of legislation notice was the Madhya Pradesh General Sales Tax (Second Amendment) Act, 1964 (Act 20 of 1964) by which also S. 19 (1) of the new Act was slightly amended. That amendment, however, has no hearing on the point which we are called upon to decide in this appeal, and consequently, needs no consideration.In the alternative, this question may be examined in another aspect. Section(1) of the repealeditself created a right in favour of the respondent not to be assessed in respect of turnover that was under assessed or had escaped assessment after the expiry of the period prescribed in that subsection. The proviso to S. 52 of the new Act preserved this right of the respondent, and on this ground also, theOfficer was not competent to issue the notice for reassessment after that period of limitation had expired.

### 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: was also the further addition that subject thereto, anything done or any action taken (including any appointment, notification, notice, order rule, form. Regulation certificate or licence in the exercise of any power conferred by or under the said Act shall, in so far as it is Act inconsistent with the provisions of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken. In view of this proviso it has to be held that when this new Act came into force on 1st April. 1959, all rights title, obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained affected and intact. The rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force. The repealed Act laid down what turnover was taxable, how it was to be computed, and at what rate the tax was to be charged. These provisions clearly created rights as well as liabilities of dealers. Those rights and liabilities were thus preserved by S. 52 of the new Act. The assessment which was completed in the case of the respondent on 23rd May, 1959 was therefore, an assessment in accordance with the rights and liabilities of the respondent under the repealed Act: and this being so, it has to be held that the proviso to S. 19 (l) of the new Act was applicable to the case of the respondent. As a result of this proviso, the period of re-assessment on the ground of under-assessment, escapement or wrong deduction in the case of the respondent had to be as provided in S. 11-A (1) of the repealed Act, so that the period was three years and not five years as laid down by S. 19 (1) of the new Act. The notice dated 23rd October, 1962, was clearly issued beyond the period of limitation prescribed by S. 11-A (1) of the repealed Act and the proceedings in pursuance of it were time-barred.4. In the alternative, this question may be examined in another aspect. Section 11-A (1) of the repealed Act itself created a right in favour of the respondent not to be assessed in respect of turnover that was under assessed or had escaped assessment after the expiry of the period prescribed in that subsection. The proviso to S. 52 of the new Act preserved this right of the respondent, and on this ground also, the Sales-tax Officer was not competent to issue the notice for reassessment after that period of limitation had expired.5. In this connection, learned counsel for the Sales-tax Officer drew our attention to two subsequent pieces of legislation that amended the new Act. The first one of these is the Madhya Pradesh General. Sales Tax (Second Amendment) Act, 1963 (Act 23 of 1963) (hereinafter referred to as "the Amending Act").By Section 3 of this Amending Act, Section 19 (1) of the new Act was amended, so as to introduce some words in the principal clause of S. 19 (1) The words introduced were: "or any Act repealed by Section 52", and they were to be inserted at both the places where the word "this Act" occurred in the principal clause. It was urged that, as a result of this amendment this principal clause became applicable even to cases in which assessment had been made under the repealed Act, and taking into account the effect of this subsequent amendment, we should hold that the Sales-tax Officer was not incompetent to make the assessment when he purported issue the notice on 23rd October 1962, as the notice was issued within the period of five years laid down in the principal clause of S. 19 (1) of the new Act. It is, however significant that, though the principal clause of S. 19 (1) was amended, the proviso to was not deleted by the Amending Act. The proviso therefore, continued to remain in force. It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the Legislature desires should be excluded. Consequently, even if it be held that the effect of the Amending Act was that, under the principal clause of S. 19 (1), the reassessment of the under-assessed or escaped turnover in the case of the respondent could be taken up within a period of five calendar years, that provision became ineffective because of the continued existence of the proviso. The Amending Act had not come into force when the High Court decided the petition, and consequently, the High Court had no occasion to consider its effect. However, as we have indicated above, the order made by the High Court remains unaffected even after this amendment, and the decision given that the limitation applicable to the case of the respondent is that laid down by S. 11-A (1) of the repealed Act is correct. It is true that the amendment in S. 19 (1) of the new Act made by the Amending Act was given retrospective effect under S. 5 of the Amending Act, but that also is immaterial, because, even after the amendment, the provision contained in the proviso had to prevail over the principal clause of S. 19 (1).6. The brought to our second piece of legislation notice was the Madhya Pradesh General Sales Tax (Second Amendment) Act, 1964 (Act 20 of 1964) by which also S. 19 (1) of the new Act was slightly amended. That amendment, however, has no hearing on the point which we are called upon to decide in this appeal, and consequently, needs no consideration. ### Response: 0 ### Explanation: 3. The facts given by us above clearly show that the original assessment of the respondent was in respect of a period when the new Act had not come into force. The respondent had filed the return, and even the notice in that connection was issued by the Sales-tax Officer prior to the enforcement of the new Act. The actual order of assessment was made on 23rd May, 1959 shortly after the new Act had come into force. The mere enforcement of that Act by the time the order of assessment was passed by the Sales-tax Officer cannot lead to the conclusion that the assessment of the respondent was made under the new Act and not under the repealed Act. It was under S. 52 of the new Act that the repealed Act was repealed, and that Section itself under the proviso laid down that such repeal shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder. There was also the further addition that subject thereto, anything done or any action taken (including any appointment, notification, notice, order rule, form. Regulation certificate or licence in the exercise of any power conferred by or under the said Act shall, in so far as it is Act inconsistent with the provisions of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken. In view of this proviso it has to be held that when this new Act came into force on 1st April. 1959, all rights title, obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained affected and intact. The rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repealed Act in respect of turnover of sales effected during the time when that Act was in force. The repealed Act laid down what turnover was taxable, how it was to be computed, and at what rate the tax was to be charged. These provisions clearly created rights as well as liabilities of dealers. Those rights and liabilities were thus preserved by S. 52 of the new Act. The assessment which was completed in the case of the respondent on 23rd May, 1959 was therefore, an assessment in accordance with the rights and liabilities of the respondent under the repealed Act: and this being so, it has to be held that the proviso to S. 19 (l) of the new Act was applicable to the case of the respondent. As a result of this proviso, the period of re-assessment on the ground of under-assessment, escapement or wrong deduction in the case of the respondent had to be as provided in S. 11-A(1) of the repealedAct, so that theperiod was three years and not five years as laid down by S. 19 (1) of the new Act. The notice dated 23rd October, 1962, was clearly issued beyond the period of limitation prescribed by S. 11-A(1) of the repealedAct and theproceedings in pursuance of it wereis, however significant that, though the principal clause of S. 19 (1) was amended, the proviso to was not deleted by the Amending Act. The proviso therefore, continued to remain in force. It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the Legislature desires should be excluded. Consequently, even if it be held that the effect of the Amending Act was that, under the principal clause of S. 19 (1), the reassessment of the under-assessed or escaped turnover in the case of the respondent could be taken up within a period of five calendar years, that provision became ineffective because of the continued existence of the proviso. The Amending Act had not come into force when the High Court decided the petition, and consequently, the High Court had no occasion to consider its effect. However, as we have indicated above, the order made by the High Court remains unaffected even after this amendment, and the decision given that the limitation applicable to the case of the respondent is that laid down by S. 11-A(1) of the repealedis correct. It is true that the amendment in S. 19 (1) of the new Act made by the Amending Act was given retrospective effect under S. 5 of the Amending Act, but that also is immaterial, because, even after the amendment, the provision contained in the proviso had to prevail over the principal clause of S. 19 (1).6. The brought to our second piece of legislation notice was the Madhya Pradesh General Sales Tax (Second Amendment) Act, 1964 (Act 20 of 1964) by which also S. 19 (1) of the new Act was slightly amended. That amendment, however, has no hearing on the point which we are called upon to decide in this appeal, and consequently, needs no consideration.In the alternative, this question may be examined in another aspect. Section(1) of the repealeditself created a right in favour of the respondent not to be assessed in respect of turnover that was under assessed or had escaped assessment after the expiry of the period prescribed in that subsection. The proviso to S. 52 of the new Act preserved this right of the respondent, and on this ground also, theOfficer was not competent to issue the notice for reassessment after that period of limitation had expired.

RAMKALI THAKUR AND OTHERS Vs. PANCHARAM AND OTHERS

1. Leave granted. 2. We have heard learned counsel for the parties. 3. This appeal has been filed by the claimants questioning the judgment and order dated 10.04.2013 passed by the High Court in M.A. No. 4498 of 2009. 4. The appellants are the legal heirs of Illa Raj Singh Thakur (the deceased). He met with an accident on 18.11.2003. While riding his motorcycle, he was dashed by truck bearing registration No. R.J.-21-G/2212 driven by Pancharam (the driver). He fell down and sustained injuries on both his hands, right leg and some other parts of the person and became unconscious. He was treated as an admitted patient at Gayatri Hospital from 18.11.2003 to 19.12.2003. The deceased has sustained fracture of ulna bone of right hand and of the wrist of left hand. The operation was conducted by one Dr. V.K. Sood. The application was filed by Illa Raj Singh Thakur claiming compensation. Subsequently, Illa Raj Singh Thakur died on 19.05.2005. After the death of Illa Raj Singh Thakur, his legal heirs, who are appellants before us, got amended the claim petition and claimed compensation of Rs. 20,63,681/-. 5. The averment in the claim petition filed by the appellants was that death was caused due to the accident and the respondents are liable to pay compensation treating death as a result of the accident. The appellants produced oral evidence of three Doctors viz. Dr. Sood, Dr. Tiwari and Dr. Yogesh. 6. The Tribunal, after hearing learned counsel for the parties and considering all evidence on record, came to the conclusion that death cannot be said to have been caused due to the accident. The Tribunal, however, allowed the claim petition which was initially filed by Illa Raj Singh Thakur and awarded compensation of Rs.1,13,018/- with interest. 7. The appellants filed an appeal before the High Court against the order of the Tribunal. The High Court vide its judgment and order allowed the appeal in part and enhanced the amount from Rs.1,13,018/- to Rs.1,48,018/- along with interest at 6% per annum on the enhanced sum of Rs.35,000/-. 8. Learned counsel for the appellants, in support thereof, contends that there were ample medical evidence in the form of oral evidence of three Doctors particularly, Dr. Tiwari which has amply proved that death was the result of the injuries sustained due to the accident. The operation of the wrist undertaken is consequent to the injuries. He further submitted that the Tribunal erred in rejecting the case of the claimants and further the High Court has also not dealt with the said issue in a correct manner. The evidence of Dr. Tiwari was also not considered by the Tribunal in right perspective due to which there was an error in holding that death was not a result of the accident. 9. He further submitted that in any case, the claim which was allowed by the Tribunal and modified a little by the High Court was too meagre. He submits that the deceased was awarded only Rs.10,000/- for pain and sufferings whereas he went under trauma for about one and a half years. 10. Learned counsel appearing for the respondents refuted the submission made by learned counsel for the appellants and contends that the Tribunal has rightly come to the conclusion that death cannot be related to the accident. The oral evidence has been correctly marshalled by the Tribunal. It is further submitted that insofar as the amount awarded by the Tribunal, the same has already been enhanced by the High Court by Rs.35,000/-. 11. We have considered the submissions made by learned counsel for the parties and perused the record. 12. Coming to the first submission made by learned counsel for the appellants that death was a result of the accident, the Tribunal, for coming to the conclusion that death cannot be related to the accident, has not only considered the evidence of all three Doctors but also the other oral evidence on the record including the statement of Ramkali Thakur (AW-3). 13. Learned counsel for the appellant submits the statement of Dr. P. K. Tiwari has not been given correct interpretation. 14. We do not agree with the submission made by learned counsel for the appellants. The evidence of Dr. P. K. Tiwari was thoroughly considered by the Tribunal. The Tribunal while considering the evidence of Dr. P. K. Tiwari observed as follows: However, Dr. P. K. Tiwari has stated that he had examined Illraj on 12/5/2005 and advised for investigation of diabetes and also advised to have treatment with an orthopedic doctor at any good hospital at Nagpur. This witness has also stated that at the time Illraj Singh had about the pain and swelling in the right forearm and mucus / fluid secretion from the mid of the right forearm. But this witness has not clearly stated that he had found the secretion of fluid from the injuries at the mid of the right forearm of Illraj Singh. So, by the production of the evidences by the applicants it has not been conclusively proved that the cause of death of Illraj Singh was due the infections in wounds which were inflicted in the accident. Rather it has been proved themselves by the applicants that deceased Illraj Singh joined his duties after recovering from the injuries. Thus for the above mentioned two questions are concluded in the said terms. 15. Thus, we do not find any infirmity in the findings of the Tribunal in holding that death of the deceased cannot be imputed as a result of the accident. Now we come to the second submission of learned counsel for the appellants that the amount under different heads has not been appropriately granted to the appellants. We have looked into the different claims awarded by the Tribunal. The claim of Rs.73,018/- which was expenses of treatment has been fully allowed. We, however, notice that the Tribunal has allowed a very meagre amount of Rs. 10,000/- for physical and mental agony.

1[ds]11. We have considered the submissions made by learned counsel for the parties and perused the record.12. Coming to the first submission made by learned counsel for the appellants that death was a result of the accident, the Tribunal, for coming to the conclusion that death cannot be related to the accident, has not only considered the evidence of all three Doctors but also the other oral evidence on the record including the statement of Ramkali Thakur (AW-3).14. We do not agree with the submission made by learned counsel for the appellants. The evidence of Dr. P. K. Tiwari was thoroughly considered by the Tribunal. The Tribunal while considering the evidence of Dr. P. K. Tiwari observed as follows:However, Dr. P. K. Tiwari has stated that he had examined Illraj on 12/5/2005 and advised for investigation of diabetes and also advised to have treatment with an orthopedic doctor at any good hospital at Nagpur. This witness has also stated that at the time Illraj Singh had about the pain and swelling in the right forearm and mucus / fluid secretion from the mid of the right forearm. But this witness has not clearly stated that he had found the secretion of fluid from the injuries at the mid of the right forearm of Illraj Singh. So, by the production of the evidences by the applicants it has not been conclusively proved that the cause of death of Illraj Singh was due the infections in wounds which were inflicted in the accident. Rather it has been proved themselves by the applicants that deceased Illraj Singh joined his duties after recovering from the injuries. Thus for the above mentioned two questions are concluded in the said terms.15. Thus, we do not find any infirmity in the findings of the Tribunal in holding that death of the deceased cannot be imputed as a result of the accident. Now we come to the second submission of learned counsel for the appellants that the amount under different heads has not been appropriately granted to the appellants. We have looked into the different claims awarded by the Tribunal. The claim of Rs.73,018/- which was expenses of treatment has been fully allowed. We, however, notice that the Tribunal has allowed a very meagre amount of Rs. 10,000/- for physical and mental agony.

### 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: 1. Leave granted. 2. We have heard learned counsel for the parties. 3. This appeal has been filed by the claimants questioning the judgment and order dated 10.04.2013 passed by the High Court in M.A. No. 4498 of 2009. 4. The appellants are the legal heirs of Illa Raj Singh Thakur (the deceased). He met with an accident on 18.11.2003. While riding his motorcycle, he was dashed by truck bearing registration No. R.J.-21-G/2212 driven by Pancharam (the driver). He fell down and sustained injuries on both his hands, right leg and some other parts of the person and became unconscious. He was treated as an admitted patient at Gayatri Hospital from 18.11.2003 to 19.12.2003. The deceased has sustained fracture of ulna bone of right hand and of the wrist of left hand. The operation was conducted by one Dr. V.K. Sood. The application was filed by Illa Raj Singh Thakur claiming compensation. Subsequently, Illa Raj Singh Thakur died on 19.05.2005. After the death of Illa Raj Singh Thakur, his legal heirs, who are appellants before us, got amended the claim petition and claimed compensation of Rs. 20,63,681/-. 5. The averment in the claim petition filed by the appellants was that death was caused due to the accident and the respondents are liable to pay compensation treating death as a result of the accident. The appellants produced oral evidence of three Doctors viz. Dr. Sood, Dr. Tiwari and Dr. Yogesh. 6. The Tribunal, after hearing learned counsel for the parties and considering all evidence on record, came to the conclusion that death cannot be said to have been caused due to the accident. The Tribunal, however, allowed the claim petition which was initially filed by Illa Raj Singh Thakur and awarded compensation of Rs.1,13,018/- with interest. 7. The appellants filed an appeal before the High Court against the order of the Tribunal. The High Court vide its judgment and order allowed the appeal in part and enhanced the amount from Rs.1,13,018/- to Rs.1,48,018/- along with interest at 6% per annum on the enhanced sum of Rs.35,000/-. 8. Learned counsel for the appellants, in support thereof, contends that there were ample medical evidence in the form of oral evidence of three Doctors particularly, Dr. Tiwari which has amply proved that death was the result of the injuries sustained due to the accident. The operation of the wrist undertaken is consequent to the injuries. He further submitted that the Tribunal erred in rejecting the case of the claimants and further the High Court has also not dealt with the said issue in a correct manner. The evidence of Dr. Tiwari was also not considered by the Tribunal in right perspective due to which there was an error in holding that death was not a result of the accident. 9. He further submitted that in any case, the claim which was allowed by the Tribunal and modified a little by the High Court was too meagre. He submits that the deceased was awarded only Rs.10,000/- for pain and sufferings whereas he went under trauma for about one and a half years. 10. Learned counsel appearing for the respondents refuted the submission made by learned counsel for the appellants and contends that the Tribunal has rightly come to the conclusion that death cannot be related to the accident. The oral evidence has been correctly marshalled by the Tribunal. It is further submitted that insofar as the amount awarded by the Tribunal, the same has already been enhanced by the High Court by Rs.35,000/-. 11. We have considered the submissions made by learned counsel for the parties and perused the record. 12. Coming to the first submission made by learned counsel for the appellants that death was a result of the accident, the Tribunal, for coming to the conclusion that death cannot be related to the accident, has not only considered the evidence of all three Doctors but also the other oral evidence on the record including the statement of Ramkali Thakur (AW-3). 13. Learned counsel for the appellant submits the statement of Dr. P. K. Tiwari has not been given correct interpretation. 14. We do not agree with the submission made by learned counsel for the appellants. The evidence of Dr. P. K. Tiwari was thoroughly considered by the Tribunal. The Tribunal while considering the evidence of Dr. P. K. Tiwari observed as follows: However, Dr. P. K. Tiwari has stated that he had examined Illraj on 12/5/2005 and advised for investigation of diabetes and also advised to have treatment with an orthopedic doctor at any good hospital at Nagpur. This witness has also stated that at the time Illraj Singh had about the pain and swelling in the right forearm and mucus / fluid secretion from the mid of the right forearm. But this witness has not clearly stated that he had found the secretion of fluid from the injuries at the mid of the right forearm of Illraj Singh. So, by the production of the evidences by the applicants it has not been conclusively proved that the cause of death of Illraj Singh was due the infections in wounds which were inflicted in the accident. Rather it has been proved themselves by the applicants that deceased Illraj Singh joined his duties after recovering from the injuries. Thus for the above mentioned two questions are concluded in the said terms. 15. Thus, we do not find any infirmity in the findings of the Tribunal in holding that death of the deceased cannot be imputed as a result of the accident. Now we come to the second submission of learned counsel for the appellants that the amount under different heads has not been appropriately granted to the appellants. We have looked into the different claims awarded by the Tribunal. The claim of Rs.73,018/- which was expenses of treatment has been fully allowed. We, however, notice that the Tribunal has allowed a very meagre amount of Rs. 10,000/- for physical and mental agony. ### Response: 1 ### Explanation: 11. We have considered the submissions made by learned counsel for the parties and perused the record.12. Coming to the first submission made by learned counsel for the appellants that death was a result of the accident, the Tribunal, for coming to the conclusion that death cannot be related to the accident, has not only considered the evidence of all three Doctors but also the other oral evidence on the record including the statement of Ramkali Thakur (AW-3).14. We do not agree with the submission made by learned counsel for the appellants. The evidence of Dr. P. K. Tiwari was thoroughly considered by the Tribunal. The Tribunal while considering the evidence of Dr. P. K. Tiwari observed as follows:However, Dr. P. K. Tiwari has stated that he had examined Illraj on 12/5/2005 and advised for investigation of diabetes and also advised to have treatment with an orthopedic doctor at any good hospital at Nagpur. This witness has also stated that at the time Illraj Singh had about the pain and swelling in the right forearm and mucus / fluid secretion from the mid of the right forearm. But this witness has not clearly stated that he had found the secretion of fluid from the injuries at the mid of the right forearm of Illraj Singh. So, by the production of the evidences by the applicants it has not been conclusively proved that the cause of death of Illraj Singh was due the infections in wounds which were inflicted in the accident. Rather it has been proved themselves by the applicants that deceased Illraj Singh joined his duties after recovering from the injuries. Thus for the above mentioned two questions are concluded in the said terms.15. Thus, we do not find any infirmity in the findings of the Tribunal in holding that death of the deceased cannot be imputed as a result of the accident. Now we come to the second submission of learned counsel for the appellants that the amount under different heads has not been appropriately granted to the appellants. We have looked into the different claims awarded by the Tribunal. The claim of Rs.73,018/- which was expenses of treatment has been fully allowed. We, however, notice that the Tribunal has allowed a very meagre amount of Rs. 10,000/- for physical and mental agony.

Securities & Exchange Bd.Of India Vs. Burren Energy India Ltd

applicable:Provided further that where the acquirer, other than the acquirer who has made an offer under regulation 21A, after assuming full acceptances, has deposited in the escrow account hundred per cent of the consideration payable in cash where the consideration payable is in cash and in the form of securities where the consideration payable is by way of issue, exchange or transfer of securities or combination thereof, he may be entitled to be appointed on the Board of Directors of the target company after a period of twenty-one days from the date of public announcement." 7. The Tribunal hearing the matter in appeal took the view that under Regulation 2(1)(f) of the Regulations offer period is clearly defined as the period of time between the date of entering into Memorandum of Understanding or the public announcement, as the case may be, and the date of completion of offer formalities. The learned Tribunal was of the view that when there was no ambiguity or uncertainty in the provisions of the Regulations the definition of offer period has to be literally interpreted. The learned Tribunal went into the dictionary meaning of the expression Memorandum of Understanding and went on to hold that the same falls short of a concluded contract. As there was no Memorandum of Understanding between the parties it is the date of public announcement that would trigger of the commencement of the offer period. As the appointment of the Directors in the target company was made on 14th February, 2005 and the public announcement was made on 15th February, 2005 the learned Tribunal was of the view that the respondents (appellants before it) cannot be held liable for violating Regulation 22(7) of the Regulations, as found by the Adjudicating Officer. 8. The main thrust of the contentions advanced on behalf of the appellant before us appears to be that the words Memorandum of Understanding are not words of Art conveying a single meaning. In an appropriate situation a Memorandum of Understanding may also include a concluded agreement between the parties. Even in a given case where a Memorandum of Understanding is to fall short of a concluded agreement and, in fact, the concluded agreement is executed subsequently, the offer period would still commence from the date of the Memorandum of understanding. If the offer period commences from the date of such Memorandum of Understanding, according to the learned counsel, there is no reason why the same should not commence from the date of the share purchase agreement when the parties had not executed a Memorandum of Understanding. It is also submitted that the commencement of the ‘offer period’ from the date of public announcement would primarily have relevance to a case where acquisition of shares is from the market and there is no Memorandum of Understanding or a concluded agreement pursuant thereto. 9. In reply, Shri Shyam Divan, learned Senior Counsel appearing for the respondents has urged that Regulation 22(7) of the Regulations can have no application to the present case inasmuch as the disqualification from appointment on the board of directors of the target company will operate only when the acquirer or persons acting in concert are individuals and not a corporate entity. This is because under Section 253 of the Companies Act, 1956 (corresponding to Section 149 of the Companies Act, 2013) there is an embargo on a body corporate from being appointed as a director. Shri Divan has also drawn the attention of the Court to the provisions of Regulation 22(7) of the Regulations as it originally existed; its amendment in the year 2002 (which provision is relevant for the purposes of the present case) and the subsequent amendment effected in the year 2011. Shri Divan has submitted that meaning sought to be attributed to the Regulations relevant to the present case i.e. 2002 Regulations has been specifically incorporated in the Regulations amended in the year 2011. That the concluded share purchase agreement would be the starting point of the offer period is mandated under the 2011 Regulations and not under the 2002 Regulations. 10. We have considered the submissions of the parties. 11. In the present case, while Burren was the acquirer, UBL was the person acting in concert. This is evident from the letter of offer (public announcement) dated 15th February, 2005. The embargo under Section 22(7) is both on the acquirer and a person acting in concert. The expression person acting in concert includes a corporate entity [Regulation 2(1)(e)(2)(i) of the Regulations] and also its directors and associates [Regulation 2(1)(e)(2)(iii) of the Regulations]. If this is what is contemplated under the Regulations we do not see how the first argument advanced by Shri Divan on behalf of the respondents can have our acceptance.12. Insofar as the second argument advanced by Shri Divan is concerned it is correct that in the definition of offer period contained in Regulation 2(1)(f) of the Regulations, relevant for the present case, a concluded agreement is not contemplated to be the starting point of the offer period. But such a consequence must naturally follow once the offer period commences from the date of entering into a Memorandum of Understanding which, in most cases would reflect an agreement in principle falling short of a binding contract. If the offer period can be triggered of by an understanding that is yet to fructify into an agreement, we do not see how the same can be said not to have commenced/started from the date of a concluded agreement i.e. share purchase agreement as in the present case.13. On the view that we have taken we will have to hold that the learned Tribunal was incorrect in reaching its impugned conclusions and in reversing the order of the Adjudicating Officer. Consequently the order of the learned Tribunal is set aside and that of the Adjudicating Officer is restored. The penalty awarded by the Adjudicating Officer by order dated 25th August, 2006 shall be deposited in the manner directed within two months from today.

1[ds]11. In the present case, while Burren was the acquirer, UBL was the person acting in concert. This is evident from the letter of offer (public announcement) dated 15th February, 2005. The embargo under Section 22(7) is both on the acquirer and a person acting in concert. The expression person acting in concert includes a corporate entity [Regulation 2(1)(e)(2)(i) of the Regulations] and also its directors and associates [Regulation 2(1)(e)(2)(iii) of the Regulations]. If this is what is contemplated under the Regulations we do not see how the first argument advanced by Shri Divan on behalf of the respondents can have our acceptance.12. Insofar as the second argument advanced by Shri Divan is concerned it is correct that in the definition of offer period contained in Regulation 2(1)(f) of the Regulations, relevant for the present case, a concluded agreement is not contemplated to be the starting point of the offer period. But such a consequence must naturally follow once the offer period commences from the date of entering into a Memorandum of Understanding which, in most cases would reflect an agreement in principle falling short of a binding contract. If the offer period can be triggered of by an understanding that is yet to fructify into an agreement, we do not see how the same can be said not to have commenced/started from the date of a concluded agreement i.e. share purchase agreement as in the present case.13. On the view that we have taken we will have to hold that the learned Tribunal was incorrect in reaching its impugned conclusions and in reversing the order of the Adjudicating Officer. Consequently the order of the learned Tribunal is set aside and that of the Adjudicating Officer is restored. The penalty awarded by the Adjudicating Officer by order dated 25th August, 2006 shall be deposited in the manner directed within two months from today.

### 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: applicable:Provided further that where the acquirer, other than the acquirer who has made an offer under regulation 21A, after assuming full acceptances, has deposited in the escrow account hundred per cent of the consideration payable in cash where the consideration payable is in cash and in the form of securities where the consideration payable is by way of issue, exchange or transfer of securities or combination thereof, he may be entitled to be appointed on the Board of Directors of the target company after a period of twenty-one days from the date of public announcement." 7. The Tribunal hearing the matter in appeal took the view that under Regulation 2(1)(f) of the Regulations offer period is clearly defined as the period of time between the date of entering into Memorandum of Understanding or the public announcement, as the case may be, and the date of completion of offer formalities. The learned Tribunal was of the view that when there was no ambiguity or uncertainty in the provisions of the Regulations the definition of offer period has to be literally interpreted. The learned Tribunal went into the dictionary meaning of the expression Memorandum of Understanding and went on to hold that the same falls short of a concluded contract. As there was no Memorandum of Understanding between the parties it is the date of public announcement that would trigger of the commencement of the offer period. As the appointment of the Directors in the target company was made on 14th February, 2005 and the public announcement was made on 15th February, 2005 the learned Tribunal was of the view that the respondents (appellants before it) cannot be held liable for violating Regulation 22(7) of the Regulations, as found by the Adjudicating Officer. 8. The main thrust of the contentions advanced on behalf of the appellant before us appears to be that the words Memorandum of Understanding are not words of Art conveying a single meaning. In an appropriate situation a Memorandum of Understanding may also include a concluded agreement between the parties. Even in a given case where a Memorandum of Understanding is to fall short of a concluded agreement and, in fact, the concluded agreement is executed subsequently, the offer period would still commence from the date of the Memorandum of understanding. If the offer period commences from the date of such Memorandum of Understanding, according to the learned counsel, there is no reason why the same should not commence from the date of the share purchase agreement when the parties had not executed a Memorandum of Understanding. It is also submitted that the commencement of the ‘offer period’ from the date of public announcement would primarily have relevance to a case where acquisition of shares is from the market and there is no Memorandum of Understanding or a concluded agreement pursuant thereto. 9. In reply, Shri Shyam Divan, learned Senior Counsel appearing for the respondents has urged that Regulation 22(7) of the Regulations can have no application to the present case inasmuch as the disqualification from appointment on the board of directors of the target company will operate only when the acquirer or persons acting in concert are individuals and not a corporate entity. This is because under Section 253 of the Companies Act, 1956 (corresponding to Section 149 of the Companies Act, 2013) there is an embargo on a body corporate from being appointed as a director. Shri Divan has also drawn the attention of the Court to the provisions of Regulation 22(7) of the Regulations as it originally existed; its amendment in the year 2002 (which provision is relevant for the purposes of the present case) and the subsequent amendment effected in the year 2011. Shri Divan has submitted that meaning sought to be attributed to the Regulations relevant to the present case i.e. 2002 Regulations has been specifically incorporated in the Regulations amended in the year 2011. That the concluded share purchase agreement would be the starting point of the offer period is mandated under the 2011 Regulations and not under the 2002 Regulations. 10. We have considered the submissions of the parties. 11. In the present case, while Burren was the acquirer, UBL was the person acting in concert. This is evident from the letter of offer (public announcement) dated 15th February, 2005. The embargo under Section 22(7) is both on the acquirer and a person acting in concert. The expression person acting in concert includes a corporate entity [Regulation 2(1)(e)(2)(i) of the Regulations] and also its directors and associates [Regulation 2(1)(e)(2)(iii) of the Regulations]. If this is what is contemplated under the Regulations we do not see how the first argument advanced by Shri Divan on behalf of the respondents can have our acceptance.12. Insofar as the second argument advanced by Shri Divan is concerned it is correct that in the definition of offer period contained in Regulation 2(1)(f) of the Regulations, relevant for the present case, a concluded agreement is not contemplated to be the starting point of the offer period. But such a consequence must naturally follow once the offer period commences from the date of entering into a Memorandum of Understanding which, in most cases would reflect an agreement in principle falling short of a binding contract. If the offer period can be triggered of by an understanding that is yet to fructify into an agreement, we do not see how the same can be said not to have commenced/started from the date of a concluded agreement i.e. share purchase agreement as in the present case.13. On the view that we have taken we will have to hold that the learned Tribunal was incorrect in reaching its impugned conclusions and in reversing the order of the Adjudicating Officer. Consequently the order of the learned Tribunal is set aside and that of the Adjudicating Officer is restored. The penalty awarded by the Adjudicating Officer by order dated 25th August, 2006 shall be deposited in the manner directed within two months from today. ### Response: 1 ### Explanation: 11. In the present case, while Burren was the acquirer, UBL was the person acting in concert. This is evident from the letter of offer (public announcement) dated 15th February, 2005. The embargo under Section 22(7) is both on the acquirer and a person acting in concert. The expression person acting in concert includes a corporate entity [Regulation 2(1)(e)(2)(i) of the Regulations] and also its directors and associates [Regulation 2(1)(e)(2)(iii) of the Regulations]. If this is what is contemplated under the Regulations we do not see how the first argument advanced by Shri Divan on behalf of the respondents can have our acceptance.12. Insofar as the second argument advanced by Shri Divan is concerned it is correct that in the definition of offer period contained in Regulation 2(1)(f) of the Regulations, relevant for the present case, a concluded agreement is not contemplated to be the starting point of the offer period. But such a consequence must naturally follow once the offer period commences from the date of entering into a Memorandum of Understanding which, in most cases would reflect an agreement in principle falling short of a binding contract. If the offer period can be triggered of by an understanding that is yet to fructify into an agreement, we do not see how the same can be said not to have commenced/started from the date of a concluded agreement i.e. share purchase agreement as in the present case.13. On the view that we have taken we will have to hold that the learned Tribunal was incorrect in reaching its impugned conclusions and in reversing the order of the Adjudicating Officer. Consequently the order of the learned Tribunal is set aside and that of the Adjudicating Officer is restored. The penalty awarded by the Adjudicating Officer by order dated 25th August, 2006 shall be deposited in the manner directed within two months from today.

Himmatbhai Son Of Chaganlal Vs. Rikhilal And Ors

1, Rule 9 From the order of the District Judge we find that the execution was taken by the decree-holder separately against the various judgment debtors. In spite of. the fact that all through the proceedings it understood that, the, application made under Order 2 1, Rule 90, by Babulal on his behalf alone, the learned counsel for the appellant Mr. Sanghi, invited us to construe the, application dated 17th January, 1966 which he submitted would establish his case. We have gone through the document very carefully and we find that though the cause-title states the applicant as Firm Durga Prasad Ganesh Dass through Partner Babulal, it was made only by Babulal as a part and not on behalf of the firm. On this finding the submission of the 1, learned counsel, that the application was made on 17th January, 19 under Order 21, Rule 90, by Babulal on behalf of all the judgment debtors cannot be accepted. The learned Single Judge found the application under Order 21, Rule 89, was made on behalf four judgment-debtors, viz. Babulal, Rikhilal, Bhagwandas Rameshwar Prasad. This view was accepted by the Division Ben which held that there was a valid deposit by Bhagwandas Rameshwar Prasad for setting aside the sale.It was sought to be contended that the application made Babulal on 7th February, 1966, was not an application under Order 21, Rule 89, but was only an application for depositing amount of Rs. 29, 567/99p. The application is item 5 and is found .at p. 29 of the printed paper book. The application is stated to under Order 21, Rule 89, Civil Procedure Code. The first paragraph mentions that the property of the judgment-debtor auctioned for Rs, 46, 000/- on 8th January, 1966 and was purchased by the auction purchaser. Second paragraph recites that the applicant wants to deposit a sum of Rs. 27, 267/99 as shown in the proclamation of sale and Rs. 2300/- as commission of the purchaser on Rs. 46, 000/-, in all a sum of Rs. 29, 567/99. There is no specific prayer for setting aside the sale but we have no hesitation in reading the application as one under Order 21, Rule 89. The purpose of the application is clear and in fact the learned Judge has specifically stated "It has not been contended before me that the application dated 7th February 1966 was not an application within the meaning of Order 21 Rule 89 Civil Procedure Code." The Division Bench also proceeded on the basis that the application dated 7th February 1966 was under Rule 89 and was on behalf of Babulal himself and on behalf of some other judgment-debtors. 3. The learned counsel in support of his contention that unless there is a specific plea for setting aside the sale under Order 21, Rule 89, the application cannot be treated as one under Order 21, Rule 89, cited three decisions, A.I.R. 1916 Madras 717, A.I.R. 1955 Nagpur 185 and A.I.R. 1949 Bombay 313. We do not feel it necessary to refer to those decisions for they are clearly distinguishable and do not apply to the facts of this case.4. It was next contended that in any event no relief should be granted on the application dated 7th February, 1966 as Babulal being one of the judgment-debtors having filed an application under Order 21, Rule 90, is not entitled to relief under Order 21, Rule 89 and to that extent t he other judgment-debtors cannot take advantage of the deposit made by Babulal, at least to the extent of Babulals share. We do not see any merit in this contention. Apart from the fact that this point was not raised in any of the courts be low, we feel that when a deposit is made by any of the judgment-debtors as required under Order 21, Rule 89, a proper deposit is made and the benefit for setting aside the sale would accrue to the other judgment-debtors. It is not disputed that the entire amount as contemplated under Order 21, Rule 89, had been deposited. It is also not in dispute that the deposit was made on behalf of the judgment-debtors. Even though Babulals petition under Order 21, Rule 90, was pending, so far as the application under Order 21, Rule 89, by other judgment-debtors, it cannot be said to be ineffective when an application has been made by them and the entire money as required under the rule deposited.In this view the Division Bench of the High Court was right in setting aside the order of the Single Judge holding that the application of Babulal under Order 21, Rule 90, did not in any manner stand in the way of two other creditors, Bhagwandas and Rameshwar Prasad, making the application under Order21, Rule 89. 5. The learned counsel for the respondent relied on a local amendment made in Order 21, Rule 89, of the Code of Civil Procedure and submitted that the terms of the rule are much wider and any person claiming any interest in the property or acting for such person is entitled to relief. The amended rule runs:-"Where immovable property has been sold in execution of a decree, any person claiming any interest in the property sold at the time of the sale or at the time of Petition, or acting for, or in the interest of, such person, may apply to have the sale set aside on his depositing in Court." 6. As we have found that even without this amendment the application filed by Babulal on behalf of other judgment debtors will be a valid application under Order 21, Rule 89, it is unnecessary to refer to this amendment. 7. We find that there is no merit in any of the contentions raised by the learned counsel for the appellant. The amount deposited by the auction-purchaser has been lying in court. We find that under Order 21, Rule 93, the court is entitled to direct repayment of the purchase-money a nd interest.

1[ds]We find that there is no merit in any of the contentions raised by the learned counsel for the appellant. The amount deposited by the auction-purchaser has been lying in court. We find that under Order 21, Rule 93, the court is entitled to direct repayment of the purchase-money a nd interest.

### 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, Rule 9 From the order of the District Judge we find that the execution was taken by the decree-holder separately against the various judgment debtors. In spite of. the fact that all through the proceedings it understood that, the, application made under Order 2 1, Rule 90, by Babulal on his behalf alone, the learned counsel for the appellant Mr. Sanghi, invited us to construe the, application dated 17th January, 1966 which he submitted would establish his case. We have gone through the document very carefully and we find that though the cause-title states the applicant as Firm Durga Prasad Ganesh Dass through Partner Babulal, it was made only by Babulal as a part and not on behalf of the firm. On this finding the submission of the 1, learned counsel, that the application was made on 17th January, 19 under Order 21, Rule 90, by Babulal on behalf of all the judgment debtors cannot be accepted. The learned Single Judge found the application under Order 21, Rule 89, was made on behalf four judgment-debtors, viz. Babulal, Rikhilal, Bhagwandas Rameshwar Prasad. This view was accepted by the Division Ben which held that there was a valid deposit by Bhagwandas Rameshwar Prasad for setting aside the sale.It was sought to be contended that the application made Babulal on 7th February, 1966, was not an application under Order 21, Rule 89, but was only an application for depositing amount of Rs. 29, 567/99p. The application is item 5 and is found .at p. 29 of the printed paper book. The application is stated to under Order 21, Rule 89, Civil Procedure Code. The first paragraph mentions that the property of the judgment-debtor auctioned for Rs, 46, 000/- on 8th January, 1966 and was purchased by the auction purchaser. Second paragraph recites that the applicant wants to deposit a sum of Rs. 27, 267/99 as shown in the proclamation of sale and Rs. 2300/- as commission of the purchaser on Rs. 46, 000/-, in all a sum of Rs. 29, 567/99. There is no specific prayer for setting aside the sale but we have no hesitation in reading the application as one under Order 21, Rule 89. The purpose of the application is clear and in fact the learned Judge has specifically stated "It has not been contended before me that the application dated 7th February 1966 was not an application within the meaning of Order 21 Rule 89 Civil Procedure Code." The Division Bench also proceeded on the basis that the application dated 7th February 1966 was under Rule 89 and was on behalf of Babulal himself and on behalf of some other judgment-debtors. 3. The learned counsel in support of his contention that unless there is a specific plea for setting aside the sale under Order 21, Rule 89, the application cannot be treated as one under Order 21, Rule 89, cited three decisions, A.I.R. 1916 Madras 717, A.I.R. 1955 Nagpur 185 and A.I.R. 1949 Bombay 313. We do not feel it necessary to refer to those decisions for they are clearly distinguishable and do not apply to the facts of this case.4. It was next contended that in any event no relief should be granted on the application dated 7th February, 1966 as Babulal being one of the judgment-debtors having filed an application under Order 21, Rule 90, is not entitled to relief under Order 21, Rule 89 and to that extent t he other judgment-debtors cannot take advantage of the deposit made by Babulal, at least to the extent of Babulals share. We do not see any merit in this contention. Apart from the fact that this point was not raised in any of the courts be low, we feel that when a deposit is made by any of the judgment-debtors as required under Order 21, Rule 89, a proper deposit is made and the benefit for setting aside the sale would accrue to the other judgment-debtors. It is not disputed that the entire amount as contemplated under Order 21, Rule 89, had been deposited. It is also not in dispute that the deposit was made on behalf of the judgment-debtors. Even though Babulals petition under Order 21, Rule 90, was pending, so far as the application under Order 21, Rule 89, by other judgment-debtors, it cannot be said to be ineffective when an application has been made by them and the entire money as required under the rule deposited.In this view the Division Bench of the High Court was right in setting aside the order of the Single Judge holding that the application of Babulal under Order 21, Rule 90, did not in any manner stand in the way of two other creditors, Bhagwandas and Rameshwar Prasad, making the application under Order21, Rule 89. 5. The learned counsel for the respondent relied on a local amendment made in Order 21, Rule 89, of the Code of Civil Procedure and submitted that the terms of the rule are much wider and any person claiming any interest in the property or acting for such person is entitled to relief. The amended rule runs:-"Where immovable property has been sold in execution of a decree, any person claiming any interest in the property sold at the time of the sale or at the time of Petition, or acting for, or in the interest of, such person, may apply to have the sale set aside on his depositing in Court." 6. As we have found that even without this amendment the application filed by Babulal on behalf of other judgment debtors will be a valid application under Order 21, Rule 89, it is unnecessary to refer to this amendment. 7. We find that there is no merit in any of the contentions raised by the learned counsel for the appellant. The amount deposited by the auction-purchaser has been lying in court. We find that under Order 21, Rule 93, the court is entitled to direct repayment of the purchase-money a nd interest. ### Response: 1 ### Explanation: We find that there is no merit in any of the contentions raised by the learned counsel for the appellant. The amount deposited by the auction-purchaser has been lying in court. We find that under Order 21, Rule 93, the court is entitled to direct repayment of the purchase-money a nd interest.

THE MANAGEMENT OF REGIONAL CHIEF ENGINEER P.H.E.D. RANCHI Vs. THEIR WORKMEN REP. BY DISTRICT SECRETARY

State made a reference under Section 10 of the I.D. Act to the Labour Court, Ranchi at the instance of the respondentUnion to decide the following dispute: Whether the dismissal and non absorption of 37 acting daily wages Hastrashid employees as mentioned in schedule K in work charged establishment by Public Health Engg. Division, East Ranchi (Department of PHED, Jharkhand) is lawful. If not, what other reliefs their employees are entitled to? 7. By award dated 29.06.2005, the Labour Court (Annex.P1) answered the reference in respondentUnions favour and directed reinstatement of 37 workmen with payment of full back wages in Reference Case No.6 of 2002. 8. The appellant (employer), felt aggrieved by the award of the Labour Court, filed writ petition in the High Court of Jharkhand. The Single Judge of the High Court, by order dated 08.07.2008, dismissed the writ petition filed by the appellant and affirmed the award passed by the Labour Court. 9. Being aggrieved by the order of the Single Judge, the appellant filed intra court appeal. By impugned order, the Division Bench of the High Court dismissed the appeal and upheld the order of the Single Judge, which gave rise to filing of this appeal by way of special leave by the appellantemployer in this Court. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back wages to the workmen in place of full wages. 11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board vs. Jarina Bee(Smt.), (2003) 6 SCC 141 , G.M. Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591 , U.P. State Brassware Corporation vs. Uday Narain Pandey, (2006) 1 SCC 479 , J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr., (2007) 2 SCC 433 , Metropolitan Transport Corporation vs. V. 6 Venkatesan, (2009) 9 SCC 601 , Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC 327 ) and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Ors., (2013) 10 SCC 324. 14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent. 15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. 16. On the other hand, we find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to 37 workmen while directing their reinstatement in service. 17. We, however, find that the High Court in para 9 of the order placed reliance on the decision of this Court in Deepali Gundu Surwase (supra) for holding that the question of back wages is covered by this decision. In our view, the High Court erred in so observing. It should have seen that in the case of Deepali Gundu Surwase (supra) itself, this Court referred decisions, which we have mentioned in para 13 above and then in para 38 of Deepali Gundu Surwase, this Court culled out the ratio of all the cited cases. Thereafter, this Court in Deepali Gundu Surwase case granted relief to the concerned workers on the facts involved in that case In our opinion, the High Court did not apply the ratio of the decision in Deepali Gundu Surwase (supra) to the facts of this case properly and only quoted one para of the judgment in Deepali Gundu Surwase(supra) which contained general observations. Those observations had to be read in juxtaposition with para 38 which culled out the ratio of all the case law on the subject. 18. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer). 19. However, having regard to the facts and circumstances of the case, we consider it just and proper and in the interest of justice to award to these 37 workmen 50% of the total back wages.

1[ds]11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages16. On the other hand, we find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to 37 workmen while directing their reinstatement in service17. We, however, find that the High Court in para 9 of the order placed reliance on the decision of this Court in Deepali Gundu Surwase (supra) for holding that the question of back wages is covered by this decision. In our view, the High Court erred in so observing. It should have seen that in the case of Deepali Gundu Surwase (supra) itself, this Court referred decisions, which we have mentioned in para 13 above and then in para 38 of Deepali Gundu Surwase, this Court culled out the ratio of all the cited cases. Thereafter, this Court in Deepali Gundu Surwasecase granted relief to the concerned workers on the facts involved in thatopinion, the High Court did not apply the ratio of the decision in Deepali Gundu Surwase (supra) to the facts of this case properly and only quoted one para of the judgment in Deepali Gundu Surwase(supra) which contained general observations. Those observations had to be read in juxtaposition with para 38 which culled out the ratio of all the case law on the subject18. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer)19. However, having regard to the facts and circumstances of the case, we consider it just and proper and in the interest of justice to award to these 37 workmen 50% of the total back wages.

### 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: State made a reference under Section 10 of the I.D. Act to the Labour Court, Ranchi at the instance of the respondentUnion to decide the following dispute: Whether the dismissal and non absorption of 37 acting daily wages Hastrashid employees as mentioned in schedule K in work charged establishment by Public Health Engg. Division, East Ranchi (Department of PHED, Jharkhand) is lawful. If not, what other reliefs their employees are entitled to? 7. By award dated 29.06.2005, the Labour Court (Annex.P1) answered the reference in respondentUnions favour and directed reinstatement of 37 workmen with payment of full back wages in Reference Case No.6 of 2002. 8. The appellant (employer), felt aggrieved by the award of the Labour Court, filed writ petition in the High Court of Jharkhand. The Single Judge of the High Court, by order dated 08.07.2008, dismissed the writ petition filed by the appellant and affirmed the award passed by the Labour Court. 9. Being aggrieved by the order of the Single Judge, the appellant filed intra court appeal. By impugned order, the Division Bench of the High Court dismissed the appeal and upheld the order of the Single Judge, which gave rise to filing of this appeal by way of special leave by the appellantemployer in this Court. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and while modifying the impugned order award 50% back wages to the workmen in place of full wages. 11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 13. In some cases, the Court may decline to award the back wages in its entirety whereas in some cases, it may award partial depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages is required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. State Electricity Board vs. Jarina Bee(Smt.), (2003) 6 SCC 141 , G.M. Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591 , U.P. State Brassware Corporation vs. Uday Narain Pandey, (2006) 1 SCC 479 , J.K. Synthetics Ltd. vs. K.P. Agrawal & Anr., (2007) 2 SCC 433 , Metropolitan Transport Corporation vs. V. 6 Venkatesan, (2009) 9 SCC 601 , Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC 327 ) and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) & Ors., (2013) 10 SCC 324. 14. The Court is, therefore, required to keep in consideration several factors, which are set out in the aforementioned cases, and then to record a finding as to whether it is a fit case for award of the back wages and, if so, to what extent. 15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. 16. On the other hand, we find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to 37 workmen while directing their reinstatement in service. 17. We, however, find that the High Court in para 9 of the order placed reliance on the decision of this Court in Deepali Gundu Surwase (supra) for holding that the question of back wages is covered by this decision. In our view, the High Court erred in so observing. It should have seen that in the case of Deepali Gundu Surwase (supra) itself, this Court referred decisions, which we have mentioned in para 13 above and then in para 38 of Deepali Gundu Surwase, this Court culled out the ratio of all the cited cases. Thereafter, this Court in Deepali Gundu Surwase case granted relief to the concerned workers on the facts involved in that case In our opinion, the High Court did not apply the ratio of the decision in Deepali Gundu Surwase (supra) to the facts of this case properly and only quoted one para of the judgment in Deepali Gundu Surwase(supra) which contained general observations. Those observations had to be read in juxtaposition with para 38 which culled out the ratio of all the case law on the subject. 18. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer). 19. However, having regard to the facts and circumstances of the case, we consider it just and proper and in the interest of justice to award to these 37 workmen 50% of the total back wages. ### Response: 1 ### Explanation: 11. In our considered opinion, the Courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee15. Coming now to the facts of the case at hand, we find that neither the Labour Court and nor the High Court kept in consideration the aforesaid principles of law. Similarly, no party to the proceedings either pleaded or adduced any evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages16. On the other hand, we find that the Labour Court in one line simply directed the appellant (employer) to pay full back wages for a long period to 37 workmen while directing their reinstatement in service17. We, however, find that the High Court in para 9 of the order placed reliance on the decision of this Court in Deepali Gundu Surwase (supra) for holding that the question of back wages is covered by this decision. In our view, the High Court erred in so observing. It should have seen that in the case of Deepali Gundu Surwase (supra) itself, this Court referred decisions, which we have mentioned in para 13 above and then in para 38 of Deepali Gundu Surwase, this Court culled out the ratio of all the cited cases. Thereafter, this Court in Deepali Gundu Surwasecase granted relief to the concerned workers on the facts involved in thatopinion, the High Court did not apply the ratio of the decision in Deepali Gundu Surwase (supra) to the facts of this case properly and only quoted one para of the judgment in Deepali Gundu Surwase(supra) which contained general observations. Those observations had to be read in juxtaposition with para 38 which culled out the ratio of all the case law on the subject18. We cannot, therefore, concur with such direction of the Courts below awarding full back wages to the workman which, in our opinion, has certainly caused prejudice to the appellant (employer)19. However, having regard to the facts and circumstances of the case, we consider it just and proper and in the interest of justice to award to these 37 workmen 50% of the total back wages.

Kunwar Bahadur and Others Vs. State of Uttar Pradesh

FAZAL ALI, J. 1. This appeal by special leave is directed against the judgment of the Allahabad High Court dated October 5, 1971, upholding the conviction of the appellants under Section 302/149, IPC but commuting the sentence of death to one of life imprisonment. The appellants were also convicted under Section 307/149 and sentenced to five years rigorous imprisonment and under Section 148 to two years rigorous imprisonment. We have heard Mr. Mulla, counsel for the appellant at great length and we have also heard Mr. Uniyal for the State. We have been taken through the judgment of the High Court and the evidence of the eyewitnesses. After perusing the record we find that the prosecution case against the appellants has been fully proved as held by the High Court and there does not appear to be any error of law or misreading of any evidence so as to warrant our interference in special leave. Mr. Mulla, however, specially stressed the cases of two of the appellants, namely, Raja Ram and Nand Kishore. As regards Raja Ram, Mr. Mulla placed reliance on the finding of the High Court which appears to have found that even though Raja Ram was alleged to have been armed with a gun he may have caused an injury with a lathi as he has admitted in his statement under Section 342, CrPC. The evidence of PW proves clearly two facts against this appellant. Firstly the appellant before the occurrence exhorted the other assailants of the deceased persons and the injured to open the assault by guns and other weapons. Secondly, that this appellant was also armed with a gun and there is consistent evidence of the eyewitnesses that all the three guns were fired though only one fire hit Nathu. The mere fact that only one person was hit by the gun cannot exclude the possibility of the other guns having been fired because it may be that even though the other guns were also fired their bullets did not hit anybody. In this view of the matter the High Court was not justified in holding that Raja Ram was armed with a lathi. Moreover, Raja Ram in his statement under Section 342 has not denied his presence at the spot but has admitted his presence there and has even stated in his statement under Section 342 before the committing Magistrate that he had also assaulted the prosecution party with lathi. In this view of the matter there is absolutely no reason to acquit Raja Ram of the charges framed against him. The High Court was, therefore, fully justified in upholding his conviction though not for the reasons given by it. The first contention put forward by the learned counsel for the appellant is, therefore, overruled. 2. It was then argued that so far as appellant Nand Kishore is concerned, he appears to be only 15 years at the time when the occurrence took place and it appears that when he was sent to prison the jailor referred him to the Sewa Sadan under Section 7 of the United Provinces Borstal Act, 1938. Under this Section where a prisoner is sentenced for transportation i.e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years. The law thus contemplates that for such an offender the sentence of five years will be equivalent even to a higher sentence of life imprisonment. It is not disputed before us that the appellant Nand Kishore had already served five years in that institution and has been released therefrom. The question, therefore, of his surrendering to serve the remaining sentence does not arise. 3.

0[ds]After perusing the record we find that the prosecution case against the appellants has been fully proved as held by the High Court and there does not appear to be any error of law or misreading of any evidence so as to warrant our interference in special leave. Mr. Mulla, however, specially stressed the cases of two of the appellants, namely, Raja Ram and Nand Kishore. As regards Raja Ram, Mr. Mulla placed reliance on the finding of the High Court which appears to have found that even though Raja Ram was alleged to have been armed with a gun he may have caused an injury with a lathi as he has admitted in his statement under Section 342, CrPC. The evidence of PW proves clearly two facts against this appellant. Firstly the appellant before the occurrence exhorted the other assailants of the deceased persons and the injured to open the assault by guns and other weapons. Secondly, that this appellant was also armed with a gun and there is consistent evidence of the eyewitnesses that all the three guns were fired though only one fire hit Nathu. The mere fact that only one person was hit by the gun cannot exclude the possibility of the other guns having been fired because it may be that even though the other guns were also fired their bullets did not hit anybody. In this view of the matter the High Court was not justified in holding that Raja Ram was armed with a lathi. Moreover, Raja Ram in his statement under Section 342 has not denied his presence at the spot but has admitted his presence there and has even stated in his statement under Section 342 before the committing Magistrate that he had also assaulted the prosecution party with lathi. In this view of the matter there is absolutely no reason to acquit Raja Ram of the charges framed against him. The High Court was, therefore, fully justified in upholding his conviction though not for the reasons given by it. The first contention put forward by the learned counsel for the appellant is, therefore, overruled2. It was then argued that so far as appellant Nand Kishore is concerned, he appears to be only 15 years at the time when the occurrence took place and it appears that when he was sent to prison the jailor referred him to the Sewa Sadan under Section 7 of the United Provinces Borstal Act, 1938. Under this Section where a prisoner is sentenced for transportation i.e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years. The law thus contemplates that for such an offender the sentence of five years will be equivalent even to a higher sentence of life imprisonment. It is not disputed before us that the appellant Nand Kishore had already served five years in that institution and has been released therefrom. The question, therefore, of his surrendering to serve the remaining sentence does not arise.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: FAZAL ALI, J. 1. This appeal by special leave is directed against the judgment of the Allahabad High Court dated October 5, 1971, upholding the conviction of the appellants under Section 302/149, IPC but commuting the sentence of death to one of life imprisonment. The appellants were also convicted under Section 307/149 and sentenced to five years rigorous imprisonment and under Section 148 to two years rigorous imprisonment. We have heard Mr. Mulla, counsel for the appellant at great length and we have also heard Mr. Uniyal for the State. We have been taken through the judgment of the High Court and the evidence of the eyewitnesses. After perusing the record we find that the prosecution case against the appellants has been fully proved as held by the High Court and there does not appear to be any error of law or misreading of any evidence so as to warrant our interference in special leave. Mr. Mulla, however, specially stressed the cases of two of the appellants, namely, Raja Ram and Nand Kishore. As regards Raja Ram, Mr. Mulla placed reliance on the finding of the High Court which appears to have found that even though Raja Ram was alleged to have been armed with a gun he may have caused an injury with a lathi as he has admitted in his statement under Section 342, CrPC. The evidence of PW proves clearly two facts against this appellant. Firstly the appellant before the occurrence exhorted the other assailants of the deceased persons and the injured to open the assault by guns and other weapons. Secondly, that this appellant was also armed with a gun and there is consistent evidence of the eyewitnesses that all the three guns were fired though only one fire hit Nathu. The mere fact that only one person was hit by the gun cannot exclude the possibility of the other guns having been fired because it may be that even though the other guns were also fired their bullets did not hit anybody. In this view of the matter the High Court was not justified in holding that Raja Ram was armed with a lathi. Moreover, Raja Ram in his statement under Section 342 has not denied his presence at the spot but has admitted his presence there and has even stated in his statement under Section 342 before the committing Magistrate that he had also assaulted the prosecution party with lathi. In this view of the matter there is absolutely no reason to acquit Raja Ram of the charges framed against him. The High Court was, therefore, fully justified in upholding his conviction though not for the reasons given by it. The first contention put forward by the learned counsel for the appellant is, therefore, overruled. 2. It was then argued that so far as appellant Nand Kishore is concerned, he appears to be only 15 years at the time when the occurrence took place and it appears that when he was sent to prison the jailor referred him to the Sewa Sadan under Section 7 of the United Provinces Borstal Act, 1938. Under this Section where a prisoner is sentenced for transportation i.e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years. The law thus contemplates that for such an offender the sentence of five years will be equivalent even to a higher sentence of life imprisonment. It is not disputed before us that the appellant Nand Kishore had already served five years in that institution and has been released therefrom. The question, therefore, of his surrendering to serve the remaining sentence does not arise. 3. ### Response: 0 ### Explanation: After perusing the record we find that the prosecution case against the appellants has been fully proved as held by the High Court and there does not appear to be any error of law or misreading of any evidence so as to warrant our interference in special leave. Mr. Mulla, however, specially stressed the cases of two of the appellants, namely, Raja Ram and Nand Kishore. As regards Raja Ram, Mr. Mulla placed reliance on the finding of the High Court which appears to have found that even though Raja Ram was alleged to have been armed with a gun he may have caused an injury with a lathi as he has admitted in his statement under Section 342, CrPC. The evidence of PW proves clearly two facts against this appellant. Firstly the appellant before the occurrence exhorted the other assailants of the deceased persons and the injured to open the assault by guns and other weapons. Secondly, that this appellant was also armed with a gun and there is consistent evidence of the eyewitnesses that all the three guns were fired though only one fire hit Nathu. The mere fact that only one person was hit by the gun cannot exclude the possibility of the other guns having been fired because it may be that even though the other guns were also fired their bullets did not hit anybody. In this view of the matter the High Court was not justified in holding that Raja Ram was armed with a lathi. Moreover, Raja Ram in his statement under Section 342 has not denied his presence at the spot but has admitted his presence there and has even stated in his statement under Section 342 before the committing Magistrate that he had also assaulted the prosecution party with lathi. In this view of the matter there is absolutely no reason to acquit Raja Ram of the charges framed against him. The High Court was, therefore, fully justified in upholding his conviction though not for the reasons given by it. The first contention put forward by the learned counsel for the appellant is, therefore, overruled2. It was then argued that so far as appellant Nand Kishore is concerned, he appears to be only 15 years at the time when the occurrence took place and it appears that when he was sent to prison the jailor referred him to the Sewa Sadan under Section 7 of the United Provinces Borstal Act, 1938. Under this Section where a prisoner is sentenced for transportation i.e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years. The law thus contemplates that for such an offender the sentence of five years will be equivalent even to a higher sentence of life imprisonment. It is not disputed before us that the appellant Nand Kishore had already served five years in that institution and has been released therefrom. The question, therefore, of his surrendering to serve the remaining sentence does not arise.

N.D.M.C Vs. Sohan Lal Sachdev (Dead)Thru.Lr

decreed the suit. The High Court took the view that user of the suit premises for running the `guest house without any kitchen facility is user for residential purpose and, therefore, the NDMC is not entitled to charge electricity and water charges on the basis of commercial use. Being aggrieved by the decision of the High Court, the NDMC has filed this appeal challenging the judgment. On 23.3.1998, this Court ordered : "Notice to issue in the light of the decision of this Court in the case of Municipal Corporation of Greater Bombay v. Mafatlal Industries & others reported in 1996(8) SCC 27. Notice shall state that the SLP shall be disposed of finally at the notice stage. Notice to issue on the application for condonation of delay also." 8. The main thrust of the submissions of learned counsel for the appellant NDMC is that user of the suit premises for running the guest house with arrangement for boarding of guests on payment cannot be said to be private domestic user of the premises. It is the further contention of the learned counsel that such user of the premises can be appropriately classified as `commercial user. The High Court, according to the learned counsel, committed an error in holding that the user of the suit premises is `domestic. 9. The learned counsel appearing for the respondent landlord on the other hand supported the judgment of the High Court reiterating the reasons stated therein. 10. On the case of the parties and the rival contentions raised on their behalf, the question formulated earlier arises for consideration. 11. The two terms `domestic and `commercial are not defined in the Act or the rules. Therefore, the expressions are to be given common parlance meaning and must be understood in their natural, ordinary and popular sense. In interpreting the phrases the context in which they are used is also to be kept in mind. In Strouds Judicial Dictionary (Fifth Edition) the term `commercial is defined as "traffic, trade or merchandise in buying and selling of goods". In the said dictionary the phrase `domestic purpose is stated to mean use for personal residential purposes. In essence the question is, what is the character of the purpose of user of the premises by the owner or landlord and not the character of the place of user. For example, running a boarding-house is a business, but persons in a boarding-house may use water for `domestic purpose. As noted earlier the classification made for the purpose of charging electricity duty by the NDMC sets out the categories `domestic user as contra-distinguished from `commercial user or to put it differently `non-domestic user. The intent and purpose of the classification, as we see it, is to make a distinction between purely `private residential purpose as against `commercial purpose. In the case of a `guest house, the building is used for providing accommodation to `guests who may be travellers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose. Then the question is, can the use of the premises be said to be for `commercial purpose ? Keeping in mind the context in which the phrases are used and the purpose for which the classification is made, it is our considered view that the question must be answered in the affirmative. It is the user of the premises by the owner (not necessarily absolute owner) which is relevant for determination of the question and not the purpose for which the guest or occupant of the guest house uses electric energy. In the broad classification as is made in the rules, different types of user which can reasonably be grouped together for the purpose of understanding the two phrases `domestic and `commercial is to be made. To a certain degree there might be overlapping, but that has to be accepted in the context of things. The High Court was not right in setting aside the order of the learned Senior Civil Judge merely on the ground that the use of electricity for running the `guest house does not come under the category of `commercial use. The High Court has not discussed any reason for holding that user in such a case comes under the category of `domestic use. 12. In the case of Municipal Corporation of Greater Bombay v. Mafatlal Industries and others, 1996(8) Supreme Court Cases 27, this Court interpreted the expression "exclusively used as a private residential premises" (In Bombay Electricity Duty Act, 1958). To connote that the premises in question must be exclusively used as a residential premises which in other words would mean where the premises which is used by any person privately for his own residence for a sufficient continued period and not a premises where a person can come and spend a day or a night and then go back. This Court further held that guest houses are maintained by company or commercial undertakings as a part of its commercial venture. The test of profit making as well as the test of the work `private in contradiction to `public have no relevance for interpreting the expression "exclusively used as a private residential premises." This court concluded that in the case of a guest house category `R which applies to premises used as a private residential premises is not applicable and category `C would apply as a residuary category to premises which does not come within the categories R, S, RC (LV) and SL. Though the fact situation in the case and the question which was considered by this Court therein are not the same as in the case on hand, the discussions in the judgment throw light on the controversy raised in this case. 13. On the discussions made and the reasons stated in the foregoing paragraphs, we

1[ds]In essence the question is, what is the character of the purpose of user of the premises by the owner or landlord and not the character of the place of user. For example, running a boarding-house is a business, but persons in a boarding-house may use water for `domestic purpose. As noted earlier the classification made for the purpose of charging electricity duty by the NDMC sets out the categories `domestic user as contra-distinguished from `commercial user or to put it differently `non-domestic user. The intent and purpose of the classification, as we see it, is to make a distinction between purely `private residential purpose as against `commercial purpose. In the case of a `guest house, the building is used for providing accommodation to `guests who may be travellers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose. Then the question is, can the use of the premises be said to be for `commercial purpose ? Keeping in mind the context in which the phrases are used and the purpose for which the classification is made, it is our considered view that the question must be answered in the affirmative.

### 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: decreed the suit. The High Court took the view that user of the suit premises for running the `guest house without any kitchen facility is user for residential purpose and, therefore, the NDMC is not entitled to charge electricity and water charges on the basis of commercial use. Being aggrieved by the decision of the High Court, the NDMC has filed this appeal challenging the judgment. On 23.3.1998, this Court ordered : "Notice to issue in the light of the decision of this Court in the case of Municipal Corporation of Greater Bombay v. Mafatlal Industries & others reported in 1996(8) SCC 27. Notice shall state that the SLP shall be disposed of finally at the notice stage. Notice to issue on the application for condonation of delay also." 8. The main thrust of the submissions of learned counsel for the appellant NDMC is that user of the suit premises for running the guest house with arrangement for boarding of guests on payment cannot be said to be private domestic user of the premises. It is the further contention of the learned counsel that such user of the premises can be appropriately classified as `commercial user. The High Court, according to the learned counsel, committed an error in holding that the user of the suit premises is `domestic. 9. The learned counsel appearing for the respondent landlord on the other hand supported the judgment of the High Court reiterating the reasons stated therein. 10. On the case of the parties and the rival contentions raised on their behalf, the question formulated earlier arises for consideration. 11. The two terms `domestic and `commercial are not defined in the Act or the rules. Therefore, the expressions are to be given common parlance meaning and must be understood in their natural, ordinary and popular sense. In interpreting the phrases the context in which they are used is also to be kept in mind. In Strouds Judicial Dictionary (Fifth Edition) the term `commercial is defined as "traffic, trade or merchandise in buying and selling of goods". In the said dictionary the phrase `domestic purpose is stated to mean use for personal residential purposes. In essence the question is, what is the character of the purpose of user of the premises by the owner or landlord and not the character of the place of user. For example, running a boarding-house is a business, but persons in a boarding-house may use water for `domestic purpose. As noted earlier the classification made for the purpose of charging electricity duty by the NDMC sets out the categories `domestic user as contra-distinguished from `commercial user or to put it differently `non-domestic user. The intent and purpose of the classification, as we see it, is to make a distinction between purely `private residential purpose as against `commercial purpose. In the case of a `guest house, the building is used for providing accommodation to `guests who may be travellers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose. Then the question is, can the use of the premises be said to be for `commercial purpose ? Keeping in mind the context in which the phrases are used and the purpose for which the classification is made, it is our considered view that the question must be answered in the affirmative. It is the user of the premises by the owner (not necessarily absolute owner) which is relevant for determination of the question and not the purpose for which the guest or occupant of the guest house uses electric energy. In the broad classification as is made in the rules, different types of user which can reasonably be grouped together for the purpose of understanding the two phrases `domestic and `commercial is to be made. To a certain degree there might be overlapping, but that has to be accepted in the context of things. The High Court was not right in setting aside the order of the learned Senior Civil Judge merely on the ground that the use of electricity for running the `guest house does not come under the category of `commercial use. The High Court has not discussed any reason for holding that user in such a case comes under the category of `domestic use. 12. In the case of Municipal Corporation of Greater Bombay v. Mafatlal Industries and others, 1996(8) Supreme Court Cases 27, this Court interpreted the expression "exclusively used as a private residential premises" (In Bombay Electricity Duty Act, 1958). To connote that the premises in question must be exclusively used as a residential premises which in other words would mean where the premises which is used by any person privately for his own residence for a sufficient continued period and not a premises where a person can come and spend a day or a night and then go back. This Court further held that guest houses are maintained by company or commercial undertakings as a part of its commercial venture. The test of profit making as well as the test of the work `private in contradiction to `public have no relevance for interpreting the expression "exclusively used as a private residential premises." This court concluded that in the case of a guest house category `R which applies to premises used as a private residential premises is not applicable and category `C would apply as a residuary category to premises which does not come within the categories R, S, RC (LV) and SL. Though the fact situation in the case and the question which was considered by this Court therein are not the same as in the case on hand, the discussions in the judgment throw light on the controversy raised in this case. 13. On the discussions made and the reasons stated in the foregoing paragraphs, we ### Response: 1 ### Explanation: In essence the question is, what is the character of the purpose of user of the premises by the owner or landlord and not the character of the place of user. For example, running a boarding-house is a business, but persons in a boarding-house may use water for `domestic purpose. As noted earlier the classification made for the purpose of charging electricity duty by the NDMC sets out the categories `domestic user as contra-distinguished from `commercial user or to put it differently `non-domestic user. The intent and purpose of the classification, as we see it, is to make a distinction between purely `private residential purpose as against `commercial purpose. In the case of a `guest house, the building is used for providing accommodation to `guests who may be travellers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose. Then the question is, can the use of the premises be said to be for `commercial purpose ? Keeping in mind the context in which the phrases are used and the purpose for which the classification is made, it is our considered view that the question must be answered in the affirmative.

State Of Bihar And Another Vs. Kundan Singh And Another

the house under the third clause of s. 23 is excessive or unreasonable, and provides that the appropriate Government may decide to acquire the whole of the land of which the land first sought to be acquired forms a part rather than agree to pay an unreasonable or excessive amount of compensation as claimed by the owner. This provision also emphasises the fact that where land is acquired and it results in the acquisition of a part of the house connected with the land, the owner can make a claim for additional compensation under s. 23, or he may require, before the acquisition has taken place, that the whole of the house should be acquired. These are two alternative remedies available to the owner ; if he wants to avail himself of the first remedy under s. 23, he may make a claim for additional compensation in that behalf and such a claim would form the subject-matter of an enquiry under s. 18 ; if, on the other hand, he claims the other alternative remedy provided by s. 49 (1), that must form the subject-matter of another proceeding which has to be dealt with under s. 49 itself. It is true that in cases of dispute, this matter also goes to the same Court for its decision on a reference by the Collector; but though the Court is the same the proceedings taken are different and separate and must be adopted as such. A claim under s. 49 which can be properly tried by the Court on a reference made to it by the Collector under the second proviso to s. 49 (1), cannot be mixed up with a claim which can be made in reference proceedings sent to the Court under s. 18 by the Collector.15. Section 49 (3) merely dispenses with the necessity of issuing a further fresh declaration or adopting other proceedings under sections 6 to 10 in regard to cases falling under s. 49 (2).16. Thus, it would be seen that the scheme of s. 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by s. 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under s. 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under s. 18. That being our view, we do not think necessary to consider the respondents contention that what is acquired in the present proceedings attracts the provisions of s. 49 (1).17. It now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council v. Narayanaswamy Chettier ((1931) I. L. R. 55 Mad. 391), the Madras High Court appears to have taken the view that there is nothing in s. 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings. Referring to s. 49 (1), Ramesam off. C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award. Cornish J., who delivered a concurrent judgment agreed with this view. It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under s. 49 on September, 29, that is to say, after the award.. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under s. 49 (1).In our opinion, however, the scheme of s. 49 is clear. Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under s. 11 ; otherwise if the owner allows. proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under s. 49 (1) and the reference is then required to be made under the second proviso to s. 49 (1). Logically, if an enquiry has to be made as contemplated by s. 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by s. 49 (1). The said prohibition coupled with the first proviso to s. 49 (1) leads to the conclusion that the owner cannot take recourse to s. 49 after an award is made under s. 1 1 of the Act. In our opinion, therefore, the High Court did not correctly interpret the effect of s. 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award was made.18. In Krishna Das Roy v. The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under s. 49 (1), he has to make that application some time before the award is actually made.19.

1[ds]Thus, it would be seen that the scheme of s. 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by s. 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under s. 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under s. 18. That being our view, we do not think necessary to consider the respondents contention that what is acquired in the present proceedings attracts the provisions of s. 49now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council v. Narayanaswamy Chettier ((1931) I. L. R. 55 Mad. 391), the Madras High Court appears to have taken the view that there is nothing in s. 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings. Referring to s. 49 (1), Ramesam off. C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award. Cornish J., who delivered a concurrent judgment agreed with this view. It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under s. 49 on September, 29, that is to say, after the award.. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under s. 49 (1).In our opinion, however, the scheme of s. 49 is clear. Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under s. 11 ; otherwise if the owner allows. proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under s. 49 (1) and the reference is then required to be made under the second proviso to s. 49 (1). Logically, if an enquiry has to be made as contemplated by s. 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by s. 49 (1). The said prohibition coupled with the first proviso to s. 49 (1) leads to the conclusion that the owner cannot take recourse to s. 49 after an award is made under s. 1 1 of the Act. In our opinion, therefore, the High Court did not correctly interpret the effect of s. 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award wasKrishna Das Roy v. The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under s. 49 (1), he has to make that application some time before the award is actually made.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: the house under the third clause of s. 23 is excessive or unreasonable, and provides that the appropriate Government may decide to acquire the whole of the land of which the land first sought to be acquired forms a part rather than agree to pay an unreasonable or excessive amount of compensation as claimed by the owner. This provision also emphasises the fact that where land is acquired and it results in the acquisition of a part of the house connected with the land, the owner can make a claim for additional compensation under s. 23, or he may require, before the acquisition has taken place, that the whole of the house should be acquired. These are two alternative remedies available to the owner ; if he wants to avail himself of the first remedy under s. 23, he may make a claim for additional compensation in that behalf and such a claim would form the subject-matter of an enquiry under s. 18 ; if, on the other hand, he claims the other alternative remedy provided by s. 49 (1), that must form the subject-matter of another proceeding which has to be dealt with under s. 49 itself. It is true that in cases of dispute, this matter also goes to the same Court for its decision on a reference by the Collector; but though the Court is the same the proceedings taken are different and separate and must be adopted as such. A claim under s. 49 which can be properly tried by the Court on a reference made to it by the Collector under the second proviso to s. 49 (1), cannot be mixed up with a claim which can be made in reference proceedings sent to the Court under s. 18 by the Collector.15. Section 49 (3) merely dispenses with the necessity of issuing a further fresh declaration or adopting other proceedings under sections 6 to 10 in regard to cases falling under s. 49 (2).16. Thus, it would be seen that the scheme of s. 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by s. 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under s. 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under s. 18. That being our view, we do not think necessary to consider the respondents contention that what is acquired in the present proceedings attracts the provisions of s. 49 (1).17. It now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council v. Narayanaswamy Chettier ((1931) I. L. R. 55 Mad. 391), the Madras High Court appears to have taken the view that there is nothing in s. 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings. Referring to s. 49 (1), Ramesam off. C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award. Cornish J., who delivered a concurrent judgment agreed with this view. It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under s. 49 on September, 29, that is to say, after the award.. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under s. 49 (1).In our opinion, however, the scheme of s. 49 is clear. Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under s. 11 ; otherwise if the owner allows. proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under s. 49 (1) and the reference is then required to be made under the second proviso to s. 49 (1). Logically, if an enquiry has to be made as contemplated by s. 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by s. 49 (1). The said prohibition coupled with the first proviso to s. 49 (1) leads to the conclusion that the owner cannot take recourse to s. 49 after an award is made under s. 1 1 of the Act. In our opinion, therefore, the High Court did not correctly interpret the effect of s. 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award was made.18. In Krishna Das Roy v. The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under s. 49 (1), he has to make that application some time before the award is actually made.19. ### Response: 1 ### Explanation: Thus, it would be seen that the scheme of s. 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by s. 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under s. 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under s. 18. That being our view, we do not think necessary to consider the respondents contention that what is acquired in the present proceedings attracts the provisions of s. 49now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council v. Narayanaswamy Chettier ((1931) I. L. R. 55 Mad. 391), the Madras High Court appears to have taken the view that there is nothing in s. 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings. Referring to s. 49 (1), Ramesam off. C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award. Cornish J., who delivered a concurrent judgment agreed with this view. It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under s. 49 on September, 29, that is to say, after the award.. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under s. 49 (1).In our opinion, however, the scheme of s. 49 is clear. Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under s. 11 ; otherwise if the owner allows. proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under s. 49 (1) and the reference is then required to be made under the second proviso to s. 49 (1). Logically, if an enquiry has to be made as contemplated by s. 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by s. 49 (1). The said prohibition coupled with the first proviso to s. 49 (1) leads to the conclusion that the owner cannot take recourse to s. 49 after an award is made under s. 1 1 of the Act. In our opinion, therefore, the High Court did not correctly interpret the effect of s. 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award wasKrishna Das Roy v. The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under s. 49 (1), he has to make that application some time before the award is actually made.

Commissioner of Sales Tax, U.P Vs. Agra Be.L.T.Ing Works, Agra

RANGANATH MISRA, J. 1. Special leave granted. 2. Delay of six days is condoned. 3. The short question for consideration in this appeal at the instance of the Revenue is whether the High court was justified in holding that in the absence of a notification withdrawing the earlier Notification dated 25-11-1958 made in exercise of power vested under Section 4 of the U.P. Sales Tax Act, 1948, Sales, tax would not be exigible in terms of the Notification dated 1-12-1973 issued under Section 3A of that Act. 4. This notification of 1958 exempted cotton fabrics of all varieties from sales tax. It is not disputed that under it sale of patta, the goods in question on being treated as cotton fabric was exempted from sales tax. The notification of 1973 made under Section 3A of the Act prescribed sales tax of seven per cent on the sale of beltings of all kinds. There is no dispute now that patta is a kind of belting material. 5. Section 3 of the Act contains the charging provision and prescribes a uniform rate of tax on sales. Section 3A empowers the State Government to modify the rate of tax by notification. The notification of 1973 in fact prescribes a rate of tax higher than provided by Section 3. In 1958, under the notification referred to above, patta as an item of cotton fabric stood exempted from tax liability. The High Court has referred to some of its earlier decisions and has concluded thus : Thus the consistent view of this Court throughout has been that by issuing a separate notification under Section 3A, the earlier exemption granted under Section 4 of the Act cannot be negatived. If the State wanted to tax beltings of all kinds , it has to amend the general notification issued under Section 4- by deleting cotton fabric belts from the notification issued under Section 4 of the Act. 6. As has been pointed out above, Section 3 is the charging provision; Section 3 A authorises variation of the rate of tax and Section 4 provides for exemption from tax. All the three sections are parts of the taxing scheme incorporated in the Act and the power both under Section 3A as also under Section 4 is exercisable by the State Government only. When after a notification under Section 4 granting exemption from liability, a subsequent notification under Section 3A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification. As the power both for the grant of exemption and the variation of the rate of tax vests in the State Government and it is not the requirement of the statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid notification under Section 3A, we see no force in the contention of the assessee which has been upheld by the High Court. In fact, the second notification can easily be treated as a combined notification - both for withdrawal of exemption and also for providing higher tax. When power for both the operations vests in the State arid the intention to levy the tax is clear we see no justification for not giving effect to the 2nd notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues, a specific item has now been notified under Section 3A of the Act.

1[ds]6. As has been pointed out above, Section 3 is the charging provision; Section 3 A authorises variation of the rate of tax and Section 4 provides for exemption from tax. All the three sections are parts of the taxing scheme incorporated in the Act and the power both under Section 3A as also under Section 4 is exercisable by the State Government only. When after a notification under Section 4 granting exemption from liability, a subsequent notification under Section 3A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification. As the power both for the grant of exemption and the variation of the rate of tax vests in the State Government and it is not the requirement of the statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid notification under Section 3A, we see no force in the contention of the assessee which has been upheld by the High Court. In fact, the second notification can easily be treated as a combined notification - both for withdrawal of exemption and also for providing higher tax. When power for both the operations vests in the State arid the intention to levy the tax is clear we see no justification for not giving effect to the 2nd notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues, a specific item has now been notified under Section 3A of the Act.

### 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: RANGANATH MISRA, J. 1. Special leave granted. 2. Delay of six days is condoned. 3. The short question for consideration in this appeal at the instance of the Revenue is whether the High court was justified in holding that in the absence of a notification withdrawing the earlier Notification dated 25-11-1958 made in exercise of power vested under Section 4 of the U.P. Sales Tax Act, 1948, Sales, tax would not be exigible in terms of the Notification dated 1-12-1973 issued under Section 3A of that Act. 4. This notification of 1958 exempted cotton fabrics of all varieties from sales tax. It is not disputed that under it sale of patta, the goods in question on being treated as cotton fabric was exempted from sales tax. The notification of 1973 made under Section 3A of the Act prescribed sales tax of seven per cent on the sale of beltings of all kinds. There is no dispute now that patta is a kind of belting material. 5. Section 3 of the Act contains the charging provision and prescribes a uniform rate of tax on sales. Section 3A empowers the State Government to modify the rate of tax by notification. The notification of 1973 in fact prescribes a rate of tax higher than provided by Section 3. In 1958, under the notification referred to above, patta as an item of cotton fabric stood exempted from tax liability. The High Court has referred to some of its earlier decisions and has concluded thus : Thus the consistent view of this Court throughout has been that by issuing a separate notification under Section 3A, the earlier exemption granted under Section 4 of the Act cannot be negatived. If the State wanted to tax beltings of all kinds , it has to amend the general notification issued under Section 4- by deleting cotton fabric belts from the notification issued under Section 4 of the Act. 6. As has been pointed out above, Section 3 is the charging provision; Section 3 A authorises variation of the rate of tax and Section 4 provides for exemption from tax. All the three sections are parts of the taxing scheme incorporated in the Act and the power both under Section 3A as also under Section 4 is exercisable by the State Government only. When after a notification under Section 4 granting exemption from liability, a subsequent notification under Section 3A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification. As the power both for the grant of exemption and the variation of the rate of tax vests in the State Government and it is not the requirement of the statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid notification under Section 3A, we see no force in the contention of the assessee which has been upheld by the High Court. In fact, the second notification can easily be treated as a combined notification - both for withdrawal of exemption and also for providing higher tax. When power for both the operations vests in the State arid the intention to levy the tax is clear we see no justification for not giving effect to the 2nd notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues, a specific item has now been notified under Section 3A of the Act. ### Response: 1 ### Explanation: 6. As has been pointed out above, Section 3 is the charging provision; Section 3 A authorises variation of the rate of tax and Section 4 provides for exemption from tax. All the three sections are parts of the taxing scheme incorporated in the Act and the power both under Section 3A as also under Section 4 is exercisable by the State Government only. When after a notification under Section 4 granting exemption from liability, a subsequent notification under Section 3A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification. As the power both for the grant of exemption and the variation of the rate of tax vests in the State Government and it is not the requirement of the statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid notification under Section 3A, we see no force in the contention of the assessee which has been upheld by the High Court. In fact, the second notification can easily be treated as a combined notification - both for withdrawal of exemption and also for providing higher tax. When power for both the operations vests in the State arid the intention to levy the tax is clear we see no justification for not giving effect to the 2nd notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues, a specific item has now been notified under Section 3A of the Act.

Mannan Lal Vs. Mst. Chhotaka Bibi

date when the memorandum of appeal was filed alike for the purpose of Limitation Act and the Court Fees Act and the appeal must be treated as one pending on the 9th November 1962 and as such unaffected by section 3 of the U. P. Act of 1962. 18. In Wajid Ali v. Isar Bano, AIR 1951 All 64 (FB), Section 149 was interpreted as a proviso to Section 4 of the Court Fees Act in order to avoid contradiction between the two sections. The Court was however careful to lay down that discretion had to be exercised in allowing deficiency of court fees to be made good but once it was done a document was to be deemed to have been presented and received on the date on which it was originally filed. This was a case of a plaint. 19. In another Full Bench, Hari Har Prasad Singh v. Beni Chand, AIR 1951 All 79 (FB) of the same year dealing with a case of a memorandum of appeal which was found defective for want of proper court-fee and not admitted in view of S. 4 of the Court-fees Act but returned or rejected on that ground it was held that the memorandum could not be treated as an appeal. It was there observed:"If Section 4 of the Act (i. e. Court Fees Act) had stood by itself an unstamped or insufficiently stamped memorandum of appeal, chargeable with fees, could not have been received by the High Court for any purpose ....,. There is nothing in Section 149 of the Code which overrides the provisions of Section 4, Court-fees Act, it merely postpones the operation of that section for the time being. If the whole or part of the requisite court-fee is not paid within the time allowed by the Court, Section 149 of the Code ceases to have effect, and the Court is precluded from filing or recording an unstamped or insufficiently stamped memorandum of appeal in court." According to Stored, a legal proceeding is "pending" as soon as commenced and until it is concluded i. e. so long as the court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. 20. When the deficiency in the payment of court-fees is made good and the document or memorandum of appeal is to be given the force and effect which it would have had if there had been no deficiency, the appeal must be treated as pending on 12th November, 1962. In Nagendra Nath v. Suresh, AIR 1932 PC 165 which turned on the, interpretation of Article 182 (2) of the Limitation Act of 1908 as regards the validity of an appeal presented in an irregular form the Board observed that although them was no definition of appeal in Civil Procedure Code any application by a party to an appellate court asking it to set aside or revise a decision of a Subordinate Judge, is an appeal within the ordinary acceptation of the term and that it was no less an appeal because it was irregular and incompetent. 21. The words used in that Judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appeal was presented in terms of Order 41 Rule 1 of the Code inasmuch as an that this provision of law requires for an appeal to be preferred is the presentation in the form of memorandum as therein prescribed. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in the fees is made good in terms of an order of the court, it must be held that though the curing of the defect takes place on the date of the making good of the deficiency, the defect must be treated as remedied from the date of its original institution. 22. In view of the above reasons, we find ourselves unable to concur in the judgment of the High Court. In the main judgment under appeal, the reasoning appears to be that the memorandum of appeal had no effect before the making good of the deficiency and as the same took place after 12th November, 1962 the appeal was not saved by Section 3 (2) of the U. P. Act. The learned Chief Justice of the Allahabad High Court expressed the opinion that a memorandum of appeal barred by time stood on a footing different from the one in winch there was deficiency in the court-fee paid. According to him under Section 3 of the Limitation Act it is an appeal that is dismissed and not a memorandum of appeal. When therefore, Section 4 of the Court Fees Act deals with a memorandum of appeal the consideration of the laws of limitation bears no analogy to a deficiency in court-fees. With due respect we are not impressed the above reasoning. As already noted, although there is no definition of the word "appeal" in the Code of Civil Procedure, it can only be instituted by filing a memorandum of appeal. The filing of a memorandum of appeal therefore brings an appeal into existence: if the memorandum is deficient in Court-fee, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant to make up the deficiency and this opportunity is availed of Section 149 of the Code expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance. By reason of the deeming provision in Section 149 the memorandum of appeal is to have full force and effect and the appeal has to be treated as one pending from the date when it was before the Stamp Reporter and the deficiency noted therein.

1[ds]21. The words used in that Judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appeal was presented in terms of Order 41 Rule 1 of the Code inasmuch as an that this provision of law requires for an appeal to be preferred is the presentation in the form of memorandum as therein prescribed. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in the fees is made good in terms of an order of the court, it must be held that though the curing of the defect takes place on the date of the making good of the deficiency, the defect must be treated as remedied from the date of its original institution22. In view of the above reasons, we find ourselves unable to concur in the judgment of the High Court. In the main judgment under appeal, the reasoning appears to be that the memorandum of appeal had no effect before the making good of the deficiency and as the same took place after 12th November, 1962 the appeal was not saved by Section 3 (2) of the U. P. Act. The learned Chief Justice of the Allahabad High Court expressed the opinion that a memorandum of appeal barred by time stood on a footing different from the one in winch there was deficiency in the court-fee paid. According to him under Section 3 of the Limitation Act it is an appeal that is dismissed and not a memorandum of appeal. When therefore, Section 4 of the Court Fees Act deals with a memorandum of appeal the consideration of the laws of limitation bears no analogy to a deficiency in court-fees. With due respect we are not impressed the above reasoning. As already noted, although there is no definition of the word "appeal" in the Code of Civil Procedure, it can only be instituted by filing a memorandum of appeal. The filing of a memorandum of appeal therefore brings an appeal into existence: if the memorandum is deficient in Court-fee, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant to make up the deficiency and this opportunity is availed of Section 149 of the Code expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance. By reason of the deeming provision in Section 149 the memorandum of appeal is to have full force and effect and the appeal has to be treated as one pending from the date when it was before the Stamp Reporter and the deficiency noted therein17. On a parity of reasoning it is difficult to see why if a memorandum of appeal insufficiently stamped is not to be rejected as barred under the Limitation Act, why a different conclusion should flow as regards compliance with the Court Fees Act in view of the express provisions of Section 149 of the Code. In our opinion Section 149 will cure the defect as from the date when the memorandum of appeal was filed alike for the purpose of Limitation Act and the Court Fees Act and the appeal must be treated as one pending on the 9th November 1962 and as such unaffected by section 3 of the U. P. Act of 196213. In our view in considering the question as to the maintainability of an appeal when thee paid was insufficient to start with but the deficiency is made good later on the provisions of the Court. Fees Act and the code of Civil Procedure have to be read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other.

### 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: date when the memorandum of appeal was filed alike for the purpose of Limitation Act and the Court Fees Act and the appeal must be treated as one pending on the 9th November 1962 and as such unaffected by section 3 of the U. P. Act of 1962. 18. In Wajid Ali v. Isar Bano, AIR 1951 All 64 (FB), Section 149 was interpreted as a proviso to Section 4 of the Court Fees Act in order to avoid contradiction between the two sections. The Court was however careful to lay down that discretion had to be exercised in allowing deficiency of court fees to be made good but once it was done a document was to be deemed to have been presented and received on the date on which it was originally filed. This was a case of a plaint. 19. In another Full Bench, Hari Har Prasad Singh v. Beni Chand, AIR 1951 All 79 (FB) of the same year dealing with a case of a memorandum of appeal which was found defective for want of proper court-fee and not admitted in view of S. 4 of the Court-fees Act but returned or rejected on that ground it was held that the memorandum could not be treated as an appeal. It was there observed:"If Section 4 of the Act (i. e. Court Fees Act) had stood by itself an unstamped or insufficiently stamped memorandum of appeal, chargeable with fees, could not have been received by the High Court for any purpose ....,. There is nothing in Section 149 of the Code which overrides the provisions of Section 4, Court-fees Act, it merely postpones the operation of that section for the time being. If the whole or part of the requisite court-fee is not paid within the time allowed by the Court, Section 149 of the Code ceases to have effect, and the Court is precluded from filing or recording an unstamped or insufficiently stamped memorandum of appeal in court." According to Stored, a legal proceeding is "pending" as soon as commenced and until it is concluded i. e. so long as the court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. 20. When the deficiency in the payment of court-fees is made good and the document or memorandum of appeal is to be given the force and effect which it would have had if there had been no deficiency, the appeal must be treated as pending on 12th November, 1962. In Nagendra Nath v. Suresh, AIR 1932 PC 165 which turned on the, interpretation of Article 182 (2) of the Limitation Act of 1908 as regards the validity of an appeal presented in an irregular form the Board observed that although them was no definition of appeal in Civil Procedure Code any application by a party to an appellate court asking it to set aside or revise a decision of a Subordinate Judge, is an appeal within the ordinary acceptation of the term and that it was no less an appeal because it was irregular and incompetent. 21. The words used in that Judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appeal was presented in terms of Order 41 Rule 1 of the Code inasmuch as an that this provision of law requires for an appeal to be preferred is the presentation in the form of memorandum as therein prescribed. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in the fees is made good in terms of an order of the court, it must be held that though the curing of the defect takes place on the date of the making good of the deficiency, the defect must be treated as remedied from the date of its original institution. 22. In view of the above reasons, we find ourselves unable to concur in the judgment of the High Court. In the main judgment under appeal, the reasoning appears to be that the memorandum of appeal had no effect before the making good of the deficiency and as the same took place after 12th November, 1962 the appeal was not saved by Section 3 (2) of the U. P. Act. The learned Chief Justice of the Allahabad High Court expressed the opinion that a memorandum of appeal barred by time stood on a footing different from the one in winch there was deficiency in the court-fee paid. According to him under Section 3 of the Limitation Act it is an appeal that is dismissed and not a memorandum of appeal. When therefore, Section 4 of the Court Fees Act deals with a memorandum of appeal the consideration of the laws of limitation bears no analogy to a deficiency in court-fees. With due respect we are not impressed the above reasoning. As already noted, although there is no definition of the word "appeal" in the Code of Civil Procedure, it can only be instituted by filing a memorandum of appeal. The filing of a memorandum of appeal therefore brings an appeal into existence: if the memorandum is deficient in Court-fee, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant to make up the deficiency and this opportunity is availed of Section 149 of the Code expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance. By reason of the deeming provision in Section 149 the memorandum of appeal is to have full force and effect and the appeal has to be treated as one pending from the date when it was before the Stamp Reporter and the deficiency noted therein. ### Response: 1 ### Explanation: 21. The words used in that Judgment are no doubt of wide import. But however that may be in the case before us there can be no difficulty in holding that an appeal was presented in terms of Order 41 Rule 1 of the Code inasmuch as an that this provision of law requires for an appeal to be preferred is the presentation in the form of memorandum as therein prescribed. If the court fees paid thereon be insufficient it does not cease to be a memorandum of appeal although the court may reject it. If the deficiency in the fees is made good in terms of an order of the court, it must be held that though the curing of the defect takes place on the date of the making good of the deficiency, the defect must be treated as remedied from the date of its original institution22. In view of the above reasons, we find ourselves unable to concur in the judgment of the High Court. In the main judgment under appeal, the reasoning appears to be that the memorandum of appeal had no effect before the making good of the deficiency and as the same took place after 12th November, 1962 the appeal was not saved by Section 3 (2) of the U. P. Act. The learned Chief Justice of the Allahabad High Court expressed the opinion that a memorandum of appeal barred by time stood on a footing different from the one in winch there was deficiency in the court-fee paid. According to him under Section 3 of the Limitation Act it is an appeal that is dismissed and not a memorandum of appeal. When therefore, Section 4 of the Court Fees Act deals with a memorandum of appeal the consideration of the laws of limitation bears no analogy to a deficiency in court-fees. With due respect we are not impressed the above reasoning. As already noted, although there is no definition of the word "appeal" in the Code of Civil Procedure, it can only be instituted by filing a memorandum of appeal. The filing of a memorandum of appeal therefore brings an appeal into existence: if the memorandum is deficient in Court-fee, it may be rejected and if rejected, the appeal comes to an end. But if it is not rejected and time is given to the appellant to make up the deficiency and this opportunity is availed of Section 149 of the Code expressly provides that the document is to have validity with retrospective effect as if the deficiency had been made good in the first instance. By reason of the deeming provision in Section 149 the memorandum of appeal is to have full force and effect and the appeal has to be treated as one pending from the date when it was before the Stamp Reporter and the deficiency noted therein17. On a parity of reasoning it is difficult to see why if a memorandum of appeal insufficiently stamped is not to be rejected as barred under the Limitation Act, why a different conclusion should flow as regards compliance with the Court Fees Act in view of the express provisions of Section 149 of the Code. In our opinion Section 149 will cure the defect as from the date when the memorandum of appeal was filed alike for the purpose of Limitation Act and the Court Fees Act and the appeal must be treated as one pending on the 9th November 1962 and as such unaffected by section 3 of the U. P. Act of 196213. In our view in considering the question as to the maintainability of an appeal when thee paid was insufficient to start with but the deficiency is made good later on the provisions of the Court. Fees Act and the code of Civil Procedure have to be read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other.

Pradeep Anand Vs. I.T.C. Ltd.

of Court to pass interim orders—(1) Notwithstanding anything contained in Section 17 at any time after the filing of the award, whether notice of the filing has been served or not, upon being satisfied by affidavit or otherwise that a party has taken or is about to take steps to defeat, delay or obstruct the execution of any decree that may be passed upon the award, or that speedy execution of the award is just and necessary, the Court may pass such interim orders as it deems necessary.(2) Any person against whom such interim orders have been passed may show cause against such orders, and the Court, after hearing the parties, may pass such further orders as it deems necessary, and just.” These provisions, in our view show that the legislative policy is to ensure proper enforcement of an arbitration award and to assist a party who apprehends that he may face serious difficulties in execution of the award passed in his favour on account of the conduct of the other party. Be it noted here that different provisions of the Arbitration Act leaves little scope for doubt that an arbitration proceeding is to be conducted by the Arbitrator with reasonable dispatch and after the award is passed the Court should also dispose of the proceedings and decide the question whether the award should be made a Rule of Court expeditiously so that the party in whose favour the award has been passed gets the benefit of the arbitration clause. In the present case the order passed by the learned Single Judge gives rise to a converse situation. The Court has intervened to stay further proceedings in a proceeding which is continuing before the Arbitrator giving the reason inter alia that the petitioner applying for stay may be put to unnecessary expenses in defending the proceeding before the Arbitrator. As noted earlier, the respondent No. 1 herein, has initiated proceedings before the Court to direct the Arbitrator to file the Partial Award and has also filed an application under Sections 30 and 33 of the Act challenging the validity of the award and has also raised the question of validity of the agreement itself in the petition. The said proceedings are pending in the Court. The questions raised therein will be decided by the Court on merit after hearing the parties. In such circumstances, the view taken by the High Court that the Arbitrator should not proceed further in the arbitration proceeding is unnecessary, uncalled for and erroneous. The observation of the learned Single Judge that since the Arbitrator did not file the Partial Award in Court immediately on being directed by the Court the respondent No. 1 was made remediless and was ‘gagged’, is equally uncalled for and erroneous. It may be noted here that no party will be entitled to get any benefit in any final award passed by the Arbitrator until the same is made Rule of the Court and before this is done the Court is duty bound to give notice to the parties and consider objections if any raised by any of the parties against the award.11. On perusal of the judgment/order passed by the learned Single Judge, we are constrained to observe that the learned Judge travelled beyond the limited jurisdiction vested in him in deciding the question of stay and has discussed the merits of the case and made observations which may prejudice the parties of any of them in a proceeding before the Arbitrator and at subsequent stages in the proceeding before the Court.12. The judgment of the Division Bench, we are constrained to observe, suffers from similar error of approach as the learned Single Judge. Being aware of the position that the respondent No. 1 has challenged the partial award by filing objections under Sections 30, 31 and 33 of the Act and proceeding is pending before the Trial Court, the Division Bench thought it appropriate to make observations regarding the alleged misconduct of the Arbitrator in sending that draft award to the ICC International Court of Arbitration for advise and also in declining to send up the depositions and the documents to the Court on certain grounds the Division Bench appears to have lost sight of the fact that all these questions may come up for decision before the Trial Court in the proceeding under Sections 30 and 33 of the Act and parties will have opportunity to have their say in the matter. The Division Bench failed to appreciate that in the context of facts of the case it is in the interest of the parties that the arbitration proceedings should be concluded and the challenge against the draft award/final award should be decided as expeditiously as possible. The observations made by the Division Bench in the judgment are not only unnecessary but also uncalled for keeping in view the limited question that came up for consideration before it i.e. whether the further proceeding before the Arbitrator should be stayed or it should continue. Any observation touching upon the merits of the case particularly, the allegations relating to alleged misconduct of the Arbitrator at the stage of consideration of the application for interim order of stay does not commend us. It appears from the record that the respondent No. 1 has also filed an application before the Court for removal of the Arbitrator and the same is also pending. We are conscious of the position that grant of stay is a matter of discretion of the Court and if the Trial Court on consideration passes the order of stay the Appellate Court should be slow to interfere with the same. But that does not mean that if the order of stay passed by the Trial Court is based on non-judicial consideration such order is not liable to be interfered with by the Appellate Court. However, since the Division Bench held that the appeal was not maintainable we need say no further on merits of the observations/findings in the judgment.

1[ds]10. From the discussions made in the foregoing paragraphs, it is manifest that the disputes raised in the proceeding arises from and relates to thet dated 11.9.1990entered into between the parties. In the said agreement it was agreed by the parties under Article 12 that ‘any unresolvedarising in connection with this Agreement shall be settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more Arbitrators appointed in accordance with those rules and the arbitration shall be held at Bombay, India. The arbitration proceeding was initiated in pursuance of the express provision made in the agreement and the Arbitrator was appointed by the ICC under the stipulation in the agreement. On the materials on record the position has to be accepted, prima facie, that the Indian law is applicable to the proceeding. The proceeding is to be conducted and decided in accordance with the provisions of the Arbitration Act, 1940. We make it clear that our observation in this regard will not prevent any of the parties to raise the question, at the appropriate stage of the proceedings before the Court and if such contention is raised the Court will decide the same in accordance with law. The Arbitration Act, 1940 is fairly comprehensive and contains provisions from the stage of appointment of Arbitrator till the award being made Rule of the Court where after it becomes a decree of the Court and executable as such. In Section 34 of the Act power is vested in the Court to order stay of legal proceedings, where there is an arbitration agreementthe provision in the section it is clear that in case there is an arbitration agreement entered between the parties, they should ordinarily be held by their agreement and should not be permitted to initiate any legal proceeding other than arbitration proceeding relating to any dispute coming within the arbitrationprovisions, in our view show that the legislative policy is to ensure proper enforcement of an arbitration award and to assist a party who apprehends that he may face serious difficulties in execution of the award passed in his favour on account of the conduct of the other party. Be it noted here that different provisions of the Arbitration Act leaves little scope for doubt that an arbitration proceeding is to be conducted by the Arbitrator with reasonable dispatch and after the award is passed the Court should also dispose of the proceedings and decide the question whether the award should be made a Rule of Court expeditiously so that the party in whose favour the award has been passed gets the benefit of the arbitration clause. In the present case the order passed by the learned Single Judge gives rise to a converse situation. The Court has intervened to stay further proceedings in a proceeding which is continuing before the Arbitrator giving the reason inter alia that the petitioner applying for stay may be put to unnecessary expenses in defending the proceeding before the Arbitrator. As noted earlier, the respondent No. 1 herein, has initiated proceedings before the Court to direct the Arbitrator to file the Partial Award and has also filed an application under Sections 30 and 33 of the Act challenging the validity of the award and has also raised the question of validity of the agreement itself in the petition. The said proceedings are pending in the Court. The questions raised therein will be decided by the Court on merit after hearing the parties. In such circumstances, the view taken by the High Court that the Arbitrator should not proceed further in the arbitration proceeding is unnecessary, uncalled for and erroneous. The observation of the learned Single Judge that since the Arbitrator did not file the Partial Award in Court immediately on being directed by the Court the respondent No. 1 was made remediless and wasis equally uncalled for and erroneous. It may be noted here that no party will be entitled to get any benefit in any final award passed by the Arbitrator until the same is made Rule of the Court and before this is done the Court is duty bound to give notice to the parties and consider objections if any raised by any of the parties against the award.11. On perusal of the judgment/order passed by the learned Single Judge, we are constrained to observe that the learned Judge travelled beyond the limited jurisdiction vested in him in deciding the question of stay and has discussed the merits of the case and made observations which may prejudice the parties of any of them in a proceeding before the Arbitrator and at subsequent stages in the proceeding before the Court.12. The judgment of the Division Bench, we are constrained to observe, suffers from similar error of approach as the learned Single Judge. Being aware of the position that the respondent No. 1 has challenged the partial award by filing objections under Sections 30, 31 and 33 of the Act and proceeding is pending before the Trial Court, the Division Bench thought it appropriate to make observations regarding the alleged misconduct of the Arbitrator in sending that draft award to the ICC International Court of Arbitration for advise and also in declining to send up the depositions and the documents to the Court on certain grounds the Division Bench appears to have lost sight of the fact that all these questions may come up for decision before the Trial Court in the proceeding under Sections 30 and 33 of the Act and parties will have opportunity to have their say in the matter. The Division Bench failed to appreciate that in the context of facts of the case it is in the interest of the parties that the arbitration proceedings should be concluded and the challenge against the draft award/final award should be decided as expeditiously as possible. The observations made by the Division Bench in the judgment are not only unnecessary but also uncalled for keeping in view the limited question that came up for consideration before it i.e. whether the further proceeding before the Arbitrator should be stayed or it should continue. Any observation touching upon the merits of the case particularly, the allegations relating to alleged misconduct of the Arbitrator at the stage of consideration of the application for interim order of stay does not commend us. It appears from the record that the respondent No. 1 has also filed an application before the Court for removal of the Arbitrator and the same is also pending. We are conscious of the position that grant of stay is a matter of discretion of the Court and if the Trial Court on consideration passes the order of stay the Appellate Court should be slow to interfere with the same. But that does not mean that if the order of stay passed by the Trial Court is based onconsideration such order is not liable to be interfered with by the Appellate Court. However, since the Division Bench held that the appeal was not maintainable we need say no further on merits of the observations/findings in the judgment.

### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: of Court to pass interim orders—(1) Notwithstanding anything contained in Section 17 at any time after the filing of the award, whether notice of the filing has been served or not, upon being satisfied by affidavit or otherwise that a party has taken or is about to take steps to defeat, delay or obstruct the execution of any decree that may be passed upon the award, or that speedy execution of the award is just and necessary, the Court may pass such interim orders as it deems necessary.(2) Any person against whom such interim orders have been passed may show cause against such orders, and the Court, after hearing the parties, may pass such further orders as it deems necessary, and just.” These provisions, in our view show that the legislative policy is to ensure proper enforcement of an arbitration award and to assist a party who apprehends that he may face serious difficulties in execution of the award passed in his favour on account of the conduct of the other party. Be it noted here that different provisions of the Arbitration Act leaves little scope for doubt that an arbitration proceeding is to be conducted by the Arbitrator with reasonable dispatch and after the award is passed the Court should also dispose of the proceedings and decide the question whether the award should be made a Rule of Court expeditiously so that the party in whose favour the award has been passed gets the benefit of the arbitration clause. In the present case the order passed by the learned Single Judge gives rise to a converse situation. The Court has intervened to stay further proceedings in a proceeding which is continuing before the Arbitrator giving the reason inter alia that the petitioner applying for stay may be put to unnecessary expenses in defending the proceeding before the Arbitrator. As noted earlier, the respondent No. 1 herein, has initiated proceedings before the Court to direct the Arbitrator to file the Partial Award and has also filed an application under Sections 30 and 33 of the Act challenging the validity of the award and has also raised the question of validity of the agreement itself in the petition. The said proceedings are pending in the Court. The questions raised therein will be decided by the Court on merit after hearing the parties. In such circumstances, the view taken by the High Court that the Arbitrator should not proceed further in the arbitration proceeding is unnecessary, uncalled for and erroneous. The observation of the learned Single Judge that since the Arbitrator did not file the Partial Award in Court immediately on being directed by the Court the respondent No. 1 was made remediless and was ‘gagged’, is equally uncalled for and erroneous. It may be noted here that no party will be entitled to get any benefit in any final award passed by the Arbitrator until the same is made Rule of the Court and before this is done the Court is duty bound to give notice to the parties and consider objections if any raised by any of the parties against the award.11. On perusal of the judgment/order passed by the learned Single Judge, we are constrained to observe that the learned Judge travelled beyond the limited jurisdiction vested in him in deciding the question of stay and has discussed the merits of the case and made observations which may prejudice the parties of any of them in a proceeding before the Arbitrator and at subsequent stages in the proceeding before the Court.12. The judgment of the Division Bench, we are constrained to observe, suffers from similar error of approach as the learned Single Judge. Being aware of the position that the respondent No. 1 has challenged the partial award by filing objections under Sections 30, 31 and 33 of the Act and proceeding is pending before the Trial Court, the Division Bench thought it appropriate to make observations regarding the alleged misconduct of the Arbitrator in sending that draft award to the ICC International Court of Arbitration for advise and also in declining to send up the depositions and the documents to the Court on certain grounds the Division Bench appears to have lost sight of the fact that all these questions may come up for decision before the Trial Court in the proceeding under Sections 30 and 33 of the Act and parties will have opportunity to have their say in the matter. The Division Bench failed to appreciate that in the context of facts of the case it is in the interest of the parties that the arbitration proceedings should be concluded and the challenge against the draft award/final award should be decided as expeditiously as possible. The observations made by the Division Bench in the judgment are not only unnecessary but also uncalled for keeping in view the limited question that came up for consideration before it i.e. whether the further proceeding before the Arbitrator should be stayed or it should continue. Any observation touching upon the merits of the case particularly, the allegations relating to alleged misconduct of the Arbitrator at the stage of consideration of the application for interim order of stay does not commend us. It appears from the record that the respondent No. 1 has also filed an application before the Court for removal of the Arbitrator and the same is also pending. We are conscious of the position that grant of stay is a matter of discretion of the Court and if the Trial Court on consideration passes the order of stay the Appellate Court should be slow to interfere with the same. But that does not mean that if the order of stay passed by the Trial Court is based on non-judicial consideration such order is not liable to be interfered with by the Appellate Court. However, since the Division Bench held that the appeal was not maintainable we need say no further on merits of the observations/findings in the judgment. ### Response: 1 ### Explanation: and if such contention is raised the Court will decide the same in accordance with law. The Arbitration Act, 1940 is fairly comprehensive and contains provisions from the stage of appointment of Arbitrator till the award being made Rule of the Court where after it becomes a decree of the Court and executable as such. In Section 34 of the Act power is vested in the Court to order stay of legal proceedings, where there is an arbitration agreementthe provision in the section it is clear that in case there is an arbitration agreement entered between the parties, they should ordinarily be held by their agreement and should not be permitted to initiate any legal proceeding other than arbitration proceeding relating to any dispute coming within the arbitrationprovisions, in our view show that the legislative policy is to ensure proper enforcement of an arbitration award and to assist a party who apprehends that he may face serious difficulties in execution of the award passed in his favour on account of the conduct of the other party. Be it noted here that different provisions of the Arbitration Act leaves little scope for doubt that an arbitration proceeding is to be conducted by the Arbitrator with reasonable dispatch and after the award is passed the Court should also dispose of the proceedings and decide the question whether the award should be made a Rule of Court expeditiously so that the party in whose favour the award has been passed gets the benefit of the arbitration clause. In the present case the order passed by the learned Single Judge gives rise to a converse situation. The Court has intervened to stay further proceedings in a proceeding which is continuing before the Arbitrator giving the reason inter alia that the petitioner applying for stay may be put to unnecessary expenses in defending the proceeding before the Arbitrator. As noted earlier, the respondent No. 1 herein, has initiated proceedings before the Court to direct the Arbitrator to file the Partial Award and has also filed an application under Sections 30 and 33 of the Act challenging the validity of the award and has also raised the question of validity of the agreement itself in the petition. The said proceedings are pending in the Court. The questions raised therein will be decided by the Court on merit after hearing the parties. In such circumstances, the view taken by the High Court that the Arbitrator should not proceed further in the arbitration proceeding is unnecessary, uncalled for and erroneous. The observation of the learned Single Judge that since the Arbitrator did not file the Partial Award in Court immediately on being directed by the Court the respondent No. 1 was made remediless and wasis equally uncalled for and erroneous. It may be noted here that no party will be entitled to get any benefit in any final award passed by the Arbitrator until the same is made Rule of the Court and before this is done the Court is duty bound to give notice to the parties and consider objections if any raised by any of the parties against the award.11. On perusal of the judgment/order passed by the learned Single Judge, we are constrained to observe that the learned Judge travelled beyond the limited jurisdiction vested in him in deciding the question of stay and has discussed the merits of the case and made observations which may prejudice the parties of any of them in a proceeding before the Arbitrator and at subsequent stages in the proceeding before the Court.12. The judgment of the Division Bench, we are constrained to observe, suffers from similar error of approach as the learned Single Judge. Being aware of the position that the respondent No. 1 has challenged the partial award by filing objections under Sections 30, 31 and 33 of the Act and proceeding is pending before the Trial Court, the Division Bench thought it appropriate to make observations regarding the alleged misconduct of the Arbitrator in sending that draft award to the ICC International Court of Arbitration for advise and also in declining to send up the depositions and the documents to the Court on certain grounds the Division Bench appears to have lost sight of the fact that all these questions may come up for decision before the Trial Court in the proceeding under Sections 30 and 33 of the Act and parties will have opportunity to have their say in the matter. The Division Bench failed to appreciate that in the context of facts of the case it is in the interest of the parties that the arbitration proceedings should be concluded and the challenge against the draft award/final award should be decided as expeditiously as possible. The observations made by the Division Bench in the judgment are not only unnecessary but also uncalled for keeping in view the limited question that came up for consideration before it i.e. whether the further proceeding before the Arbitrator should be stayed or it should continue. Any observation touching upon the merits of the case particularly, the allegations relating to alleged misconduct of the Arbitrator at the stage of consideration of the application for interim order of stay does not commend us. It appears from the record that the respondent No. 1 has also filed an application before the Court for removal of the Arbitrator and the same is also pending. We are conscious of the position that grant of stay is a matter of discretion of the Court and if the Trial Court on consideration passes the order of stay the Appellate Court should be slow to interfere with the same. But that does not mean that if the order of stay passed by the Trial Court is based onconsideration such order is not liable to be interfered with by the Appellate Court. However, since the Division Bench held that the appeal was not maintainable we need say no further on merits of the observations/findings in the judgment.

Raghunandan Singh and Others Vs. Brij Mohan Singh and Others

FAZAL ALI, J.1. This appeal by certificate is directed against a judgment of the Allahabad High Court, which dismissed the writ petition filed by the appellants in limine. We have heard learned counsel for the parties at great length. The only point for determination in the present appeal is whether the case of the parties is governed by section 12 or section 13 of the U.P. Zamindari Abolition and Land Reforms Act 1950 (Act I of 1950) (hereinafter called the Act). The facts in dispute and that so far as the appellants are concerned, they were originally the zamindars of the lands in dispute and they granted Thekas to the respondents first on the 10th of July, 1933 and then on the 24th May, 1943. The interpretation of the terms of the Theka would determine the question of the status of the appellants.2. Shri Shiv Pujan Singh, appearing for the appellants, submitted that as the Theka granted by the Zamindars was not made with the lessees only for the purposes of personal cultivation of the lands the respondents would not fall within the ambit of Section 12 of the Act. On the other hand, it was argue d or the respondents that as they were in cultivating possession of the lands in question, they had acquired the status of hereditary tenants conferred on them by section 12 of the Act and they are not Assamis contemplated by section 13 of the Act. Although the appellants succeeded before the Settlement officer (Consolidation) the Deputy Director of Consolidation held in revision that the appellants were Bhoomidars and the respondents could not get any status under section 12 of the Act.3. In order to decide this question, we have to determine the scope and ambit of Section 12 of the Act."12. Thekedars to be hereditary tenants in certain circumstances-(1) Where any land was in the personal cultivation of a person on the 1st day of May, 1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then notwithstanding anything in any law, document or order of court, he shall be deemed to be a hereditary tenant thereof entited to hold, and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates."An analysis of this section would show that before a person can be held to be a hereditary tenant under the section, the following conditions must be fulfilled:-1. He must be in possession of the land in dispute on the 1st of May, 1950.2. His possession must be under a Theka.3. The Theka must be for the purpose of personal cultivation of the lands in dispute by that person (emphasis supplied) and not for other purposes. The dominant intention of the statute, as of other land reforms legislation, is to secure land for the tiller of the soil who alone would be clothed with the special rights of a hereditary tenant.It is, therefore, manifest that only if the above three conditions are fulfilled, would the Thekedars get the status of hereditary tenants and not otherwise. This section was interpreted by a decision of this Court in Babu Noorul Hasan Khan (Dead) by Lrs. v. Ram Prasad Singh and Others(1) where this Court observed as follows:-"If such a land was in the personal cultivation of a person on the 1st of May, 1950 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedar personally then because of the non- obstante clause occurring in sub-section(1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent on hereditary rates. If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere assami in accordance with section 13(2) (a) of the Act."4. The facts of the case before us are similar to the facts of the present case and the decision of the court is therefore directly in poi nt.A perusal of para 1 of the Theka executed on the 10th of July 1933 in favour of the Thekedars clearly shows that the lease-holders were to remain in possession of the entire agricultural land either through themselves or by arranging wit h temporary tenants and by recovering government revenue. The other Theka which was executed on 24-5-43 was almost in the same terms and clause(1) provide that the lease-holders will remain in possession of the agricultural land as lease- holders themselves and may appoint temporary tenants by receiving the government revenue.5. Thus, the terms of the Theka, do not spell out the fact that the respondents had taken the lease for the purpose of personal cultivation only because other purposes al so are indicated as part of the Theka viz. to sublet the land or to appoint temporary tenants and the like.In these circumstances, the condition required by section 12 are clearly not fulfilled in the case of the respondents.6. Mr. Singh appearing for the respondents relied on a decision of the Allahabad High Court in Rani Dullaiya &Anr. v. Ganga Prasad (1) where it was held that although the Theka may be for some other purpose also, but if it was also for personal cultivation section 12 of the Act would apply to the Thekedars. With due respect, we are of the opinion that the view taken by the Allahabad High Court is in direct conflict with the decision of this Court referred to above and it must, therefore, be held to be incorrect.7.

1[ds]The facts of the case before us are similar to the facts of the present case and the decision of the court is therefore directly in poi nt.A perusal of para 1 of the Theka executed on the 10th of July 1933 in favour of the Thekedars clearly shows that the lease-holders were to remain in possession of the entire agricultural land either through themselves or by arranging wit h temporary tenants and by recovering government revenue. The other Theka which was executed on 24-5-43 was almost in the same terms and clause(1) provide that the lease-holders will remain in possession of the agricultural land as lease- holders themselves and may appoint temporary tenants by receiving the governmentthe terms of the Theka, do not spell out the fact that the respondents had taken the lease for the purpose of personal cultivation only because other purposes al so are indicated as part of the Theka viz. to sublet the land or to appoint temporary tenants and the like.In these circumstances, the condition required by section 12 are clearly not fulfilled in the case of the respondents.With due respect, we are of the opinion that the view taken by the Allahabad High Court is in direct conflict with the decision of this Court referred to above and it must, therefore, be held to be incorrect.

### 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: FAZAL ALI, J.1. This appeal by certificate is directed against a judgment of the Allahabad High Court, which dismissed the writ petition filed by the appellants in limine. We have heard learned counsel for the parties at great length. The only point for determination in the present appeal is whether the case of the parties is governed by section 12 or section 13 of the U.P. Zamindari Abolition and Land Reforms Act 1950 (Act I of 1950) (hereinafter called the Act). The facts in dispute and that so far as the appellants are concerned, they were originally the zamindars of the lands in dispute and they granted Thekas to the respondents first on the 10th of July, 1933 and then on the 24th May, 1943. The interpretation of the terms of the Theka would determine the question of the status of the appellants.2. Shri Shiv Pujan Singh, appearing for the appellants, submitted that as the Theka granted by the Zamindars was not made with the lessees only for the purposes of personal cultivation of the lands the respondents would not fall within the ambit of Section 12 of the Act. On the other hand, it was argue d or the respondents that as they were in cultivating possession of the lands in question, they had acquired the status of hereditary tenants conferred on them by section 12 of the Act and they are not Assamis contemplated by section 13 of the Act. Although the appellants succeeded before the Settlement officer (Consolidation) the Deputy Director of Consolidation held in revision that the appellants were Bhoomidars and the respondents could not get any status under section 12 of the Act.3. In order to decide this question, we have to determine the scope and ambit of Section 12 of the Act."12. Thekedars to be hereditary tenants in certain circumstances-(1) Where any land was in the personal cultivation of a person on the 1st day of May, 1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then notwithstanding anything in any law, document or order of court, he shall be deemed to be a hereditary tenant thereof entited to hold, and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates."An analysis of this section would show that before a person can be held to be a hereditary tenant under the section, the following conditions must be fulfilled:-1. He must be in possession of the land in dispute on the 1st of May, 1950.2. His possession must be under a Theka.3. The Theka must be for the purpose of personal cultivation of the lands in dispute by that person (emphasis supplied) and not for other purposes. The dominant intention of the statute, as of other land reforms legislation, is to secure land for the tiller of the soil who alone would be clothed with the special rights of a hereditary tenant.It is, therefore, manifest that only if the above three conditions are fulfilled, would the Thekedars get the status of hereditary tenants and not otherwise. This section was interpreted by a decision of this Court in Babu Noorul Hasan Khan (Dead) by Lrs. v. Ram Prasad Singh and Others(1) where this Court observed as follows:-"If such a land was in the personal cultivation of a person on the 1st of May, 1950 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedar personally then because of the non- obstante clause occurring in sub-section(1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent on hereditary rates. If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere assami in accordance with section 13(2) (a) of the Act."4. The facts of the case before us are similar to the facts of the present case and the decision of the court is therefore directly in poi nt.A perusal of para 1 of the Theka executed on the 10th of July 1933 in favour of the Thekedars clearly shows that the lease-holders were to remain in possession of the entire agricultural land either through themselves or by arranging wit h temporary tenants and by recovering government revenue. The other Theka which was executed on 24-5-43 was almost in the same terms and clause(1) provide that the lease-holders will remain in possession of the agricultural land as lease- holders themselves and may appoint temporary tenants by receiving the government revenue.5. Thus, the terms of the Theka, do not spell out the fact that the respondents had taken the lease for the purpose of personal cultivation only because other purposes al so are indicated as part of the Theka viz. to sublet the land or to appoint temporary tenants and the like.In these circumstances, the condition required by section 12 are clearly not fulfilled in the case of the respondents.6. Mr. Singh appearing for the respondents relied on a decision of the Allahabad High Court in Rani Dullaiya &Anr. v. Ganga Prasad (1) where it was held that although the Theka may be for some other purpose also, but if it was also for personal cultivation section 12 of the Act would apply to the Thekedars. With due respect, we are of the opinion that the view taken by the Allahabad High Court is in direct conflict with the decision of this Court referred to above and it must, therefore, be held to be incorrect.7. ### Response: 1 ### Explanation: The facts of the case before us are similar to the facts of the present case and the decision of the court is therefore directly in poi nt.A perusal of para 1 of the Theka executed on the 10th of July 1933 in favour of the Thekedars clearly shows that the lease-holders were to remain in possession of the entire agricultural land either through themselves or by arranging wit h temporary tenants and by recovering government revenue. The other Theka which was executed on 24-5-43 was almost in the same terms and clause(1) provide that the lease-holders will remain in possession of the agricultural land as lease- holders themselves and may appoint temporary tenants by receiving the governmentthe terms of the Theka, do not spell out the fact that the respondents had taken the lease for the purpose of personal cultivation only because other purposes al so are indicated as part of the Theka viz. to sublet the land or to appoint temporary tenants and the like.In these circumstances, the condition required by section 12 are clearly not fulfilled in the case of the respondents.With due respect, we are of the opinion that the view taken by the Allahabad High Court is in direct conflict with the decision of this Court referred to above and it must, therefore, be held to be incorrect.

Nagarplaika Thakurdwara Vs. Khalil Ahmed

were very much within the municipal limits of the Nagar Palika and the said fact was also known to the respondents as respondent no.1 had also contested an election for being a President of the appellant Nagar Palika. Moreover, it was also the case of the appellant that the suit was not maintainable in view of the provisions of Sections 143 and 160 of the Act.5. The said suit was dismissed and therefore, the respondents preferred first appeal, being Civil Appeal No.30 of 2008, before the Court of Additional District Judge, Moradabad, which was allowed by a judgment dated 19.7.2011.6. Being aggrieved by the aforesaid judgment dated 19.7.2011, the appellant filed Second Appeal No.781 of 2011, which has been dismissed by the High Court by virtue of impugned judgment and therefore, this appeal has been filed by the appellant.7. The short reason for which the appeal filed by the appellant has been dismissed by the High Court is that the claim in the second appeal was less than Rs.25,000/- and by virtue of the provisions of Section 102 of the Code of Civil Procedure, 1908, no second appeal would lie from any decree when the subject matter of the original suit is for recovery of money not exceeding Rs.25,000/-.8. The learned counsel appearing for the appellant submitted that the High Court committed an error by not considering the fact that the suit had been filed seeking permanent injunction, praying that the appellant Nagar Palika should be restrained from recovering any tax under the Act from the respondents as the properties belonging to the respondents were situated beyond the municipal limits of the appellant Nagar Palika.9. The learned counsel further submitted that the High Court only considered the amount of tax which was payable at the relevant time, which was only Rs.11,006.07, but ignored the fact that the suit was also for a declaration to the effect that the properties of the respondents were not within the municipal limits of the Nagar Palika and therefore, no tax could have been levied thereon by the appellant. Thus, the suit was not only for recovery of money, but was also for a declaration and permanent injunction. Moreover, it was also submitted that the suit itself was not maintainable in view of the provisions of Sections 140 and 163 of the Act and therefore, the appeal could not have been allowed by the first appellate court.10. On the other hand, the learned counsel appearing for the respondents submitted that the impugned judgment is just, legal and proper for the reason that by virtue of the second appeal filed by the appellant, the appellant wanted to recover only a sum of Rs.11,006.07 by way of tax from the respondents. The learned counsel, therefore, submitted that the second appeal deserved to be dismissed.11. Upon hearing the learned counsel and looking at the facts of the case and in the light of the legal provisions, we are of the view that the High Court ought not to have dismissed the second appeal.12. Section 102 of the Code of Civil Procedure, 1908, reads as under :“102. No second appeal in certain cases. –No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees”.13. In the instant case, the suit was not only for recovery of money, but it was for a declaration and permanent injunction. Moreover, the issue with regard to location of the properties in question had to be decided. It was to be ascertained whether the properties were situated within the municipal limits of the Nagar Palika and if so, whether the appellant was entitled to levy tax thereon under the provisions of the Act. If the properties were not within the municipal limits of the appellant Nagar Palika, the appellant could have been permanently restrained from recovering any tax under the Act in respect of the properties in question. Thus, several other issues were also to be decided in the said suit. It is also pertinent to note that the maintainability of the suit was also challenged by the appellant in view of the provisions of the Act.14. The purpose behind enactment of Section 102 of the CPC is to reduce the quantum of litigation so that courts may not have to waste time where the stakes are very meagre and not of much consequence. In the instant case, though apparently the amount which was sought to be recovered was Rs.11,006.07, looking at the prayer made in the plaint, the consequences of the final outcome of the litigation would be far-reaching.15. So as to avail advantage of the provisions of Section 102 of the CPC, the subject matter of the original suit should be only recovery of money and that too, not exceeding Rs.25,000/-. If the subject matter of the suit is anything other than recovery of money or something more than recovery of money, provisions of Section 102 of the CPC cannot be invoked.16. In the instant case, the original suit was not only for recovery of money, but was also for a declaration and permanent injunction. In view of the aforestated fact, the provisions of Section 102 of the CPC could not have been applied.17. In the circumstances, we set aside the impugned judgment and remit the matter to the High Court so that the Second Appeal can be decided afresh after hearing the parties concerned.18. As the suit was filed in the year 1994 and possibly no tax might have been recovered by the appellant till now, we feel that the second appeal should be decided at an early date. The parties to the litigation shall appear before the High Court on 17.10.2016 and the High Court is requested to fix the date for final hearing of the second appeal so that the appeal can be finally decided preferably within six months from the date of receipt of a copy of this judgment by the High Court.

1[ds]14. The purpose behind enactment of Section 102 of the CPC is to reduce the quantum of litigation so that courts may not have to waste time where the stakes are very meagre and not of much consequence. In the instant case, though apparently the amount which was sought to be recovered was Rs.11,006.07, looking at the prayer made in the plaint, the consequences of the final outcome of the litigation would be far-reaching.15. So as to avail advantage of the provisions of Section 102 of the CPC, the subject matter of the original suit should be only recovery of money and that too, not exceeding Rs.25,000/-. If the subject matter of the suit is anything other than recovery of money or something more than recovery of money, provisions of Section 102 of the CPC cannot be invoked.16. In the instant case, the original suit was not only for recovery of money, but was also for a declaration and permanent injunction. In view of the aforestated fact, the provisions of Section 102 of the CPC could not have been applied.17. In the circumstances, we set aside the impugned judgment and remit the matter to the High Court so that the Second Appeal can be decided afresh after hearing the parties concerned.18. As the suit was filed in the year 1994 and possibly no tax might have been recovered by the appellant till now, we feel that the second appeal should be decided at an early date. The parties to the litigation shall appear before the High Court on 17.10.2016 and the High Court is requested to fix the date for final hearing of the second appeal so that the appeal can be finally decided preferably within six months from the date of receipt of a copy of this judgment by the High Court.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: were very much within the municipal limits of the Nagar Palika and the said fact was also known to the respondents as respondent no.1 had also contested an election for being a President of the appellant Nagar Palika. Moreover, it was also the case of the appellant that the suit was not maintainable in view of the provisions of Sections 143 and 160 of the Act.5. The said suit was dismissed and therefore, the respondents preferred first appeal, being Civil Appeal No.30 of 2008, before the Court of Additional District Judge, Moradabad, which was allowed by a judgment dated 19.7.2011.6. Being aggrieved by the aforesaid judgment dated 19.7.2011, the appellant filed Second Appeal No.781 of 2011, which has been dismissed by the High Court by virtue of impugned judgment and therefore, this appeal has been filed by the appellant.7. The short reason for which the appeal filed by the appellant has been dismissed by the High Court is that the claim in the second appeal was less than Rs.25,000/- and by virtue of the provisions of Section 102 of the Code of Civil Procedure, 1908, no second appeal would lie from any decree when the subject matter of the original suit is for recovery of money not exceeding Rs.25,000/-.8. The learned counsel appearing for the appellant submitted that the High Court committed an error by not considering the fact that the suit had been filed seeking permanent injunction, praying that the appellant Nagar Palika should be restrained from recovering any tax under the Act from the respondents as the properties belonging to the respondents were situated beyond the municipal limits of the appellant Nagar Palika.9. The learned counsel further submitted that the High Court only considered the amount of tax which was payable at the relevant time, which was only Rs.11,006.07, but ignored the fact that the suit was also for a declaration to the effect that the properties of the respondents were not within the municipal limits of the Nagar Palika and therefore, no tax could have been levied thereon by the appellant. Thus, the suit was not only for recovery of money, but was also for a declaration and permanent injunction. Moreover, it was also submitted that the suit itself was not maintainable in view of the provisions of Sections 140 and 163 of the Act and therefore, the appeal could not have been allowed by the first appellate court.10. On the other hand, the learned counsel appearing for the respondents submitted that the impugned judgment is just, legal and proper for the reason that by virtue of the second appeal filed by the appellant, the appellant wanted to recover only a sum of Rs.11,006.07 by way of tax from the respondents. The learned counsel, therefore, submitted that the second appeal deserved to be dismissed.11. Upon hearing the learned counsel and looking at the facts of the case and in the light of the legal provisions, we are of the view that the High Court ought not to have dismissed the second appeal.12. Section 102 of the Code of Civil Procedure, 1908, reads as under :“102. No second appeal in certain cases. –No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees”.13. In the instant case, the suit was not only for recovery of money, but it was for a declaration and permanent injunction. Moreover, the issue with regard to location of the properties in question had to be decided. It was to be ascertained whether the properties were situated within the municipal limits of the Nagar Palika and if so, whether the appellant was entitled to levy tax thereon under the provisions of the Act. If the properties were not within the municipal limits of the appellant Nagar Palika, the appellant could have been permanently restrained from recovering any tax under the Act in respect of the properties in question. Thus, several other issues were also to be decided in the said suit. It is also pertinent to note that the maintainability of the suit was also challenged by the appellant in view of the provisions of the Act.14. The purpose behind enactment of Section 102 of the CPC is to reduce the quantum of litigation so that courts may not have to waste time where the stakes are very meagre and not of much consequence. In the instant case, though apparently the amount which was sought to be recovered was Rs.11,006.07, looking at the prayer made in the plaint, the consequences of the final outcome of the litigation would be far-reaching.15. So as to avail advantage of the provisions of Section 102 of the CPC, the subject matter of the original suit should be only recovery of money and that too, not exceeding Rs.25,000/-. If the subject matter of the suit is anything other than recovery of money or something more than recovery of money, provisions of Section 102 of the CPC cannot be invoked.16. In the instant case, the original suit was not only for recovery of money, but was also for a declaration and permanent injunction. In view of the aforestated fact, the provisions of Section 102 of the CPC could not have been applied.17. In the circumstances, we set aside the impugned judgment and remit the matter to the High Court so that the Second Appeal can be decided afresh after hearing the parties concerned.18. As the suit was filed in the year 1994 and possibly no tax might have been recovered by the appellant till now, we feel that the second appeal should be decided at an early date. The parties to the litigation shall appear before the High Court on 17.10.2016 and the High Court is requested to fix the date for final hearing of the second appeal so that the appeal can be finally decided preferably within six months from the date of receipt of a copy of this judgment by the High Court. ### Response: 1 ### Explanation: 14. The purpose behind enactment of Section 102 of the CPC is to reduce the quantum of litigation so that courts may not have to waste time where the stakes are very meagre and not of much consequence. In the instant case, though apparently the amount which was sought to be recovered was Rs.11,006.07, looking at the prayer made in the plaint, the consequences of the final outcome of the litigation would be far-reaching.15. So as to avail advantage of the provisions of Section 102 of the CPC, the subject matter of the original suit should be only recovery of money and that too, not exceeding Rs.25,000/-. If the subject matter of the suit is anything other than recovery of money or something more than recovery of money, provisions of Section 102 of the CPC cannot be invoked.16. In the instant case, the original suit was not only for recovery of money, but was also for a declaration and permanent injunction. In view of the aforestated fact, the provisions of Section 102 of the CPC could not have been applied.17. In the circumstances, we set aside the impugned judgment and remit the matter to the High Court so that the Second Appeal can be decided afresh after hearing the parties concerned.18. As the suit was filed in the year 1994 and possibly no tax might have been recovered by the appellant till now, we feel that the second appeal should be decided at an early date. The parties to the litigation shall appear before the High Court on 17.10.2016 and the High Court is requested to fix the date for final hearing of the second appeal so that the appeal can be finally decided preferably within six months from the date of receipt of a copy of this judgment by the High Court.

Pandit Shree Krishna Selot Vs. Ramcharan Pujari

election was materially affected so far as it concerned the appellant. On issue No. 8(e) the appellant examined Nanhe (P.W. 33), Puttobai (P.W. 34), Mst. Parvatibai (P.W. 37) and Nanda (P.W. 38) who all stated that Laxman Namdeo had induced them to vote for the Jan Sangh candidate inside the polling booth. The High Court found the evidence of these witnesses to be unreliable. Mr. Rameshwar Nath took us through the evidence of these witnesses and we see no reason to differ from the view taken by the High Court on this point.7. With regard to issue No. 4, Mr. Rameshwar Nath confined his argument to the meeting of 16th February, 1967 held at village Bara. The allegation of the appellant is that the respondent and Kunjansingh had addressed a meeting in the market at Bara on 16-2-1967 and distributed the hand-bills similar to Ex. P. 1 there. It is admitted by the respondent that he had addressed the meeting. But he denied having made any appeal on the ground of religion and has denied that the hand-bill Ex. P. 1 had been distributed there. The appellant examined five witnesses, Balmakund (P.W. 18), Ghasiram (P.W. 19). Jagannath Prasad Jain (P. W. 20), Motilal (P.W. 21) and Nathulal (P.W. 22), in support of his case on this point. Except Jagannath Prasad all other witnesses said that in the speech delivered by the respondent it was stated that "to cast one vote in favour of Congress was committing the sin of killing a cow". The High Court has held that no such allegation was made in the election petition, and so, the evidence of P.Ws. 18, 19, 21 and 22 on this point could not be believed. As regards the distribution of hand-bills, the oral evidence is conflicting to some extent. P.W. 19 and P.W. 21 said that after Ramcharan Pujari and Kunjansingh addressed the meeting, hand-bills similar to Ex.P. 1 were distributed by the appellant. Jagannath Prasad (P.W. 20) did not say anything about the distribution of any hand-bills. Balmukand (P.W. 18) said that Ramcharan Pujari addressed the meeting but the distribution of hand-bills was made by both the respondent and Kunjansingh. Nathulal (P. W. 21) said that only respondent had addressed the meeting and he only distributed the hand-bills. In rebuttal of the evidence, Ramcharan Pujari examined himself and one more witness Hazarilal Tamrakar (R.W. 4). On scrutiny of the evidence given by both the parties in the case, the High Court has reached the conclusion that the evidence given on behalf of the appellant was not credible and there was no proof that on 16-2-1967 the respondent made any appeal on the ground of religion in the meeting held at Bara market. The High Court further held that the distribution of hand-bills similar to Ex.P. 1 was not established. We see no reason to differ from the finding of the High Court.But even on the assumption that the evidence adduced by the appellant is true, the case will not fall within the mischief of Section 123(2)(a)(ii) and (b) of the Act, which read as follows :"123. The following shall be deemed to be corrupt practices for the purposes of this Act :X X X X XX X X X XX X X X X(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his election agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right :Provided that -(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -X X X X X(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause".8. According to the appellants evidence the respondent said at the meeting "Congress Government slaughters the cows. She spoils the culture of Hindu religion. Hindu religion cannot be protected by Congress". "If one vote is cast for Congress, it is equal to slaughter of a cow". (See the evidence of P.W. 18, Balmakund). In Ex.P. 1, it is said that "Congress wants to continue the slaughter of bullocks". It is not the allegation of the appellant that the respondent said that "the voters will commit the sin of cows-slaughter if they vote for Congress". On the contrary the allegation is that the Congress Party was out to kill the bullocks and cows. The leaflet Ex.P. 1 is levelled against the Congress Party, and there is no invocation of divine displeasure upon the voters who chose to vote for the Congress Party. It follows that the case does not fall within the definition of "undue influence" under Section 123(2)(a)(ii) of the Act. Mr. Rameshwar Nath referred to the decision of this Court in Narbada Prasad v. Chhagan Lal & Others where it was held that the statement "if the voters voted for the Congress Party they would be committing the sin of go-hatya", was tantamount to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure within the meaning of Section 123(2)(a)(ii) of the Act. As we have already pointed out, the alleged statement of the respondent in the present case is different and the principle laid down by this Court in Narbada Prasads case (supra) is not applicable. We hold that issue No. 4 was rightly answered against the appellant.

0[ds]As regards Issue No. 12, two witnesses Ram Singh (P.W. 41) and Dhokal (P.W. 42) were examined on behalf of the appellants. Ramsingh deposed that in the last election he worked as a poling agent of the appellant at Kharmau polling station. The respondent had given him Rs. 35/- two or three days before the date of the polling. The respondent had told him at that time that he should secure the votes of his acquaintances for him without any payment. If he could not succeed in such an attempt, then he should pay Re. 1/- to each voter and get his vote polled for the respondent. In cross-examination, Ramsingh admitted that he had not rendered any account of Rs. 35/- which he had received from Ramcharan Pujari, Dhokal (P.W. 42) said that he received Re. 1/- from Ramsingh to vote for the respondent and his wife had also received Re. 1/- from Ramsingh. In cross-examination he admitted that Ramsingh straight away told him that he should vote for "Deepak" and gave Re. 1/- each to him and to his wife. According to Dhokal, no attempt was at all made by Ramsingh to persuade him to vote for Ramcharan Pujari without any payment. It is manifest that both Ramsingh and Dhokal are participants in an illegal act and therefore unless there is some independent corroboration of their evidence it is not possible to place reliance thereon. No such corroborative evidence was produced in this case on behalf of the appellant. The High Court was not hence prepared to accept the statement of either Ramsingh or Dhokal as truthful. We see no reason to differ from the High Court in its estimate regarding the credibility of the two witnesses. We hold that Issue No. 12 was rightly decided by the High Court against the appellant.appellant.5. As regards Issue No. 5, the appellant has examined G.S. Chhina (P.W. 29), S. O. Baratha, Sukhdin (P.W. 44), Jamuna Pradas (P.W. 45) and Bandolal (P.W. 50). The evidence of G.S. Chhina (P.W. 29) is to the effect that the respondent had convened a meeting in the Jain Temple at Baratha and his workers Khubchand (P.W. 11) and Dr. Deepchand (P.W. 12) were present at the meeting. Khubchand told the meeting that member of the Jain Community should vote for the Jan Sangh candidate and not for the Congress candidate as the Congress was not preventing the slaughter of cows which was against the principle of Ahimsa. It is alleged that after the said appeal the Jain voters were asked to take oath to vote for the Jan Sangh candidate and not for the Congress candidate. The High Court has disbelieved the evidence of G.S. Chhina (P.W. 29) holding that there was no adequate reason why the witness should go to Jain Temple on that day for purpose of attending the meeting. As regards Sukhdin (P.W. 44) and Jamuna Prasad (P.W. 45), the High Court observed that the story of the oath being taken by the Jain voters was not mentioned in the election petition and was a subsequent development. Jamuna Prasad (P.W. 45) referred in support of his evidence to a letter Ex.P. 12 said to have been written on 16-2-1967 by the witness to his relation Bandolal (P.W. 50). The High Court has held that Ex.P. 12 was concocted subsequently for the purpose of this case and that the evidence of Jamuna Prasad (P.W. 45) and Bandolal (P.W. 50) as regard Ex.P. 12 was false. Mr. Rameshwar Nath read the contents of the original letter Ex.P. 12 during the course of the hearing. The language of the letter suggest that it was carefully drafted after taking legal advice and could not have been written in the normal course of Jamuna Prasad (P.W. 45). In our opinion, the High Court has taken a correct view of the evidence and this issue must be answered against the appellant.6. With regard to issue No. 8, the finding of the High Court is that Laxman Ramdeo, Presiding Officer, was an old associate of the respondent and was detained along with him in jail about the year 1947-48. The High Court further held that an oral warning was given to Laxman Ramdeo not to campaign for Jan Sangh candidate. As regards the change of the polling booth, the High Court has found that the place of polling booth at Mudari Bujurg was changed to the new school about half a furlong away from the old school. But there is not allegation made in the election petition that due to the change of place of voting, the result of the election so far as it concerned the respondent had been materially affected. According to Section 100 (i)(d)(iv) of the Act if there had been any non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the appellant must show that the result of the election in so far it concerns the returned candidate has been materially affected, if he wants the election of the returned candidate to be declared void. There is no evidence on this point and even assuming that the polling booth was first fixed to be the old school and it was subsequently changed by Laxman Namdeo without the permission of the appropriate authority, the election cannot be held to be void in the absence of any proof that the result of the election was materially affected so far as it concerned the appellant. On issue No. 8(e) the appellant examined Nanhe (P.W. 33), Puttobai (P.W. 34), Mst. Parvatibai (P.W. 37) and Nanda (P.W. 38) who all stated that Laxman Namdeo had induced them to vote for the Jan Sangh candidate inside the polling booth. The High Court found the evidence of these witnesses to be unreliable. Mr. Rameshwar Nath took us through the evidence of these witnesses and we see no reason to differ from the view taken by the High Court on thisscrutiny of the evidence given by both the parties in the case, the High Court has reached the conclusion that the evidence given on behalf of the appellant was not credible and there was no proof that on 16-2-1967 the respondent made any appeal on the ground of religion in the meeting held at Bara market. The High Court further held that the distribution of hand-bills similar to Ex.P. 1 was not established. We see no reason to differ from the finding of the High Court.But even on the assumption that the evidence adduced by the appellant is true, the case will not fall within the mischief of Section 123(2)(a)(ii) and (b) of the Act, which read as followsThe following shall be deemed to be corrupt practices for the purposes of this Act :X X X X XX X X X XX X X X X(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his election agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right :Provided that -(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -X X X X X(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause".According to the appellants evidence the respondent said at the meeting "Congress Government slaughters the cows. She spoils the culture of Hindu religion. Hindu religion cannot be protected by Congress". "If one vote is cast for Congress, it is equal to slaughter of a cow". (See the evidence of P.W. 18, Balmakund). In Ex.P. 1, it is said that "Congress wants to continue the slaughter of bullocks". It is not the allegation of the appellant that the respondent said that "the voters will commit the sin of cows-slaughter if they vote for Congress". On the contrary the allegation is that the Congress Party was out to kill the bullocks and cows. The leaflet Ex.P. 1 is levelled against the Congress Party, and there is no invocation of divine displeasure upon the voters who chose to vote for the Congress Party. It follows that the case does not fall within the definition of "undue influence" under Section 123(2)(a)(ii) of the Act. Mr. Rameshwar Nath referred to the decision of this Court in Narbada Prasad v. Chhagan Lal & Others where it was held that the statement "if the voters voted for the Congress Party they would be committing the sin of go-hatya", was tantamount to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure within the meaning of Section 123(2)(a)(ii) of the Act. As we have already pointed out, the alleged statement of the respondent in the present case is different and the principle laid down by this Court in Narbada Prasads case (supra) is not applicable. We hold that issue No. 4 was rightly answered against the appellant.

### 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: election was materially affected so far as it concerned the appellant. On issue No. 8(e) the appellant examined Nanhe (P.W. 33), Puttobai (P.W. 34), Mst. Parvatibai (P.W. 37) and Nanda (P.W. 38) who all stated that Laxman Namdeo had induced them to vote for the Jan Sangh candidate inside the polling booth. The High Court found the evidence of these witnesses to be unreliable. Mr. Rameshwar Nath took us through the evidence of these witnesses and we see no reason to differ from the view taken by the High Court on this point.7. With regard to issue No. 4, Mr. Rameshwar Nath confined his argument to the meeting of 16th February, 1967 held at village Bara. The allegation of the appellant is that the respondent and Kunjansingh had addressed a meeting in the market at Bara on 16-2-1967 and distributed the hand-bills similar to Ex. P. 1 there. It is admitted by the respondent that he had addressed the meeting. But he denied having made any appeal on the ground of religion and has denied that the hand-bill Ex. P. 1 had been distributed there. The appellant examined five witnesses, Balmakund (P.W. 18), Ghasiram (P.W. 19). Jagannath Prasad Jain (P. W. 20), Motilal (P.W. 21) and Nathulal (P.W. 22), in support of his case on this point. Except Jagannath Prasad all other witnesses said that in the speech delivered by the respondent it was stated that "to cast one vote in favour of Congress was committing the sin of killing a cow". The High Court has held that no such allegation was made in the election petition, and so, the evidence of P.Ws. 18, 19, 21 and 22 on this point could not be believed. As regards the distribution of hand-bills, the oral evidence is conflicting to some extent. P.W. 19 and P.W. 21 said that after Ramcharan Pujari and Kunjansingh addressed the meeting, hand-bills similar to Ex.P. 1 were distributed by the appellant. Jagannath Prasad (P.W. 20) did not say anything about the distribution of any hand-bills. Balmukand (P.W. 18) said that Ramcharan Pujari addressed the meeting but the distribution of hand-bills was made by both the respondent and Kunjansingh. Nathulal (P. W. 21) said that only respondent had addressed the meeting and he only distributed the hand-bills. In rebuttal of the evidence, Ramcharan Pujari examined himself and one more witness Hazarilal Tamrakar (R.W. 4). On scrutiny of the evidence given by both the parties in the case, the High Court has reached the conclusion that the evidence given on behalf of the appellant was not credible and there was no proof that on 16-2-1967 the respondent made any appeal on the ground of religion in the meeting held at Bara market. The High Court further held that the distribution of hand-bills similar to Ex.P. 1 was not established. We see no reason to differ from the finding of the High Court.But even on the assumption that the evidence adduced by the appellant is true, the case will not fall within the mischief of Section 123(2)(a)(ii) and (b) of the Act, which read as follows :"123. The following shall be deemed to be corrupt practices for the purposes of this Act :X X X X XX X X X XX X X X X(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his election agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right :Provided that -(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -X X X X X(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause".8. According to the appellants evidence the respondent said at the meeting "Congress Government slaughters the cows. She spoils the culture of Hindu religion. Hindu religion cannot be protected by Congress". "If one vote is cast for Congress, it is equal to slaughter of a cow". (See the evidence of P.W. 18, Balmakund). In Ex.P. 1, it is said that "Congress wants to continue the slaughter of bullocks". It is not the allegation of the appellant that the respondent said that "the voters will commit the sin of cows-slaughter if they vote for Congress". On the contrary the allegation is that the Congress Party was out to kill the bullocks and cows. The leaflet Ex.P. 1 is levelled against the Congress Party, and there is no invocation of divine displeasure upon the voters who chose to vote for the Congress Party. It follows that the case does not fall within the definition of "undue influence" under Section 123(2)(a)(ii) of the Act. Mr. Rameshwar Nath referred to the decision of this Court in Narbada Prasad v. Chhagan Lal & Others where it was held that the statement "if the voters voted for the Congress Party they would be committing the sin of go-hatya", was tantamount to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure within the meaning of Section 123(2)(a)(ii) of the Act. As we have already pointed out, the alleged statement of the respondent in the present case is different and the principle laid down by this Court in Narbada Prasads case (supra) is not applicable. We hold that issue No. 4 was rightly answered against the appellant. ### Response: 0 ### Explanation: the hearing. The language of the letter suggest that it was carefully drafted after taking legal advice and could not have been written in the normal course of Jamuna Prasad (P.W. 45). In our opinion, the High Court has taken a correct view of the evidence and this issue must be answered against the appellant.6. With regard to issue No. 8, the finding of the High Court is that Laxman Ramdeo, Presiding Officer, was an old associate of the respondent and was detained along with him in jail about the year 1947-48. The High Court further held that an oral warning was given to Laxman Ramdeo not to campaign for Jan Sangh candidate. As regards the change of the polling booth, the High Court has found that the place of polling booth at Mudari Bujurg was changed to the new school about half a furlong away from the old school. But there is not allegation made in the election petition that due to the change of place of voting, the result of the election so far as it concerned the respondent had been materially affected. According to Section 100 (i)(d)(iv) of the Act if there had been any non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the appellant must show that the result of the election in so far it concerns the returned candidate has been materially affected, if he wants the election of the returned candidate to be declared void. There is no evidence on this point and even assuming that the polling booth was first fixed to be the old school and it was subsequently changed by Laxman Namdeo without the permission of the appropriate authority, the election cannot be held to be void in the absence of any proof that the result of the election was materially affected so far as it concerned the appellant. On issue No. 8(e) the appellant examined Nanhe (P.W. 33), Puttobai (P.W. 34), Mst. Parvatibai (P.W. 37) and Nanda (P.W. 38) who all stated that Laxman Namdeo had induced them to vote for the Jan Sangh candidate inside the polling booth. The High Court found the evidence of these witnesses to be unreliable. Mr. Rameshwar Nath took us through the evidence of these witnesses and we see no reason to differ from the view taken by the High Court on thisscrutiny of the evidence given by both the parties in the case, the High Court has reached the conclusion that the evidence given on behalf of the appellant was not credible and there was no proof that on 16-2-1967 the respondent made any appeal on the ground of religion in the meeting held at Bara market. The High Court further held that the distribution of hand-bills similar to Ex.P. 1 was not established. We see no reason to differ from the finding of the High Court.But even on the assumption that the evidence adduced by the appellant is true, the case will not fall within the mischief of Section 123(2)(a)(ii) and (b) of the Act, which read as followsThe following shall be deemed to be corrupt practices for the purposes of this Act :X X X X XX X X X XX X X X X(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his election agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right :Provided that -(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -X X X X X(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause".According to the appellants evidence the respondent said at the meeting "Congress Government slaughters the cows. She spoils the culture of Hindu religion. Hindu religion cannot be protected by Congress". "If one vote is cast for Congress, it is equal to slaughter of a cow". (See the evidence of P.W. 18, Balmakund). In Ex.P. 1, it is said that "Congress wants to continue the slaughter of bullocks". It is not the allegation of the appellant that the respondent said that "the voters will commit the sin of cows-slaughter if they vote for Congress". On the contrary the allegation is that the Congress Party was out to kill the bullocks and cows. The leaflet Ex.P. 1 is levelled against the Congress Party, and there is no invocation of divine displeasure upon the voters who chose to vote for the Congress Party. It follows that the case does not fall within the definition of "undue influence" under Section 123(2)(a)(ii) of the Act. Mr. Rameshwar Nath referred to the decision of this Court in Narbada Prasad v. Chhagan Lal & Others where it was held that the statement "if the voters voted for the Congress Party they would be committing the sin of go-hatya", was tantamount to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure within the meaning of Section 123(2)(a)(ii) of the Act. As we have already pointed out, the alleged statement of the respondent in the present case is different and the principle laid down by this Court in Narbada Prasads case (supra) is not applicable. We hold that issue No. 4 was rightly answered against the appellant.

I.M. Thapar & Others Vs. Commissioner of Expenditure-Tax, Calcutta

Hegde, J. 1. This is an appeal by special leave from the order of the High Court of Calcutta dismissing the assessees application under S. 25 (3) of the Expenditure Tax Act. 2. The material facts are as follows. The assessee claimed that he had expended a sum of Rs. 1,51,000 - in the account year relevant to the assessment year 1960-61 for the marriages of his son and daughter. But the Tribunal came to the conclusion that he must have spent at least a sum of Rs. 2,51,000/- for these marriages. He was assessed accordingly under the Expenditure Tax Act. On the basis of that conclusion, it held in the assessees income-tax proceedings for the said assessment years that the assessee had an income of rupees one lakh from undisclosed sources and brought that sum to tax. Aggrieved by the orders of the Tribunal the assessee moved the Tribunal to refer certain questions to the High Court for its opinion, both in the income-tax proceedings as well as in the expenditure tax proceedings. The Tribunal declined to do so. It came to the conclusion that its findings are findings of fact. 3. As against the orders of the Tribunal the assessee moved the High Court of Calcutta under Section 66 (2) of the Indian Income-tax Act, 1922, as well as under S. 25 (3) of the Expenditure Tax Act. The High Court partly allowed the application of the assessee under S. 66 (2) of the Indian Income-tax Act and called upon the Tribunal to submit the question whether there was any material before the Tribunal to come to the conclusion that the assessee had any income from undisclosed sources. But when it came to the assessees application under the Expenditure Tax Act it dismissed the same. This approach is clearly incongruous. As mentioned earlier, the very basis on which the Tribunal came to the conclusion that the assessee had an income of one lakh of rupees from undisclosed sources is that he must have spent at least rupees one lakh more than that shown by him in his return under the Expenditure Tax Act. If that is so, the two orders of the Tribunal are inextricably linked together. One must go with the other.

0[ds]The High Court partly allowed the application of the assessee under S. 66 (2) of the Indianx Act and called upon the Tribunal to submit the question whether there was any material before the Tribunal to come to the conclusion that the assessee had any income from undisclosed sources. But when it came to the assessees application under the Expenditure Tax Act it dismissed the same.This approach is clearly incongruous. As mentioned earlier, the very basis on which the Tribunal came to the conclusion that the assessee had an income of one lakh of rupees from undisclosed sources is that he must have spent at least rupees one lakh more than that shown by him in his return under the Expenditure Tax Act. If that is so, the two orders of the Tribunal are inextricably linked together. One must go with the other.

### 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: Hegde, J. 1. This is an appeal by special leave from the order of the High Court of Calcutta dismissing the assessees application under S. 25 (3) of the Expenditure Tax Act. 2. The material facts are as follows. The assessee claimed that he had expended a sum of Rs. 1,51,000 - in the account year relevant to the assessment year 1960-61 for the marriages of his son and daughter. But the Tribunal came to the conclusion that he must have spent at least a sum of Rs. 2,51,000/- for these marriages. He was assessed accordingly under the Expenditure Tax Act. On the basis of that conclusion, it held in the assessees income-tax proceedings for the said assessment years that the assessee had an income of rupees one lakh from undisclosed sources and brought that sum to tax. Aggrieved by the orders of the Tribunal the assessee moved the Tribunal to refer certain questions to the High Court for its opinion, both in the income-tax proceedings as well as in the expenditure tax proceedings. The Tribunal declined to do so. It came to the conclusion that its findings are findings of fact. 3. As against the orders of the Tribunal the assessee moved the High Court of Calcutta under Section 66 (2) of the Indian Income-tax Act, 1922, as well as under S. 25 (3) of the Expenditure Tax Act. The High Court partly allowed the application of the assessee under S. 66 (2) of the Indian Income-tax Act and called upon the Tribunal to submit the question whether there was any material before the Tribunal to come to the conclusion that the assessee had any income from undisclosed sources. But when it came to the assessees application under the Expenditure Tax Act it dismissed the same. This approach is clearly incongruous. As mentioned earlier, the very basis on which the Tribunal came to the conclusion that the assessee had an income of one lakh of rupees from undisclosed sources is that he must have spent at least rupees one lakh more than that shown by him in his return under the Expenditure Tax Act. If that is so, the two orders of the Tribunal are inextricably linked together. One must go with the other. ### Response: 0 ### Explanation: The High Court partly allowed the application of the assessee under S. 66 (2) of the Indianx Act and called upon the Tribunal to submit the question whether there was any material before the Tribunal to come to the conclusion that the assessee had any income from undisclosed sources. But when it came to the assessees application under the Expenditure Tax Act it dismissed the same.This approach is clearly incongruous. As mentioned earlier, the very basis on which the Tribunal came to the conclusion that the assessee had an income of one lakh of rupees from undisclosed sources is that he must have spent at least rupees one lakh more than that shown by him in his return under the Expenditure Tax Act. If that is so, the two orders of the Tribunal are inextricably linked together. One must go with the other.

Mr. Sunil s/o Ratnakar Gutte Vs. Union Bank of India

moved an application before the Debt Recovery Tribunal, New Delhi bearing Original Application No.491/2019 against the petitioner and others for recovery of loan amount which is due against the Company and said application is pending for the hearing. It is further submitted by the respondent-Bank that till the out come of the order of the Debt Recovery Tribunal the respondent is unable to release the said documents. Thus, the material on record shows that the petitioner has cleared the entire dues in respect of loan which was obtained by him in his individual capacity to purchase the flat. The said loan transaction came to an end, therefore, the relationship of the banker and customer between the petitioner and the respondent in respect of the concerned loan account came to an end as he has repaid the amount. The relationship of banker and customer could not have been continued when the petitioner has repaid the amount on 31/05/2021 as the entire loan account is satisfied. The said transaction has been completed and there is no further relationship between the petitioner and the Bank as a banker and customer. 13. In such circumstances, the contention of the respondent-Bank that it was exercising the right of general lien under Section 171 of the said Act is not sustainable. Bank has also raised the issue that other alternate efficacious remedy is available to the petitioner before Debt Recovery Tribunal and, therefore, the writ petition needs to be dismissed. In other words, it is the contention of the respondent-Bank that writ jurisdiction is not available to the petitioner as other remedy is available. 14. Learned counsel for the petitioner submitted that the writ jurisdiction is rightly available to the petitioner. In support of this contention, he invited our attention towards the observation made by the Honble Apex Court in the case of Zonal Manager,Central Bank of India Vs. Devi Ispat Limited and others (supra) wherein it is observed that where public sector bank, discharging public functions and having status of State, despite clearance of its outstanding dues in entirely by a borrower, failed to return latters title deeds held, High Court, rightly issued writ of mandamus for returning said deeds. Honble Apex Court further held that it is not in dispute that the appellant-Bank being a public Sector Bank discharging public functions is a State under Article 12. 15. In view of the settlement of the dues on the date of filing of the writ petition by arrangement made through another nationalized bank, namely, State Bank of India and the statement of accounts furnished by the appellant Bank subsequent to the same was 0.00 (nil) outstanding. The High Court was fully justified in issuing a writ of mandamus for return of the Title Deeds. 16. The Honble Bombay High Court in the case of DB (BKC) Realtors Pvt. Ltd. and anr. vs. Punjab National Bank 2017 SCC Online Bom 957 held that the writ petition filed under Section 226 of the Constitution of India is maintainable against the respondent-Bank which is a nationalised bank. 17. Admittedly, there was a relationship between the petitioner and the respondent as banker and customer. It is further clear from the pleadings that the Title Deed of the property in question was handed over to the respondent-Bank as a security. Admittedly, said loan amount is repaid by the petitioner. Though the respondent-Bank has submitted that there is another loan account against the petitioner and Bank has already moved an application to the Debt Recovery Tribunal for obtaining necessary orders, Bank is at liberty to move against the petitioner and other Directors to recover the said loan amount. Admittedly, said security was given against the loan amount which was already satisfied by the petitioner. In such a situation, it is not open for the respondent- Bank to continue to exercise its general lien for the security deposited with it especially when the entire amount was repaid. Such a general lien is not being exercised for a general balance of account as required under Section 171 of the said Act. Moreover, it would not be open for the Bank to exercise its right of general lien for the securities on the pretext of the banker and customer relationship. It cannot exercise such general lien under Section 171 of the said Act thus, there is no justification on the part of the respondent-Bank to retain the said documents by relying upon the provisions of Section 171 of the said Act. 18. In view of observation of the Honble Apex Court in the case of Zonal Manager, Central Bank of India Vs. Devi Ispat Limited and others (supra) relied upon by the petitioner it was held that Central Bank of India being a nationalised bank was amenable to writ jurisdiction. In the present case also respondent-Union Bank of India is a nationalised bank and, therefore, is amenable to writ jurisdiction. According to the Bank another loan account is yet to be cleared by the petitioner and, therefore, its security documents were not returned. On the basis of the same the bank sought to exercise its right under Section 171 of the said Act and not remitted the said documents to the respondent. Admittedly, said documents were kept with the bank as a security towards the loan amount which is obtained by the petitioner in his individual capacity for purchase of the flat. The said amount is duly paid and, therefore, bank was not justified in retaining the said documents by exercising right of lien on the said documents. Admittedly, bank has right to recover the loan amount regarding the loan advanced to the Company wherein the petitioner and other Directors are borrowers and guarantors. Bank is at liberty to recover the said loan amount and also at liberty to take the legal recourse but merely because another loan account is there, wherein the petitioner and other Directors are borrowers, bank has no right to retain the said documents by exercising the right of lien.

1[ds]8. Admittedly, the petitioner has approached to the Bank and obtained the loan of Rs.21,00,000/-(Rs. Twenty one lacs) to purchase the flat. The bank has sanctioned the loan vide its sanction letter on condition that loan is repayable in 300 monthly installments. It is also an admitted position that the petitioner is also a Director in the Company under the name and style as Sunil Hitech Limited. It is further not disputed that as the Company was in debt, Liquidator was appointed by the order of NCLT. It is also an admitted position that as the petitioner could not pay monthly installments, he approached to the respondent-Bank for seeking permission to sell the flat. Accordingly, the respondent-Bank has given no objection by reply to sell out the said flat. Accordingly, the petitioner has sold out the said flat to one Shri Ishwar Narsing Phunde and the amount was deposited in the Bank thus, the loan account of the petitioner against the purchase of the flat appears to be satisfied. Admittedly, it is not in dispute that the respondent- Bank has initiated action against the petitioner and other Directors of the Company by filing an application bearing No.491/2019 before the Debt Recovery Tribunal against the petitioner and others for recovery of loan amount.Thus, from the expression bankers lien it is cleared that Bank overall forms of security that are deposited by the borrower in the ordinary course of business, there has to be a relationship of banker and customer between them. In Brandao vs. Barnett, it was stated as under (All ER page 722-H) Bankers, most undoubtedly, have a general lien on all securities deposited with them, as bankers, by a customer, unless there be an express contract, or circumstances that show an implied contract, inconsistent with lien. It was held that by mercantile system the bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customer in the ordinary course of banking business and that the general lien is a valuable right of the banker judicially recognised and in the absence of an agreement to the contrary, a banker has a general lien over such securities or bills received from a customer in the ordinary course of banking business and has a right to use the proceeds in respect of any balance that may be due from the customer by way of the reduction of customers debit balance. Lien contemplated under Section 171 of the said Act relates to goods bailed to bank. Strictly, it is confined to securities and properties in the custody of a banker. Section 171 of the said Act expresses goods bailed to them. The provision, therefore, indicates that the right to retain goods bailed is based on contract and retaining the same in absence of contract is not permissible. A Division Bench of this Court in the case of Surendra s/o Laxman Nikose vs. Chief Manager and Authorised Officer, State Bank of India, Nagpur 2013(5) Mh.L.J. 283 held that Bank cannot exercise its right of general lien over the Title Deeds deposited by the petitioner after the entire loan amount was fully repaid by the petitioner. It is further held in para 10 of the judgment by the Division Bench of this Court which reads thus :10. Section 171 of the said Act employs the expression goods bailed to them. The word bailment has been defined in section 148 of the said Act to mean delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. Section 160 of the said Act stipulates that it is the duty of the bailee to return the goods bailed, without demand, or the purpose for which they were bailed having been accomplished. Similarly, under section 172 of the said Act, pledge has been defined as bailment of goods as security for payment of a debt or performance of a promise. Under section 174 of the said Act, the pawnee cannot in absence of a contract to that effect, retain the goods pledged for any debt or promise other than the debt or promise over which they are pledged.These provisions, therefore, indicate that the right to retain goods bailed is based on a contract and retaining the same in absence of any contract is not permissible. The only right that has been recognized with regard to goods bailed is the right of general lien of a banker to retain as security for a general balance of account any goods bailed to them. It is, therefore, clear that such right of general lien cannot be extended by a Banker for any other purpose after the general balance of account has been cleared by the person bailing the goods. Permitting a Banker to extend its right of general lien even after clearance of the debt would result in negating the effects of the words as a security for a general balance of account. In any event, exercise of such general lien after determination of the relationship of Banker and customer does not arise at all.12. In the present case also the petitioner has repaid the entire amount of loan regarding the loan obtained to purchase the flat. The petitioner has produced on record Annexure-K the account extract which shows that no balance amount remains to be paid in respect of loan account of the petitioner. It is also admitted by the respondent-Bank that the petitioner has paid the entire amount against the loan which was obtained to purchase the flat. Only contention of the respondent-Bank is that the petitioner is also borrower of Sunil Hitech Company. The petitioner as well as other Directors have obtained the loan but the said Company went in liquidation and Liquidator is appointed. The amount is due from the Company. The petitioner being the Director of the said Company is liable to pay the loan amount and, therefore, the documents regarding the title of the property is not remitted by the Company. It is further submitted by the Bank that Bank has already moved an application before the Debt Recovery Tribunal, New Delhi bearing Original Application No.491/2019 against the petitioner and others for recovery of loan amount which is due against the Company and said application is pending for the hearing. It is further submitted by the respondent-Bank that till the out come of the order of the Debt Recovery Tribunal the respondent is unable to release the said documents. Thus, the material on record shows that the petitioner has cleared the entire dues in respect of loan which was obtained by him in his individual capacity to purchase the flat. The said loan transaction came to an end, therefore, the relationship of the banker and customer between the petitioner and the respondent in respect of the concerned loan account came to an end as he has repaid the amount. The relationship of banker and customer could not have been continued when the petitioner has repaid the amount on 31/05/2021 as the entire loan account is satisfied. The said transaction has been completed and there is no further relationship between the petitioner and the Bank as a banker and customer.13. In such circumstances, the contention of the respondent-Bank that it was exercising the right of general lien under Section 171 of the said Act is not sustainable.15. In view of the settlement of the dues on the date of filing of the writ petition by arrangement made through another nationalized bank, namely, State Bank of India and the statement of accounts furnished by the appellant Bank subsequent to the same was 0.00 (nil) outstanding. The High Court was fully justified in issuing a writ of mandamus for return of the Title Deeds.16. The Honble Bombay High Court in the case of DB (BKC) Realtors Pvt. Ltd. and anr. vs. Punjab National Bank 2017 SCC Online Bom 957 held that the writ petition filed under Section 226 of the Constitution of India is maintainable against the respondent-Bank which is a nationalised bank.17. Admittedly, there was a relationship between the petitioner and the respondent as banker and customer. It is further clear from the pleadings that the Title Deed of the property in question was handed over to the respondent-Bank as a security. Admittedly, said loan amount is repaid by the petitioner. Though the respondent-Bank has submitted that there is another loan account against the petitioner and Bank has already moved an application to the Debt Recovery Tribunal for obtaining necessary orders, Bank is at liberty to move against the petitioner and other Directors to recover the said loan amount. Admittedly, said security was given against the loan amount which was already satisfied by the petitioner. In such a situation, it is not open for the respondent- Bank to continue to exercise its general lien for the security deposited with it especially when the entire amount was repaid. Such a general lien is not being exercised for a general balance of account as required under Section 171 of the said Act. Moreover, it would not be open for the Bank to exercise its right of general lien for the securities on the pretext of the banker and customer relationship. It cannot exercise such general lien under Section 171 of the said Act thus, there is no justification on the part of the respondent-Bank to retain the said documents by relying upon the provisions of Section 171 of the said Act.18. In view of observation of the Honble Apex Court in the case of Zonal Manager, Central Bank of India Vs. Devi Ispat Limited and others (supra) relied upon by the petitioner it was held that Central Bank of India being a nationalised bank was amenable to writ jurisdiction. In the present case also respondent-Union Bank of India is a nationalised bank and, therefore, is amenable to writ jurisdiction. According to the Bank another loan account is yet to be cleared by the petitioner and, therefore, its security documents were not returned. On the basis of the same the bank sought to exercise its right under Section 171 of the said Act and not remitted the said documents to the respondent. Admittedly, said documents were kept with the bank as a security towards the loan amount which is obtained by the petitioner in his individual capacity for purchase of the flat. The said amount is duly paid and, therefore, bank was not justified in retaining the said documents by exercising right of lien on the said documents. Admittedly, bank has right to recover the loan amount regarding the loan advanced to the Company wherein the petitioner and other Directors are borrowers and guarantors. Bank is at liberty to recover the said loan amount and also at liberty to take the legal recourse but merely because another loan account is there, wherein the petitioner and other Directors are borrowers, bank has no right to retain the said documents by exercising the right of lien.

### 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: moved an application before the Debt Recovery Tribunal, New Delhi bearing Original Application No.491/2019 against the petitioner and others for recovery of loan amount which is due against the Company and said application is pending for the hearing. It is further submitted by the respondent-Bank that till the out come of the order of the Debt Recovery Tribunal the respondent is unable to release the said documents. Thus, the material on record shows that the petitioner has cleared the entire dues in respect of loan which was obtained by him in his individual capacity to purchase the flat. The said loan transaction came to an end, therefore, the relationship of the banker and customer between the petitioner and the respondent in respect of the concerned loan account came to an end as he has repaid the amount. The relationship of banker and customer could not have been continued when the petitioner has repaid the amount on 31/05/2021 as the entire loan account is satisfied. The said transaction has been completed and there is no further relationship between the petitioner and the Bank as a banker and customer. 13. In such circumstances, the contention of the respondent-Bank that it was exercising the right of general lien under Section 171 of the said Act is not sustainable. Bank has also raised the issue that other alternate efficacious remedy is available to the petitioner before Debt Recovery Tribunal and, therefore, the writ petition needs to be dismissed. In other words, it is the contention of the respondent-Bank that writ jurisdiction is not available to the petitioner as other remedy is available. 14. Learned counsel for the petitioner submitted that the writ jurisdiction is rightly available to the petitioner. In support of this contention, he invited our attention towards the observation made by the Honble Apex Court in the case of Zonal Manager,Central Bank of India Vs. Devi Ispat Limited and others (supra) wherein it is observed that where public sector bank, discharging public functions and having status of State, despite clearance of its outstanding dues in entirely by a borrower, failed to return latters title deeds held, High Court, rightly issued writ of mandamus for returning said deeds. Honble Apex Court further held that it is not in dispute that the appellant-Bank being a public Sector Bank discharging public functions is a State under Article 12. 15. In view of the settlement of the dues on the date of filing of the writ petition by arrangement made through another nationalized bank, namely, State Bank of India and the statement of accounts furnished by the appellant Bank subsequent to the same was 0.00 (nil) outstanding. The High Court was fully justified in issuing a writ of mandamus for return of the Title Deeds. 16. The Honble Bombay High Court in the case of DB (BKC) Realtors Pvt. Ltd. and anr. vs. Punjab National Bank 2017 SCC Online Bom 957 held that the writ petition filed under Section 226 of the Constitution of India is maintainable against the respondent-Bank which is a nationalised bank. 17. Admittedly, there was a relationship between the petitioner and the respondent as banker and customer. It is further clear from the pleadings that the Title Deed of the property in question was handed over to the respondent-Bank as a security. Admittedly, said loan amount is repaid by the petitioner. Though the respondent-Bank has submitted that there is another loan account against the petitioner and Bank has already moved an application to the Debt Recovery Tribunal for obtaining necessary orders, Bank is at liberty to move against the petitioner and other Directors to recover the said loan amount. Admittedly, said security was given against the loan amount which was already satisfied by the petitioner. In such a situation, it is not open for the respondent- Bank to continue to exercise its general lien for the security deposited with it especially when the entire amount was repaid. Such a general lien is not being exercised for a general balance of account as required under Section 171 of the said Act. Moreover, it would not be open for the Bank to exercise its right of general lien for the securities on the pretext of the banker and customer relationship. It cannot exercise such general lien under Section 171 of the said Act thus, there is no justification on the part of the respondent-Bank to retain the said documents by relying upon the provisions of Section 171 of the said Act. 18. In view of observation of the Honble Apex Court in the case of Zonal Manager, Central Bank of India Vs. Devi Ispat Limited and others (supra) relied upon by the petitioner it was held that Central Bank of India being a nationalised bank was amenable to writ jurisdiction. In the present case also respondent-Union Bank of India is a nationalised bank and, therefore, is amenable to writ jurisdiction. According to the Bank another loan account is yet to be cleared by the petitioner and, therefore, its security documents were not returned. On the basis of the same the bank sought to exercise its right under Section 171 of the said Act and not remitted the said documents to the respondent. Admittedly, said documents were kept with the bank as a security towards the loan amount which is obtained by the petitioner in his individual capacity for purchase of the flat. The said amount is duly paid and, therefore, bank was not justified in retaining the said documents by exercising right of lien on the said documents. Admittedly, bank has right to recover the loan amount regarding the loan advanced to the Company wherein the petitioner and other Directors are borrowers and guarantors. Bank is at liberty to recover the said loan amount and also at liberty to take the legal recourse but merely because another loan account is there, wherein the petitioner and other Directors are borrowers, bank has no right to retain the said documents by exercising the right of lien. ### Response: 1 ### Explanation: event, exercise of such general lien after determination of the relationship of Banker and customer does not arise at all.12. In the present case also the petitioner has repaid the entire amount of loan regarding the loan obtained to purchase the flat. The petitioner has produced on record Annexure-K the account extract which shows that no balance amount remains to be paid in respect of loan account of the petitioner. It is also admitted by the respondent-Bank that the petitioner has paid the entire amount against the loan which was obtained to purchase the flat. Only contention of the respondent-Bank is that the petitioner is also borrower of Sunil Hitech Company. The petitioner as well as other Directors have obtained the loan but the said Company went in liquidation and Liquidator is appointed. The amount is due from the Company. The petitioner being the Director of the said Company is liable to pay the loan amount and, therefore, the documents regarding the title of the property is not remitted by the Company. It is further submitted by the Bank that Bank has already moved an application before the Debt Recovery Tribunal, New Delhi bearing Original Application No.491/2019 against the petitioner and others for recovery of loan amount which is due against the Company and said application is pending for the hearing. It is further submitted by the respondent-Bank that till the out come of the order of the Debt Recovery Tribunal the respondent is unable to release the said documents. Thus, the material on record shows that the petitioner has cleared the entire dues in respect of loan which was obtained by him in his individual capacity to purchase the flat. The said loan transaction came to an end, therefore, the relationship of the banker and customer between the petitioner and the respondent in respect of the concerned loan account came to an end as he has repaid the amount. The relationship of banker and customer could not have been continued when the petitioner has repaid the amount on 31/05/2021 as the entire loan account is satisfied. The said transaction has been completed and there is no further relationship between the petitioner and the Bank as a banker and customer.13. In such circumstances, the contention of the respondent-Bank that it was exercising the right of general lien under Section 171 of the said Act is not sustainable.15. In view of the settlement of the dues on the date of filing of the writ petition by arrangement made through another nationalized bank, namely, State Bank of India and the statement of accounts furnished by the appellant Bank subsequent to the same was 0.00 (nil) outstanding. The High Court was fully justified in issuing a writ of mandamus for return of the Title Deeds.16. The Honble Bombay High Court in the case of DB (BKC) Realtors Pvt. Ltd. and anr. vs. Punjab National Bank 2017 SCC Online Bom 957 held that the writ petition filed under Section 226 of the Constitution of India is maintainable against the respondent-Bank which is a nationalised bank.17. Admittedly, there was a relationship between the petitioner and the respondent as banker and customer. It is further clear from the pleadings that the Title Deed of the property in question was handed over to the respondent-Bank as a security. Admittedly, said loan amount is repaid by the petitioner. Though the respondent-Bank has submitted that there is another loan account against the petitioner and Bank has already moved an application to the Debt Recovery Tribunal for obtaining necessary orders, Bank is at liberty to move against the petitioner and other Directors to recover the said loan amount. Admittedly, said security was given against the loan amount which was already satisfied by the petitioner. In such a situation, it is not open for the respondent- Bank to continue to exercise its general lien for the security deposited with it especially when the entire amount was repaid. Such a general lien is not being exercised for a general balance of account as required under Section 171 of the said Act. Moreover, it would not be open for the Bank to exercise its right of general lien for the securities on the pretext of the banker and customer relationship. It cannot exercise such general lien under Section 171 of the said Act thus, there is no justification on the part of the respondent-Bank to retain the said documents by relying upon the provisions of Section 171 of the said Act.18. In view of observation of the Honble Apex Court in the case of Zonal Manager, Central Bank of India Vs. Devi Ispat Limited and others (supra) relied upon by the petitioner it was held that Central Bank of India being a nationalised bank was amenable to writ jurisdiction. In the present case also respondent-Union Bank of India is a nationalised bank and, therefore, is amenable to writ jurisdiction. According to the Bank another loan account is yet to be cleared by the petitioner and, therefore, its security documents were not returned. On the basis of the same the bank sought to exercise its right under Section 171 of the said Act and not remitted the said documents to the respondent. Admittedly, said documents were kept with the bank as a security towards the loan amount which is obtained by the petitioner in his individual capacity for purchase of the flat. The said amount is duly paid and, therefore, bank was not justified in retaining the said documents by exercising right of lien on the said documents. Admittedly, bank has right to recover the loan amount regarding the loan advanced to the Company wherein the petitioner and other Directors are borrowers and guarantors. Bank is at liberty to recover the said loan amount and also at liberty to take the legal recourse but merely because another loan account is there, wherein the petitioner and other Directors are borrowers, bank has no right to retain the said documents by exercising the right of lien.

Rupchand Chindu Kathewar Vs. State Of Maharashtra

gone through the medical evidence as a whole with very great care with the help of learned counsel for the parties. 4. We are of the opinion that entire matter would hinge almost exclusively upon the statement of PW.2 Murlidhar Bisen and if his statement could be taken to be uninspiring the entire prosecution case would become extremely weak which would necessitate some kind of corroboration from other material evidence as in the case of a single witness the evidence must be qualitatively unimpeachable. 5. We have gone through the statement made by PW.2 very carefully. He stated that he had gone to the field of Gyaniram Chauhan adjoining the land of Shriram Maldhari at about 5.00 a.m. on 13th May, 1999, and at about 6.00 a.m. he had heard a cry for help and on looking that way had seen the appellant standing in the field giving axe blows on the deceaseds head. PW.2 further stated that he got frightened and did not go near that place but returned home and did not inform anybody about the incident. He further stated that he had, later the same day, met Shriram Maldhari, and he had asked him to accompany him to the field for plucking mangoes but he had made an excuse and had stayed away but had not told him about the dead body in his field. It is, therefore, obvious that though this witness had seen the murder at about 6.00 a.m. on 13th May, 1999, he did not tell anyone about the incident, and the incident had in fact been reported by PW.1 Bhaiyalal Patel from information received from Premlal PW.5. It is also significant that the FIR was accordingly lodged after an inordinate delay at 4.00 p.m. on 14th May, 1999. We are cognizant to the fact that a mere delay in lodging the FIR would not be fatal to the prosecution story, but there is a proviso to this broad principle, that the evidence read as a whole must inspire confidence. As already indicated above, PW.2 was the only eye witness and his statement under Section 161 was recorded after a delay of about 36 hours. Moreover, we find his conduct to be wholly unnatural. His evidence must, therefore, be looked at with suspicion. We have, therefore, gone through the medical evidence to see if the prosecution story was in any manner corroborated as it is the case of the appellants counsel that the murder was a blind one and the entire story had been concocted after the dead body had been recovered. 6. We have perused the evidence of PW.4 Dr. Satish Jaiswal. The post mortem examination itself is tell tale and indicates some very significant facts. Column 12 of the form talks about the body being highly decomposed, Column 13 refers to the fact that insects and Maggots were crawling all over the face, whereas column 19 (iii) reveals that the brain was absent and that Maggots were crawling in the skull cavity. The Doctor also deposed that in his opinion the death had occurred about 60 hours before the post-mortem examination but in cross-examination he modified his statement to say that it could be less than 60 hours but not less than 48 hours under any circumstances. We have also gone through the inquest report which is equally revealing and refers to the fact that Maggots were crawling all over the body and that the anus was swollen and that the skin thereat had peeled off. 7. Relying on the aforesaid information gathered from the prosecution evidence Mr. P. Ramesh Kumar, the learned counsel for the appellant has submitted that the eye witnesses account was not borne out by the medical evidence. He has referred us the MODIs Medical Jurisprudence and Toxicology, Twenty-third Edition pages 438-440. We find from a perusal thereof that the rectum and uterus protrude within 48 to 70 hours after death. Likewise we see from the chart on page 438 that Maggots come on to the body within a minimum of 24 hours 18 minutes and a maximum of 76 hours, making an average of 39 hours 43 minutes. We must, accordingly, take the average as the basis of our decision and, therefore, observe that the death had occurred atleast 40 hours before the body was first examined at the time of the inquest report on 14th May, 1999. It is also significant that while dealing with the condition of the brain after death this is what Modi says with regard to its putrefaction : (Page-440): 8. The putrefaction of the adult brain initially begins at its base, and then proceeds to the upper surface. It is hastened if any injury to the brain or skull is present. The brain becomes soft and pulpy within 24 to 48 hours in summer, and becomes a liquid mass from three to four days. 9. It is clear from the inquest and the post mortem reports that the brain had disappeared. In this background, and taking the medical evidence to be correct, the incident could not have happened on 13th May, 1999 at 6.00 a.m. and must have happened much earlier in any case between 40 to 70 hours before the alleged time of death. It is true that Modi has himself referred to the fact that the putrefaction and decomposition of a dead body would be dependent on several factors including the age of the person, the nature of the weapon used, the health of the deceased, the climate etc. but Modi has taken the mean as the basis for the various putrefactive processes so as to generalize the evidence in such cases, as an exact time schedule with regard to the stages of decomposition cannot always be made available. We, therefore, find that the eye witnesses account is in fact diluted by the medical evidence. Clearly, the murder was a blind one and had not been witnessed by PW.2. In this background, the other circumstantial evidence becomes irrelevant. 10.

1[ds]We are of the opinion that entire matter would hinge almost exclusively upon the statement of PW.2 Murlidhar Bisen and if his statement could be taken to be uninspiring the entire prosecution case would become extremely weak which would necessitate some kind of corroboration from other material evidence as in the case of a single witness the evidence must be qualitativelyhave gone through the statement made by PW.2 very carefully. He stated that he had gone to the field of Gyaniram Chauhan adjoining the land of Shriram Maldhari at about 5.00 a.m. on 13th May, 1999, and at about 6.00 a.m. he had heard a cry for help and on looking that way had seen the appellant standing in the field giving axe blows on the deceaseds head. PW.2 further stated that he got frightened and did not go near that place but returned home and did not inform anybody about the incident. He further stated that he had, later the same day, met Shriram Maldhari, and he had asked him to accompany him to the field for plucking mangoes but he had made an excuse and had stayed away but had not told him about the dead body in his field. It is, therefore, obvious that though this witness had seen the murder at about 6.00 a.m. on 13th May, 1999, he did not tell anyone about the incident, and the incident had in fact been reported by PW.1 Bhaiyalal Patel from information received from Premlal PW.5. It is also significant that the FIR was accordingly lodged after an inordinate delay at 4.00 p.m. on 14th May, 1999. We are cognizant to the fact that a mere delay in lodging the FIR would not be fatal to the prosecution story, but there is a proviso to this broad principle, that the evidence read as a whole must inspire confidence. As already indicated above, PW.2 was the only eye witness and his statement under Section 161 was recorded after a delay of about 36 hours. Moreover, we find his conduct to be wholly unnatural. His evidence must, therefore, be looked at with suspicion. We have, therefore, gone through the medical evidence to see if the prosecution story was in any manner corroborated as it is the case of the appellants counsel that the murder was a blind one and the entire story had been concocted after the dead body had beenpost mortem examination itself is tell tale and indicates some very significant facts. Column 12 of the form talks about the body being highly decomposed, Column 13 refers to the fact that insects and Maggots were crawling all over the face, whereas column 19 (iii) reveals that the brain was absent and that Maggots were crawling in the skull cavity. The Doctor also deposed that in his opinion the death had occurred about 60 hours before theexamination but inhe modified his statement to say that it could be less than 60 hours but not less than 48 hours under any circumstances. We have also gone through the inquest report which is equally revealing and refers to the fact that Maggots were crawling all over the body and that the anus was swollen and that the skin thereat had peeledis clear from the inquest and the post mortem reports that the brain had disappeared. In this background, and taking the medical evidence to be correct, the incident could not have happened on 13th May, 1999 at 6.00 a.m. and must have happened much earlier in any case between 40 to 70 hours before the alleged time of death. It is true that Modi has himself referred to the fact that the putrefaction and decomposition of a dead body would be dependent on several factors including the age of the person, the nature of the weapon used, the health of the deceased, the climate etc. but Modi has taken the mean as the basis for the various putrefactive processes so as to generalize the evidence in such cases, as an exact time schedule with regard to the stages of decomposition cannot always be made available. We, therefore, find that the eye witnesses account is in fact diluted by the medical evidence. Clearly, the murder was a blind one and had not been witnessed by PW.2. In this background, the other circumstantial evidence becomes irrelevant.

### 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: gone through the medical evidence as a whole with very great care with the help of learned counsel for the parties. 4. We are of the opinion that entire matter would hinge almost exclusively upon the statement of PW.2 Murlidhar Bisen and if his statement could be taken to be uninspiring the entire prosecution case would become extremely weak which would necessitate some kind of corroboration from other material evidence as in the case of a single witness the evidence must be qualitatively unimpeachable. 5. We have gone through the statement made by PW.2 very carefully. He stated that he had gone to the field of Gyaniram Chauhan adjoining the land of Shriram Maldhari at about 5.00 a.m. on 13th May, 1999, and at about 6.00 a.m. he had heard a cry for help and on looking that way had seen the appellant standing in the field giving axe blows on the deceaseds head. PW.2 further stated that he got frightened and did not go near that place but returned home and did not inform anybody about the incident. He further stated that he had, later the same day, met Shriram Maldhari, and he had asked him to accompany him to the field for plucking mangoes but he had made an excuse and had stayed away but had not told him about the dead body in his field. It is, therefore, obvious that though this witness had seen the murder at about 6.00 a.m. on 13th May, 1999, he did not tell anyone about the incident, and the incident had in fact been reported by PW.1 Bhaiyalal Patel from information received from Premlal PW.5. It is also significant that the FIR was accordingly lodged after an inordinate delay at 4.00 p.m. on 14th May, 1999. We are cognizant to the fact that a mere delay in lodging the FIR would not be fatal to the prosecution story, but there is a proviso to this broad principle, that the evidence read as a whole must inspire confidence. As already indicated above, PW.2 was the only eye witness and his statement under Section 161 was recorded after a delay of about 36 hours. Moreover, we find his conduct to be wholly unnatural. His evidence must, therefore, be looked at with suspicion. We have, therefore, gone through the medical evidence to see if the prosecution story was in any manner corroborated as it is the case of the appellants counsel that the murder was a blind one and the entire story had been concocted after the dead body had been recovered. 6. We have perused the evidence of PW.4 Dr. Satish Jaiswal. The post mortem examination itself is tell tale and indicates some very significant facts. Column 12 of the form talks about the body being highly decomposed, Column 13 refers to the fact that insects and Maggots were crawling all over the face, whereas column 19 (iii) reveals that the brain was absent and that Maggots were crawling in the skull cavity. The Doctor also deposed that in his opinion the death had occurred about 60 hours before the post-mortem examination but in cross-examination he modified his statement to say that it could be less than 60 hours but not less than 48 hours under any circumstances. We have also gone through the inquest report which is equally revealing and refers to the fact that Maggots were crawling all over the body and that the anus was swollen and that the skin thereat had peeled off. 7. Relying on the aforesaid information gathered from the prosecution evidence Mr. P. Ramesh Kumar, the learned counsel for the appellant has submitted that the eye witnesses account was not borne out by the medical evidence. He has referred us the MODIs Medical Jurisprudence and Toxicology, Twenty-third Edition pages 438-440. We find from a perusal thereof that the rectum and uterus protrude within 48 to 70 hours after death. Likewise we see from the chart on page 438 that Maggots come on to the body within a minimum of 24 hours 18 minutes and a maximum of 76 hours, making an average of 39 hours 43 minutes. We must, accordingly, take the average as the basis of our decision and, therefore, observe that the death had occurred atleast 40 hours before the body was first examined at the time of the inquest report on 14th May, 1999. It is also significant that while dealing with the condition of the brain after death this is what Modi says with regard to its putrefaction : (Page-440): 8. The putrefaction of the adult brain initially begins at its base, and then proceeds to the upper surface. It is hastened if any injury to the brain or skull is present. The brain becomes soft and pulpy within 24 to 48 hours in summer, and becomes a liquid mass from three to four days. 9. It is clear from the inquest and the post mortem reports that the brain had disappeared. In this background, and taking the medical evidence to be correct, the incident could not have happened on 13th May, 1999 at 6.00 a.m. and must have happened much earlier in any case between 40 to 70 hours before the alleged time of death. It is true that Modi has himself referred to the fact that the putrefaction and decomposition of a dead body would be dependent on several factors including the age of the person, the nature of the weapon used, the health of the deceased, the climate etc. but Modi has taken the mean as the basis for the various putrefactive processes so as to generalize the evidence in such cases, as an exact time schedule with regard to the stages of decomposition cannot always be made available. We, therefore, find that the eye witnesses account is in fact diluted by the medical evidence. Clearly, the murder was a blind one and had not been witnessed by PW.2. In this background, the other circumstantial evidence becomes irrelevant. 10. ### Response: 1 ### Explanation: We are of the opinion that entire matter would hinge almost exclusively upon the statement of PW.2 Murlidhar Bisen and if his statement could be taken to be uninspiring the entire prosecution case would become extremely weak which would necessitate some kind of corroboration from other material evidence as in the case of a single witness the evidence must be qualitativelyhave gone through the statement made by PW.2 very carefully. He stated that he had gone to the field of Gyaniram Chauhan adjoining the land of Shriram Maldhari at about 5.00 a.m. on 13th May, 1999, and at about 6.00 a.m. he had heard a cry for help and on looking that way had seen the appellant standing in the field giving axe blows on the deceaseds head. PW.2 further stated that he got frightened and did not go near that place but returned home and did not inform anybody about the incident. He further stated that he had, later the same day, met Shriram Maldhari, and he had asked him to accompany him to the field for plucking mangoes but he had made an excuse and had stayed away but had not told him about the dead body in his field. It is, therefore, obvious that though this witness had seen the murder at about 6.00 a.m. on 13th May, 1999, he did not tell anyone about the incident, and the incident had in fact been reported by PW.1 Bhaiyalal Patel from information received from Premlal PW.5. It is also significant that the FIR was accordingly lodged after an inordinate delay at 4.00 p.m. on 14th May, 1999. We are cognizant to the fact that a mere delay in lodging the FIR would not be fatal to the prosecution story, but there is a proviso to this broad principle, that the evidence read as a whole must inspire confidence. As already indicated above, PW.2 was the only eye witness and his statement under Section 161 was recorded after a delay of about 36 hours. Moreover, we find his conduct to be wholly unnatural. His evidence must, therefore, be looked at with suspicion. We have, therefore, gone through the medical evidence to see if the prosecution story was in any manner corroborated as it is the case of the appellants counsel that the murder was a blind one and the entire story had been concocted after the dead body had beenpost mortem examination itself is tell tale and indicates some very significant facts. Column 12 of the form talks about the body being highly decomposed, Column 13 refers to the fact that insects and Maggots were crawling all over the face, whereas column 19 (iii) reveals that the brain was absent and that Maggots were crawling in the skull cavity. The Doctor also deposed that in his opinion the death had occurred about 60 hours before theexamination but inhe modified his statement to say that it could be less than 60 hours but not less than 48 hours under any circumstances. We have also gone through the inquest report which is equally revealing and refers to the fact that Maggots were crawling all over the body and that the anus was swollen and that the skin thereat had peeledis clear from the inquest and the post mortem reports that the brain had disappeared. In this background, and taking the medical evidence to be correct, the incident could not have happened on 13th May, 1999 at 6.00 a.m. and must have happened much earlier in any case between 40 to 70 hours before the alleged time of death. It is true that Modi has himself referred to the fact that the putrefaction and decomposition of a dead body would be dependent on several factors including the age of the person, the nature of the weapon used, the health of the deceased, the climate etc. but Modi has taken the mean as the basis for the various putrefactive processes so as to generalize the evidence in such cases, as an exact time schedule with regard to the stages of decomposition cannot always be made available. We, therefore, find that the eye witnesses account is in fact diluted by the medical evidence. Clearly, the murder was a blind one and had not been witnessed by PW.2. In this background, the other circumstantial evidence becomes irrelevant.

Tansukh Rai Jain Vs. Nilratan Prasad Shaw And Others

action under Central S. 64-A. The aggrieved person cannot have recourse to action under Bihar S. 64-A without first taking action under Central S. 64-A. To the extent that the language of Bihar S. 64-A can cover the cases open to appeal and to revision under S. 64 and Central S. 64-A respectively, it will be in direct conflict with the provisions of the Central Act and Bihar S. 64-A will be void to that extent.8. Bihar S. 64-A it is argued for the respondent, is wholly void as by Central S. 64-A Parliament intended to lay down an exhaustive code in respect of the said subject matter of revisions. It is also urged that Bihar S. 64-A is wholly void as both that section an Central S. 64-A cover the same field. On these very grounds, it is urged that by enacting Central S. 64-A Parliament has repealed by implication Bihar S. 64-A as it was competent to do in view of the proviso to Cl. (2) of Art. 254.9. Repeal, by implication, is not to be easily inferred. It is to be expected that when Parliament was aware of the provisions of Bihar S. 64-A and of Art. 254 of the Constitution and it intended to repeal Bihar S. 64-A, it would have expressly stated so. There is nothing in Central S. 64-A or in any other provision of the Act which expressly states that Bihar S. 64-A is repealed. We are of opinion that the mere fact that Central S. 64-A deals with revisions against non-appealable orders of the Regional Transport Authority is not sufficient to conclude that Parliament intended to repeal Bihar S. 64-A.10. The language of Bihar S. 64-A is very wide and covers all orders made by any authority or officer in the course of any proceedings taken under Chapter IV of the Act. The only limitation on the exercise of the revisional power conferred on the State by Bihar S. 64-A is that the State cannot suo motu exercise that power. It can exercise it when moved an application by some person aggrieved with the order he seeks to be revised. Such orders can be orders of the State Transport Authority, the Regional Transport Authority or any other authority or officer. Central S. 64-A provides for revisions against the orders of the Regional Transport Authority and does not provide for revisions against the orders of the prescribed authority to whom appeals could be preferred under S. 64. Central S. 64-A can therefore preclude the State Government from entertaining revisions against non-appealable orders of the Regional Transport Authority, but cannot preclude the operation of Bihar S. 64-A in regard to other orders. It is not provide in the Act that the order passed by the State Transport Authority in the exercise of its revisional jurisdiction under Central S. 64-A would be final. If such a provision had been made it might have been possible to urge that Parliament intended that the order of the State Transport Authority in revision was not to be interfered with by any authority. The absence of such an expression therefore leads to the inference that Parliament did not intend that there be no interference with such orders of revision. Further it may be noticed that S. 64 does not exhaust the list of all appealable orders. Its Cl. (I) provides for an appeal by a person aggrieved by any other order which may be prescribed. Prescribed means prescribed by rules made under the Act. Sub-section (1) of S. 68 empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV which consists of Ss. 42 to 68. Sub-section (2) specifies certain matters with respect to which rules be made. Its clause (za) mentions any other matter which is to be or may be prescribed. It follows that the State Government can make rules providing for certain order to be appealable under S. 64 and thus reduce the orders which otherwise would come within the ambit of Central S. 64-A. The orders made appealable under the rules framed by a State would not be open to revision under S. 64-A as it provides for revisions against non-appealable orders only. It is clear therefore that Parliament cannot be imputed the intention to make the provisions of S. 64-A to be so exhaustive and complete as to lead to the necessary conclusion that thereby it intended to repeal the provisions of Bihar S. 64-A which gave power to the State of Bihar to revise orders made by authorities or officers in proceedings under Chapter IV.11. The provisions of Bihar S. 64-A and Central S. 64-A are not such that they cannot be complied with simultaneously, except for the contingency already mentioned, i.e., when an application is made to the State Government by a person aggrieved by such and order of the Regional Transport Authority which is not appealable under S. 64. In such a case, the State Government cannot exercise its power under Bihar S. 64-A against the orders of the Regional Transport Authority, though it would be free to exercise that power at a later stage after the State Transport Authority had disposed of the revision, if any, made to it. Revision, in the first instance, against non-appealable orders passed under Chapter IV, must go to the State Transport Authority as in respect of such orders Parliament must be taken to have varied the provisions of Bihar S. 64-A.12. We therefore hold that Bihar S. 64-A is neither void nor has been repealed by Central S. 64-A and that its scope has been limited only to this extent that revisions against such orders of the Regional Transport Authority which are not appealable have to be preferred to the State Transport Authority.13. In the present case the State Government of Bihar revised the order made by the appellate authority. It was competent to do so. The High Court was in error in holding otherwise

1[ds]The power of revision therefore will arise and will be exercised after the appellate power is exhausted and not when the aggrieved person has not appealed against the order. Similarly, it will be available only against non-appealable orders after the aggrieved person has taken action under Central S. 64-A. The aggrieved person cannot have recourse to action under Bihar S. 64-A without first taking action under Central S. 64-A. To the extent that the language of Bihar S. 64-A can cover the cases open to appeal and to revision under S. 64 and Central S. 64-A respectively, it will be in direct conflict with the provisions of the Central Act and Bihar S. 64-A will be void to that extent.The provisions of Bihar S. 64-A and Central S. 64-A are not such that they cannot be complied with simultaneously, except for the contingency already mentioned, i.e., when an application is made to the State Government by a person aggrieved by such and order of the Regional Transport Authority which is not appealable under S. 64. In such a case, the State Government cannot exercise its power under Bihar S. 64-A against the orders of the Regional Transport Authority, though it would be free to exercise that power at a later stage after the State Transport Authority had disposed of the revision, if any, made to it. Revision, in the first instance, against non-appealable orders passed under Chapter IV, must go to the State Transport Authority as in respect of such orders Parliament must be taken to have varied the provisions of Bihar S. 64-A.12. We therefore hold that Bihar S. 64-A is neither void nor has been repealed by Central S. 64-A and that its scope has been limited only to this extent that revisions against such orders of the Regional Transport Authority which are not appealable have to be preferred to the State Transport Authority.13. In the present case the State Government of Bihar revised the order made by the appellate authority. It was competent to do so. The High Court was in error in holding otherwise

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: action under Central S. 64-A. The aggrieved person cannot have recourse to action under Bihar S. 64-A without first taking action under Central S. 64-A. To the extent that the language of Bihar S. 64-A can cover the cases open to appeal and to revision under S. 64 and Central S. 64-A respectively, it will be in direct conflict with the provisions of the Central Act and Bihar S. 64-A will be void to that extent.8. Bihar S. 64-A it is argued for the respondent, is wholly void as by Central S. 64-A Parliament intended to lay down an exhaustive code in respect of the said subject matter of revisions. It is also urged that Bihar S. 64-A is wholly void as both that section an Central S. 64-A cover the same field. On these very grounds, it is urged that by enacting Central S. 64-A Parliament has repealed by implication Bihar S. 64-A as it was competent to do in view of the proviso to Cl. (2) of Art. 254.9. Repeal, by implication, is not to be easily inferred. It is to be expected that when Parliament was aware of the provisions of Bihar S. 64-A and of Art. 254 of the Constitution and it intended to repeal Bihar S. 64-A, it would have expressly stated so. There is nothing in Central S. 64-A or in any other provision of the Act which expressly states that Bihar S. 64-A is repealed. We are of opinion that the mere fact that Central S. 64-A deals with revisions against non-appealable orders of the Regional Transport Authority is not sufficient to conclude that Parliament intended to repeal Bihar S. 64-A.10. The language of Bihar S. 64-A is very wide and covers all orders made by any authority or officer in the course of any proceedings taken under Chapter IV of the Act. The only limitation on the exercise of the revisional power conferred on the State by Bihar S. 64-A is that the State cannot suo motu exercise that power. It can exercise it when moved an application by some person aggrieved with the order he seeks to be revised. Such orders can be orders of the State Transport Authority, the Regional Transport Authority or any other authority or officer. Central S. 64-A provides for revisions against the orders of the Regional Transport Authority and does not provide for revisions against the orders of the prescribed authority to whom appeals could be preferred under S. 64. Central S. 64-A can therefore preclude the State Government from entertaining revisions against non-appealable orders of the Regional Transport Authority, but cannot preclude the operation of Bihar S. 64-A in regard to other orders. It is not provide in the Act that the order passed by the State Transport Authority in the exercise of its revisional jurisdiction under Central S. 64-A would be final. If such a provision had been made it might have been possible to urge that Parliament intended that the order of the State Transport Authority in revision was not to be interfered with by any authority. The absence of such an expression therefore leads to the inference that Parliament did not intend that there be no interference with such orders of revision. Further it may be noticed that S. 64 does not exhaust the list of all appealable orders. Its Cl. (I) provides for an appeal by a person aggrieved by any other order which may be prescribed. Prescribed means prescribed by rules made under the Act. Sub-section (1) of S. 68 empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV which consists of Ss. 42 to 68. Sub-section (2) specifies certain matters with respect to which rules be made. Its clause (za) mentions any other matter which is to be or may be prescribed. It follows that the State Government can make rules providing for certain order to be appealable under S. 64 and thus reduce the orders which otherwise would come within the ambit of Central S. 64-A. The orders made appealable under the rules framed by a State would not be open to revision under S. 64-A as it provides for revisions against non-appealable orders only. It is clear therefore that Parliament cannot be imputed the intention to make the provisions of S. 64-A to be so exhaustive and complete as to lead to the necessary conclusion that thereby it intended to repeal the provisions of Bihar S. 64-A which gave power to the State of Bihar to revise orders made by authorities or officers in proceedings under Chapter IV.11. The provisions of Bihar S. 64-A and Central S. 64-A are not such that they cannot be complied with simultaneously, except for the contingency already mentioned, i.e., when an application is made to the State Government by a person aggrieved by such and order of the Regional Transport Authority which is not appealable under S. 64. In such a case, the State Government cannot exercise its power under Bihar S. 64-A against the orders of the Regional Transport Authority, though it would be free to exercise that power at a later stage after the State Transport Authority had disposed of the revision, if any, made to it. Revision, in the first instance, against non-appealable orders passed under Chapter IV, must go to the State Transport Authority as in respect of such orders Parliament must be taken to have varied the provisions of Bihar S. 64-A.12. We therefore hold that Bihar S. 64-A is neither void nor has been repealed by Central S. 64-A and that its scope has been limited only to this extent that revisions against such orders of the Regional Transport Authority which are not appealable have to be preferred to the State Transport Authority.13. In the present case the State Government of Bihar revised the order made by the appellate authority. It was competent to do so. The High Court was in error in holding otherwise ### Response: 1 ### Explanation: The power of revision therefore will arise and will be exercised after the appellate power is exhausted and not when the aggrieved person has not appealed against the order. Similarly, it will be available only against non-appealable orders after the aggrieved person has taken action under Central S. 64-A. The aggrieved person cannot have recourse to action under Bihar S. 64-A without first taking action under Central S. 64-A. To the extent that the language of Bihar S. 64-A can cover the cases open to appeal and to revision under S. 64 and Central S. 64-A respectively, it will be in direct conflict with the provisions of the Central Act and Bihar S. 64-A will be void to that extent.The provisions of Bihar S. 64-A and Central S. 64-A are not such that they cannot be complied with simultaneously, except for the contingency already mentioned, i.e., when an application is made to the State Government by a person aggrieved by such and order of the Regional Transport Authority which is not appealable under S. 64. In such a case, the State Government cannot exercise its power under Bihar S. 64-A against the orders of the Regional Transport Authority, though it would be free to exercise that power at a later stage after the State Transport Authority had disposed of the revision, if any, made to it. Revision, in the first instance, against non-appealable orders passed under Chapter IV, must go to the State Transport Authority as in respect of such orders Parliament must be taken to have varied the provisions of Bihar S. 64-A.12. We therefore hold that Bihar S. 64-A is neither void nor has been repealed by Central S. 64-A and that its scope has been limited only to this extent that revisions against such orders of the Regional Transport Authority which are not appealable have to be preferred to the State Transport Authority.13. In the present case the State Government of Bihar revised the order made by the appellate authority. It was competent to do so. The High Court was in error in holding otherwise

Raj Kishore Prasad Narain Singh Vs. Ram Partap Pandey & Ors

referred, in the earlier part of this judgment, to the principles laid down by those decisions to the effect that whether the whole of the property mortgaged is an estate, there can be no. doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to a creditor is determined by the Claims Officer. No. provision in the Act, has been brought to our notice by learned counsel for the respondent, giving jurisdiction to the authorities, functioning under the Act, to adjudicate upon the claims of a mortgagee with reference to properties which do not vest in the State. Nor has any provision of the statute been brought to our notice prohibiting or placing a bar on the right of a creditor to pursue the remedy available to him under the ordinary law, as against properties which have not vested in the State. Therefore, under those circumstances, we are not inclined to agree with the observations of the Patna High Court in the decisions referred to above that in cases where a mortgaged property consists of both vested and non-vested items, it is open to the creditor to make an election as to the choice of his remedies and that election is to be made by a creditor giving up his right of filing a claim under Section 14 with respect to the vested estate or prosecuting a suit or execution proceeding in a Civil Court in respect of items which have not so vested in the State. The Act, so far as we can see, gives jurisdiction to the authorities concerned only in respect of properties, which have vested in the State, and the claims that are filed and adjudications made by the authorities concerned, under the Act, can only be with reference to estates that have vested in the State. In our opinion, the prohibition contained in Sections 4 (d) and 35 of the Act must also relate only to matters which can form properly the subject of a claim or an adjudication under the Act.40. We are further of opinion that while in respect of the estate, which have vested in the State under the Act, the mortgagee will be bound to have recourse to the procedure laid down in the Act, so far as his mortgage takes in other properties his right to enforce his claim under the ordinary law, has not been, in any manner, infringed or taken away by the Act. If that is so, it follows that in this case the appellant, notwithstanding the fact that he had filed a claim under Section 14 of the Act with reference to properties which have vested in the State, is entitled to avail himself. of any other remedy open to him in law, to enforce his claim as against the non-vested properties comprised in the mortgage. The main reason given by the learned Judge, for rejecting the application filed by the appellant for withdrawing his claim, is that the appellant, when he filed an application under Section 14, must be considered to have elected his remedy under the Act, and therefore, he should not be permitted to withdraw the claim.41. Here, again when once we have held that there is no. scope for the application of the doctrine of election, the reason given by the lower Court for declining to grant permission to withdraw the claim, also falls to the ground. Then the question is whether the appellant should be given leave to withdraw the claim filed by him before the Claims Officer under Section 14 of the Act.42. No. doubt, technically, the provisions of Order XXIII, C. P. C. may not apply; but we do not see any bar to a tribunal permitting the withdrawal of any proceeding, if it is satisfied that the said request can be granted otherwise. No. doubt, before permission is granted to withdraw a proceeding, the tribunal can consider as to whether the withdrawal if granted, will prejudice the opposite party. In this case, as we have already pointed out, the learned Judge has not found any positive prejudice, that will result to the respondents, by the appellant being permitted to withdraw his claim application. If the doctrine of election applies, as held by the Patna High Court, which decision has been followed by the learned Judge in this case, quite naturally, permitting the appellant to withdraw his claim, may result in prejudice to the respondents, in whose favour certain findings have also been recorded by the Claims Officer. But we have already pointed out that there is no. question of the appellant being put to election in circumstances like this and, if that is so, there cannot also be any question of prejudice being caused to the respondent by the appellants request for withdrawing the claim being granted, more especially, in view of the limited request made by him, to which we will advert presently.43. As we have already indicated, the appellants request was for permitting him to withdraw his claim application on the ground that he proposed to seek the remedy that might be available to him in law, as against the mortgaged properties, which have not vested in the State. If the appellants request for withdrawing his claim petition had been made with liberty to enable him again to seek his remedies, as against the properties which have vested in the State, the position may be different, because, in those circumstances, the respondents can forcibly urge that they have obtained a decision on certain aspects in their favour at the hands of the Claims Officer and that, if permission to withdraw is granted to the appellant it would be prejudicial to them. When the appellant was making a very simple request for withdrawing hits claim petition, only to enable him to seek any remedy available to him in law, as against the non-vested properties, we do not see any reason as to why that request should not be granted.

1[ds]28. The findings recorded on facts, by the learned Judge, are also challenged on behalf of the appellant; and those findings no. doubt are sought to be supported on behalf of the respondents. But, in the view that we take, that the appellants request for withdrawal of the claim petition should have been allowed, we do not propose to consider and express any opinion on the second ground of attack that is made in thesewe are of opinion that such a right has not been taken away by the Act, it will follow that the view of the learned Judge that it is not open to the appellant to proceed simultaneously to enforce his right under the ordinary, law, as also under the Act, is not correct. It will also follow that the further view that a party, situated like the appellant in this case, is bound to elect the remedy which he wants to pursue, cannot also be correct.From the principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no. doubt that the procedure prescribed by Chapter IV has to be followed, in order that the amount due to the creditor should be determined by the Claims Officer and the decision of the Claims Officer or the Board has been made final by thethat decision, the Patna High Court has held that if there are other properties comprised in the mortgage which have not vested in the State, the Act does not say that those properties will not be available for the recovery of the mortgagemoney. So far as this observation is concerned, in our view, that seems to be correct, having due regard to the provisions of the Act. But later on, the Full Bench has also held that a mortgagee has to elect between the two remedies and cannot have recourse to both of them simultaneously and that a Court can compel the mortgagee to elect between the remedy under S. 14 and the ordinary remedy available to him under the general law.No. doubt, the observations extracted above, prima facie, support the contentions of the learned counsel for thehave also referred, in the earlier part of this judgment, to the principles laid down by those decisions to the effect that whether the whole of the property mortgaged is an estate, there can be no. doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to a creditor is determined by the Claims Officer. No. provision in the Act, has been brought to our notice by learned counsel for the respondent, giving jurisdiction to the authorities, functioning under the Act, to adjudicate upon the claims of a mortgagee with reference to properties which do not vest in the State. Nor has any provision of the statute been brought to our notice prohibiting or placing a bar on the right of a creditor to pursue the remedy available to him under the ordinary law, as against properties which have not vested in the State. Therefore, under those circumstances, we are not inclined to agree with the observations of the Patna High Court in the decisions referred to above that in cases where a mortgaged property consists of both vested anditems, it is open to the creditor to make an election as to the choice of his remedies and that election is to be made by a creditor giving up his right of filing a claim under Section 14 with respect to the vested estate or prosecuting a suit or execution proceeding in a Civil Court in respect of items which have not so vested in the State. The Act, so far as we can see, gives jurisdiction to the authorities concerned only in respect of properties, which have vested in the State, and the claims that are filed and adjudications made by the authorities concerned, under the Act, can only be with reference to estates that have vested in the State. In our opinion, the prohibition contained in Sections 4 (d) and 35 of the Act must also relate only to matters which can form properly the subject of a claim or an adjudication under the Act.40. We are further of opinion that while in respect of the estate, which have vested in the State under the Act, the mortgagee will be bound to have recourse to the procedure laid down in the Act, so far as his mortgage takes in other properties his right to enforce his claim under the ordinary law, has not been, in any manner, infringed or taken away by the Act. If that is so, it follows that in this case the appellant, notwithstanding the fact that he had filed a claim under Section 14 of the Act with reference to properties which have vested in the State, is entitled to avail himself. of any other remedy open to him in law, to enforce his claim as against theproperties comprised in the mortgage. The main reason given by the learned Judge, for rejecting the application filed by the appellant for withdrawing his claim, is that the appellant, when he filed an application under Section 14, must be considered to have elected his remedy under the Act, and therefore, he should not be permitted to withdraw the claim.41. Here, again when once we have held that there is no. scope for the application of the doctrine of election, the reason given by the lower Court for declining to grant permission to withdraw the claim, also falls to the ground.No. doubt, technically, the provisions of Order XXIII, C. P. C. may not apply; but we do not see any bar to a tribunal permitting the withdrawal of any proceeding, if it is satisfied that the said request can be granted otherwise. No. doubt, before permission is granted to withdraw a proceeding, the tribunal can consider as to whether the withdrawal if granted, will prejudice the opposite party. In this case, as we have already pointed out, the learned Judge has not found any positive prejudice, that will result to the respondents, by the appellant being permitted to withdraw his claim application. If the doctrine of election applies, as held by the Patna High Court, which decision has been followed by the learned Judge in this case, quite naturally, permitting the appellant to withdraw his claim, may result in prejudice to the respondents, in whose favour certain findings have also been recorded by the Claims Officer. But we have already pointed out that there is no. question of the appellant being put to election in circumstances like this and, if that is so, there cannot also be any question of prejudice being caused to the respondent by the appellants request for withdrawing the claim being granted, more especially, in view of the limited request made by him, to which we will advert presently.43. As we have already indicated, the appellants request was for permitting him to withdraw his claim application on the ground that he proposed to seek the remedy that might be available to him in law, as against the mortgaged properties, which have not vested in the State. If the appellants request for withdrawing his claim petition had been made with liberty to enable him again to seek his remedies, as against the properties which have vested in the State, the position may be different, because, in those circumstances, the respondents can forcibly urge that they have obtained a decision on certain aspects in their favour at the hands of the Claims Officer and that, if permission to withdraw is granted to the appellant it would be prejudicial to them. When the appellant was making a very simple request for withdrawing hits claim petition, only to enable him to seek any remedy available to him in law, as against theproperties, we do not see any reason as to why that request should not be granted.

### 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: referred, in the earlier part of this judgment, to the principles laid down by those decisions to the effect that whether the whole of the property mortgaged is an estate, there can be no. doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to a creditor is determined by the Claims Officer. No. provision in the Act, has been brought to our notice by learned counsel for the respondent, giving jurisdiction to the authorities, functioning under the Act, to adjudicate upon the claims of a mortgagee with reference to properties which do not vest in the State. Nor has any provision of the statute been brought to our notice prohibiting or placing a bar on the right of a creditor to pursue the remedy available to him under the ordinary law, as against properties which have not vested in the State. Therefore, under those circumstances, we are not inclined to agree with the observations of the Patna High Court in the decisions referred to above that in cases where a mortgaged property consists of both vested and non-vested items, it is open to the creditor to make an election as to the choice of his remedies and that election is to be made by a creditor giving up his right of filing a claim under Section 14 with respect to the vested estate or prosecuting a suit or execution proceeding in a Civil Court in respect of items which have not so vested in the State. The Act, so far as we can see, gives jurisdiction to the authorities concerned only in respect of properties, which have vested in the State, and the claims that are filed and adjudications made by the authorities concerned, under the Act, can only be with reference to estates that have vested in the State. In our opinion, the prohibition contained in Sections 4 (d) and 35 of the Act must also relate only to matters which can form properly the subject of a claim or an adjudication under the Act.40. We are further of opinion that while in respect of the estate, which have vested in the State under the Act, the mortgagee will be bound to have recourse to the procedure laid down in the Act, so far as his mortgage takes in other properties his right to enforce his claim under the ordinary law, has not been, in any manner, infringed or taken away by the Act. If that is so, it follows that in this case the appellant, notwithstanding the fact that he had filed a claim under Section 14 of the Act with reference to properties which have vested in the State, is entitled to avail himself. of any other remedy open to him in law, to enforce his claim as against the non-vested properties comprised in the mortgage. The main reason given by the learned Judge, for rejecting the application filed by the appellant for withdrawing his claim, is that the appellant, when he filed an application under Section 14, must be considered to have elected his remedy under the Act, and therefore, he should not be permitted to withdraw the claim.41. Here, again when once we have held that there is no. scope for the application of the doctrine of election, the reason given by the lower Court for declining to grant permission to withdraw the claim, also falls to the ground. Then the question is whether the appellant should be given leave to withdraw the claim filed by him before the Claims Officer under Section 14 of the Act.42. No. doubt, technically, the provisions of Order XXIII, C. P. C. may not apply; but we do not see any bar to a tribunal permitting the withdrawal of any proceeding, if it is satisfied that the said request can be granted otherwise. No. doubt, before permission is granted to withdraw a proceeding, the tribunal can consider as to whether the withdrawal if granted, will prejudice the opposite party. In this case, as we have already pointed out, the learned Judge has not found any positive prejudice, that will result to the respondents, by the appellant being permitted to withdraw his claim application. If the doctrine of election applies, as held by the Patna High Court, which decision has been followed by the learned Judge in this case, quite naturally, permitting the appellant to withdraw his claim, may result in prejudice to the respondents, in whose favour certain findings have also been recorded by the Claims Officer. But we have already pointed out that there is no. question of the appellant being put to election in circumstances like this and, if that is so, there cannot also be any question of prejudice being caused to the respondent by the appellants request for withdrawing the claim being granted, more especially, in view of the limited request made by him, to which we will advert presently.43. As we have already indicated, the appellants request was for permitting him to withdraw his claim application on the ground that he proposed to seek the remedy that might be available to him in law, as against the mortgaged properties, which have not vested in the State. If the appellants request for withdrawing his claim petition had been made with liberty to enable him again to seek his remedies, as against the properties which have vested in the State, the position may be different, because, in those circumstances, the respondents can forcibly urge that they have obtained a decision on certain aspects in their favour at the hands of the Claims Officer and that, if permission to withdraw is granted to the appellant it would be prejudicial to them. When the appellant was making a very simple request for withdrawing hits claim petition, only to enable him to seek any remedy available to him in law, as against the non-vested properties, we do not see any reason as to why that request should not be granted. ### Response: 1 ### Explanation: elect between the remedy under S. 14 and the ordinary remedy available to him under the general law.No. doubt, the observations extracted above, prima facie, support the contentions of the learned counsel for thehave also referred, in the earlier part of this judgment, to the principles laid down by those decisions to the effect that whether the whole of the property mortgaged is an estate, there can be no. doubt that the procedure prescribed by Chapter IV has to be followed in order that the amount due to a creditor is determined by the Claims Officer. No. provision in the Act, has been brought to our notice by learned counsel for the respondent, giving jurisdiction to the authorities, functioning under the Act, to adjudicate upon the claims of a mortgagee with reference to properties which do not vest in the State. Nor has any provision of the statute been brought to our notice prohibiting or placing a bar on the right of a creditor to pursue the remedy available to him under the ordinary law, as against properties which have not vested in the State. Therefore, under those circumstances, we are not inclined to agree with the observations of the Patna High Court in the decisions referred to above that in cases where a mortgaged property consists of both vested anditems, it is open to the creditor to make an election as to the choice of his remedies and that election is to be made by a creditor giving up his right of filing a claim under Section 14 with respect to the vested estate or prosecuting a suit or execution proceeding in a Civil Court in respect of items which have not so vested in the State. The Act, so far as we can see, gives jurisdiction to the authorities concerned only in respect of properties, which have vested in the State, and the claims that are filed and adjudications made by the authorities concerned, under the Act, can only be with reference to estates that have vested in the State. In our opinion, the prohibition contained in Sections 4 (d) and 35 of the Act must also relate only to matters which can form properly the subject of a claim or an adjudication under the Act.40. We are further of opinion that while in respect of the estate, which have vested in the State under the Act, the mortgagee will be bound to have recourse to the procedure laid down in the Act, so far as his mortgage takes in other properties his right to enforce his claim under the ordinary law, has not been, in any manner, infringed or taken away by the Act. If that is so, it follows that in this case the appellant, notwithstanding the fact that he had filed a claim under Section 14 of the Act with reference to properties which have vested in the State, is entitled to avail himself. of any other remedy open to him in law, to enforce his claim as against theproperties comprised in the mortgage. The main reason given by the learned Judge, for rejecting the application filed by the appellant for withdrawing his claim, is that the appellant, when he filed an application under Section 14, must be considered to have elected his remedy under the Act, and therefore, he should not be permitted to withdraw the claim.41. Here, again when once we have held that there is no. scope for the application of the doctrine of election, the reason given by the lower Court for declining to grant permission to withdraw the claim, also falls to the ground.No. doubt, technically, the provisions of Order XXIII, C. P. C. may not apply; but we do not see any bar to a tribunal permitting the withdrawal of any proceeding, if it is satisfied that the said request can be granted otherwise. No. doubt, before permission is granted to withdraw a proceeding, the tribunal can consider as to whether the withdrawal if granted, will prejudice the opposite party. In this case, as we have already pointed out, the learned Judge has not found any positive prejudice, that will result to the respondents, by the appellant being permitted to withdraw his claim application. If the doctrine of election applies, as held by the Patna High Court, which decision has been followed by the learned Judge in this case, quite naturally, permitting the appellant to withdraw his claim, may result in prejudice to the respondents, in whose favour certain findings have also been recorded by the Claims Officer. But we have already pointed out that there is no. question of the appellant being put to election in circumstances like this and, if that is so, there cannot also be any question of prejudice being caused to the respondent by the appellants request for withdrawing the claim being granted, more especially, in view of the limited request made by him, to which we will advert presently.43. As we have already indicated, the appellants request was for permitting him to withdraw his claim application on the ground that he proposed to seek the remedy that might be available to him in law, as against the mortgaged properties, which have not vested in the State. If the appellants request for withdrawing his claim petition had been made with liberty to enable him again to seek his remedies, as against the properties which have vested in the State, the position may be different, because, in those circumstances, the respondents can forcibly urge that they have obtained a decision on certain aspects in their favour at the hands of the Claims Officer and that, if permission to withdraw is granted to the appellant it would be prejudicial to them. When the appellant was making a very simple request for withdrawing hits claim petition, only to enable him to seek any remedy available to him in law, as against theproperties, we do not see any reason as to why that request should not be granted.

Controller of Estate Duty Madras Vs. Alladi Kuppuswamy

and some female members. According to the Privy Council, the females were merely entitled to maintenance. The females there could not have any interest in the coparcenary nor could any such argument be advanced because there was no statute similar to the Act of 1937. Moreover, in the Estate Duty Ordinance which was being construed by the Privy Council there was neither any provision like the inclusive part of sub-s. (1) and sub-s. (2) of s. 7 nor any provision similar to s. 39 of the Act. In these circumstances, we do not see how the Privy Council decision in Arunachalam Chattiars case (supra) can be called in aid to support the contention of the respondent. In the instant case, once it is held, as it must be, that Smt. Alladi was a member of the Hindu coparcenary, her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary. It was also clearly capable of valuation, unlike the position in Arunachalam Chettiars case where the Privy Council was construing a provision similar to s. 40 of the Act, which, in our opinion, has no application in the present case, it being covered by s. 39 of the Act. A fortiori the same observations apply to the case of Gertside v. Inland Revenue Commissioners (supra). That case has no application here where we are concerned with the concept of a Hindu coparcenary which is totally alien to the estates contemplated under the English Acts. For these reasons, therefore, we are clearly of the opinion that the two cases relied upon by the High Court do not appear to be of any assistance in deciding the points at issue in the p resent appeal, and the High Court was in error in basing its decision on the aforesaid cases ignoring the decisions of this Court as also the peculiar and special provisions of the Act.Finally, it was vehemently contended by Mr. Sastri for the respondent that the right of a Hindu widow under the Act of 1937 was merely a statutory substitution of a new status by her introduction into the copercenary and she could not b e treated either as a coparcener or a me, tuber of the copercenary or to possess any kind of coparcenary interest. While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the status of a Hindu widow under the Shastric Law chose to improve her status by conferring a new right on her under the Act of 1937, and with this avowed object clothed her with all the rights and concomitants of a coparcener s interest, it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property. Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by s. 3(3) of the Act of 1937, namely , that her interest would be the limited interest of a Hindu widow. The conclusion is therefore inescapable that Smt. Alladi did possess a coparcenary interest which lapsed on her death and merged into the coparcenary and the case was clearly covered by the inclusive part of sub-s. (1) of s. 7 and under s. 39 the value of the benefit accruing or arising from the cesser of her coparcenary interest was to be determined by taking the principal value of the share in the joint family property which would have been allotted to her, had there been a partition immediately before her death.The last plank of the argument of the respondent was that the Estate Duty Act being a fiscal statute should be construed strictly so as to give every benefit of doubt to the subject. There can be no quarrel with this proposition but when the phraseology of a particular section of the statute takes within its sweep the transaction which is taxable, it is not for the Court to strain and stress the language of the section so as to enable the tax-payer to escape the tax. In t he view that we take in this case, it is manifest that the legislative intent reflected in the Act of 1937 and the Estate Duy Act, 1953, must be given full effect. 16. Summarising, therefore, the position that emerges is as follows:"By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as contemplated by s. 7( 1 ) of the Act and she is also a member of a Hindu copercenary as envisaged by s. 7(2) of the Act. On the death of Smt. Alladi, therefore, there was clearly a cesser of her interest and her interest merged in the copercenary property and by reason of the inclusive part of sub s. (1 ) of s. 7, it must be taken to have passed on her death and was hence exigible to estate duty. Since Smt Alladi was a member of the copercenary, this interest of hers which passed on her death was liable to be valued in accordance with the method provided by s. 39 of the Act." 17. The interpretation of s. 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of s. 7 (1) latter p art and sub-s. (2) of s. 7 of the Act which attracts s. 39, it is not at all necessary for us to enter into the complex domain of the scope and ambit of s. 40 of the Act in this case. 18.

1[ds]In our opinion the answer to the problem would naturally lie in a correct interpretation of ss- 7(1) &(2) of the Act as also on a true construction of s. 3(2) of the Hindu Womens Rights to Property Act, 1937 as amended by Act 11 of 1938. It is true that while this Court has had occasions to interpret the provisions of the Hindu Womens Rights to Property Act, 1937--hereafter referred to as the Act of 1937---on several occasions, yet the exact point which arises in this case has not yet been determined by this Court. In order to understand the implications Of the arguments advanced by counsel for the parties. before us, it may be necessary to extract the relevant provisions of the Act as also of the Act of 1937Once a Hindu widow is held to have a coparcenary interest, then there would be no difficulty in treating her as a member of the Hindu coparcenary, in which case her interest could be easily valued according to the relevant provision of s. 39 of the ActThus the position appears to be that a Hindu widow was introduced for the first time into the Hindu coparcenary having the same rights as her husband and became as it were a member of the Hindu coparcenary with two qualifications, viz., (1) that she had only a limited interest; and (2)that she could not be a coparcener because having regard to the nature of her entry into the family after marriage with her husband there was no question of her getting interest in the Hindu coparcenary by birth which is one of the most important incidents of a Hindu coparcenary. All the other rights of a coparcener were duly conferred on her by the Act of 1937.Dwelling on the content and import of the nature of the interest of a Hindu widow this Court pointed out in Jaisri Sahu v. Rajdewan Dubey &Others([1962] 2 S.C.R. 558, 564-565.) that on the death of her husband the properties vested in the widow and she fully represented the estateAs pointed out above the essence of coparcenary property is the unity of ownership which is vested in the whole body of coparceners and the two principal incidents of coparcenary property are that the interest of coparceners devolves by survivorship and not by inheritance and that the male issue of a coparcener acquires an interest in the coparcenary property by birth and not as representing his fatherIt is, therefore, manifest from the aforesaid decision that if the widow had not chosen to exercise her right of partition, there is no severance of the Hindu coparcenary and on her death the interest of the widow merges in the coparcenary property or lapses to the other coparcenersWe find ourselves in complete agreement with the observations made by the Patna High Court to which one, of us (Untwalia, J., as he then was) was a partyThus analysing the ratio of a aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got. ownership extending over the entire property conjointly with the. rest and so long as no partition takes place, it is difficult for any copercener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common; (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property. Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting condition No. (1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary. In other words, after her husbands death the Hindu widow under the Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition is made, her dominion extends to the entire property conjointly with the other members of the coparcenary, her possession and enjoyment is common, the property cannot be alienated without concurrence of all the members of the family, except for legal necessity, and like other coparceners she has a fluctuating interest in the property which may be increased or decreased by deaths or additions in the family. It is manifest that she cannot fulfill the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death. Thus, short of the first condition, she possesses all the necessary indicia of a coparcenary interest. The fact that before the Act of 1956, she had the characteristic of a widow-estate in her interest in the property does not detract any the less from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has coparcenary interest and she is also a member of a coparcenary by virtue of the rights conferred on her under the Act of 1937.There is yet another important aspect of the matter which has to be considered. At the time when the Estate Duty Act was passed in 1953, the Legislature was fully aware of the statutory interest conferred on a widow by virtue of the Act of 1937 and the incidents thereof. In these circumstances it is not reasonable to infer that the Legislature could have intended that though a Hindu widow has got the Same interest as her husband in the Hindu coparcenary and has also the right to demand partition and her interest which is a fluctuating. one would lapse to the other coparceners in case of her death without seeking partition in the same manner as that of other coparceners, yet it should be exempt from estate dutyr of the argument of the respondent was the Privy Council decision in Arunachalam Chettiars case(supra).In the first place, the facts of that case are clearly distinguishable from the facts of the present case. In that case, the Hindu undivided family consisted of father, son and some female members. According to the Privy Council, the females were merely entitled to maintenance. The females there could not have any interest in the coparcenary nor could any such argument be advanced because there was no statute similar to the Act of 1937. Moreover, in the Estate Duty Ordinance which was being construed by the Privy Council there was neither any provision like the inclusive part of sub-s. (1) and sub-s. (2) of s. 7 nor any provision similar to s. 39 of the Act. In these circumstances, we do not see how the Privy Council decision in Arunachalam Chattiars case (supra) can be called in aid to support the contention of the respondent. In the instant case, once it is held, as it must be, that Smt. Alladi was a member of the Hindu coparcenary, her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary. It was also clearly capable of valuation, unlike the position in Arunachalam Chettiars case where the Privy Council was construing a provision similar to s. 40 of the Act, which, in our opinion, has no application in the present case, it being covered by s. 39 of the Act. A fortiori the same observations apply to the case of Gertside v. Inland Revenue Commissioners(supra).That case has no application here where we are concerned with the concept of a Hindu coparcenary which is totally alien to the estates contemplated under the English Acts. For these reasons, therefore, we are clearly of the opinion that the two cases relied upon by the High Court do not appear to be of any assistance in deciding the points at issue in the p resent appeal, and the High Court was in error in basing its decision on the aforesaid cases ignoring the decisions of this Court as also the peculiar and special provisions of the, it was vehemently contended by Mr. Sastri for the respondent that the right of a Hindu widow under the Act of 1937 was merely a statutory substitution of a new status by her introduction into the copercenary and she could not b e treated either as a coparcener or a me, tuber of the copercenary or to possess any kind of coparcenaryinterest.While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the status of a Hindu widow under the Shastric Law chose to improve her status by conferring a new right on her under the Act of 1937, and with this avowed object clothed her with all the rights and concomitants of a coparcener s interest, it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property. Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by s. 3(3) of the Act of 1937, namely , that her interest would be the limited interest of a Hindu widow. The conclusion is therefore inescapable that Smt. Alladi did possess a coparcenary interest which lapsed on her death and merged into the coparcenary and the case was clearly covered by the inclusive part of sub-s. (1) of s. 7 and under s. 39 the value of the benefit accruing or arising from the cesser of her coparcenary interest was to be determined by taking the principal value of the share in the joint family property which would have been allotted to her, had there been a partition immediately before here last plank of the argument of the respondent was that the Estate Duty Act being a fiscal statute should be construed strictly so as to give every benefit of doubt to the subject.There can be no quarrel with this proposition but when the phraseology of a particular section of the statute takes within its sweep the transaction which is taxable, it is not for the Court to strain and stress the language of the section so as to enable the tax-payer to escape the tax. In t he view that we take in this case, it is manifest that the legislative intent reflected in the Act of 1937 and the Estate Duy Act, 1953, must be given full effectSummarising, therefore, the position that emerges is as follows:By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as contemplated by s. 7( 1 ) of the Act and she is also a member of a Hindu copercenary as envisaged by s. 7(2) of the Act. On the death of Smt. Alladi, therefore, there was clearly a cesser of her interest and her interest merged in the copercenary property and by reason of the inclusive part of sub s. (1 ) of s. 7, it must be taken to have passed on her death and was hence exigible to estate duty. Since Smt Alladi was a member of the copercenary, this interest of hers which passed on her death was liable to be valued in accordance with the method provided by s. 39 of the ActThe interpretation of s. 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of s. 7 (1) latter p art and sub-s. (2) of s. 7 of the Act which attracts s. 39, it is not at all necessary for us to enter into the complex domain of the scope and ambit of s. 40 of the Act in this caseIn order to understand the content and character of the interest which a Hindu widow gets by virtue of the statutory provisions contained in the Act of 1937 there can be no doubt that prior to the passing of the Act of 1937 a Hindu woman had no right or interest at all in a Hindu coparcenary. She was neither a coparcener nor a member of the coparcenary nor did she have any interest in it, except the right to get maintenance. She also had no right to demand partition of the coparcenary property after the death of her husband. The Act of 1937 introduced broad and important changes by bettering the rights of a Hindu widow and conferring on her the same interest as possessed by her husbandIn the first place, the facts of that case are clearly distinguishable from the facts of the present case. In that case, the Hindu undivided family consisted of father, son and some female members. According to the Privy Council, the females were merely entitled to maintenance. The females there could not have any interest in the coparcenary nor could any such argument be advanced because there was no statute similar to the Act of 1937. Moreover, in the Estate Duty Ordinance which was being construed by the Privy Council there was neither any provision like the inclusive part ofsubs.(1) andsubs.(2) of s. 7 nor any provision similar to s. 39 of the Act. In these circumstances, we do not see how the Privy Council decision in Arunachalam Chattiars case (supra) can be called in aid to support the contention of the respondent. In the instant case, once it is held, as it must be, that Smt. Alladi was a member of the Hindu coparcenary, her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary. It was also clearly capable of valuation, unlike the position in Arunachalam Chettiars case where the Privy Council was construing a provision similar to s. 40 of the Act, which, in our opinion, has no application in the present case, it being covered by s. 39 of the Act. A fortiori the same observations apply to the case of Gertside v. Inland Revenue Commissioners(supra).While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the status of a Hindu widow under the Shastric Law chose to improve her status by conferring a new right on her under the Act of 1937, and with this avowed object clothed her with all the rights and concomitants of a coparcener s interest, it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property. Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by s. 3(3) of the Act of 1937, namely , that her interest would be the limited interest of a Hindu widow. The conclusion is therefore inescapable that Smt. Alladi did possess a coparcenary interest which lapsed on her death and merged into the coparcenary and the case was clearly covered by the inclusive part ofsubs.There can be no quarrel with this proposition but when the phraseology of a particular section of the statute takes within its sweep the transaction which is taxable, it is not for the Court to strain and stress the language of the section so as to enable ther to escape the tax. In t he view that we take in this case, it is manifest that the legislative intent reflected in the Act of 1937 and the Estate Duy Act, 1953, must be given full effectSummarising, therefore, the position that emerges is as follows:By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as contemplated by s. 7( 1 ) of the Act and she is also a member of a Hindu copercenary as envisaged by s. 7(2) of the Act. On the death of Smt. Alladi, therefore, there was clearly a cesser of her interest and her interest merged in the copercenary property and by reason of the inclusive part of sub s. (1 ) of s. 7, it must be taken to have passed on her death and was hence exigible to estate duty. Since Smt Alladi was a member of the copercenary, this interest of hers which passed on her death was liable to be valued in accordance with the method provided by s. 39 of the ActThe interpretation of s. 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of s. 7 (1) latter p art andsubs.(2) of s. 7 of the Act which attracts s. 39, it is not at all necessary for us to enter into the complex domain of the scope and ambit of s. 40 of the Act in this

### 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: and some female members. According to the Privy Council, the females were merely entitled to maintenance. The females there could not have any interest in the coparcenary nor could any such argument be advanced because there was no statute similar to the Act of 1937. Moreover, in the Estate Duty Ordinance which was being construed by the Privy Council there was neither any provision like the inclusive part of sub-s. (1) and sub-s. (2) of s. 7 nor any provision similar to s. 39 of the Act. In these circumstances, we do not see how the Privy Council decision in Arunachalam Chattiars case (supra) can be called in aid to support the contention of the respondent. In the instant case, once it is held, as it must be, that Smt. Alladi was a member of the Hindu coparcenary, her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary. It was also clearly capable of valuation, unlike the position in Arunachalam Chettiars case where the Privy Council was construing a provision similar to s. 40 of the Act, which, in our opinion, has no application in the present case, it being covered by s. 39 of the Act. A fortiori the same observations apply to the case of Gertside v. Inland Revenue Commissioners (supra). That case has no application here where we are concerned with the concept of a Hindu coparcenary which is totally alien to the estates contemplated under the English Acts. For these reasons, therefore, we are clearly of the opinion that the two cases relied upon by the High Court do not appear to be of any assistance in deciding the points at issue in the p resent appeal, and the High Court was in error in basing its decision on the aforesaid cases ignoring the decisions of this Court as also the peculiar and special provisions of the Act.Finally, it was vehemently contended by Mr. Sastri for the respondent that the right of a Hindu widow under the Act of 1937 was merely a statutory substitution of a new status by her introduction into the copercenary and she could not b e treated either as a coparcener or a me, tuber of the copercenary or to possess any kind of coparcenary interest. While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the status of a Hindu widow under the Shastric Law chose to improve her status by conferring a new right on her under the Act of 1937, and with this avowed object clothed her with all the rights and concomitants of a coparcener s interest, it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property. Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by s. 3(3) of the Act of 1937, namely , that her interest would be the limited interest of a Hindu widow. The conclusion is therefore inescapable that Smt. Alladi did possess a coparcenary interest which lapsed on her death and merged into the coparcenary and the case was clearly covered by the inclusive part of sub-s. (1) of s. 7 and under s. 39 the value of the benefit accruing or arising from the cesser of her coparcenary interest was to be determined by taking the principal value of the share in the joint family property which would have been allotted to her, had there been a partition immediately before her death.The last plank of the argument of the respondent was that the Estate Duty Act being a fiscal statute should be construed strictly so as to give every benefit of doubt to the subject. There can be no quarrel with this proposition but when the phraseology of a particular section of the statute takes within its sweep the transaction which is taxable, it is not for the Court to strain and stress the language of the section so as to enable the tax-payer to escape the tax. In t he view that we take in this case, it is manifest that the legislative intent reflected in the Act of 1937 and the Estate Duy Act, 1953, must be given full effect. 16. Summarising, therefore, the position that emerges is as follows:"By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as contemplated by s. 7( 1 ) of the Act and she is also a member of a Hindu copercenary as envisaged by s. 7(2) of the Act. On the death of Smt. Alladi, therefore, there was clearly a cesser of her interest and her interest merged in the copercenary property and by reason of the inclusive part of sub s. (1 ) of s. 7, it must be taken to have passed on her death and was hence exigible to estate duty. Since Smt Alladi was a member of the copercenary, this interest of hers which passed on her death was liable to be valued in accordance with the method provided by s. 39 of the Act." 17. The interpretation of s. 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of s. 7 (1) latter p art and sub-s. (2) of s. 7 of the Act which attracts s. 39, it is not at all necessary for us to enter into the complex domain of the scope and ambit of s. 40 of the Act in this case. 18. ### Response: 1 ### Explanation: was hence exigible to estate duty. Since Smt Alladi was a member of the copercenary, this interest of hers which passed on her death was liable to be valued in accordance with the method provided by s. 39 of the ActThe interpretation of s. 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of s. 7 (1) latter p art and sub-s. (2) of s. 7 of the Act which attracts s. 39, it is not at all necessary for us to enter into the complex domain of the scope and ambit of s. 40 of the Act in this caseIn order to understand the content and character of the interest which a Hindu widow gets by virtue of the statutory provisions contained in the Act of 1937 there can be no doubt that prior to the passing of the Act of 1937 a Hindu woman had no right or interest at all in a Hindu coparcenary. She was neither a coparcener nor a member of the coparcenary nor did she have any interest in it, except the right to get maintenance. She also had no right to demand partition of the coparcenary property after the death of her husband. The Act of 1937 introduced broad and important changes by bettering the rights of a Hindu widow and conferring on her the same interest as possessed by her husbandIn the first place, the facts of that case are clearly distinguishable from the facts of the present case. In that case, the Hindu undivided family consisted of father, son and some female members. According to the Privy Council, the females were merely entitled to maintenance. The females there could not have any interest in the coparcenary nor could any such argument be advanced because there was no statute similar to the Act of 1937. Moreover, in the Estate Duty Ordinance which was being construed by the Privy Council there was neither any provision like the inclusive part ofsubs.(1) andsubs.(2) of s. 7 nor any provision similar to s. 39 of the Act. In these circumstances, we do not see how the Privy Council decision in Arunachalam Chattiars case (supra) can be called in aid to support the contention of the respondent. In the instant case, once it is held, as it must be, that Smt. Alladi was a member of the Hindu coparcenary, her interest was undoubtedly a coparcenary interest which lapsed on her death and merged into the coparcenary. It was also clearly capable of valuation, unlike the position in Arunachalam Chettiars case where the Privy Council was construing a provision similar to s. 40 of the Act, which, in our opinion, has no application in the present case, it being covered by s. 39 of the Act. A fortiori the same observations apply to the case of Gertside v. Inland Revenue Commissioners(supra).While we agree that the widow after the introduction in the coparcenary could not be held to have become a coparcener, because one of the essential characteristics of a coparcener, namely, acquisition of interest by birth, is wholly wanting in her case, yet when the Legislature which was fully aware of the status of a Hindu widow under the Shastric Law chose to improve her status by conferring a new right on her under the Act of 1937, and with this avowed object clothed her with all the rights and concomitants of a coparcener s interest, it is futile to contend that the widow could not be treated either as a member of the Hindu coparcenary or as having been conferred coparcenary interest in the property. Even though the widow is not a coparcener in the strictly legal sense of the term, the interest which she has is the same interest as her husband and that is the coparcenary interest with the only limitation placed on her by s. 3(3) of the Act of 1937, namely , that her interest would be the limited interest of a Hindu widow. The conclusion is therefore inescapable that Smt. Alladi did possess a coparcenary interest which lapsed on her death and merged into the coparcenary and the case was clearly covered by the inclusive part ofsubs.There can be no quarrel with this proposition but when the phraseology of a particular section of the statute takes within its sweep the transaction which is taxable, it is not for the Court to strain and stress the language of the section so as to enable ther to escape the tax. In t he view that we take in this case, it is manifest that the legislative intent reflected in the Act of 1937 and the Estate Duy Act, 1953, must be given full effectSummarising, therefore, the position that emerges is as follows:By virtue of the provisions of the Act of 1937 a Hindu widow undoubtedly possesses a coparcenary interest as contemplated by s. 7( 1 ) of the Act and she is also a member of a Hindu copercenary as envisaged by s. 7(2) of the Act. On the death of Smt. Alladi, therefore, there was clearly a cesser of her interest and her interest merged in the copercenary property and by reason of the inclusive part of sub s. (1 ) of s. 7, it must be taken to have passed on her death and was hence exigible to estate duty. Since Smt Alladi was a member of the copercenary, this interest of hers which passed on her death was liable to be valued in accordance with the method provided by s. 39 of the ActThe interpretation of s. 40 of the Act is not free from difficulty, but as the present case squarely falls within the ambit of s. 7 (1) latter p art andsubs.(2) of s. 7 of the Act which attracts s. 39, it is not at all necessary for us to enter into the complex domain of the scope and ambit of s. 40 of the Act in this

State Of U.P Vs. Hari Ram

the vacant land in excess of the prescribed ceiling limit, which reads as under: The Uttar Pradesh Urban Land Ceiling (Taking of Possession payment of amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the Act, 1976): “In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976), the governor is pleased to issue the following directions relating to the powers and duties of the Competent Authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:1. Short title, application and Commencement –These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession Payment of Amount and Allied Matters Directions, 1983)2. The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.3. They shall come into force with effect from the date of publication in the Gazette.2. Definitions:-3. Procedure for taking possession of vacant Land in excess of Ceiling Limit-(1) The Competent Authority will maintain a register in From No.ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the Gazette.4. (2) an order in Form No.ULC-II will be sent to each land holder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No.ULC-1.(3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No.ULC-1. The Competent Authority shall in token of verification of the entries, put his signatures in column 11 of Form No.ULC-1 and Column 10 of Form No.ULC-III.Form No.ULC-1Register of Notice u/s 10-(3) and 10(5)1234567891011S.SerialCaseDateLandDateRemarksSignatureNoNo. ofNumberof Notifi-to beof taking ofRegister of cationacquireedover CompetentReceipt u/s 10(3)villagepossession AuthoritySl. No. of MohaliRegister ofTakingPossessionForm NO. ULC-IINotice order u/s 10(5)(See clause (2) of Direction (3)In the Court of Competent AuthorityU.L.C. ……………No………………… Date ………………Sri/Smt………………………….T/o ………………………………….In exercise of the powers vested un/s 10(5) of the Urban Land Ceiling and Regulation Act, 1976 (Act No.33 of 1976, you are hereby informed that vide Notification No……. dated ….. under section 10(1) published in Uttar Pradesh Gazette dated …… following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s 10(3) published in Uttar Pradesh Gazette dated ……. Notification No……… dated …. With effect from ………. you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District Authorised in this behalf under Notification No.324/II-27- U.C.77 dated February 9, 1977, published in the gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.Description of Vacant LandLocationKhasranumberAreaRemarksidentification1234Competent Authority………………………….………………………….Dated..………………………..No.Copy forwarded to the Collector ………… with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken an intimation be given to the undersigned along with copy of certificate to verify.Competent Authority½………………………….½..………………………..” 36. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land. 37. The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain judgments, even though there has been no elaborate discussion of the provision of the Act and its impact on the Repeal Act. Reference may be made to Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Others (2000) 6 SCC 325 , Ghasitey Lal Sahu and Another v. Competent Authority, Under the Urban (Ceiling and Regulation Act, 1976), U.P. and Another (2004) 13 SCC 452, Mukarram Ali Khan v. State of Uttar Pradesh and Others (2007) 11 SCC 90 and Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority and Others (2012) 4 SCC 718. Effect of the Repeal Act 38. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case. 39. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act. 40.

0[ds]Vacant land, it may be noted, is not actually acquired but deemedto have beenacquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the wordshave different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislativeare of the view that so far as the present case is concerned, the wordtakes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.30. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of thede facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) to Section 10, there is no necessity of using the expressionany land isunder sub-section (5) to Section 10. Surrendering or transfer of possession under sub-section (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forcefulmere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: the vacant land in excess of the prescribed ceiling limit, which reads as under: The Uttar Pradesh Urban Land Ceiling (Taking of Possession payment of amount and Allied Matters) Directions, 1983 (Directions issued by the State Government under Section 35 of the Act, 1976): “In exercise of the powers under Section 35 of the Urban Land (Ceiling and Regulation) Act, 1976 (Act No.33 of 1976), the governor is pleased to issue the following directions relating to the powers and duties of the Competent Authority in respect of amount referred to in Section 11 of the aforesaid Act to the person or persons entitled thereto:1. Short title, application and Commencement –These directions may be called the Uttar Pradesh Urban Land Ceiling (Taking of Possession Payment of Amount and Allied Matters Directions, 1983)2. The provisions contained in this direction shall be subjected to the provisions of any directions or rules or orders issued by the Central Government with such directions or rules or orders.3. They shall come into force with effect from the date of publication in the Gazette.2. Definitions:-3. Procedure for taking possession of vacant Land in excess of Ceiling Limit-(1) The Competent Authority will maintain a register in From No.ULC -1 for each case regarding which notification under sub-section (3) of Section 10 of the Act is published in the Gazette.4. (2) an order in Form No.ULC-II will be sent to each land holder as prescribed under sub-section (5) of Section 109 of the Act and the date of issue and service of the order will be entered in Column 8 of Form No.ULC-1.(3) On possession of the excess vacant land being taken in accordance with the provisions of sub-section (5) or sub-section (6) of Section 10 of the Act, entries will be made in a register in Form ULC-III and also in Column 9 of the Form No.ULC-1. The Competent Authority shall in token of verification of the entries, put his signatures in column 11 of Form No.ULC-1 and Column 10 of Form No.ULC-III.Form No.ULC-1Register of Notice u/s 10-(3) and 10(5)1234567891011S.SerialCaseDateLandDateRemarksSignatureNoNo. ofNumberof Notifi-to beof taking ofRegister of cationacquireedover CompetentReceipt u/s 10(3)villagepossession AuthoritySl. No. of MohaliRegister ofTakingPossessionForm NO. ULC-IINotice order u/s 10(5)(See clause (2) of Direction (3)In the Court of Competent AuthorityU.L.C. ……………No………………… Date ………………Sri/Smt………………………….T/o ………………………………….In exercise of the powers vested un/s 10(5) of the Urban Land Ceiling and Regulation Act, 1976 (Act No.33 of 1976, you are hereby informed that vide Notification No……. dated ….. under section 10(1) published in Uttar Pradesh Gazette dated …… following land has vested absolutely in the State free from all encumbrances as a consequence Notification u/s 10(3) published in Uttar Pradesh Gazette dated ……. Notification No……… dated …. With effect from ………. you are hereby ordered to surrender or deliver the possession of the land to the Collector of the District Authorised in this behalf under Notification No.324/II-27- U.C.77 dated February 9, 1977, published in the gazette, dated March 12, 1977, within thirty days from the date of receipt of this order otherwise action under sub-section (6) of Section 10 of the Act will follow.Description of Vacant LandLocationKhasranumberAreaRemarksidentification1234Competent Authority………………………….………………………….Dated..………………………..No.Copy forwarded to the Collector ………… with the request that action for immediate taking over of the possession of the above detailed surplus land and its proper maintenance may, kindly be taken an intimation be given to the undersigned along with copy of certificate to verify.Competent Authority½………………………….½..………………………..” 36. Above-mentioned directives make it clear that sub-section (3) takes in only de jure possession and not de facto possession, therefore, if the land owner is not surrendering possession voluntarily under sub-section (3) of Section 10, or surrendering or delivering possession after notice, under Section 10(5) or dispossession by use of force, it cannot be said that the State Government has taken possession of the vacant land. 37. The scope of Act 33 of 1976 came up for consideration before this Court on few occasions, reference may be made to certain judgments, even though there has been no elaborate discussion of the provision of the Act and its impact on the Repeal Act. Reference may be made to Pt. Madan Swaroop Shrotiya Public Charitable Trust v. State of U.P. and Others (2000) 6 SCC 325 , Ghasitey Lal Sahu and Another v. Competent Authority, Under the Urban (Ceiling and Regulation Act, 1976), U.P. and Another (2004) 13 SCC 452, Mukarram Ali Khan v. State of Uttar Pradesh and Others (2007) 11 SCC 90 and Vinayak Kashinath Shilkar v. Deputy Collector and Competent Authority and Others (2012) 4 SCC 718. Effect of the Repeal Act 38. Let us now examine the effect of Section 3 of the Repeal Act 15 of 1999 on sub-section (3) to Section 10 of the Act. The Repeal Act 1999 has expressly repealed the Act 33 of 1976. The Object and Reasons of the Repeal Act has already been referred to in the earlier part of this Judgment. Repeal Act has, however, retained a saving clause. The question whether a right has been acquired or liability incurred under a statute before it is repealed will in each case depend on the construction of the statute and the facts of the particular case. 39. The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act. 40. ### Response: 0 ### Explanation: Vacant land, it may be noted, is not actually acquired but deemedto have beenacquired, in that deeming things to be what they are not. Acquisition, therefore, does not take possession unless there is an indication to the contrary. It is trite law that in construing a deeming provision, it is necessary to bear in mind the legislative purpose. The purpose of the Act is to impose ceiling on vacant land, for the acquisition of land in excess of the ceiling limit thereby to regulate construction on such lands, to prevent concentration of urban lands in hands of few persons, so as to bring about equitable distribution. For achieving that object, various procedures have to be followed for acquisition and vesting. When we look at those words in the above setting and the provisions to follow such as sub-sections (5) and (6) of Section 10, the wordshave different meaning and content. Under Section 10(3), what is vested is de jure possession not de facto, for more reasons than one because we are testing the expression on a statutory hypothesis and such an hypothesis can be carried only to the extent necessary to achieve the legislativeare of the view that so far as the present case is concerned, the wordtakes in every interest in the property including de jure possession and, not de facto but it is always open to a person to voluntarily surrender and deliver possession, under Section 10(3) of the Act.30. Before we examine sub-section (5) and sub-section (6) of Section 10, let us examine the meaning of sub-section (4) of Section 10 of the Act, which says that during the period commencing on the date of publication under sub-section (1), ending with the day specified in the declaration made under sub-section (3), no person shall transfer by way of sale, mortgage, gift or otherwise, any excess vacant land, specified in the notification and any such transfer made in contravention of the Act shall be deemed to be null and void. Further, it also says that no person shall alter or cause to be altered the use of such excess vacant land. Therefore, from the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made in sub-section (3), there is no question of disturbing the possession of a person, the possession, therefore, continues to be with the holder of thede facto possession has already passed on to the State Government by the two deeming provisions under sub-section (3) to Section 10, there is no necessity of using the expressionany land isunder sub-section (5) to Section 10. Surrendering or transfer of possession under sub-section (3) to Section 10 can be voluntary so that the person may get the compensation as provided under Section 11 of the Act early. Once there is no voluntary surrender or delivery of possession, necessarily the State Government has to issue notice in writing under sub-section (5) to Section 10 to surrender or deliver possession. Subsection (5) of Section 10 visualizes a situation of surrendering and delivering possession, peacefully while sub-section (6) of Section 10 contemplates a situation of forcefulmere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section (5) of Section 10 or forceful dispossession under sub-section (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.

M/S. Gammon India Ltd Vs. Commnr. Of Customs, Mumbai

funds of Gammon. 21. Thus, the inevitable conclusion is that import of “Concrete batching plant 56 cum/hr” by Gammon cannot be considered as an import by M/s Gammon-Atlanta JV, “a person” who had been awarded contract for construction of the roads in India and therefore, neither Gammon Atlanta JV nor Gammon fulfill the requisite requirement stipulated in Condition No.38 of the Exemption Notification No. 17/2001/Cus dated 1st March, 2001. 22. As regards the plea of the appellant that the Exemption Notification should receive a liberal construction to further the object underlying it, it is well settled that a provision providing for an exemption has to be construed strictly. In Novopan India Ltd. (supra), dealing with the same issue in relation to an exemption notification, a three-Judge Bench of this Court, stated the principle as follows: “16. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicals-- and in Union of India v. Wood Papers referred to therein -- represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee -- assuming that the said principle is good and sound -- does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption.” 23. Applying the above principles, we are of the opinion that since in the instant case the language of condition No.38 in the Exemption Notification is clear and unambiguous, there is no need to resort to the interpretative process in order to determine whether the said condition is to be imparted strict or liberal construction.24. Before parting, we wish to place on record our deep concern on the conduct of the two Benches of the Tribunal deciding appeals in the cases of IVRCL Infrastructures & Projects Ltd. (supra) & Techni Bharathi Ltd. (supra). After noticing the decision of a co-ordinate Bench in the present case, they still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment, thereby creating a judicial uncertainty with regard to the declaration of law involved on an identical issue in respect of the same Exemption Notification. It needs to be emphasised that if a Bench of a Tribunal, in identical fact-situation, is permitted to come to a conclusion directly opposed to the conclusion reached by another Bench of the Tribunal on earlier occasion, that will be destructive of the institutional integrity itself. What is important is the Tribunal as an institution and not the personality of the members constituting it. If a Bench of the Tribunal wishes to take a view different from the one taken by the earlier Bench, the propriety demands that it should place the matter before the President of the Tribunal so that the case is referred to a larger Bench, for which provision exists in the Act itself. In this behalf, the following observations by a three Judge Bench of this Court in Sub- Inspector Rooplal & Anr. Vs. Lt. Governor & Ors. ((2000) 1 SCC 644 ) are quite apposite : “At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of an- other Coordinate Bench of the same Tribunal. This is op- posed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same Tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement.” We respectfully concur with these observations and are confident that all the Courts and various Tribunals in the country shall follow these salutary observations in letter and spirit. 25. In view of the foregoing discussion,

0[ds]Gammon was not entitled to avail of the benefit of the Exemption Notification as an independent entity. On the contrary, the Commissioner (Appeals) allowed the benefit of the Exemption Notification to the appellant on the ground that the Exemption Notification should be given a liberal interpretation and that the revenue should not try to take advantage of ignorance of law and procedure on the part of Gammon. It is the Tribunal which has dealt with the issue in detail by taking into consideration certain factual aspects pertaining to the import of machine like placement of the supply orders by Gammon and not by the joint venture and its payment by Gammon from its own account and not from the joint venture account provided for in the joint venture agreement. Rejecting the plea of the appellant that in light of the decision of this Court in New Horizons (supra) wherein it has been held that a joint venture is a le- gal entity in the nature of a partnership, the import of the machinery by Gammon is to be considered as having been done on behalf of the joint venture, the Tribunal has allowed revenues appeal.16. Since the stand of the appellant is that the issue arising in the present appeal stands concluded in their favour by the decision of this Court in New Horizons (supra) and a subsequent decision of this Court as also of the Tribunal, in which the said decision has been relied upon, it would be necessary to discern the ratio of the decision in NewGammon-Atlanta JV, the joint venture could be treated as a `legal entity, with the character of a partnership in which Gammon was one of the constituents. In that view of the matter, the next question for consideration is whether being a legal entity i.e. a juridical person, the joint venture is also afor the purpose of Condition No.38 of the Exemption Notification, stipulating that the goods should be imported byho had been awarded a contract for construction of goods in India byprinciple, the decision of this Court in Mangalore Chemicals-- and in Union of India v. Wood Papers referred to therein -- represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee -- assuming that the said principle is good and sound -- does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of thein the instant case the language of condition No.38 in the Exemption Notification is clear and unambiguous, there is no need to resort to the interpretative process in order to determine whether the said condition is to be imparted strict or liberal construction.

### 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: funds of Gammon. 21. Thus, the inevitable conclusion is that import of “Concrete batching plant 56 cum/hr” by Gammon cannot be considered as an import by M/s Gammon-Atlanta JV, “a person” who had been awarded contract for construction of the roads in India and therefore, neither Gammon Atlanta JV nor Gammon fulfill the requisite requirement stipulated in Condition No.38 of the Exemption Notification No. 17/2001/Cus dated 1st March, 2001. 22. As regards the plea of the appellant that the Exemption Notification should receive a liberal construction to further the object underlying it, it is well settled that a provision providing for an exemption has to be construed strictly. In Novopan India Ltd. (supra), dealing with the same issue in relation to an exemption notification, a three-Judge Bench of this Court, stated the principle as follows: “16. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicals-- and in Union of India v. Wood Papers referred to therein -- represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee -- assuming that the said principle is good and sound -- does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption.” 23. Applying the above principles, we are of the opinion that since in the instant case the language of condition No.38 in the Exemption Notification is clear and unambiguous, there is no need to resort to the interpretative process in order to determine whether the said condition is to be imparted strict or liberal construction.24. Before parting, we wish to place on record our deep concern on the conduct of the two Benches of the Tribunal deciding appeals in the cases of IVRCL Infrastructures & Projects Ltd. (supra) & Techni Bharathi Ltd. (supra). After noticing the decision of a co-ordinate Bench in the present case, they still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment, thereby creating a judicial uncertainty with regard to the declaration of law involved on an identical issue in respect of the same Exemption Notification. It needs to be emphasised that if a Bench of a Tribunal, in identical fact-situation, is permitted to come to a conclusion directly opposed to the conclusion reached by another Bench of the Tribunal on earlier occasion, that will be destructive of the institutional integrity itself. What is important is the Tribunal as an institution and not the personality of the members constituting it. If a Bench of the Tribunal wishes to take a view different from the one taken by the earlier Bench, the propriety demands that it should place the matter before the President of the Tribunal so that the case is referred to a larger Bench, for which provision exists in the Act itself. In this behalf, the following observations by a three Judge Bench of this Court in Sub- Inspector Rooplal & Anr. Vs. Lt. Governor & Ors. ((2000) 1 SCC 644 ) are quite apposite : “At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the Tribunal has overruled, in effect, an earlier judgment of an- other Coordinate Bench of the same Tribunal. This is op- posed to all principles of judicial discipline. If at all, the subsequent Bench of the Tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same Tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every presiding officer of a judicial forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again that precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bound by the enunciation of law made by the superior courts. A Coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement.” We respectfully concur with these observations and are confident that all the Courts and various Tribunals in the country shall follow these salutary observations in letter and spirit. 25. In view of the foregoing discussion, ### Response: 0 ### Explanation: Gammon was not entitled to avail of the benefit of the Exemption Notification as an independent entity. On the contrary, the Commissioner (Appeals) allowed the benefit of the Exemption Notification to the appellant on the ground that the Exemption Notification should be given a liberal interpretation and that the revenue should not try to take advantage of ignorance of law and procedure on the part of Gammon. It is the Tribunal which has dealt with the issue in detail by taking into consideration certain factual aspects pertaining to the import of machine like placement of the supply orders by Gammon and not by the joint venture and its payment by Gammon from its own account and not from the joint venture account provided for in the joint venture agreement. Rejecting the plea of the appellant that in light of the decision of this Court in New Horizons (supra) wherein it has been held that a joint venture is a le- gal entity in the nature of a partnership, the import of the machinery by Gammon is to be considered as having been done on behalf of the joint venture, the Tribunal has allowed revenues appeal.16. Since the stand of the appellant is that the issue arising in the present appeal stands concluded in their favour by the decision of this Court in New Horizons (supra) and a subsequent decision of this Court as also of the Tribunal, in which the said decision has been relied upon, it would be necessary to discern the ratio of the decision in NewGammon-Atlanta JV, the joint venture could be treated as a `legal entity, with the character of a partnership in which Gammon was one of the constituents. In that view of the matter, the next question for consideration is whether being a legal entity i.e. a juridical person, the joint venture is also afor the purpose of Condition No.38 of the Exemption Notification, stipulating that the goods should be imported byho had been awarded a contract for construction of goods in India byprinciple, the decision of this Court in Mangalore Chemicals-- and in Union of India v. Wood Papers referred to therein -- represents the correct view of law. The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee -- assuming that the said principle is good and sound -- does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of thein the instant case the language of condition No.38 in the Exemption Notification is clear and unambiguous, there is no need to resort to the interpretative process in order to determine whether the said condition is to be imparted strict or liberal construction.

SUSHIL KUMAR AGARWAL Vs. MEENAKSHI SADHU

non-performance of the contract is not an adequate relief. The intent of the section is to make a distinction between cases where a breach of an agreement can be remedied by means of compensation in terms of money and those cases where no other remedy other than specific performance will afford adequate relief. Therefore, before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner. From the facts of the case, it is clear that the case of the developer is that he incurred an expenditure of ? 18,41,000/- towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses. The alleged losses/damages incurred by the Plaintiff can be quantified. The plaintiff can be provided recompense for the losses allegedly incurred by payment of adequate compensation in the form of money. The developer has failed to satisfy the conditions under sub-clause (i) and (ii) of Section 14(3)(c) of the Act. In such a case, specific performance cannot be granted. 28. By the Specific Relief (Amendment) Act 2018 , Section 14 has been amended to read as follows: ?14. The following contracts cannot be specifically enforced, namely:— (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20; (b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.? However, the amended section has been notified on 19 September 2018 and the central government has appointed 1 October 2018 as the date on which the provision of Act 18 of 2018 will come into force However, in the present case, we are not called upon to examine the effect of this amended provision. In any case, we have indicated the reasons why Section 14(3)(c) was not attracted. 29. The appellants have relied on the decision of this Court in Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel AIR 2001 SC 1462 , where an agreement was entered into between the landowner and the developer for the purpose of construction of houses for the weaker sections on excess vacant land under a scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act 1976. This Court reversed the decision of the High Court that granted the decree of specific performance to the developer on the grounds that it was inequitable to enforce specific performance in view of a change in the Master Plan. The court noted that a contract which involved continuous supervision of the court, was not specifically enforceable. Further, in the opinion of the court, at best the plaintiff - builder could claim damages and the expenditure incurred by him for the implementation of the terms of the agreement. The above case has no applicability to the facts of the present case and is of no relevance as the issue in relation to the maintainability of a suit for specific performance by the builder against the owner has not been discussed. 30. The appellant has also placed reliance on the decision in Faqir Chand Gulati v Uppal Agencies Private Limited (2008) 10 SCC 345 , where the issue before this Court was whether a landowner, who enters into an agreement with the builder, for construction of an apartment building is a ?consumer? entitled to maintain a complaint against the builder as a service provider under the Consumer Protection Act, 1986. The Court held: ?We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, 1986 for relief as consumer, against the builder as a service- provider.? The issue involved before this Court was in relation to the interpretation of the Consumer Protection Act, 1986 and not on the maintainability of a suit filed by the developer against the owner for specific performance in view of Section 14(3)(c) of the Act. Therefore, the decision cannot be relied upon in relation to the issue before us. 31. Ordinarily, if there was an alternative plea for damages or monetary relief, we would have remanded the case to the High Court for consideration of the prayer. However, in the impugned judgment, the Division Bench has observed thus: ?Although we find no merit in this appeal, we wanted to give liberty to the plaintiff for amendment of the plaint for the purpose of getting alternative relief by way of return of security of money and damages, if at all suffered, in terms of Section 22 of the Specific Relief Act; but Mr. Das, the learned Advocate appearing on behalf of the appellant after taking instruction from his client submitted before us that his client did not want to avail of such remedy and wanted to challenge our decision by preferring an appeal if we decided to refuse the prayer for specific performance of the contract. ? The same statement has been made before this Court, as was made before the High Court. In the absence of any plea for damages or monetary relief by the respondents, there is no reason to remit the appeal back to the High Court.

0[ds]12. The consistent position of the common law is that courts do not normally order specific performance of a contract to build or repair. But this rule is subject to important exceptions, and a decree for specific performance of a contract to build will be made only upon meeting the requisite requirements under law. According to Halsbury?s Laws of England, the discretion to grant specificHalsbury?s Laws ofme 44(1), para 801performance is not arbitrary or capricious; it is governed by principles developed in precedents. The judge must exercise the discretion in a judicious manner. Circumstances bearing on the conduct of the plaintiff, such as delay, acquiescence and breach or some other circumstances outside the contract, may render it inequitable to enforce it.The expression ?development agreement? has not been defined statutorily. In a sense, it is anomenclature which is used to be describe a wide range of agreements which an owner of a property may enter into for development of immovable property. As real estate transactions have grown in complexity, the nature of these agreements has become increasingly intricate. Broadly speaking, (without intending to be exhaustive), development agreements may be of various kinds:(i) An agreement may envisage that the owner of the immovable property engages someone to carry out the work of construction on theHudson?s Building and Engineeringme 1, page 677[1978] 1 Ch. 337 at page 359property for monetary consideration. This is a pure construction contract;(ii) An agreement by which the owner or a person holding other rights in an immovable property grants rights to a third party to carry on development for a monetary consideration payable by the developer to the other. In such a situation, the owner or right holder may in effect create an interest in the property in favour of the developer for a monetary consideration;(iii) An agreement where the owner or a person holding any other rights in an immovable property grants rights to another person to carry out development. In consideration, the developer has to hand over a part of the constructed area to the owner. The developer is entitled to deal with the balance of the constructed area. In some situations, a society or similar other association is formed and the land is conveyed or leased to the society or association;(iv) A development agreement may be entered into in a situation where the immovable property is occupied by tenants or other right holders. In some cases, the property may be encroached upon. The developer may take on the entire responsibility to settle with the occupants and to thereafter carry out construction; and(v) An owner may negotiate with a developer to develop a plot of land which is occupied by slum dwellers and which has been declared as a slum. Alternately, there may be old and dilapidated buildings which are occupied by a number of occupants or tenants. The developer may undertake to rehabilitate the occupants or, as the case may be, the slum dwellers and thereafter share the saleable constructed area with the owner.When a pure construction contact is entered into, the contractor has no interest in either the land or the construction which is carried out. But in various other categories of development agreements, the developer may have acquired a valuable right either in the property or in the constructed area. The terms of the agreement are crucial in determining whether any interest has been created in the land or in respect of rights in the land in favour of the developer and if so, the nature and extent of the rights.In a construction contract, the contractor has no interest in either the land or the construction carried out on the land. But, in other species of development agreements, the developer may have acquired a valuable right either in the property or the constructed area. There are various incidents of ownership of in respect of an immovable property. Primarily, ownership imports the right of exclusive possession and the enjoyment of the thing owned. The owner in possession of the thing has the right to exclude all others from its possession and enjoyment. The right to ownership of a property carries with it the right to its enjoyment, right to its access and to other beneficial enjoyments incidental to it. (B Gangadhar v BG Rajalingam). Ownership denotes the relationship(1995) 5 SCC 239 at para 6between a person and an object forming the subject matter of the ownership. It consists of a complex of rights, all of which are rights in rem, being good against the world and not merely against specific persons. There are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. (Swadesh Ranjan Sinha v Haradeb Banerjee). An essential incident of ownership of land is the right to exploit the development, potential to construct and to deal with the constructed area. In some situations, under a development agreement, an owner may part with such rights to a developer. This in is essence is a parting of some of the incidents of ownership of the immovable property. There could be situations where pursuant to the grant of such rights, the developer has incurred a substantial investment, altered the state of the property and even created third party rights in the property or the construction carried out to be carried out. There could be situations where it is the developer who by his efforts has rendered a property developable by taking steps in law. In development agreements of this nature, where an interest is created in the land or in the development in favour of the developer, it may be difficult to hold that the agreement is not capable of being specifically performed. For example, the developer may have evicted or settled with occupants, got land which was agricultural converted intouse, carried out a partial development of the property and pursuant to the rights conferred under the agreement, created third party rights in favour of flat(1991) 4 SCC 572 purchasers in the proposed building. In such a situation, if for no fault of the developer, the owner seeks to resile from the agreement and terminates the development agreement, it may be difficult to hold that the developer is not entitled to enforce his rights. This of course is dependent on the terms of the agreement in each case. There cannot be a uniform formula for determining whether an agreement granting development rights can be specifically enforced and it would depend on the nature of the agreement in each case and the rights created under it.In the present case, the respondent agreed to pay the appellant the costs and expenses along with the agreed remuneration upon completion of the construction. If the respondent failed to pay, the appellant was entitled to realise its money by selling 58% of the total constructed area. Clauses 6, 10 and 11 of the agreement indicate that the respondent would retain 42% of the total constructed area and the balance 58% would remain secured for due payment of the construction costs. It was further agreed, that the total construction costs shall not exceed 58% of the constructed area. The intention of the parties is clear from the agreement. This was an agreement to carry out the construction of the building for which payment of the construction costs and agreed remuneration had to be made. The agreement did not create an interest in the land for the developer. If the payment due to the developer was made, there would arise no security interest. Moreover, the security interest in respect of 42% of the constructed area would arise only if the construction came up and the payment due to the builder was not made. In present case, admittedly there is no construction at all.Various High Courts have interpreted the requirements under Section 14(3)(c) of the Act andon the maintainability of a suitby the developer for specific performance against the owner of the property for a breach in the conditions of the development agreement. A common thread that runs through the analysis in decided cases is the following:(i) The courts do not normally order specific performance of a contract to build or repair. But this rule is subject to important exceptions, and a decree for specific performance of a contract to build will be made only upon meeting the requirements under law;(ii) The discretion to grant specific performance is not arbitrary or capricious but judicious; it is to besettled principles; the conduct of the plaintiff, such as delay, acquiescence, breach or some other circumstances outside the contract, may render it inequitable to enforce it;(iii) In order to determine the exact nature of the agreement signed between the parties, the intent of the parties has to be construed by reading the agreement as a whole in order to determine whether it is an agreement simpliciter for construction or an agreement that also creates an interest for the builder in the property. Where under a development agreement, the developer has an interest in land, it would be difficult to hold that such an agreement is not capable of being specifically enforced; and(iv) A decree for specific performance of a contract to build will be made if the following conditions are fulfilled:a) the work of construction should be described in the contract in a sufficiently precise manner in order for the court to determine the exact nature of the building or work;b) the plaintiff must have a substantial interest in the performance of the contract and the interest should be of such a nature that compensation in money forof the contract is not an adequate relief; andc) the defendant should have, by virtue of the agreement, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.condition under Section 14(3)(c)(iii) is that the defendant has, by virtue of the agreement, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. If the rule of literal interpretation is adopted to interpret Section 14(3)(c)(iii), it would lead to a situation where a suit for specific performance can only be instituted at the behest of the owner against a developer, denying the benefit of the provision to the developer despite an interest in the property having been created. This anomaly is created by the use of thedefendant has, by virtue of the agreement, obtained possession of the whole or any part of theSection 14(3)(c)(iii). Under a development agreement, an interest in the property may have been created in favour of the developer. If the developer is the plaintiff and the suit is against the owner, strictly applied, clause (iii) would require that the defendant should have obtained possession under the agreement. In such a case if the developer files a suit for specific performance against the owner, and the owner is in possession of the land by virtue of a lawful title, the defendant (i.e. the owner) cannot be said to have obtained possession of the land by way of the agreement. This would lead to an anomalous situation where the condition in Section 14(3)(c)(iii) would not be fulfilled in the case of a suit by a developer. Application of the literal rule of interpretation to Section 14(3)(c)(iii), would lead to an absurdity and would be inconsistent with the intent of the Act.The conditions that should be present to justify a departure from the plain words of any statute, have been elucidated in Justice GP Singh?s treatise on Principles of Statutory Interpretation(while discussing the decision of the House of Lords in Stock v Frank Jones (Tipton) Ltd.a court would only be justified in departing from the plain words of the statute when it is satisfied that (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such a legislative objective; and (4) the language of the statute is susceptible of the modification required to obviate thePrinciples of Statutoryth Edition2010, Lexis Nexis(1978) 1 WLR 231The principle has been also adverted to in Maxwell on Interpretation of Statutese the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of thegiving a purposive interpretation to Section 14(3)(c)(iii), the anomaly and absurdity created by the third condition will have no applicability in a situation where the developer who has an interest in the property, brings a suit for specific performance against the owner. The developer will have to satisfy the two conditions laid out in sub clause (i) and (ii) of Section 14(3)(c), for the suit for specific performance to be maintainable against the owner. This will ensure that both owners and developers can avail of the remedy of specific performance under the Act. A suit for specific performance filed by the developer would then be maintainable. Whether specific performance should in the facts of a case be granted is a separate matter, bearing on the discretion of the court.The condition under Section 14(3)(c)(i) is that the building or other work described in the contract is sufficiently precise to enable the court to determine the exact nature of the building or work. To examine the question as to whether the scope of the building or work described in the agreement is sufficiently defined, the Court needs to determine the exact nature of the work by referring to the relevant clauses of the agreement. Clause 8 of the agreement provides that the building shall be constructed in accordance with approved plans and built with ?first class materials? with wooden doors, mosaic floor, basin and lavatories, tap water arrangement, masonry work, electric points, finished distemper and bath room fittings of glazed tiles up to 6? height and lift, ?etc.? Further, at clause 13 of the agreement, the parties have agreed that the contractor would construct a building at the premises consisting of ?residential apartments of various sizes and denomination? in the said building complex in accordance with plans sanctioned by the Calcutta Municipal Corporation and the owner shall convey the proportionate share in the land to the respective buyers. Clauseof the agreement states thatif for any reason after the plan is sanctionedany act or omission on the part of thebuilding cannot be constructed; the owner shall refund to the contractor ?4,00,000/in addition to all costs, charges and expenses incurred by the contractor. At clause 20 of the agreement, the parties have agreed that the apartments of the owner shall be constructed and be made in ?similar condition? as that of the contractor with water connection, sewerage, electric wiring except ?special fittings?. Use of such vague terms in the agreement such as ?first class materials?, ?residential apartment of various sizes and denomination?, ?etc.?, ?similar condition?, and ?special fittings?, while discussing the scope of work clearly shows that the exact extent of work to be carried out by the developer and the obligations of the parties, have not been clearly brought out. Parties have not clearly defined, inter alia, the nature of material to be used, the requirements of quality, structure of the building, sizes of the flats and obligations of the owner after the plan is sanctioned. Further, clause 9of the agreement states thatthe owner shall pay the contractor costs, expenses along with agreed remuneration only after completion of the building on receiving the possession. However, the exact amount of remuneration payable by the owner to the contractor is not to be found in the agreement. The agreement between the parties is vague. The court cannot determine the exact nature of the building or work. The first condition in Section 14(3)(c)(i) is not fulfilled.Another condition under Section 14(3)(c)(ii) is that the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money forof the contract is not an adequate relief. The intent of the section is to make a distinction between cases where a breach of an agreement can be remedied by means of compensation in terms of money and those cases where no other remedy other than specific performance will afford adequate relief. Therefore, before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner. From the facts of the case, it is clear that the case of the developer is that he incurred an expenditure of ? 18,41,000/towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses. The alleged losses/damages incurred by the Plaintiff can be quantified. The plaintiff can be provided recompense for the losses allegedly incurred by payment of adequate compensation in the form of money. The developer has failed to satisfy the conditions under(i) and (ii) of Section 14(3)(c) of the Act. In such a case, specific performance cannot be granted.By the Specific Relief (Amendment) Act 2018, Section 14 has been amended to read asThe following contracts cannot be specifically enforced, namely:—(a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20;(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise;(c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and(d) a contract which is in its natureAct 18 of 2018However, the amended section has been19 September 2018 and the central government has appointed 1 October 2018 as the date on which the provision ofAct 18 of 2018will come into force. However, in thepresent case, we are not called upon to examine the effect of this amended provision. In any case, we have indicated the reasons why Section 14(3)(c) was not attracted.The appellants haveon the decisionof this Court in Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel, where an agreement was entered into between the landowner and the developer for the purpose of construction of houses for the weaker sections on excess vacant land under a scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act 1976. This Court reversed the decision ofhat granted the decree of specific performance to the developer on the grounds that it was inequitable to enforce specific performance in view of a change in the Master Plan. The court noted that a contract which involved continuous supervision of the court, was not specifically enforceable. Further, in the opinion of the court, at best the plaintiffbuilder could claim damages and the expenditure incurred by him for the implementation of the terms of the agreement. The above case has no applicability to the facts of the present case and is of no relevance as the issue in relation to the maintainability of a suit for specific performance by the builder against the owner has not been discussed.issue involved before this Court was in relation to the interpretation of the Consumer Protection Act, 1986 and noton the maintainability of a suitfiled by the developer against the owner for specific performance in view of Section 14(3)(c) of the Act. Therefore, the decision cannot be relied upon in relation to the issue before us.same statement has been made before this Court, as was made beforet. Inthe absence of any plea for damages or monetary relief by the respondents, there is no reason to remit the appeal back to

### 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: non-performance of the contract is not an adequate relief. The intent of the section is to make a distinction between cases where a breach of an agreement can be remedied by means of compensation in terms of money and those cases where no other remedy other than specific performance will afford adequate relief. Therefore, before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner. From the facts of the case, it is clear that the case of the developer is that he incurred an expenditure of ? 18,41,000/- towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses. The alleged losses/damages incurred by the Plaintiff can be quantified. The plaintiff can be provided recompense for the losses allegedly incurred by payment of adequate compensation in the form of money. The developer has failed to satisfy the conditions under sub-clause (i) and (ii) of Section 14(3)(c) of the Act. In such a case, specific performance cannot be granted. 28. By the Specific Relief (Amendment) Act 2018 , Section 14 has been amended to read as follows: ?14. The following contracts cannot be specifically enforced, namely:— (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20; (b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.? However, the amended section has been notified on 19 September 2018 and the central government has appointed 1 October 2018 as the date on which the provision of Act 18 of 2018 will come into force However, in the present case, we are not called upon to examine the effect of this amended provision. In any case, we have indicated the reasons why Section 14(3)(c) was not attracted. 29. The appellants have relied on the decision of this Court in Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel AIR 2001 SC 1462 , where an agreement was entered into between the landowner and the developer for the purpose of construction of houses for the weaker sections on excess vacant land under a scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act 1976. This Court reversed the decision of the High Court that granted the decree of specific performance to the developer on the grounds that it was inequitable to enforce specific performance in view of a change in the Master Plan. The court noted that a contract which involved continuous supervision of the court, was not specifically enforceable. Further, in the opinion of the court, at best the plaintiff - builder could claim damages and the expenditure incurred by him for the implementation of the terms of the agreement. The above case has no applicability to the facts of the present case and is of no relevance as the issue in relation to the maintainability of a suit for specific performance by the builder against the owner has not been discussed. 30. The appellant has also placed reliance on the decision in Faqir Chand Gulati v Uppal Agencies Private Limited (2008) 10 SCC 345 , where the issue before this Court was whether a landowner, who enters into an agreement with the builder, for construction of an apartment building is a ?consumer? entitled to maintain a complaint against the builder as a service provider under the Consumer Protection Act, 1986. The Court held: ?We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, 1986 for relief as consumer, against the builder as a service- provider.? The issue involved before this Court was in relation to the interpretation of the Consumer Protection Act, 1986 and not on the maintainability of a suit filed by the developer against the owner for specific performance in view of Section 14(3)(c) of the Act. Therefore, the decision cannot be relied upon in relation to the issue before us. 31. Ordinarily, if there was an alternative plea for damages or monetary relief, we would have remanded the case to the High Court for consideration of the prayer. However, in the impugned judgment, the Division Bench has observed thus: ?Although we find no merit in this appeal, we wanted to give liberty to the plaintiff for amendment of the plaint for the purpose of getting alternative relief by way of return of security of money and damages, if at all suffered, in terms of Section 22 of the Specific Relief Act; but Mr. Das, the learned Advocate appearing on behalf of the appellant after taking instruction from his client submitted before us that his client did not want to avail of such remedy and wanted to challenge our decision by preferring an appeal if we decided to refuse the prayer for specific performance of the contract. ? The same statement has been made before this Court, as was made before the High Court. In the absence of any plea for damages or monetary relief by the respondents, there is no reason to remit the appeal back to the High Court. ### Response: 0 ### Explanation: built with ?first class materials? with wooden doors, mosaic floor, basin and lavatories, tap water arrangement, masonry work, electric points, finished distemper and bath room fittings of glazed tiles up to 6? height and lift, ?etc.? Further, at clause 13 of the agreement, the parties have agreed that the contractor would construct a building at the premises consisting of ?residential apartments of various sizes and denomination? in the said building complex in accordance with plans sanctioned by the Calcutta Municipal Corporation and the owner shall convey the proportionate share in the land to the respective buyers. Clauseof the agreement states thatif for any reason after the plan is sanctionedany act or omission on the part of thebuilding cannot be constructed; the owner shall refund to the contractor ?4,00,000/in addition to all costs, charges and expenses incurred by the contractor. At clause 20 of the agreement, the parties have agreed that the apartments of the owner shall be constructed and be made in ?similar condition? as that of the contractor with water connection, sewerage, electric wiring except ?special fittings?. Use of such vague terms in the agreement such as ?first class materials?, ?residential apartment of various sizes and denomination?, ?etc.?, ?similar condition?, and ?special fittings?, while discussing the scope of work clearly shows that the exact extent of work to be carried out by the developer and the obligations of the parties, have not been clearly brought out. Parties have not clearly defined, inter alia, the nature of material to be used, the requirements of quality, structure of the building, sizes of the flats and obligations of the owner after the plan is sanctioned. Further, clause 9of the agreement states thatthe owner shall pay the contractor costs, expenses along with agreed remuneration only after completion of the building on receiving the possession. However, the exact amount of remuneration payable by the owner to the contractor is not to be found in the agreement. The agreement between the parties is vague. The court cannot determine the exact nature of the building or work. The first condition in Section 14(3)(c)(i) is not fulfilled.Another condition under Section 14(3)(c)(ii) is that the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money forof the contract is not an adequate relief. The intent of the section is to make a distinction between cases where a breach of an agreement can be remedied by means of compensation in terms of money and those cases where no other remedy other than specific performance will afford adequate relief. Therefore, before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner. From the facts of the case, it is clear that the case of the developer is that he incurred an expenditure of ? 18,41,000/towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses. The alleged losses/damages incurred by the Plaintiff can be quantified. The plaintiff can be provided recompense for the losses allegedly incurred by payment of adequate compensation in the form of money. The developer has failed to satisfy the conditions under(i) and (ii) of Section 14(3)(c) of the Act. In such a case, specific performance cannot be granted.By the Specific Relief (Amendment) Act 2018, Section 14 has been amended to read asThe following contracts cannot be specifically enforced, namely:—(a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20;(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise;(c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and(d) a contract which is in its natureAct 18 of 2018However, the amended section has been19 September 2018 and the central government has appointed 1 October 2018 as the date on which the provision ofAct 18 of 2018will come into force. However, in thepresent case, we are not called upon to examine the effect of this amended provision. In any case, we have indicated the reasons why Section 14(3)(c) was not attracted.The appellants haveon the decisionof this Court in Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel, where an agreement was entered into between the landowner and the developer for the purpose of construction of houses for the weaker sections on excess vacant land under a scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act 1976. This Court reversed the decision ofhat granted the decree of specific performance to the developer on the grounds that it was inequitable to enforce specific performance in view of a change in the Master Plan. The court noted that a contract which involved continuous supervision of the court, was not specifically enforceable. Further, in the opinion of the court, at best the plaintiffbuilder could claim damages and the expenditure incurred by him for the implementation of the terms of the agreement. The above case has no applicability to the facts of the present case and is of no relevance as the issue in relation to the maintainability of a suit for specific performance by the builder against the owner has not been discussed.issue involved before this Court was in relation to the interpretation of the Consumer Protection Act, 1986 and noton the maintainability of a suitfiled by the developer against the owner for specific performance in view of Section 14(3)(c) of the Act. Therefore, the decision cannot be relied upon in relation to the issue before us.same statement has been made before this Court, as was made beforet. Inthe absence of any plea for damages or monetary relief by the respondents, there is no reason to remit the appeal back to

Indian Oxygen, Limited Vs. Its Workmen

Das Gupta, J.1. This appeal by special leave is from an award of the industrial tribunal, Bihar, in a dispute between the appellant, the management of Indian Oxygen, Ltd., Jamshedpur, and its workmen. The dispute as referred was :"(1) What should be the medical leave for the workmen with full pay and with half pay in a year; and how the medical leave should be allowed to be accumulated ?(2) What should be the annual leave for office staff and monthly-rated factory staff and how far it should be allowed to be accumulated ?"2. The workmens claim was for medical leave for 20 days with full pay and 30 days on half pay in a year and for accumulation of medical leave upto three years. As regards annual leave the workmens claim was three weeks annual leave to monthly-rated factory staff and one months annual leave to office staff. The company pointed out in its written statement that 15 days sick cum annual leave with full pay was allowed by it to all its permanent workmen, the rule being that out of these 15 days not more than 7 days can be taken as casual leave, while in support of an application for sick leave a workman has to submit a medical certificate from a registered medical practitioner. Apart from this, there was a provision that after one years continuous service a permanent workman may be sanctioned solely at the discretion of the sanctioning authority not more than 15 days sick leave with half pay after he exhausts his 15 days sick cum annual leave with full pay. The company contended that these leave rules were liberal and there was no case for providing for further medical leave facilities. As regards annual leave also the companys case was that the present rules which provides for three weeks annual leave for a full calendar year to office staff and those members of the monthly-rated factory staff whose basic salary is more than Rs. 150 per month and two weeks annual leave for general staff, i.e., peons, drivers, darwans, etc., and accumulation is allowed for two leave periods, are fair and reasonable.On a consideration of the leave facilities granted by different industrial establishments in Jamshedpur region, the industrial tribunal directed that a workman should get 15 days leave on full pay or 30 days on half pay as medical leave during a year and accumulation should be allowed to the extent of 45 days with full pay or 90 days with half pay. The tribunals directions as regards annual leave was that monthly-rated staff working in office or factory should get 30 days annual leave in the year and accumulation should be allowed to the extent of 90 days in the case of both the categories.3. In support of the appeal as regards annual leave it is urged on behalf of the appellant that the result of the award will be that the workmen of this company will be enjoying many more paid absences from work than other similar industrial establishments in the region. On an examination of chart B which is the comparative statement of leave facilities available to employees in different establishments in the region, we find - adding the provision for annual leave to the provision for festival and national holidays - that the Indian Tube allows to its monthly-rated workmen 34 paid absences from work with full pay, the Indian Steel and Wire Products 34, Indian Cable Company, 34, Tata Engineering and Locomotive Company, 36, and the Tinplate Company, 32. In the appellant company, the office staff was getting 21 days as annual leave and 17 days on account of festival and holidays, that is, 38 days of paid absences; other factory staff was getting 21 days as annual leave and 10 days on account of festival and national holidays, that is, a total of 31 days of paid absences. As a result of the award, the office staff in the appellant company would be getting 47 days of paid absences on full pay and the factory staff 40 days of such absences. We can see no reason for this increases of paid absences which is clearly and distinctly above the pattern in the comparable concerns in that region. It is hardly necessary to say that, especially at the present time, emphasis in the country should be more on increased production, and absence from work should not be unduly encouraged.On a consideration of all the circumstances, we are of opinion that no case has been made out for increasing the annual leave and that the award of the tribunal in so far as it increased the annual leave to 30 days cannot be sustained.4. We accordingly direct that the annual leave for office staff and monthly-rated factory staff should continue to be 21 days in a year.5. As it appears from chart B that accumulation upto 90 days is allowed in the other companies where the annual leave is 30 days, we direct that in the appellant company also the accumulation of annual leave should be allowed upto 63 days.6. It appears from chart B that sick leave for 30 days on half pay and 15 days on full pay is allowed in the Indian Tube, Indian Steel and Wire Products, Indian Cable Company, and the Tinplate Company, and that accumulation for a period of 45 days on full pay and 90 days on half pay is also allowed in those companies. In view of this we think that there is no ground for interfering with the award of the tribunal on the question of medical leave. It is true that this will leave to the workmen of the company the additional facility of 7 days casual leave in year which they enjoy at present. That however does not appear to us to be a sufficient reason for reducing the medical leave.

1[ds]3. In support of the appeal as regards annual leave it is urged on behalf of the appellant that the result of the award will be that the workmen of this company will be enjoying many more paid absences from work than other similar industrial establishments in the region.On an examination of chart B which is the comparative statement of leave facilities available to employees in different establishments in the region, we findadding the provision for annual leave to the provision for festival and national holidaysthat the Indian Tube allows to itsworkmen 34 paid absences from work with full pay, the Indian Steel and Wire Products 34, Indian Cable Company, 34, Tata Engineering and Locomotive Company, 36, and the Tinplate Company, 32. In the appellant company, the office staff was getting 21 days as annual leave and 17 days on account of festival and holidays, that is, 38 days of paid absences; other factory staff was getting 21 days as annual leave and 10 days on account of festival and national holidays, that is, a total of 31 days of paid absences. As a result of the award, the office staff in the appellant company would be getting 47 days of paid absences on full pay and the factory staff 40 days of such absences. We can see no reason for this increases of paid absences which is clearly and distinctly above the pattern in the comparable concerns in that region. It is hardly necessary to say that, especially at the present time, emphasis in the country should be more on increased production, and absence from work should not be unduly encouraged.On a consideration of all the circumstances, we are of opinion that no case has been made out for increasing the annual leave and that the award of the tribunal in so far as it increased the annual leave to 30 days cannot be sustained.4. We accordingly direct that the annual leave for office staff andfactory staff should continue to be 21 days in a year.5. As it appears from chart B that accumulation upto 90 days is allowed in the other companies where the annual leave is 30 days, we direct that in the appellant company also the accumulation of annual leave should be allowed upto 63 days.6. It appears from chart B that sick leave for 30 days on half pay and 15 days on full pay is allowed in the Indian Tube, Indian Steel and Wire Products, Indian Cable Company, and the Tinplate Company, and that accumulation for a period of 45 days on full pay and 90 days on half pay is also allowed in those companies. In view of this we think that there is no ground for interfering with the award of the tribunal on the question of medical leave. It is true that this will leave to the workmen of the company the additional facility of 7 days casual leave in year which they enjoy at present. That however does not appear to us to be a sufficient reason for reducing the medical leave.

### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: Das Gupta, J.1. This appeal by special leave is from an award of the industrial tribunal, Bihar, in a dispute between the appellant, the management of Indian Oxygen, Ltd., Jamshedpur, and its workmen. The dispute as referred was :"(1) What should be the medical leave for the workmen with full pay and with half pay in a year; and how the medical leave should be allowed to be accumulated ?(2) What should be the annual leave for office staff and monthly-rated factory staff and how far it should be allowed to be accumulated ?"2. The workmens claim was for medical leave for 20 days with full pay and 30 days on half pay in a year and for accumulation of medical leave upto three years. As regards annual leave the workmens claim was three weeks annual leave to monthly-rated factory staff and one months annual leave to office staff. The company pointed out in its written statement that 15 days sick cum annual leave with full pay was allowed by it to all its permanent workmen, the rule being that out of these 15 days not more than 7 days can be taken as casual leave, while in support of an application for sick leave a workman has to submit a medical certificate from a registered medical practitioner. Apart from this, there was a provision that after one years continuous service a permanent workman may be sanctioned solely at the discretion of the sanctioning authority not more than 15 days sick leave with half pay after he exhausts his 15 days sick cum annual leave with full pay. The company contended that these leave rules were liberal and there was no case for providing for further medical leave facilities. As regards annual leave also the companys case was that the present rules which provides for three weeks annual leave for a full calendar year to office staff and those members of the monthly-rated factory staff whose basic salary is more than Rs. 150 per month and two weeks annual leave for general staff, i.e., peons, drivers, darwans, etc., and accumulation is allowed for two leave periods, are fair and reasonable.On a consideration of the leave facilities granted by different industrial establishments in Jamshedpur region, the industrial tribunal directed that a workman should get 15 days leave on full pay or 30 days on half pay as medical leave during a year and accumulation should be allowed to the extent of 45 days with full pay or 90 days with half pay. The tribunals directions as regards annual leave was that monthly-rated staff working in office or factory should get 30 days annual leave in the year and accumulation should be allowed to the extent of 90 days in the case of both the categories.3. In support of the appeal as regards annual leave it is urged on behalf of the appellant that the result of the award will be that the workmen of this company will be enjoying many more paid absences from work than other similar industrial establishments in the region. On an examination of chart B which is the comparative statement of leave facilities available to employees in different establishments in the region, we find - adding the provision for annual leave to the provision for festival and national holidays - that the Indian Tube allows to its monthly-rated workmen 34 paid absences from work with full pay, the Indian Steel and Wire Products 34, Indian Cable Company, 34, Tata Engineering and Locomotive Company, 36, and the Tinplate Company, 32. In the appellant company, the office staff was getting 21 days as annual leave and 17 days on account of festival and holidays, that is, 38 days of paid absences; other factory staff was getting 21 days as annual leave and 10 days on account of festival and national holidays, that is, a total of 31 days of paid absences. As a result of the award, the office staff in the appellant company would be getting 47 days of paid absences on full pay and the factory staff 40 days of such absences. We can see no reason for this increases of paid absences which is clearly and distinctly above the pattern in the comparable concerns in that region. It is hardly necessary to say that, especially at the present time, emphasis in the country should be more on increased production, and absence from work should not be unduly encouraged.On a consideration of all the circumstances, we are of opinion that no case has been made out for increasing the annual leave and that the award of the tribunal in so far as it increased the annual leave to 30 days cannot be sustained.4. We accordingly direct that the annual leave for office staff and monthly-rated factory staff should continue to be 21 days in a year.5. As it appears from chart B that accumulation upto 90 days is allowed in the other companies where the annual leave is 30 days, we direct that in the appellant company also the accumulation of annual leave should be allowed upto 63 days.6. It appears from chart B that sick leave for 30 days on half pay and 15 days on full pay is allowed in the Indian Tube, Indian Steel and Wire Products, Indian Cable Company, and the Tinplate Company, and that accumulation for a period of 45 days on full pay and 90 days on half pay is also allowed in those companies. In view of this we think that there is no ground for interfering with the award of the tribunal on the question of medical leave. It is true that this will leave to the workmen of the company the additional facility of 7 days casual leave in year which they enjoy at present. That however does not appear to us to be a sufficient reason for reducing the medical leave. ### Response: 1 ### Explanation: 3. In support of the appeal as regards annual leave it is urged on behalf of the appellant that the result of the award will be that the workmen of this company will be enjoying many more paid absences from work than other similar industrial establishments in the region.On an examination of chart B which is the comparative statement of leave facilities available to employees in different establishments in the region, we findadding the provision for annual leave to the provision for festival and national holidaysthat the Indian Tube allows to itsworkmen 34 paid absences from work with full pay, the Indian Steel and Wire Products 34, Indian Cable Company, 34, Tata Engineering and Locomotive Company, 36, and the Tinplate Company, 32. In the appellant company, the office staff was getting 21 days as annual leave and 17 days on account of festival and holidays, that is, 38 days of paid absences; other factory staff was getting 21 days as annual leave and 10 days on account of festival and national holidays, that is, a total of 31 days of paid absences. As a result of the award, the office staff in the appellant company would be getting 47 days of paid absences on full pay and the factory staff 40 days of such absences. We can see no reason for this increases of paid absences which is clearly and distinctly above the pattern in the comparable concerns in that region. It is hardly necessary to say that, especially at the present time, emphasis in the country should be more on increased production, and absence from work should not be unduly encouraged.On a consideration of all the circumstances, we are of opinion that no case has been made out for increasing the annual leave and that the award of the tribunal in so far as it increased the annual leave to 30 days cannot be sustained.4. We accordingly direct that the annual leave for office staff andfactory staff should continue to be 21 days in a year.5. As it appears from chart B that accumulation upto 90 days is allowed in the other companies where the annual leave is 30 days, we direct that in the appellant company also the accumulation of annual leave should be allowed upto 63 days.6. It appears from chart B that sick leave for 30 days on half pay and 15 days on full pay is allowed in the Indian Tube, Indian Steel and Wire Products, Indian Cable Company, and the Tinplate Company, and that accumulation for a period of 45 days on full pay and 90 days on half pay is also allowed in those companies. In view of this we think that there is no ground for interfering with the award of the tribunal on the question of medical leave. It is true that this will leave to the workmen of the company the additional facility of 7 days casual leave in year which they enjoy at present. That however does not appear to us to be a sufficient reason for reducing the medical leave.

U.P. Pollution Control Board Vs. Dr. Bhupendra Kumar Modi & Another

in this complaint are responsible for constructing the proper works and plant for the treatment of their highly polluting trade effluent so as to conform to the standard laid down by the Board. Aforesaid accused persons are deliberately avoiding to abide by the provisions of Sections 24 and 26 of the aforesaid Act which are punishable respectively under Sections 43 and 44 of the aforesaid Act, for which not only the Company but its Directors, Managers, Secretary and all other responsible officers of the accused Company, responsible for the conduct of its business are also liable in accordance with the provision of Section 47 of the Act."The appellant has further stated in para 23 of the complaint that "the Chairman, Managing Directors and Directors of the Company are the persons responsible for the act and therefore, they are liable to be proceeded against according to the law". Taking note of the averments in the complaint against the Directors, Managers and the ingredients of Section 47 of the Act, this Court declined to accept the reasoning of the High Court and Sessions Court for quashing the complaint thereby set aside both the orders and directed the trial Court to proceed with the case in accordance with law. 20) In the case on hand which is also similar to Mohan Meakins Ltd. had commenced its journey in the year 1985, nonetheless lapse of such long period cannot be a reason to absolve the respondents from the trial. In a matter of this nature, particularly, when it affects public health if it is ultimately proved, courts cannot afford to deal lightly with cases involving pollution of air and water. The message must go to all concerned persons whether small or big that the courts will share the parliamentary concern and legislative intent of the Act to check the escalating pollution level and restore the balance of our environment. Those who discharge noxious polluting effluents into streams, rivers or any other water bodies which inflicts on the public health at large, should be dealt with strictly de hors to the technical objections. Since escalating pollution level of our environment affects on the life and health of human beings as well as animals, the courts should not deal with the prosecution for offences under the pollution and environmental Acts in a causal or routine manner. 21) It is our endeavour to point out that the High Court has quashed the complaint arising in an environmental matter in a casual manner by exercising power under Section 482 of the Cr.P.C. This Court has held exercise of power under Section 482 of the Code is the exception and under the rule there are three circumstances under which the inherent jurisdiction may be exercised i.e. (a) to give effect to an order of the Court; (b) to prevent abuse of the process of the Court; (c) to otherwise secure the ends of justice. It is true that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does not function as a Court of Appeal or Revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When no offence is disclosed by the complaint, the Court may examine the question of fact. When complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant had alleged and whether any offence is made out even if the allegations are accepted in toto. When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. To put it clear, it is the function of the trial Judge to do so. The Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Crl. Procedure Code. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. 22) In the light of the above discussion and in view of the specific averments in the complaint as referred to by us in the earlier paragraphs coupled with the statutory provisions, namely, Sections 25, 26, 44 and 47 of the Act, we are unable to share the view expressed by the High Court in quashing the complaint insofar as the first respondent herein. Accordingly, we set aside the same. The Special Judicial Magistrate (Pollution) is directed to proceed with the complaint and dispose of the same in accordance with law. If the first respondent herein applies for dispensing with his personal presence in the Court, after making the first appearance, the Special Court can exempt him from continuing to appear in the Court by imposing any condition which the Court deems fit. Subject to the above observation, we set aside the impugned judgment of the High Court and direct the Special Judicial Magistrate (Pollution) to proceed with the case in accordance with law and dispose of the same as expeditiously as possible. We make it clear that we have not expressed anything on the merits of the contents of the complaint and it is for the Special Court to decide the same in accordance with law.

1[ds]In the light of the above discussion and in view of the specific averments in the complaint as referred to by us in the earlier paragraphs coupled with the statutory provisions, namely, Sections 25, 26, 44 and 47 of the Act, we are unable to share the view expressed by the High Court in quashing the complaint insofar as the first respondent herein. Accordingly, we set aside the same. The Special Judicial Magistrate (Pollution) is directed to proceed with the complaint and dispose of the same in accordance with law. If the first respondent herein applies for dispensing with his personal presence in the Court, after making the first appearance, the Special Court can exempt him from continuing to appear in the Court by imposing any condition which the Court deems fit. Subject to the above observation, we set aside the impugned judgment of the High Court and direct the Special Judicial Magistrate (Pollution) to proceed with the case in accordance with law and dispose of the same as expeditiously as possible. We make it clear that we have not expressed anything on the merits of the contents of the complaint and it is for the Special Court to decide the same in accordance with law.

### Instruction: Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages. ### Input: in this complaint are responsible for constructing the proper works and plant for the treatment of their highly polluting trade effluent so as to conform to the standard laid down by the Board. Aforesaid accused persons are deliberately avoiding to abide by the provisions of Sections 24 and 26 of the aforesaid Act which are punishable respectively under Sections 43 and 44 of the aforesaid Act, for which not only the Company but its Directors, Managers, Secretary and all other responsible officers of the accused Company, responsible for the conduct of its business are also liable in accordance with the provision of Section 47 of the Act."The appellant has further stated in para 23 of the complaint that "the Chairman, Managing Directors and Directors of the Company are the persons responsible for the act and therefore, they are liable to be proceeded against according to the law". Taking note of the averments in the complaint against the Directors, Managers and the ingredients of Section 47 of the Act, this Court declined to accept the reasoning of the High Court and Sessions Court for quashing the complaint thereby set aside both the orders and directed the trial Court to proceed with the case in accordance with law. 20) In the case on hand which is also similar to Mohan Meakins Ltd. had commenced its journey in the year 1985, nonetheless lapse of such long period cannot be a reason to absolve the respondents from the trial. In a matter of this nature, particularly, when it affects public health if it is ultimately proved, courts cannot afford to deal lightly with cases involving pollution of air and water. The message must go to all concerned persons whether small or big that the courts will share the parliamentary concern and legislative intent of the Act to check the escalating pollution level and restore the balance of our environment. Those who discharge noxious polluting effluents into streams, rivers or any other water bodies which inflicts on the public health at large, should be dealt with strictly de hors to the technical objections. Since escalating pollution level of our environment affects on the life and health of human beings as well as animals, the courts should not deal with the prosecution for offences under the pollution and environmental Acts in a causal or routine manner. 21) It is our endeavour to point out that the High Court has quashed the complaint arising in an environmental matter in a casual manner by exercising power under Section 482 of the Cr.P.C. This Court has held exercise of power under Section 482 of the Code is the exception and under the rule there are three circumstances under which the inherent jurisdiction may be exercised i.e. (a) to give effect to an order of the Court; (b) to prevent abuse of the process of the Court; (c) to otherwise secure the ends of justice. It is true that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does not function as a Court of Appeal or Revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When no offence is disclosed by the complaint, the Court may examine the question of fact. When complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant had alleged and whether any offence is made out even if the allegations are accepted in toto. When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. To put it clear, it is the function of the trial Judge to do so. The Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Crl. Procedure Code. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. 22) In the light of the above discussion and in view of the specific averments in the complaint as referred to by us in the earlier paragraphs coupled with the statutory provisions, namely, Sections 25, 26, 44 and 47 of the Act, we are unable to share the view expressed by the High Court in quashing the complaint insofar as the first respondent herein. Accordingly, we set aside the same. The Special Judicial Magistrate (Pollution) is directed to proceed with the complaint and dispose of the same in accordance with law. If the first respondent herein applies for dispensing with his personal presence in the Court, after making the first appearance, the Special Court can exempt him from continuing to appear in the Court by imposing any condition which the Court deems fit. Subject to the above observation, we set aside the impugned judgment of the High Court and direct the Special Judicial Magistrate (Pollution) to proceed with the case in accordance with law and dispose of the same as expeditiously as possible. We make it clear that we have not expressed anything on the merits of the contents of the complaint and it is for the Special Court to decide the same in accordance with law. ### Response: 1 ### Explanation: In the light of the above discussion and in view of the specific averments in the complaint as referred to by us in the earlier paragraphs coupled with the statutory provisions, namely, Sections 25, 26, 44 and 47 of the Act, we are unable to share the view expressed by the High Court in quashing the complaint insofar as the first respondent herein. Accordingly, we set aside the same. The Special Judicial Magistrate (Pollution) is directed to proceed with the complaint and dispose of the same in accordance with law. If the first respondent herein applies for dispensing with his personal presence in the Court, after making the first appearance, the Special Court can exempt him from continuing to appear in the Court by imposing any condition which the Court deems fit. Subject to the above observation, we set aside the impugned judgment of the High Court and direct the Special Judicial Magistrate (Pollution) to proceed with the case in accordance with law and dispose of the same as expeditiously as possible. We make it clear that we have not expressed anything on the merits of the contents of the complaint and it is for the Special Court to decide the same in accordance with law.

Janki Prasad Parimoo & Others Vs. State of Jammu & Kashmir & Others

more backward and others less backward, a thing not permitted by Balajis case, 1963 Supp (1) SCR 439 = (AIR 1963 SC 649 ). There is, therefore, substance in the contention of Mr. Sen that the Committee has created these two artificial groups of "cultivators" and "pensioners" for the purpose of affording certain benefits under the Constitution instead of identifying socially and educationally backward classes.34. Chapters V and VI of the Rules identify residents of certain areas as backward. In Chapter V the residents of certain villages mentioned in Appendix II are considered as backward these villages being within five miles of the ceasefire line. In Chap. VI some areas in the State are regarded as "bad pockets" and all the residents of those areas are stated to be backward. These two Chapters incorporate the recommendations made by the Committee in Chapters X and IX respectively of the report. Chapter IX relates to "bad pockets". 10 such bad pockets have been identified by the Committee and cover 696 villages in certain Districts and Tehsils far away in the interior. The population of these areas according to 1961 census was about three lakhs. The Committee reports as follows :"There are, for instance well known rather notorious backward areas which have to be treated differently from the rest of the State. There are others which because of difficult terrain, inaccessibility and absence of vehicular communications still retain their primitive character. There are still some others which suffer from deficient production on account of soil being rocky and scandy and irrigation facilities being scanty and inadequate. Besides these, there are areas where due to non-availabildity of electric power, industrial development even on the scale of cottage industry has yet to come into existence. There are certain areas which combine all or some of these characteristics."35. Ten such pockets were then examined in detail and the Committee came to the conclusion that owing to lack of communication, inaccessibility, lack of material resources and the like the residents of these areas are living in almost primitive conditions and they are all socially and educationally backward. The civilizing influence of modern life is yet to reach them. These areas are carefully mapped. They are situated in the recesses of inaccessible mountains which have primarily led to the residents therein being almost in a primitive state. The population is about 8 % of the total population of Jammu and Kashmir and, in our opinion, there is no serious difficulty in regarding the residents of these areas as being backward. Similar considerations apply to areas adjoining the ceasefire line. They comprise about 179 villages with a population of about a lakh. The difficulties of their situation near the ceasefire line for the last 25 years seem to have contributed to this area being cut off from the main stream of life. The Committee noticed that the difficulties inherent in the living conditions in these areas had inevitably lead the inhabitants of these areas living in economic and educational backwardness. There are restrictions on their free movement and they have to remain indoors after sun set. The male members cannot leave their villages in search of livelihood elsewhere for fear of their wives and children being left behind unprotected. The land is unproductive, no investments could be made in the land because of the nearness of the ceasefire line. Raids accompanied by cattle lifting and damage to property are not uncommon. Loss of life also takes place occasionally. The inhabitants find it equally difficult to pursue their traditional arts and crafts. The effect of all these contributory factors have kept these areas, in so far as social and educational progress is concerned, very much behind the rest of the State.36. We thus find that special reasons have been given by the Committee why it considered these areas socially and educationally backward, and since the classification is not made merely on the ground of place of birth, we do not think that there is any serious objection to regard the residents of the bad pockets and the ceasefire areas as socially and educationally backward. But Rules 10 and 12 have been so framed that the advantage is likely to be misused by imposters. A person wanting the advantage of reservation would be regarded as belonging to these areas if his father is or has been resident of the area for a period of not less than 10 years in a period of 20 years preceding the year in which the certificate of backwardness is obtained. The rules do not insist that either the father or the son should be a resident of the area when the advantage is claimed. Nor does it require that the son should have his earlier education in these areas to ensure that he and his father are permanent residents of that area. Any trader or Government servant from outside who is residing for about 10 years in these areas within 20 years of the date when the advantage is claimed would be entitled to be regarded as belonging to the backward class. In order that the benefit may go to the residents of these areas, Government ought to frame rules with adequate safeguards that only genuine residents will get the advantage of special reservation and not outsiders. As the rules stand, outsiders who, in the course of their trade or business happened to live in these areas for 10 years out of past 20 years would be able to claim the benefit. This loophole must be plugged and till that is done the production of a certificate from the Tehsildar as to the backwardness of any person would be of little value.37. We have shown above the defects in the rules which purport to identify certain residents of the State as backward. Till the defects are cured the rules are not capable of being given effect to.38. In view of the above findings the selections made by Departmental Promotion Committee have to be set aside.

1[ds]18. It would appear from the affidavit filed on behalf of the State that out of the total of 50 marks to be given to the candidate, 20 marks were allotted for general knowledge, 20 marks for aptitude and 10 marks for personality.e second consideration is the wholly inept way of makingselections. Selection means that the man selected for promotion must be of merit. Where promotion is by seniority, merit takes the second place but when it is a selection, merit takes the first place and it is implicit in such selection that the man must not be just average. When responsible posts are filled by selection, cases are known where selections are not made because candidates of the required merit were not available. It is, therefore, customary for a Committee making the selection for a Committee making the selection to fix a standard below which they should not go. In fact it appears from the affidavit filed by one of the Educational experts who assisted the Committee that he had suggested "that an optimum cutting score for selection should be at least 50%." In other words, his advice was that those candidates who got more than 50 % marks alone should be considered. The affidavit is of Dr. N. K. Dutt, Reader in Education Central Institute of Education, Delhi who was the very first expert who sat with the Committee at the time of the selection. Dr. Dutt says that his suggestion for optimum cutting score of not less than 50% had been favourably received by the Departmental Promotion Committee. He further says that every member of the Committee and the advisor were each required to make his own assessment and give the marks out of the maximum 50 marks fixed for a candidate. In a counter affidavit filed on behalf of the State by the Education Secretary the statements made by Dr. Dutt in his affidavit, though referred to are not controverted. But the actual marking results show an entirely different story. The four members of the Committee made their independent assessment and an average was taken representing the marks received by a candidate. According to the affidavit filed on behalf of the State instead of following the suggestion of the expert the Committee fixed 30 % instead of 50 % as the optimum cutting score. 30 % is generally considered to be less than just pass marks, being less than one third of the maximum, and it would be absurd to make selections with such a cutting score. The expert advisor had advised 50 % of the cutting score but the Committee adopted 30 % as the cutting score. The expert found that there were many candidates who could not score even 30 % marks and so the Committee decided that even candidates who got only 20 % marks from the expert may be considered. In this way those who got more than 30 % marks from the Committee and more than 20 % marks from the expert were declared eligible for selection. This is indeed a travesty of selection. The Secretary has clearly stated in his affidavit that in fixing the qualifying minimum percentage to determine the suitability of the candidate, the candidate need have obtained 30 % marks and above from the Committee and 20 % and above from the expert. We consider that a selection made on such a poor basis cannot be called a real selection at all. For the reasons given above therefore we think that the whole process of selection is wrong and unsatisfactory and must be set aside.It is not merely the educational backwardness or the social backwardness which makes a class of citizens backward; the class identified as a class as above must be both educationally and socially backward.In India social and educational backwardness is further associated with economic backwardness and it is observed in Balajis case referred to above 1963 Supp (1) SCR 439 = (AIR 1963 SC 649 ) that backwardness, socially and educationally, is ultimately and primarily due to poverty. But if poverty is the exclusive test, a very large proportion of the population in India would have to be regarded as socially and educationally backward, and if reservations are made only on the ground of economic considerations. an untenable situation may arise because even in sectors which are recognised as socially and educationally advanced there are large pockets of poverty. In this country except for a small percentage of the population the people are generally poor - some being more poor, others less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes, he may do it with confidence that they are bound to be poor. His chief concern is, therefore, to determine whether the class or group is socially and educationally backward. Though the two words socially and educationally are used cumulatively for the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced, it is generally also socially advanced because of the reformative effect of education on that class. The words "advanced" and "backward" are only relative terms - there being several layers or strata of classes, hovering between "advanced" and "backward", and the difficult task is which class can be recognised out of these several layers as being socially and educationally backward.Before dealing with those points, we shall dispose of the limited controversy involved in Writ Petn. No. 175 of 1971 although the conclusion on the above two points may indirectly affect the parties in this Writ Petition. The latter is filed by 7 Kashmiri Pandit teachers. They were all officiating Head Masters when they were reverted in 1971. Their grouse is that respondents 3 to 34 were juniors to them when they were in the teachers grade from which the promotions were made to the Head Masters grade, and, if the principle of equality applied, they should have been also reverted along with the petitioners and required to appear at the interview along with the petitioners. On account of this unequal treatment, it is alleged, the petitioners had refused to appear for the interview. It cannot be disputed that petitioner No. 1 was the senior-most in the grade of teachers from which the promotion is made to the post of the Head Master or Tehsil Education Officer. The other petitioners also are seniors to some of the respondents. But what happened is that owing to the communal distribution of seats the respondents 3 to 34 were all appointed as Head Masters in and before 1958. The petitioners had to wait their turn in the 10% seats earmarked for Kashmiri Pandits and others and, therefore, although they were seniors in the grade of teachers, their chance of appointment as Head Masters came much later. Petitioner No. 1 was appointed as an officiating Head Master in 1960. Petitioners 2 and 3 in 1962 and petitioners 4 to 7 in 1964. They all officiated as Head Masters till 1971 when they were reverted. In the case of respondents 3 to 34 not only were they promoted prior to 1958 but, except for respondents 26, 27 and 30, they had all been confirmed in the Head Masters post before 1961. Some of the respondents were further promoted as Principals and District Education Officers which was a grade higher than that of Head Masters. Somehow it appears respondents 26, 27 and 30, though holding such higher grade posts, had not been confirmed as Head Masters and they too, were reverted as soon as this petition wasthese respondents 3 to 34 had been appointed as Head Masters much before the petitioners and most of them were also confirmed in the posts. There may be some substance in the petitioners contention that the earlier appointment of these respondents, being based on the communal principle, was not a valid appointment and, therefore, their confirmation may not affect the question.the other hand,it is to be noted that the respondents seem not to have figured in Triloki Nath Tikoos case, (W. P. No. 107 of 1965) filed in 1965, (reported in AIR 1967 SC 1283 ). It would not, therefore, be proper to interfere with their appointments now, especially, as in the meantime they have been promoted to posts which are higher than of Head Masters. Indeed if any one of the respondents was a respondent in Writ Petn. No. 107 of 1965 (Triloki Nath Tikoos case) or in Writ Petn. 108 of 1969 (Makhanlals case) = (reported in AIR 1971 SC 2206 ) in which his appointment as Head Master had been set aside as invalid, his case will have to be treated like that of any other officiating Head Master who had been reverted in 1971. Otherwise we do not think that it would be right to interfere, at the instance of the petitioners, with these respondents whose appointments as Head Masters had been made in or beforeis some substance in that contention also and, therefore, we shall not go merely by the coincidence that the same number of Muslims and Jamvi Hindus had been selected.17. There are, however, two important considerations which show that the selections by interview were thoroughly unsatisfactory. The candidates for selection included a large number of senior teachers many of whom had officiated as Head Masters over long periods. They were asked to appear before a Committee consisting of 4 officials. One was a Member of the Public Service Commission, the second was the Secretary of the Education Department, the third was the nominee of the Chief Secretary and the fourth member was the Director of Education. The Committee was also assisted by an Educational expert from outside the State and this body was expected to make the selection after interviewing the candidates. Undoubtedly when appointments to higher posts are made it may be perfectly legitimate to test the candidates at a properly conducted interview. But it appears to us that the interview cannot be made the sole test in cases of this kind. The efficiency of a teacher and his qualifications to be appointed as Head Master depend upon several considerations. His character, his teaching experience, ability to manage his class, his popularity with the students and the high percentage of successful students he is able to produce are all matters which must be necessarily taken into consideration before a selection is made. For this any Committee which desires to make a selection after interview should insist that the character roll and the service record of the teachers should be before it. At the time of these interviews, however, the Committee did not have before it either the character rolls or service records of the teachers nor any confidential reports about them. They had to go merely by the result of thehis affidavit the Educational Secretary has admitted that such confidential records were not made available to the Committee and the reason given was as followsservice records in respect of confidential rolls or character rolls of all the eligible candidates for the last few years were not available. Moreover the number of candidates was veryis rather extraordinary that such a statement should be made by a high official of the Government. It is impossible to conceive that confidential reports were not available. The statement does not make it clear whether all the confidential reports were not available or only a few of them or for what years. The statement is so vague that it is difficult to accept it. Whenever appointments to gazetted posts are made and have to be approved by the Public Service Commission, confidential reports must be forwarded to the Commission, for otherwise it is difficult to see how the Public Service Commission can approve the appointments. It may happen that in a few cases the confidential records may be lost or missing. But to deprive the Committee of the benefit of these reports on the ground that such reports of all the eligible candidates for the last few years were not available would be ridiculous. The very fact that some other reason was necessary to be given, namely, that the number of candidates was very large goes to show that the first reason given by the official was considered by him as not altogether satisfactory. All the available reports ought to have been produced before the Committee and if any was lost or not available it was the duty of the Department to call for confidential reports afresh from authorities who had opportunities to observe the character and work of the teachers concerned. All the schools are Government schools and they must have been inspected from time to time by the Education Officers or Inspectors. Their reports could have been called to aid the Committee in its deliberations. We consider that the Committee was wrong in undertaking to make the selections on the basis of mereis, therefore, customary for a Committee making the selection for a Committee making the selection to fix a standard below which they should not go. In fact it appears from the affidavit filed by one of the Educational experts who assisted the Committee that he had suggested "that an optimum cutting score for selection should be at least 50%." In other words, his advice was that those candidates who got more than 50 % marks alone should beThe expert found that there were many candidates who could not score even 30 % marks and so the Committee decided that even candidates who got only 20 % marks from the expert may be considered. In this way those who got more than 30 % marks from the Committee and more than 20 % marks from the expert were declared eligible for selection. This is indeed a travesty of selection. The Secretary has clearly stated in his affidavit that in fixing the qualifying minimum percentage to determine the suitability of the candidate, the candidate need have obtained 30 % marks and above from the Committee and 20 % and above from the expert. We consider that a selection made on such a poor basis cannot be called a real selection at all. For the reasons given above therefore we think that the whole process of selection is wrong and unsatisfactory and must be set aside.In identifying backward classes, therefore, one has to guard oneself against including therein sections which are socially and educationally advanced because the whole object of reservation would otherwise be frustrated. In this connection it must also be remembered that State resources are not unlimited and, further the protection given by special reservation must be balanced against the constitutional right of every citizen to demand equal opportunity. Moreover, where appointments and promotions to responsible public offices are made, greater circumspection would be required in making reservations for the benefit of any backward class because efficiency and public interest must always remain paramount. It is implicit in the idea of reservation that a less meritorious person is to be preferred to another who is more meritorious.27. The Jammu and Kashmir Scheduled Castes and Backward Classes Reservation Rules, 1970 are comprised of 5 parts.29. There is no doubt that a large number of occupations mentioned in the list is capable of being followed as a traditional occupation. But some of them, at least, do not deserve to be called traditionalthese occupations do not require special skills developed by tradition and can be resorted to by anybody with the requisite resources. Then again at serial Nos. 34 and 56 we have a category of priestly classes who, though following a traditional profession can hardly be regarded as socially and educationally backward. We, therefore, think that there must be a proper revision of the traditional occupations to fall properly under rule 4.30. But the most serious objection is to the artificial definition given in rule 2 (j). The "traditional occupation" in respect of a person means the main occupation of his living or late grandfather and does not include casual occupation. This would mean that if a person wants the special advantage as a member of the backward class it is enough for him to show that his grandfather was following a traditional occupation. His father may not be following the traditional occupation at all. He might have given it up to follow some other occupation or trade. It is not enough, it is contended, that a traditional occupation was followed by the grandfather but that the occupation should have descended to his son also so that at the date when the grand-son is asking for the benefit of reservation the traditional occupation must be still in the family and continues to be the living of the family. There is great force in this contention. If the father of the person who claims special treatment under Articles 15 (4) and 16 (4) has given up his low income occupation and become a trader or a Government servant it will be wrong to give the person the special benefit merely on the ground that his grandfather was following a certain traditional occupation.The memorialists contended that they cannot keep pace with the ever-rising price index as rates of pension have remained static and have not been enhanced as is being done from time to time in the case of Government servants in regular service. It was further argued that they could ill afford to spare any part of their meagre earnings for the education of their children." The Committee felt that these pensioners deserve on these grounds to be shown consideration as backward classes because most of them held class IV or similar posts. Ex-servicemen who fall in this class are about 90,000 and civil posts pensioners are about 15,000. It is difficult to say that these pensioners are a class in the sense that they are a homogeneous group. They are an amorphous section of Government servants who by the accident of receiving Rs. 100/- or less as pay at the time of retirement or being ex-servicemen of certain grades are pushed into an artificially created body. It may be that they belong to class IV or similar grade service of the State. But that is not the test of their social and educational backwardness. In days when sources of employment were few, many people though socially advanced might have accepted low paid jobs. Some of them may have failed to make the educational grade and were hence forced by necessity to accept such low paid jobs. Some others might have pre-maturely retired from posts carrying the scale referred to above. The accident, therefore, that they belong to a section of Government servants of certain category is no test of their social backwardness. The test breaks down if the position of a brother of such a pensioner is considered. If the brother, also a Government servant, has the misfortune of retiring when holding a post the maximum of which was Rs. 105/- he was liable to be regarded as not socially and educationally backward when, in all conscience, so far as the two brothers are concerned they remain on the same social level. Another brother who is privately employed and retires from service without any pensionary benefits would not be entitled to be classed as backward under the test. These anomalies arise because of the artificial nature of the group created by the Committee. If all the brothers are socially and educationally backward, you will be differentiating between them by calling some more backward and others less backward, a thing not permitted by Balajis case, 1963 Supp (1) SCR 439 = (AIR 1963 SC 649 ). There is, therefore, substance in the contention of Mr. Sen that the Committee has created these two artificial groups of "cultivators" and "pensioners" for the purpose of affording certain benefits under the Constitution instead of identifying socially and educationally backwardChap. VI some areas in the State are regarded as "bad pockets" and all the residents of those areas are stated to be backward. These two Chapters incorporate the recommendations made by the Committee in Chapters X and IX respectively of the report. Chapter IX relates to "bad pockets". 10 such bad pockets have been identified by the Committee and cover 696 villages in certain Districts and Tehsils far away in the interior.Ten such pockets were then examined in detail and the Committee came to the conclusion that owing to lack of communication, inaccessibility, lack of material resources and the like the residents of these areas are living in almost primitive conditions and they are all socially and educationally backward. The civilizing influence of modern life is yet to reach them. These areas are carefully mapped. They are situated in the recesses of inaccessible mountains which have primarily led to the residents therein being almost in a primitive state. The population is about 8 % of the total population of Jammu and Kashmir and, in our opinion, there is no serious difficulty in regarding the residents of these areas as being backward. Similar considerations apply to areas adjoining the ceasefire line. They comprise about 179 villages with a population of about a lakh. The difficulties of their situation near the ceasefire line for the last 25 years seem to have contributed to this area being cut off from the main stream of life. The Committee noticed that the difficulties inherent in the living conditions in these areas had inevitably lead the inhabitants of these areas living in economic and educational backwardness. There are restrictions on their free movement and they have to remain indoors after sun set. The male members cannot leave their villages in search of livelihood elsewhere for fear of their wives and children being left behind unprotected. The land is unproductive, no investments could be made in the land because of the nearness of the ceasefire line. Raids accompanied by cattle lifting and damage to property are not uncommon. Loss of life also takes place occasionally. The inhabitants find it equally difficult to pursue their traditional arts and crafts. The effect of all these contributory factors have kept these areas, in so far as social and educational progress is concerned, very much behind the rest of the State.36. We thus find that special reasons have been given by the Committee why it considered these areas socially and educationally backward, and since the classification is not made merely on the ground of place of birth, we do not think that there is any serious objection to regard the residents of the bad pockets and the ceasefire areas as socially and educationally backward. But Rules 10 and 12 have been so framed that the advantage is likely to be misused by imposters. A person wanting the advantage of reservation would be regarded as belonging to these areas if his father is or has been resident of the area for a period of not less than 10 years in a period of 20 years preceding the year in which the certificate of backwardness is obtained. The rules do not insist that either the father or the son should be a resident of the area when the advantage is claimed. Nor does it require that the son should have his earlier education in these areas to ensure that he and his father are permanent residents of that area. Any trader or Government servant from outside who is residing for about 10 years in these areas within 20 years of the date when the advantage is claimed would be entitled to be regarded as belonging to the backward class. In order that the benefit may go to the residents of these areas, Government ought to frame rules with adequate safeguards that only genuine residents will get the advantage of special reservation and not outsiders. As the rules stand, outsiders who, in the course of their trade or business happened to live in these areas for 10 years out of past 20 years would be able to claim the benefit. This loophole must be plugged and till that is done the production of a certificate from the Tehsildar as to the backwardness of any person would be of little value.37. We have shown above the defects in the rules which purport to identify certain residents of the State as backward. Till the defects are cured the rules are not capable of being given effect to.

### 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: more backward and others less backward, a thing not permitted by Balajis case, 1963 Supp (1) SCR 439 = (AIR 1963 SC 649 ). There is, therefore, substance in the contention of Mr. Sen that the Committee has created these two artificial groups of "cultivators" and "pensioners" for the purpose of affording certain benefits under the Constitution instead of identifying socially and educationally backward classes.34. Chapters V and VI of the Rules identify residents of certain areas as backward. In Chapter V the residents of certain villages mentioned in Appendix II are considered as backward these villages being within five miles of the ceasefire line. In Chap. VI some areas in the State are regarded as "bad pockets" and all the residents of those areas are stated to be backward. These two Chapters incorporate the recommendations made by the Committee in Chapters X and IX respectively of the report. Chapter IX relates to "bad pockets". 10 such bad pockets have been identified by the Committee and cover 696 villages in certain Districts and Tehsils far away in the interior. The population of these areas according to 1961 census was about three lakhs. The Committee reports as follows :"There are, for instance well known rather notorious backward areas which have to be treated differently from the rest of the State. There are others which because of difficult terrain, inaccessibility and absence of vehicular communications still retain their primitive character. There are still some others which suffer from deficient production on account of soil being rocky and scandy and irrigation facilities being scanty and inadequate. Besides these, there are areas where due to non-availabildity of electric power, industrial development even on the scale of cottage industry has yet to come into existence. There are certain areas which combine all or some of these characteristics."35. Ten such pockets were then examined in detail and the Committee came to the conclusion that owing to lack of communication, inaccessibility, lack of material resources and the like the residents of these areas are living in almost primitive conditions and they are all socially and educationally backward. The civilizing influence of modern life is yet to reach them. These areas are carefully mapped. They are situated in the recesses of inaccessible mountains which have primarily led to the residents therein being almost in a primitive state. The population is about 8 % of the total population of Jammu and Kashmir and, in our opinion, there is no serious difficulty in regarding the residents of these areas as being backward. Similar considerations apply to areas adjoining the ceasefire line. They comprise about 179 villages with a population of about a lakh. The difficulties of their situation near the ceasefire line for the last 25 years seem to have contributed to this area being cut off from the main stream of life. The Committee noticed that the difficulties inherent in the living conditions in these areas had inevitably lead the inhabitants of these areas living in economic and educational backwardness. There are restrictions on their free movement and they have to remain indoors after sun set. The male members cannot leave their villages in search of livelihood elsewhere for fear of their wives and children being left behind unprotected. The land is unproductive, no investments could be made in the land because of the nearness of the ceasefire line. Raids accompanied by cattle lifting and damage to property are not uncommon. Loss of life also takes place occasionally. The inhabitants find it equally difficult to pursue their traditional arts and crafts. The effect of all these contributory factors have kept these areas, in so far as social and educational progress is concerned, very much behind the rest of the State.36. We thus find that special reasons have been given by the Committee why it considered these areas socially and educationally backward, and since the classification is not made merely on the ground of place of birth, we do not think that there is any serious objection to regard the residents of the bad pockets and the ceasefire areas as socially and educationally backward. But Rules 10 and 12 have been so framed that the advantage is likely to be misused by imposters. A person wanting the advantage of reservation would be regarded as belonging to these areas if his father is or has been resident of the area for a period of not less than 10 years in a period of 20 years preceding the year in which the certificate of backwardness is obtained. The rules do not insist that either the father or the son should be a resident of the area when the advantage is claimed. Nor does it require that the son should have his earlier education in these areas to ensure that he and his father are permanent residents of that area. Any trader or Government servant from outside who is residing for about 10 years in these areas within 20 years of the date when the advantage is claimed would be entitled to be regarded as belonging to the backward class. In order that the benefit may go to the residents of these areas, Government ought to frame rules with adequate safeguards that only genuine residents will get the advantage of special reservation and not outsiders. As the rules stand, outsiders who, in the course of their trade or business happened to live in these areas for 10 years out of past 20 years would be able to claim the benefit. This loophole must be plugged and till that is done the production of a certificate from the Tehsildar as to the backwardness of any person would be of little value.37. We have shown above the defects in the rules which purport to identify certain residents of the State as backward. Till the defects are cured the rules are not capable of being given effect to.38. In view of the above findings the selections made by Departmental Promotion Committee have to be set aside. ### Response: 1 ### Explanation: have failed to make the educational grade and were hence forced by necessity to accept such low paid jobs. Some others might have pre-maturely retired from posts carrying the scale referred to above. The accident, therefore, that they belong to a section of Government servants of certain category is no test of their social backwardness. The test breaks down if the position of a brother of such a pensioner is considered. If the brother, also a Government servant, has the misfortune of retiring when holding a post the maximum of which was Rs. 105/- he was liable to be regarded as not socially and educationally backward when, in all conscience, so far as the two brothers are concerned they remain on the same social level. Another brother who is privately employed and retires from service without any pensionary benefits would not be entitled to be classed as backward under the test. These anomalies arise because of the artificial nature of the group created by the Committee. If all the brothers are socially and educationally backward, you will be differentiating between them by calling some more backward and others less backward, a thing not permitted by Balajis case, 1963 Supp (1) SCR 439 = (AIR 1963 SC 649 ). There is, therefore, substance in the contention of Mr. Sen that the Committee has created these two artificial groups of "cultivators" and "pensioners" for the purpose of affording certain benefits under the Constitution instead of identifying socially and educationally backwardChap. VI some areas in the State are regarded as "bad pockets" and all the residents of those areas are stated to be backward. These two Chapters incorporate the recommendations made by the Committee in Chapters X and IX respectively of the report. Chapter IX relates to "bad pockets". 10 such bad pockets have been identified by the Committee and cover 696 villages in certain Districts and Tehsils far away in the interior.Ten such pockets were then examined in detail and the Committee came to the conclusion that owing to lack of communication, inaccessibility, lack of material resources and the like the residents of these areas are living in almost primitive conditions and they are all socially and educationally backward. The civilizing influence of modern life is yet to reach them. These areas are carefully mapped. They are situated in the recesses of inaccessible mountains which have primarily led to the residents therein being almost in a primitive state. The population is about 8 % of the total population of Jammu and Kashmir and, in our opinion, there is no serious difficulty in regarding the residents of these areas as being backward. Similar considerations apply to areas adjoining the ceasefire line. They comprise about 179 villages with a population of about a lakh. The difficulties of their situation near the ceasefire line for the last 25 years seem to have contributed to this area being cut off from the main stream of life. The Committee noticed that the difficulties inherent in the living conditions in these areas had inevitably lead the inhabitants of these areas living in economic and educational backwardness. There are restrictions on their free movement and they have to remain indoors after sun set. The male members cannot leave their villages in search of livelihood elsewhere for fear of their wives and children being left behind unprotected. The land is unproductive, no investments could be made in the land because of the nearness of the ceasefire line. Raids accompanied by cattle lifting and damage to property are not uncommon. Loss of life also takes place occasionally. The inhabitants find it equally difficult to pursue their traditional arts and crafts. The effect of all these contributory factors have kept these areas, in so far as social and educational progress is concerned, very much behind the rest of the State.36. We thus find that special reasons have been given by the Committee why it considered these areas socially and educationally backward, and since the classification is not made merely on the ground of place of birth, we do not think that there is any serious objection to regard the residents of the bad pockets and the ceasefire areas as socially and educationally backward. But Rules 10 and 12 have been so framed that the advantage is likely to be misused by imposters. A person wanting the advantage of reservation would be regarded as belonging to these areas if his father is or has been resident of the area for a period of not less than 10 years in a period of 20 years preceding the year in which the certificate of backwardness is obtained. The rules do not insist that either the father or the son should be a resident of the area when the advantage is claimed. Nor does it require that the son should have his earlier education in these areas to ensure that he and his father are permanent residents of that area. Any trader or Government servant from outside who is residing for about 10 years in these areas within 20 years of the date when the advantage is claimed would be entitled to be regarded as belonging to the backward class. In order that the benefit may go to the residents of these areas, Government ought to frame rules with adequate safeguards that only genuine residents will get the advantage of special reservation and not outsiders. As the rules stand, outsiders who, in the course of their trade or business happened to live in these areas for 10 years out of past 20 years would be able to claim the benefit. This loophole must be plugged and till that is done the production of a certificate from the Tehsildar as to the backwardness of any person would be of little value.37. We have shown above the defects in the rules which purport to identify certain residents of the State as backward. Till the defects are cured the rules are not capable of being given effect to.

COMMISSIONER OF CUSTOMS Vs. M/S. ATUL AUTOMATIONS PVT LTD

the facts of the case, cannot be said to have detained the consignment without justification.6. Shri Mukul Rohatgi, learned senior counsel appearing for the respondent submitted that MFDs were imported in October- November, 2016. The requirement of extended producer responsibility under the E-waste (Management) Rules, 2016 was deferred till 30.04.2017 by the Technical Committee under the Ministry of Environment and Forest. In any event, the respondent has obtained the same before release of the consignment. The question for disposal of the imported machine at this stage is premature as it has a utility life of 5 to 7 years. The consignment was not a prohibited but restricted item. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The discretionary power has to be tampered with reason and has to be read along with the Foreign Trade Act and the policy framed under the same. The Customs Department has consistently in the past been permitting the release of MFDs on levy of redemption fine. The discriminatory treatment with regard to the present consignment is unjustified. The DGFT had declined to issue authorisation certificate. There was substantial compliance with the requirements of Rule 13 of the Waste Management Rules read with Schedule VIII Entry 4(j).7. We have considered the submissions on behalf of the parties. The MFDs were imported in October-November 2016. They were detained by the customs authorities opining that the imports had been made in violation of the Foreign Trade Policy, 2015-2020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Management Rules.8. Clause 2.01 of the Foreign Trade Policy provides for prohibition and restriction of imports and exports. The export or import of restricted goods can be made under Clause 2.08 only in accordance with an authorisation/permission to be obtained under Clause 2.11. Photocopier machines/Digital multifunction Print and Copying Machines are restricted items importable against authorisation under Clause 2.31. Indisputably, the respondents did not possess the necessary authorisation for their import. The customs authorities therefore prima facie cannot be said to be unjustified in detaining the consignment. Merely because earlier on more than one occasion, similar consignments of the respondent or others may have been cleared by the customs authorities at the Calcutta, Chennai or Cochin ports on payment of redemption fine cannot be a justification simpliciter to demand parity of treatment for the present consignment also. The defence that the DGFT had declined to issue such authorisation does not appeal to the Court.9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules,1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorisation upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We therefore find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine under Section 112(a) of the Customs Act,1962.10. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as ?other wastes? under Rule 3(1)(23) of the Waste Management Rules, which reads as follows :-?Other wastes means wastes specified in Part B and Part D of Schedule III for import or export and includes all such waste generated indigenously within the country.?11. Rule 13(2) provides the procedure for import of other wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions used Multifunction Print and Copying Machines (MFDs). Entry 4(j) lists out five documents required for import of used MFDs. The respondents have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be not applicable to the subject goods.12. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of ?other wastes? shall be deemed illegal if it is without permission from the Central Government under the Rules and is required to be re-exported. Significantly the Customs Act does not provide for re-export. The Central Government under the Foreign Trade Policy has not prohibited but restricted the import subject to authorisation. The High Court therefore rightly held that the MFDs having a utility period, the Extended Producer Responsibility would arise only after the utility period was over. In any event, the E-waste Rules 2016 certificate had since been issued to the respondents by the Central Pollution Control Board before the goods have been cleared.

1[ds]7. We have considered the submissions on behalf of the parties. The MFDs were imported in October-November 2016. They were detained by the customs authorities opining that the imports had been made in violation of the Foreign Trade Policy, 2015-2020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Managementthe respondents did not possess the necessary authorisation for their import. The customs authorities therefore prima facie cannot be said to be unjustified in detaining the consignment. Merely because earlier on more than one occasion, similar consignments of the respondent or others may have been cleared by the customs authorities at the Calcutta, Chennai or Cochin ports on payment of redemption fine cannot be a justification simpliciter to demand parity of treatment for the present consignment also. The defence that the DGFT had declined to issue such authorisation does not appeal to the Court.9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules,1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorisation upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We therefore find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine under Section 112(a) of the Customs Act,1962.10. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as ?other wastes? under Rule 3(1)(23) of the Waste Managementrespondents have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be not applicable to the subject goods.12. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of ?other wastes? shall be deemed illegal if it is without permission from the Central Government under the Rules and is required to be re-exported. Significantly the Customs Act does not provide for re-export. The Central Government under the Foreign Trade Policy has not prohibited but restricted the import subject to authorisation. The High Court therefore rightly held that the MFDs having a utility period, the Extended Producer Responsibility would arise only after the utility period was over. In any event, the E-waste Rules 2016 certificate had since been issued to the respondents by the Central Pollution Control Board before the goods have been cleared.

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: the facts of the case, cannot be said to have detained the consignment without justification.6. Shri Mukul Rohatgi, learned senior counsel appearing for the respondent submitted that MFDs were imported in October- November, 2016. The requirement of extended producer responsibility under the E-waste (Management) Rules, 2016 was deferred till 30.04.2017 by the Technical Committee under the Ministry of Environment and Forest. In any event, the respondent has obtained the same before release of the consignment. The question for disposal of the imported machine at this stage is premature as it has a utility life of 5 to 7 years. The consignment was not a prohibited but restricted item. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The discretionary power has to be tampered with reason and has to be read along with the Foreign Trade Act and the policy framed under the same. The Customs Department has consistently in the past been permitting the release of MFDs on levy of redemption fine. The discriminatory treatment with regard to the present consignment is unjustified. The DGFT had declined to issue authorisation certificate. There was substantial compliance with the requirements of Rule 13 of the Waste Management Rules read with Schedule VIII Entry 4(j).7. We have considered the submissions on behalf of the parties. The MFDs were imported in October-November 2016. They were detained by the customs authorities opining that the imports had been made in violation of the Foreign Trade Policy, 2015-2020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Management Rules.8. Clause 2.01 of the Foreign Trade Policy provides for prohibition and restriction of imports and exports. The export or import of restricted goods can be made under Clause 2.08 only in accordance with an authorisation/permission to be obtained under Clause 2.11. Photocopier machines/Digital multifunction Print and Copying Machines are restricted items importable against authorisation under Clause 2.31. Indisputably, the respondents did not possess the necessary authorisation for their import. The customs authorities therefore prima facie cannot be said to be unjustified in detaining the consignment. Merely because earlier on more than one occasion, similar consignments of the respondent or others may have been cleared by the customs authorities at the Calcutta, Chennai or Cochin ports on payment of redemption fine cannot be a justification simpliciter to demand parity of treatment for the present consignment also. The defence that the DGFT had declined to issue such authorisation does not appeal to the Court.9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules,1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorisation upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We therefore find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine under Section 112(a) of the Customs Act,1962.10. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as ?other wastes? under Rule 3(1)(23) of the Waste Management Rules, which reads as follows :-?Other wastes means wastes specified in Part B and Part D of Schedule III for import or export and includes all such waste generated indigenously within the country.?11. Rule 13(2) provides the procedure for import of other wastes listed in Part D Schedule III. Item B1110 of the Schedule mentions used Multifunction Print and Copying Machines (MFDs). Entry 4(j) lists out five documents required for import of used MFDs. The respondents have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be not applicable to the subject goods.12. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of ?other wastes? shall be deemed illegal if it is without permission from the Central Government under the Rules and is required to be re-exported. Significantly the Customs Act does not provide for re-export. The Central Government under the Foreign Trade Policy has not prohibited but restricted the import subject to authorisation. The High Court therefore rightly held that the MFDs having a utility period, the Extended Producer Responsibility would arise only after the utility period was over. In any event, the E-waste Rules 2016 certificate had since been issued to the respondents by the Central Pollution Control Board before the goods have been cleared. ### Response: 1 ### Explanation: 7. We have considered the submissions on behalf of the parties. The MFDs were imported in October-November 2016. They were detained by the customs authorities opining that the imports had been made in violation of the Foreign Trade Policy, 2015-2020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Managementthe respondents did not possess the necessary authorisation for their import. The customs authorities therefore prima facie cannot be said to be unjustified in detaining the consignment. Merely because earlier on more than one occasion, similar consignments of the respondent or others may have been cleared by the customs authorities at the Calcutta, Chennai or Cochin ports on payment of redemption fine cannot be a justification simpliciter to demand parity of treatment for the present consignment also. The defence that the DGFT had declined to issue such authorisation does not appeal to the Court.9. Unfortunately, both the Commissioner and the Tribunal did not advert to the provisions of the Foreign Trade Act. The High Court dealing with the same has aptly noticed that Section 11(8) and (9) read with Rule 17(2) of the Foreign Trade (Regulation) Rules,1993 provides for confiscation of goods in the event of contravention of the Act, Rules or Orders but which may be released on payment of redemption charges equivalent to the market value of the goods. Section 3(3) of the Foreign Trade Act provides that any order of prohibition made under the Act shall apply mutatis mutandis as deemed to have been made under Section 11 of the Customs Act also. Section 18A of the Foreign Trade Act reads that it is in addition to and not in derogation of other laws. Section 125 of the Customs Act vests discretion in the authority to levy fine in lieu of confiscation. The MFDs were not prohibited but restricted items for import. A harmonious reading of the statutory provisions of the Foreign Trade Act and Section 125 of the Customs Act will therefore not detract from the redemption of such restricted goods imported without authorisation upon payment of the market value. There will exist a fundamental distinction between what is prohibited and what is restricted. We therefore find no error with the conclusion of the Tribunal affirmed by the High Court that the respondent was entitled to redemption of the consignment on payment of the market price at the reassessed value by the customs authorities with fine under Section 112(a) of the Customs Act,1962.10. The Central Government had permitted the import of used MFDs with utility for at least five years keeping in mind that they were not being manufactured in the country. The Chartered Engineer commissioned by the customs authorities had certified that the MFDs were capable of utility for the next 5 to 7 years without any major repairs. Considering that at import they had utility, the High Court rightly classified them as ?other wastes? under Rule 3(1)(23) of the Waste Managementrespondents have been found to be substantially compliant in this regard and the requirement for the country of origin certificate has been found to be vague by the High Court. Form 6 has rightly been held to be not applicable to the subject goods.12. Rule 15 of the Waste Management Rules dealing with illegal traffic, provides that import of ?other wastes? shall be deemed illegal if it is without permission from the Central Government under the Rules and is required to be re-exported. Significantly the Customs Act does not provide for re-export. The Central Government under the Foreign Trade Policy has not prohibited but restricted the import subject to authorisation. The High Court therefore rightly held that the MFDs having a utility period, the Extended Producer Responsibility would arise only after the utility period was over. In any event, the E-waste Rules 2016 certificate had since been issued to the respondents by the Central Pollution Control Board before the goods have been cleared.

Mirah Exports Private Limited Vs. Collector of Customs

given on the prices indicated in the price list is actually mentioned in other documents that were seized during the search. The said documents include the various letters and telexes received from SKF Oversees Bearings Division, Sweden which indicate the new pricing policy of the foreign supplier. As pointed out by the Addl. Collector of Customs in his order dated April 16, 1985 the said documents show that 20% discount is allowed to th e original equipment manufacturers who import for fitment in their manufactured products and for this build up inventories with sizeable orders after securing favorable prices between various competitors but as regards canvassers and Skefko , who import in even greater bulk for the purposes of only trading, the policy envisaged that they may even secure lower price particularly if they generated additional volumes of sales. The documents seized during the search and seizure that were produced by the appellants before the customs authorities (genuineness of which was accepted by the Addl. Collector of Customs) show that apart from Mirah Exports a number of other importers namely, Skefko, Amul Engg., Krishna Engg. work, Delhi Jayaveer Forge, Davangere, Ajay Trading Co., Delhi Ramgopal Lachmi Narayan, Bombay Sanmukh Engineering Industries, etc. has also imported comparable quantities of similar bearings at the same or lesser prices as that of Mirah Exports and that discount from 50% to 70% on the list prices was the normal invoice price for a number of unconnected importers during the period. The Collector of Customs, while passing the order dated December 5, 1986 and march 20, 1987 and the Tribunal in the impugned judgment have not taken note of the said documents and the fact that the importers had been given 50% to 70% discount on the prices indicated in the list price.In Basant Industries [supra] this Court has pointed out that "in t he business world, considerations of relationship with the customer are also a relevant factor" and that "a price which is offered by a supplier to an old customer may be different from a price which the same supplier offers to a totally new customer ". In that case, the Court, on the basis of the correspondence that had ensued between the supplier and the importer, found that there was some bargaining before the price was finalised and that the price mentioned in the invoice that was agreed was in view of the quantity that was being imported by the importer. thus it not unusual for a foreign supplier to give a higher discount to an importer who is importing a much larger quantity and merely because such a discount has been given by the supplier it cannot be said that there has been any undervaluation in the invoice. 12. Section 14 of the Act prescribes that valuation of goods for the purpose of assessment has to be made at the price at which such goods or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation of exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business o f each other and the price is the sole consideration for the sale or offer for sale. In the present case neither has it been alleged nor has any material been produced to show that Mirah Exports and the foreign suppliers have any interest in the business of each other. As regards Skefko it has been pointed out that AB-SKF, Sweden holds 39.8% of the share capital in Skefko but there is nothing to show that Skefko has any interest in the business of AB-SKF. Moreover it is of no con sequence in the present case because the invoice price at which the imports were made by Skefko were the same at which Mirah Exports and other importers had imported and no special price was given to Skefko for import. In these circumstances, we are of the opinion that the invoice prices as mentioned in the invoices could be treated as the price at which the goods are ordinarily sold or offered for sale in the course of international trade and that it had been rightly accepted as the value for assessment purposes under Section 14 of the Act by the Addl. Collector of Customs.In Sharp Business machines Pvt. Ltd. [supra] the invoice value was not accepted as the real value of the goods which were imported in view of the special facts and circumstances of that case. it was found that the appellant company in that case has tried to practise a fraud in defeating the import policy relating to import of Copiers which enabled the new entrepreneurs establishing small scale industries to import, in the first phase, 62% of the components of the copiers and the balance of the 38% was to be manufactured by them indigenously. In that case it was found that the appellant company had purchased 14 fully finish ed plain paper copiers of Japanese origin in Hong Kong and Singapore and had them dismantled in Hong Kong for importing the same in the guise of the components of the copiers and thereby the company not only had violated the terms and conditions of the licence but had also committee a fraud on the Import Policy itself in importing the fully finished copiers which was totally prohibited item for import. The finding about undervaluation in the invoices was arrived at on the basis of prices mentioned in quotations of the authorised agents of the manufacturers and it was held that there was no question of supplying the components of the copiers on a lower price than given by the manufacturers themselves. the decision i n Sharp Business Machines [supra] has, therefore, no application to the facts of this case. Similarly the decision in Padia Sales Corporation [supra] and Commerce International [supra] which were decided on their own facts have no application to the present case. 13.

1[ds]The legal position is well settled that the burden of proving a charge of under valuation lies upon Revenue and Revenue has to produce the necessary evidence to prove the said charge "Ordinarily the Court should proceed on the basis that the apparent tenor of the agreement reflect the real state of affairs" and what is to be examined is "whether the revenue has succeeded in showing that the apparent is not the real and that the price shown in the invoices does not reflect the true sale price." [ See: Union of India Vs. Mahindra &Mahindra (supra), at p. 487]In the present case the only evidence that was adduced by Revenue in support of the charge of under-valuation is the price list No. 8102 dated February 15, 1981 which was found during the course of search in the premises of Skefko, etc. that was conducted by the officers of the enforcement Directorate on or about June 22, 1983. The price list does not even mention about the discount of 20% that has been allowed by the Tribunal in the impugned judgment. The matter of discount to be given on the prices indicated in the price list is actually mentioned in other documents that were seized during the search. The said documents include the various letters and telexes received from SKF Oversees Bearings Division, Sweden which indicate the new pricing policy of the foreign supplier. As pointed out by the Addl. Collector of Customs in his order dated April 16, 1985 the said documents show that 20% discount is allowed to th e original equipment manufacturers who import for fitment in their manufactured products and for this build up inventories with sizeable orders after securing favorable prices between various competitors but as regards canvassers and Skefko , who import in even greater bulk for the purposes of only trading, the policy envisaged that they may even secure lower price particularly if they generated additional volumes of sales. The documents seized during the search and seizure that were produced by the appellants before the customs authorities (genuineness of which was accepted by the Addl. Collector of Customs) show that apart from Mirah Exports a number of other importers namely, Skefko, Amul Engg., Krishna Engg. work, Delhi Jayaveer Forge, Davangere, Ajay Trading Co., Delhi Ramgopal Lachmi Narayan, Bombay Sanmukh Engineering Industries, etc. has also imported comparable quantities of similar bearings at the same or lesser prices as that of Mirah Exports and that discount from 50% to 70% on the list prices was the normal invoice price for a number of unconnected importers during the period. The Collector of Customs, while passing the order dated December 5, 1986 and march 20, 1987 and the Tribunal in the impugned judgment have not taken note of the said documents and the fact that the importers had been given 50% to 70% discount on the prices indicated in the list price.In Basant Industries [supra] this Court has pointed out that "in t he business world, considerations of relationship with the customer are also a relevant factor" and that "a price which is offered by a supplier to an old customer may be different from a price which the same supplier offers to a totally new customer ". In that case, the Court, on the basis of the correspondence that had ensued between the supplier and the importer, found that there was some bargaining before the price was finalised and that the price mentioned in the invoice that was agreed was in view of the quantity that was being imported by the importer. thus it not unusual for a foreign supplier to give a higher discount to an importer who is importing a much larger quantity and merely because such a discount has been given by the supplier it cannot be said that there has been any undervaluation in the invoiceSection 14 of the Act prescribes that valuation of goods for the purpose of assessment has to be made at the price at which such goods or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation of exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business o f each other and the price is the sole consideration for the sale or offer for sale. In the present case neither has it been alleged nor has any material been produced to show that Mirah Exports and the foreign suppliers have any interest in the business of each other. As regards Skefko it has been pointed out that AB-SKF, Sweden holds 39.8% of the share capital in Skefko but there is nothing to show that Skefko has any interest in the business of AB-SKF. Moreover it is of no con sequence in the present case because the invoice price at which the imports were made by Skefko were the same at which Mirah Exports and other importers had imported and no special price was given to Skefko for import. In these circumstances, we are of the opinion that the invoice prices as mentioned in the invoices could be treated as the price at which the goods are ordinarily sold or offered for sale in the course of international trade and that it had been rightly accepted as the value for assessment purposes under Section 14 of the Act by the Addl. Collector of Customs.In Sharp Business machines Pvt. Ltd. [supra] the invoice value was not accepted as the real value of the goods which were imported in view of the special facts and circumstances of that case. it was found that the appellant company in that case has tried to practise a fraud in defeating the import policy relating to import of Copiers which enabled the new entrepreneurs establishing small scale industries to import, in the first phase, 62% of the components of the copiers and the balance of the 38% was to be manufactured by them indigenously. In that case it was found that the appellant company had purchased 14 fully finish ed plain paper copiers of Japanese origin in Hong Kong and Singapore and had them dismantled in Hong Kong for importing the same in the guise of the components of the copiers and thereby the company not only had violated the terms and conditions of the licence but had also committee a fraud on the Import Policy itself in importing the fully finished copiers which was totally prohibited item for import. The finding about undervaluation in the invoices was arrived at on the basis of prices mentioned in quotations of the authorised agents of the manufacturers and it was held that there was no question of supplying the components of the copiers on a lower price than given by the manufacturers themselves. the decision i n Sharp Business Machines [supra] has, therefore, no application to the facts of this case. Similarly the decision in Padia Sales Corporation [supra] and Commerce International [supra] which were decided on their own facts have no application to the present case.

### 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: given on the prices indicated in the price list is actually mentioned in other documents that were seized during the search. The said documents include the various letters and telexes received from SKF Oversees Bearings Division, Sweden which indicate the new pricing policy of the foreign supplier. As pointed out by the Addl. Collector of Customs in his order dated April 16, 1985 the said documents show that 20% discount is allowed to th e original equipment manufacturers who import for fitment in their manufactured products and for this build up inventories with sizeable orders after securing favorable prices between various competitors but as regards canvassers and Skefko , who import in even greater bulk for the purposes of only trading, the policy envisaged that they may even secure lower price particularly if they generated additional volumes of sales. The documents seized during the search and seizure that were produced by the appellants before the customs authorities (genuineness of which was accepted by the Addl. Collector of Customs) show that apart from Mirah Exports a number of other importers namely, Skefko, Amul Engg., Krishna Engg. work, Delhi Jayaveer Forge, Davangere, Ajay Trading Co., Delhi Ramgopal Lachmi Narayan, Bombay Sanmukh Engineering Industries, etc. has also imported comparable quantities of similar bearings at the same or lesser prices as that of Mirah Exports and that discount from 50% to 70% on the list prices was the normal invoice price for a number of unconnected importers during the period. The Collector of Customs, while passing the order dated December 5, 1986 and march 20, 1987 and the Tribunal in the impugned judgment have not taken note of the said documents and the fact that the importers had been given 50% to 70% discount on the prices indicated in the list price.In Basant Industries [supra] this Court has pointed out that "in t he business world, considerations of relationship with the customer are also a relevant factor" and that "a price which is offered by a supplier to an old customer may be different from a price which the same supplier offers to a totally new customer ". In that case, the Court, on the basis of the correspondence that had ensued between the supplier and the importer, found that there was some bargaining before the price was finalised and that the price mentioned in the invoice that was agreed was in view of the quantity that was being imported by the importer. thus it not unusual for a foreign supplier to give a higher discount to an importer who is importing a much larger quantity and merely because such a discount has been given by the supplier it cannot be said that there has been any undervaluation in the invoice. 12. Section 14 of the Act prescribes that valuation of goods for the purpose of assessment has to be made at the price at which such goods or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation of exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business o f each other and the price is the sole consideration for the sale or offer for sale. In the present case neither has it been alleged nor has any material been produced to show that Mirah Exports and the foreign suppliers have any interest in the business of each other. As regards Skefko it has been pointed out that AB-SKF, Sweden holds 39.8% of the share capital in Skefko but there is nothing to show that Skefko has any interest in the business of AB-SKF. Moreover it is of no con sequence in the present case because the invoice price at which the imports were made by Skefko were the same at which Mirah Exports and other importers had imported and no special price was given to Skefko for import. In these circumstances, we are of the opinion that the invoice prices as mentioned in the invoices could be treated as the price at which the goods are ordinarily sold or offered for sale in the course of international trade and that it had been rightly accepted as the value for assessment purposes under Section 14 of the Act by the Addl. Collector of Customs.In Sharp Business machines Pvt. Ltd. [supra] the invoice value was not accepted as the real value of the goods which were imported in view of the special facts and circumstances of that case. it was found that the appellant company in that case has tried to practise a fraud in defeating the import policy relating to import of Copiers which enabled the new entrepreneurs establishing small scale industries to import, in the first phase, 62% of the components of the copiers and the balance of the 38% was to be manufactured by them indigenously. In that case it was found that the appellant company had purchased 14 fully finish ed plain paper copiers of Japanese origin in Hong Kong and Singapore and had them dismantled in Hong Kong for importing the same in the guise of the components of the copiers and thereby the company not only had violated the terms and conditions of the licence but had also committee a fraud on the Import Policy itself in importing the fully finished copiers which was totally prohibited item for import. The finding about undervaluation in the invoices was arrived at on the basis of prices mentioned in quotations of the authorised agents of the manufacturers and it was held that there was no question of supplying the components of the copiers on a lower price than given by the manufacturers themselves. the decision i n Sharp Business Machines [supra] has, therefore, no application to the facts of this case. Similarly the decision in Padia Sales Corporation [supra] and Commerce International [supra] which were decided on their own facts have no application to the present case. 13. ### Response: 1 ### Explanation: discount to be given on the prices indicated in the price list is actually mentioned in other documents that were seized during the search. The said documents include the various letters and telexes received from SKF Oversees Bearings Division, Sweden which indicate the new pricing policy of the foreign supplier. As pointed out by the Addl. Collector of Customs in his order dated April 16, 1985 the said documents show that 20% discount is allowed to th e original equipment manufacturers who import for fitment in their manufactured products and for this build up inventories with sizeable orders after securing favorable prices between various competitors but as regards canvassers and Skefko , who import in even greater bulk for the purposes of only trading, the policy envisaged that they may even secure lower price particularly if they generated additional volumes of sales. The documents seized during the search and seizure that were produced by the appellants before the customs authorities (genuineness of which was accepted by the Addl. Collector of Customs) show that apart from Mirah Exports a number of other importers namely, Skefko, Amul Engg., Krishna Engg. work, Delhi Jayaveer Forge, Davangere, Ajay Trading Co., Delhi Ramgopal Lachmi Narayan, Bombay Sanmukh Engineering Industries, etc. has also imported comparable quantities of similar bearings at the same or lesser prices as that of Mirah Exports and that discount from 50% to 70% on the list prices was the normal invoice price for a number of unconnected importers during the period. The Collector of Customs, while passing the order dated December 5, 1986 and march 20, 1987 and the Tribunal in the impugned judgment have not taken note of the said documents and the fact that the importers had been given 50% to 70% discount on the prices indicated in the list price.In Basant Industries [supra] this Court has pointed out that "in t he business world, considerations of relationship with the customer are also a relevant factor" and that "a price which is offered by a supplier to an old customer may be different from a price which the same supplier offers to a totally new customer ". In that case, the Court, on the basis of the correspondence that had ensued between the supplier and the importer, found that there was some bargaining before the price was finalised and that the price mentioned in the invoice that was agreed was in view of the quantity that was being imported by the importer. thus it not unusual for a foreign supplier to give a higher discount to an importer who is importing a much larger quantity and merely because such a discount has been given by the supplier it cannot be said that there has been any undervaluation in the invoiceSection 14 of the Act prescribes that valuation of goods for the purpose of assessment has to be made at the price at which such goods or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation of exportation, as the case may be, in the course of international trade, where the seller and the buyer have no interest in the business o f each other and the price is the sole consideration for the sale or offer for sale. In the present case neither has it been alleged nor has any material been produced to show that Mirah Exports and the foreign suppliers have any interest in the business of each other. As regards Skefko it has been pointed out that AB-SKF, Sweden holds 39.8% of the share capital in Skefko but there is nothing to show that Skefko has any interest in the business of AB-SKF. Moreover it is of no con sequence in the present case because the invoice price at which the imports were made by Skefko were the same at which Mirah Exports and other importers had imported and no special price was given to Skefko for import. In these circumstances, we are of the opinion that the invoice prices as mentioned in the invoices could be treated as the price at which the goods are ordinarily sold or offered for sale in the course of international trade and that it had been rightly accepted as the value for assessment purposes under Section 14 of the Act by the Addl. Collector of Customs.In Sharp Business machines Pvt. Ltd. [supra] the invoice value was not accepted as the real value of the goods which were imported in view of the special facts and circumstances of that case. it was found that the appellant company in that case has tried to practise a fraud in defeating the import policy relating to import of Copiers which enabled the new entrepreneurs establishing small scale industries to import, in the first phase, 62% of the components of the copiers and the balance of the 38% was to be manufactured by them indigenously. In that case it was found that the appellant company had purchased 14 fully finish ed plain paper copiers of Japanese origin in Hong Kong and Singapore and had them dismantled in Hong Kong for importing the same in the guise of the components of the copiers and thereby the company not only had violated the terms and conditions of the licence but had also committee a fraud on the Import Policy itself in importing the fully finished copiers which was totally prohibited item for import. The finding about undervaluation in the invoices was arrived at on the basis of prices mentioned in quotations of the authorised agents of the manufacturers and it was held that there was no question of supplying the components of the copiers on a lower price than given by the manufacturers themselves. the decision i n Sharp Business Machines [supra] has, therefore, no application to the facts of this case. Similarly the decision in Padia Sales Corporation [supra] and Commerce International [supra] which were decided on their own facts have no application to the present case.

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

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

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

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

SHIV PRAKASH MISHRA Vs. STATE OF UTTAR PRADESH AND ANOTHER

than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if ?it appears from the evidence that any person not being the accused has committed any offence? is clear from the words ?for which such person could be tried together with the accused?. The words used are not ?for which such person could be convicted?. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.?11. The above view was followed in Brijendra Singh as under:-?13. In order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: ….. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.?12. In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that respondent No.2 cannot be summoned as an accused. The FIR in Case Crime No.328A/2013 was registered on 06.09.2013 at 18.15 hours. The name of second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the Investigating Officer recorded the statements of witnesses namely Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that respondent No.2 was not present at the place of occurrence at the time of the incident. The Investigating Officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which respondent No.2 was employed who had stated that respondent No.2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the Investigating Officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 06.09.2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the Investigating Officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Though the name of second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the Investigating Officer, he was not charge sheeted. Be it noted that the appellant-complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon respondent No.2 as an accused.13. As pointed out by the trial court, PW-1 was examined on various dates from 22.10.2016 to 02.08.2017 and examined on nine hearing dates. Though, in his chief-examination on 22.10.2016, PW-1 has stated about the presence of Subhash Chandra Shukla and attributing overt act to him that he had beaten the deceased Sangam Lal Mishra with butt of home made pistol, on 28.02.2017, PW-1 in his cross-examination stated that Subhash Chandra Shukla was on duty at that time. The relevant portion of the statement of PW-1 reads as under:-?…..Subhash Chandra Shukla does not live in the house. He does service/job. At the same time in Jigna Police Station District Mirjapur he was making bridge and due to this reason, he was on duty there…..?As pointed out by the trial court and the High Court, PW-1 has made contradictory statements in the course of his examination in connection with the presence of Subhash Chandra Shukla.14. Anand Kumar Mishra (PW-2) has been examined who is stated to be the eye witness. PW-2 has been working as Assistant Teacher (Shiksha Mitra). His duty time is from 07.00 am till 12.00 noon. PW-2 though stated that he was on leave on the date of occurrence i.e. 06.09.2013, the trial court expressed doubts about his presence at the time of occurrence. Considering the fact that PW-2 is working as a teacher and that PW-2 is a co-accused in the cross case, the trial court and the High Court expressed doubts about the evidence of PW-2 as to the presence of the second respondent. The evidence brought on record during trial does not prima facie show the complicity of respondent No.2 in the occurrence and the High Court was justified in refusing to summon respondent No.2 as an accused15. The High Court and the trial court concurrently held that the materials brought on record are not sufficient to summon the second respondent as an accused in the present case. No substantial ground is made out warranting interference and the appeal is liable to be dismissed.

0[ds]By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused.The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51 , ?the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are ?it appears from the evidence?….?any person?….?has committed any offence?. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court.The above view was followed in Brijendra Singh asIn order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: ….. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that respondent No.2 cannot be summoned as an accused. The FIR in Case Crime No.328A/2013 was registered on 06.09.2013 at 18.15 hours. The name of second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the Investigating Officer recorded the statements of witnesses namely Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that respondent No.2 was not present at the place of occurrence at the time of the incident. The Investigating Officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which respondent No.2 was employed who had stated that respondent No.2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the Investigating Officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 06.09.2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the Investigating Officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Though the name of second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the Investigating Officer, he was not charge sheeted. Be it noted that the appellant-complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon respondent No.2 as an accused.As pointed out by the trial court, PW-1 was examined on various dates from 22.10.2016 to 02.08.2017 and examined on nine hearing dates. Though, in his chief-examination on 22.10.2016, PW-1 has stated about the presence of Subhash Chandra Shukla and attributing overt act to him that he had beaten the deceased Sangam Lal Mishra with butt of home made pistol, on 28.02.2017, PW-1 in his cross-examination stated that Subhash Chandra Shukla was on duty at that time. The relevant portion of the statement of PW-1 reads asChandra Shukla does not live in the house. He does service/job. At the same time in Jigna Police Station District Mirjapur he was making bridge and due to this reason, he was on dutypointed out by the trial court and the High Court, PW-1 has made contradictory statements in the course of his examination in connection with the presence of Subhash Chandra Shukla.Anand Kumar Mishra (PW-2) has been examined who is stated to be the eye witness. PW-2 has been working as Assistant Teacher (Shiksha Mitra). His duty time is from 07.00 am till 12.00 noon. PW-2 though stated that he was on leave on the date of occurrence i.e. 06.09.2013, the trial court expressed doubts about his presence at the time of occurrence. Considering the fact that PW-2 is working as a teacher and that PW-2 is a co-accused in the cross case, the trial court and the High Court expressed doubts about the evidence of PW-2 as to the presence of the second respondent. The evidence brought on record during trial does not prima facie show the complicity of respondent No.2 in the occurrence and the High Court was justified in refusing to summon respondent No.2 as anThe High Court and the trial court concurrently held that the materials brought on record are not sufficient to summon the second respondent as an accused in the present case. No substantial ground is made out warranting interference and the appeal is liable to be dismissed.

### 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: than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if ?it appears from the evidence that any person not being the accused has committed any offence? is clear from the words ?for which such person could be tried together with the accused?. The words used are not ?for which such person could be convicted?. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.?11. The above view was followed in Brijendra Singh as under:-?13. In order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: ….. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.?12. In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that respondent No.2 cannot be summoned as an accused. The FIR in Case Crime No.328A/2013 was registered on 06.09.2013 at 18.15 hours. The name of second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the Investigating Officer recorded the statements of witnesses namely Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that respondent No.2 was not present at the place of occurrence at the time of the incident. The Investigating Officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which respondent No.2 was employed who had stated that respondent No.2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the Investigating Officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 06.09.2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the Investigating Officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Though the name of second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the Investigating Officer, he was not charge sheeted. Be it noted that the appellant-complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon respondent No.2 as an accused.13. As pointed out by the trial court, PW-1 was examined on various dates from 22.10.2016 to 02.08.2017 and examined on nine hearing dates. Though, in his chief-examination on 22.10.2016, PW-1 has stated about the presence of Subhash Chandra Shukla and attributing overt act to him that he had beaten the deceased Sangam Lal Mishra with butt of home made pistol, on 28.02.2017, PW-1 in his cross-examination stated that Subhash Chandra Shukla was on duty at that time. The relevant portion of the statement of PW-1 reads as under:-?…..Subhash Chandra Shukla does not live in the house. He does service/job. At the same time in Jigna Police Station District Mirjapur he was making bridge and due to this reason, he was on duty there…..?As pointed out by the trial court and the High Court, PW-1 has made contradictory statements in the course of his examination in connection with the presence of Subhash Chandra Shukla.14. Anand Kumar Mishra (PW-2) has been examined who is stated to be the eye witness. PW-2 has been working as Assistant Teacher (Shiksha Mitra). His duty time is from 07.00 am till 12.00 noon. PW-2 though stated that he was on leave on the date of occurrence i.e. 06.09.2013, the trial court expressed doubts about his presence at the time of occurrence. Considering the fact that PW-2 is working as a teacher and that PW-2 is a co-accused in the cross case, the trial court and the High Court expressed doubts about the evidence of PW-2 as to the presence of the second respondent. The evidence brought on record during trial does not prima facie show the complicity of respondent No.2 in the occurrence and the High Court was justified in refusing to summon respondent No.2 as an accused15. The High Court and the trial court concurrently held that the materials brought on record are not sufficient to summon the second respondent as an accused in the present case. No substantial ground is made out warranting interference and the appeal is liable to be dismissed. ### Response: 0 ### Explanation: which such person could be tried together with the accused.The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51 , ?the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are ?it appears from the evidence?….?any person?….?has committed any offence?. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court.The above view was followed in Brijendra Singh asIn order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92 may be recapitulated: ….. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that respondent No.2 cannot be summoned as an accused. The FIR in Case Crime No.328A/2013 was registered on 06.09.2013 at 18.15 hours. The name of second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the Investigating Officer recorded the statements of witnesses namely Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that respondent No.2 was not present at the place of occurrence at the time of the incident. The Investigating Officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which respondent No.2 was employed who had stated that respondent No.2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the Investigating Officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 06.09.2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the Investigating Officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Though the name of second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the Investigating Officer, he was not charge sheeted. Be it noted that the appellant-complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon respondent No.2 as an accused.As pointed out by the trial court, PW-1 was examined on various dates from 22.10.2016 to 02.08.2017 and examined on nine hearing dates. Though, in his chief-examination on 22.10.2016, PW-1 has stated about the presence of Subhash Chandra Shukla and attributing overt act to him that he had beaten the deceased Sangam Lal Mishra with butt of home made pistol, on 28.02.2017, PW-1 in his cross-examination stated that Subhash Chandra Shukla was on duty at that time. The relevant portion of the statement of PW-1 reads asChandra Shukla does not live in the house. He does service/job. At the same time in Jigna Police Station District Mirjapur he was making bridge and due to this reason, he was on dutypointed out by the trial court and the High Court, PW-1 has made contradictory statements in the course of his examination in connection with the presence of Subhash Chandra Shukla.Anand Kumar Mishra (PW-2) has been examined who is stated to be the eye witness. PW-2 has been working as Assistant Teacher (Shiksha Mitra). His duty time is from 07.00 am till 12.00 noon. PW-2 though stated that he was on leave on the date of occurrence i.e. 06.09.2013, the trial court expressed doubts about his presence at the time of occurrence. Considering the fact that PW-2 is working as a teacher and that PW-2 is a co-accused in the cross case, the trial court and the High Court expressed doubts about the evidence of PW-2 as to the presence of the second respondent. The evidence brought on record during trial does not prima facie show the complicity of respondent No.2 in the occurrence and the High Court was justified in refusing to summon respondent No.2 as anThe High Court and the trial court concurrently held that the materials brought on record are not sufficient to summon the second respondent as an accused in the present case. No substantial ground is made out warranting interference and the appeal is liable to be dismissed.

Vse Stock Services Ltd Vs. S.E.B.I.

was carried out as a result of compulsion of law. Before considering the submissions on behalf of appellant in this regard, the relevant legal position may be concluded by pointing out that many of the clarifications including clause 7 have not been incorporated as a part of the Regulations inspite of subsequent amendments in the Regulations. Nonetheless for lack of any issue on this point, the policy decision granting benefit by the circular dated 30.09.2002 is being relied upon as valid and operative during the relevant period. Another circular dated July 09, 2003 was issued to clarify what kind of changes in the status and constitution of the stock brokers shall have to be submitted to obtain prior approval of the SEBI under Rule 4(c) of the Rules. On and from 09.07.2003 prior approval is required, inter-alia, in respect of consolidation/ merger/ amalgamation of brokers and the ‘remarks’ column shows that full fees along with interest as on the date of application for approval is required to be paid. According to appellant this circular of July 09, 2003 being later in time does not apply to the case at hand. 8. On the question as to what is the compulsion of law for amalgamation of the appellant as a transferee company with the earlier subsidiary company, learned counsel for the appellant has contended that in absence of registration from the SEBI, the appellant like any other entity is prevented by law to carry on its business as a broker and to acquire the registration it had to ensure that in place of two subsidiary companies only one should exist otherwise the Vadodara Stock Exchange Ltd. could not get the benefit of membership of one of the major Exchanges, i.e., NSE. Hence the condition imposed by the SEBI to have only one subsidiary for the purpose amounts to compulsion of law which led to the scheme of amalgamation. The other contention is that the scheme of amalgamation in which appellant is the transferee company has been approved by the Gujarat High Court and hence the benefits flowing from such scheme must be respected by all concerned including the SEBI. As per submissions, the earlier fees paid by the transferor company to SEBI for registration are now an asset with the appellant company and such asset must be respected. The learned counsel for the appellant realised some difficulties on account of law laid down by this Court in the case of Ratnabali Capital Markets Ltd. v. Securities & Exchange Board of India (2008) 1 SCC 439 and hence he sought to distinguish that judgment by pointing out that in paragraph 11 of that judgment the Court noticed that the merger was with a view to have the benefit of enlarged business by entering the derivative markets. In the present case, according to him no such reason exists and the amalgamation was carried out only on account of compulsion explained above. According to learned counsel for the appellant for accepting a compulsion as one of law, the term ‘law’ needs to be given a liberal interpretation so as to include orders and directions of a statutory authority such as the SEBI.9. On behalf of the SEBI, reliance has been placed upon relevant dates and facts emanating from appellant’s letters to contend that the amalgamation was for voluntary reasons to access larger business through membership of NSE; there was no compulsion of law and order under appeal requires no interference.10. We find that the facts of the case have been properly appreciated by SAT for coming to the conclusion that the amalgamation was not on account of any compulsion of law. The compulsion of the appellant was a business compulsion to do business as a broker with NSE. Initially the Vadodara Stock Exchange Ltd. had chosen to form another subsidiary company limited by guarantee ignoring the circular of the SEBI dated 16.12.1999 and also the bye rules of NSE laying down conditions for membership but later it decided to have a subsidiary company which could get registration as a broker with NSE. Such decision was effected through amalgamation. Such a situation cannot be treated as a compulsion of law for amalgamation.11. Even if we accept the submission that the compulsion of law be given a liberal meaning so as to include orders and directions of the SEBI, in the present case it is not possible to accept that amalgamation was forced upon the appellant under orders or directions of the SEBI. Only because the appellant and the parent company Vadodara Stock Exchange Ltd. subsequently decided and opted to do business as a broker with NSE, they chose the path of amalgamation. They could have as well chosen the path of winding up of the earlier subsidiary company. In the facts of the case it is not possible to accept that there was any compulsion of law for the merger/ amalgamation of the VSE Securities Ltd. with the appellant.12. So far as legal position is concerned, in the case of Ratnabali Capital Markets the contention that the assets and liabilities of the transferor company have passed into the hands of the transferee company did not cut any ice in respect of fees payable to the SEBI as per Regulations. In para 13 of that judgment it was held that on merger of the two companies, a new entity emerged which was given a right to operate in the derivative segment and therefore it had to pay fresh registration fees on the turnover basis. We find no good ground to take a different view. In paragraph 19 of that judgment this Court clarified that when the facts disclose that amalgamation/ merger had to be resorted to as an alternative to liquidation then it may be successfully urged that merger/amalgamation was on account of compulsion of law so as to attract the exemption assured by the SEBI under the circular dated 30.09.2002. The facts of this case even remotely do not suggest any such or similar situation.

0[ds]3. In view of stand of the SEBI and clearly because the appellant wanted to operate on NSE, steps were taken to get the earlier subsidiary company – VSE Securities Ltd. amalgamated with the appellant. The High Court was moved and on completion of necessary formalities, amalgamation order was passed by the Gujarat High Court on 17.3.2003. Under the above scheme of amalgamation the appellant became a transferee company entitled to the assets and liabilities of the transferor company. Post amalgamation, the appellant obtained fresh registration from the SEBI in respect of its operation on BSE in the month of October 2003. On 30.04.2004, the SEBI granted registration for business on NSE on the usual conditions including payment of fees in the manner provided in the Regulations, particularly Regulation 10(1) read with Schedule III of the Regulations. The appellant paid the provisional fee liability but the demand of final fee by the SEBI was challenged before SAT on the ground that the appellant is entitled to fee continuity benefit in terms of circular of the SEBI dated 30.09.2002. The claim of the appellant, as noticed earlier, was rejected by SAT by the order under appeal.We find that the facts of the case have been properly appreciated by SAT for coming to the conclusion that the amalgamation was not on account of any compulsion of law. The compulsion of the appellant was a business compulsion to do business as a broker with NSE. Initially the Vadodara Stock Exchange Ltd. had chosen to form another subsidiary company limited by guarantee ignoring the circular of the SEBI dated 16.12.1999 and also the bye rules of NSE laying down conditions for membership but later it decided to have a subsidiary company which could get registration as a broker with NSE. Such decision was effected through amalgamation. Such a situation cannot be treated as a compulsion of law for amalgamation.11. Even if we accept the submission that the compulsion of law be given a liberal meaning so as to include orders and directions of the SEBI, in the present case it is not possible to accept that amalgamation was forced upon the appellant under orders or directions of the SEBI. Only because the appellant and the parent company Vadodara Stock Exchange Ltd. subsequently decided and opted to do business as a broker with NSE, they chose the path of amalgamation. They could have as well chosen the path of winding up of the earlier subsidiary company. In the facts of the case it is not possible to accept that there was any compulsion of law for the merger/ amalgamation of the VSE Securities Ltd. with the appellant.12. So far as legal position is concerned, in the case of Ratnabali Capital Markets the contention that the assets and liabilities of the transferor company have passed into the hands of the transferee company did not cut any ice in respect of fees payable to the SEBI as per Regulations. In para 13 of that judgment it was held that on merger of the two companies, a new entity emerged which was given a right to operate in the derivative segment and therefore it had to pay fresh registration fees on the turnover basis. We find no good ground to take a different view. In paragraph 19 of that judgment this Court clarified that when the facts disclose that amalgamation/ merger had to be resorted to as an alternative to liquidation then it may be successfully urged that merger/amalgamation was on account of compulsion of law so as to attract the exemption assured by the SEBI under the circular dated 30.09.2002. The facts of this case even remotely do not suggest any such or similar 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: was carried out as a result of compulsion of law. Before considering the submissions on behalf of appellant in this regard, the relevant legal position may be concluded by pointing out that many of the clarifications including clause 7 have not been incorporated as a part of the Regulations inspite of subsequent amendments in the Regulations. Nonetheless for lack of any issue on this point, the policy decision granting benefit by the circular dated 30.09.2002 is being relied upon as valid and operative during the relevant period. Another circular dated July 09, 2003 was issued to clarify what kind of changes in the status and constitution of the stock brokers shall have to be submitted to obtain prior approval of the SEBI under Rule 4(c) of the Rules. On and from 09.07.2003 prior approval is required, inter-alia, in respect of consolidation/ merger/ amalgamation of brokers and the ‘remarks’ column shows that full fees along with interest as on the date of application for approval is required to be paid. According to appellant this circular of July 09, 2003 being later in time does not apply to the case at hand. 8. On the question as to what is the compulsion of law for amalgamation of the appellant as a transferee company with the earlier subsidiary company, learned counsel for the appellant has contended that in absence of registration from the SEBI, the appellant like any other entity is prevented by law to carry on its business as a broker and to acquire the registration it had to ensure that in place of two subsidiary companies only one should exist otherwise the Vadodara Stock Exchange Ltd. could not get the benefit of membership of one of the major Exchanges, i.e., NSE. Hence the condition imposed by the SEBI to have only one subsidiary for the purpose amounts to compulsion of law which led to the scheme of amalgamation. The other contention is that the scheme of amalgamation in which appellant is the transferee company has been approved by the Gujarat High Court and hence the benefits flowing from such scheme must be respected by all concerned including the SEBI. As per submissions, the earlier fees paid by the transferor company to SEBI for registration are now an asset with the appellant company and such asset must be respected. The learned counsel for the appellant realised some difficulties on account of law laid down by this Court in the case of Ratnabali Capital Markets Ltd. v. Securities & Exchange Board of India (2008) 1 SCC 439 and hence he sought to distinguish that judgment by pointing out that in paragraph 11 of that judgment the Court noticed that the merger was with a view to have the benefit of enlarged business by entering the derivative markets. In the present case, according to him no such reason exists and the amalgamation was carried out only on account of compulsion explained above. According to learned counsel for the appellant for accepting a compulsion as one of law, the term ‘law’ needs to be given a liberal interpretation so as to include orders and directions of a statutory authority such as the SEBI.9. On behalf of the SEBI, reliance has been placed upon relevant dates and facts emanating from appellant’s letters to contend that the amalgamation was for voluntary reasons to access larger business through membership of NSE; there was no compulsion of law and order under appeal requires no interference.10. We find that the facts of the case have been properly appreciated by SAT for coming to the conclusion that the amalgamation was not on account of any compulsion of law. The compulsion of the appellant was a business compulsion to do business as a broker with NSE. Initially the Vadodara Stock Exchange Ltd. had chosen to form another subsidiary company limited by guarantee ignoring the circular of the SEBI dated 16.12.1999 and also the bye rules of NSE laying down conditions for membership but later it decided to have a subsidiary company which could get registration as a broker with NSE. Such decision was effected through amalgamation. Such a situation cannot be treated as a compulsion of law for amalgamation.11. Even if we accept the submission that the compulsion of law be given a liberal meaning so as to include orders and directions of the SEBI, in the present case it is not possible to accept that amalgamation was forced upon the appellant under orders or directions of the SEBI. Only because the appellant and the parent company Vadodara Stock Exchange Ltd. subsequently decided and opted to do business as a broker with NSE, they chose the path of amalgamation. They could have as well chosen the path of winding up of the earlier subsidiary company. In the facts of the case it is not possible to accept that there was any compulsion of law for the merger/ amalgamation of the VSE Securities Ltd. with the appellant.12. So far as legal position is concerned, in the case of Ratnabali Capital Markets the contention that the assets and liabilities of the transferor company have passed into the hands of the transferee company did not cut any ice in respect of fees payable to the SEBI as per Regulations. In para 13 of that judgment it was held that on merger of the two companies, a new entity emerged which was given a right to operate in the derivative segment and therefore it had to pay fresh registration fees on the turnover basis. We find no good ground to take a different view. In paragraph 19 of that judgment this Court clarified that when the facts disclose that amalgamation/ merger had to be resorted to as an alternative to liquidation then it may be successfully urged that merger/amalgamation was on account of compulsion of law so as to attract the exemption assured by the SEBI under the circular dated 30.09.2002. The facts of this case even remotely do not suggest any such or similar situation. ### Response: 0 ### Explanation: 3. In view of stand of the SEBI and clearly because the appellant wanted to operate on NSE, steps were taken to get the earlier subsidiary company – VSE Securities Ltd. amalgamated with the appellant. The High Court was moved and on completion of necessary formalities, amalgamation order was passed by the Gujarat High Court on 17.3.2003. Under the above scheme of amalgamation the appellant became a transferee company entitled to the assets and liabilities of the transferor company. Post amalgamation, the appellant obtained fresh registration from the SEBI in respect of its operation on BSE in the month of October 2003. On 30.04.2004, the SEBI granted registration for business on NSE on the usual conditions including payment of fees in the manner provided in the Regulations, particularly Regulation 10(1) read with Schedule III of the Regulations. The appellant paid the provisional fee liability but the demand of final fee by the SEBI was challenged before SAT on the ground that the appellant is entitled to fee continuity benefit in terms of circular of the SEBI dated 30.09.2002. The claim of the appellant, as noticed earlier, was rejected by SAT by the order under appeal.We find that the facts of the case have been properly appreciated by SAT for coming to the conclusion that the amalgamation was not on account of any compulsion of law. The compulsion of the appellant was a business compulsion to do business as a broker with NSE. Initially the Vadodara Stock Exchange Ltd. had chosen to form another subsidiary company limited by guarantee ignoring the circular of the SEBI dated 16.12.1999 and also the bye rules of NSE laying down conditions for membership but later it decided to have a subsidiary company which could get registration as a broker with NSE. Such decision was effected through amalgamation. Such a situation cannot be treated as a compulsion of law for amalgamation.11. Even if we accept the submission that the compulsion of law be given a liberal meaning so as to include orders and directions of the SEBI, in the present case it is not possible to accept that amalgamation was forced upon the appellant under orders or directions of the SEBI. Only because the appellant and the parent company Vadodara Stock Exchange Ltd. subsequently decided and opted to do business as a broker with NSE, they chose the path of amalgamation. They could have as well chosen the path of winding up of the earlier subsidiary company. In the facts of the case it is not possible to accept that there was any compulsion of law for the merger/ amalgamation of the VSE Securities Ltd. with the appellant.12. So far as legal position is concerned, in the case of Ratnabali Capital Markets the contention that the assets and liabilities of the transferor company have passed into the hands of the transferee company did not cut any ice in respect of fees payable to the SEBI as per Regulations. In para 13 of that judgment it was held that on merger of the two companies, a new entity emerged which was given a right to operate in the derivative segment and therefore it had to pay fresh registration fees on the turnover basis. We find no good ground to take a different view. In paragraph 19 of that judgment this Court clarified that when the facts disclose that amalgamation/ merger had to be resorted to as an alternative to liquidation then it may be successfully urged that merger/amalgamation was on account of compulsion of law so as to attract the exemption assured by the SEBI under the circular dated 30.09.2002. The facts of this case even remotely do not suggest any such or similar situation.

The Sangli Bank Limited Vs. Official Liquidator High Court & Others

Rs.25,00,000/-more with the Liquidator than the offer now made by the Bank for these two lots. He however submitted that this Court should not interfere with the order passed by the learned single Judge and at the highest the bids accepted by the learned single Judge be affirmed by taking Rs.25,00,000/- more from Respondent No.2 for these two lots.11. We have considered the submissions made by both the counsel. What we find in this matter is that one learned Single Judge (Deshmukh J.) had passed an order earlier directing that the prevailing rates of the property be called for from the Sub-Registrar of the particular area, the learned Single Judge subsequently taking the same work (Radhakrishnan, J) proceeded to sell the property without this information becoming available from the Sub-Registrar, and only on the basis of the valuation which was obtained by the Liquidator. When this was pointed out to the learned Judge in review, he did call for the information from the Sub-Registrar, but at that stage he reconfirmed the sale which he had effected earlier by observing that there was no much variation between the figures now received from the Sub-Registrar and the offers which he had accepted. There is a clear fallacy in this approach. Firstly, there was no reason to depart from the normal and the correct procedure to get the correct market price from the government official concerned. That apart, when these figures became available to the learned Judge he ought to have noted as can be seen from the Chart which we have reproduced above that the as far as properties at item Nos.1 and 2 is concerned, the valuation given by the valuer of the Official Liquidator was less than 50% as against the valuation given by the Sub-Registrar. He also ought to have noted that with respect to the third lot as against the valuation of Rs.1,96,25,000/- made by the valuer of the Official Liquidator, there was a rise of nearly forty lakhs in the valuation submitted by the Sub-Registrar and the figure now stood at Rs.2,35,27,000/- In this scenario, the learned Judge ought to have noted that if the bids were called in the light of the valuation which was sought by Deshmukh J., much better price could have been obtained. When the bids were assessed earlier on 22.8.2003, they were decided on the touch-stone of much lower valuations. It is another matter that later on the learned Judge found that there is not much variation when the valuation figures are obtained from the Sub-Registrar. As stated above, if these figures were available earlier, obviously the parties would have been asked to give much better bids. In fact what we are noticing in this appeal also is that when the Appellant bank has given a better offer, the respondent No.2 is ready to meet the challenge by offering Rs.25,00,000/- more. As per the accepted bids the three properties were being sold for Rs.2,69,55,000/-. The bank initially offered Rs.29,33,000 which is higher by Rs.23,75,000 and it further raised its offer by Rs.34,000 with respet to item No.1 (Managers bungalow). The respondent No.2 showed willingness to deposit Rs.25 lakhs more. Thus as against the original offer of over Rs.2.69 Crores, the price is going up (only on two properties) by nearly Rs.50 lakhs which is almost 20%. We thus find that the finding given by the learned Single judge in paragraph 12 of the judgment that there is enhancement of offer slightly by 5% to 10% is incorrect. This itself would support the submission of Mr. Tulzapurkar that this is a case where figures at which the auction was finalized were grossly inadequate. Again as rightly emphasizes by him, this may not be a case of fraud but it is certainly a case of material irregularity. The normal procedure of obtaining valuation from the Government valuers has to be followed and particularly when there was a direction given by one single Judge there was no reason for another judge to depart there from. On both these counts, namely, on the ground of material irregularity as well as inadequacy of the price, the order passed by the learned single Judge on 12.2.2004 declining to review his earlier order passed on 22.8.2003 suffers from errors of law and will have to interfered.12. The prayer for reauction cannot be declined only on the claim of certainty if it is going to work against the interest of the Company, its creditors and its employees. Besides those who have put in their money do not stand to suffer since they will get it back with interest. The allegation of malafides is also adequately answered by Mr. Tulzapurkar by pointing out that at the first instance it was not possible for the bank to take immediate decision of participating in the bidding in open Court. The bank has averred so in the review applications. It has also pointed out that only when it received the copy of order dated 22.8.2003 that it learnt as to what was the valuation done by the liquidator. When it was found to be too much low that the bank decided to move for review. The bank was a secured creditor and its monies were at stake. To show its bona fides it has offered to deposit the requisite amount. The learned Single judge was clearly in error in holding that the application moved by the bank was not bona fide. In our view in the facts of the present case, the appellant bank was fully justified in moving for review. Mr. Tulzapurkar pointed out that larger public amounts were at stake and the claim of Bank of Maharashtra against the company was over Rs.17 crores. It is held by the Apex Court that the Court is the custodian of the interest of the company and its employees, and the Court has a duty to follow the proper procedure to arrive at the correct market price of the property. That aspect is equally important.

1[ds]11. We have considered the submissions made by both the counsel. What we find in this matter is that one learned Single Judge (Deshmukh J.) had passed an order earlier directing that the prevailing rates of the property be called for from theof the particular area, the learned Single Judge subsequently taking the same work (Radhakrishnan, J) proceeded to sell the property without this information becoming available from theand only on the basis of the valuation which was obtained by the Liquidator. When this was pointed out to the learned Judge in review, he did call for the information from thebut at that stage he reconfirmed the sale which he had effected earlier by observing that there was no much variation between the figures now received from theand the offers which he had accepted. There is a clear fallacy in this approach. Firstly, there was no reason to depart from the normal and the correct procedure to get the correct market price from the government official concerned. That apart, when these figures became available to the learned Judge he ought to have noted as can be seen from the Chart which we have reproduced above that the as far as properties at item Nos.1 and 2 is concerned, the valuation given by the valuer of the Official Liquidator was less than 50% as against the valuation given by theHe also ought to have noted that with respect to the third lot as against the valuation of Rs.1,96,25,000/made by the valuer of the Official Liquidator, there was a rise of nearly forty lakhs in the valuation submitted by theand the figure now stood at Rs.2,35,27,000/In this scenario, the learned Judge ought to have noted that if the bids were called in the light of the valuation which was sought by Deshmukh J., much better price could have been obtained. When the bids were assessed earlier on 22.8.2003, they were decided on theof much lower valuations. It is another matter that later on the learned Judge found that there is not much variation when the valuation figures are obtained from theAs stated above, if these figures were available earlier, obviously the parties would have been asked to give much better bids. In fact what we are noticing in this appeal also is that when the Appellant bank has given a better offer, the respondent No.2 is ready to meet the challenge by offering Rs.25,00,000/more. As per the accepted bids the three properties were being sold for Rs.The bank initially offered Rs.29,33,000 which is higher by Rs.23,75,000 and it further raised its offer by Rs.34,000 with respet to item No.1 (Managers bungalow). The respondent No.2 showed willingness to deposit Rs.25 lakhs more. Thus as against the original offer of over Rs.2.69 Crores, the price is going up (only on two properties) by nearly Rs.50 lakhs which is almost 20%. We thus find that the finding given by the learned Single judge in paragraph 12 of the judgment that there is enhancement of offer slightly by 5% to 10% is incorrect. This itself would support the submission of Mr. Tulzapurkar that this is a case where figures at which the auction was finalized were grossly inadequate. Again as rightly emphasizes by him, this may not be a case of fraud but it is certainly a case of material irregularity. The normal procedure of obtaining valuation from the Government valuers has to be followed and particularly when there was a direction given by one single Judge there was no reason for another judge to depart there from. On both these counts, namely, on the ground of material irregularity as well as inadequacy of the price, the order passed by the learned single Judge on 12.2.2004 declining to review his earlier order passed on 22.8.2003 suffers from errors of law and will have to interfered.12. The prayer for reauction cannot be declined only on the claim of certainty if it is going to work against the interest of the Company, its creditors and its employees. Besides those who have put in their money do not stand to suffer since they will get it back with interest. The allegation of malafides is also adequately answered by Mr. Tulzapurkar by pointing out that at the first instance it was not possible for the bank to take immediate decision of participating in the bidding in open Court. The bank has averred so in the review applications. It has also pointed out that only when it received the copy of order dated 22.8.2003 that it learnt as to what was the valuation done by the liquidator. When it was found to be too much low that the bank decided to move for review. The bank was a secured creditor and its monies were at stake. To show its bona fides it has offered to deposit the requisite amount. The learned Single judge was clearly in error in holding that the application moved by the bank was not bona fide. In our view in the facts of the present case, the appellant bank was fully justified in moving for review. Mr. Tulzapurkar pointed out that larger public amounts were at stake and the claim of Bank of Maharashtra against the company was over Rs.17 crores. It is held by the Apex Court that the Court is the custodian of the interest of the company and its employees, and the Court has a duty to follow the proper procedure to arrive at the correct market price of the property. That aspect is equally important.

### 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: Rs.25,00,000/-more with the Liquidator than the offer now made by the Bank for these two lots. He however submitted that this Court should not interfere with the order passed by the learned single Judge and at the highest the bids accepted by the learned single Judge be affirmed by taking Rs.25,00,000/- more from Respondent No.2 for these two lots.11. We have considered the submissions made by both the counsel. What we find in this matter is that one learned Single Judge (Deshmukh J.) had passed an order earlier directing that the prevailing rates of the property be called for from the Sub-Registrar of the particular area, the learned Single Judge subsequently taking the same work (Radhakrishnan, J) proceeded to sell the property without this information becoming available from the Sub-Registrar, and only on the basis of the valuation which was obtained by the Liquidator. When this was pointed out to the learned Judge in review, he did call for the information from the Sub-Registrar, but at that stage he reconfirmed the sale which he had effected earlier by observing that there was no much variation between the figures now received from the Sub-Registrar and the offers which he had accepted. There is a clear fallacy in this approach. Firstly, there was no reason to depart from the normal and the correct procedure to get the correct market price from the government official concerned. That apart, when these figures became available to the learned Judge he ought to have noted as can be seen from the Chart which we have reproduced above that the as far as properties at item Nos.1 and 2 is concerned, the valuation given by the valuer of the Official Liquidator was less than 50% as against the valuation given by the Sub-Registrar. He also ought to have noted that with respect to the third lot as against the valuation of Rs.1,96,25,000/- made by the valuer of the Official Liquidator, there was a rise of nearly forty lakhs in the valuation submitted by the Sub-Registrar and the figure now stood at Rs.2,35,27,000/- In this scenario, the learned Judge ought to have noted that if the bids were called in the light of the valuation which was sought by Deshmukh J., much better price could have been obtained. When the bids were assessed earlier on 22.8.2003, they were decided on the touch-stone of much lower valuations. It is another matter that later on the learned Judge found that there is not much variation when the valuation figures are obtained from the Sub-Registrar. As stated above, if these figures were available earlier, obviously the parties would have been asked to give much better bids. In fact what we are noticing in this appeal also is that when the Appellant bank has given a better offer, the respondent No.2 is ready to meet the challenge by offering Rs.25,00,000/- more. As per the accepted bids the three properties were being sold for Rs.2,69,55,000/-. The bank initially offered Rs.29,33,000 which is higher by Rs.23,75,000 and it further raised its offer by Rs.34,000 with respet to item No.1 (Managers bungalow). The respondent No.2 showed willingness to deposit Rs.25 lakhs more. Thus as against the original offer of over Rs.2.69 Crores, the price is going up (only on two properties) by nearly Rs.50 lakhs which is almost 20%. We thus find that the finding given by the learned Single judge in paragraph 12 of the judgment that there is enhancement of offer slightly by 5% to 10% is incorrect. This itself would support the submission of Mr. Tulzapurkar that this is a case where figures at which the auction was finalized were grossly inadequate. Again as rightly emphasizes by him, this may not be a case of fraud but it is certainly a case of material irregularity. The normal procedure of obtaining valuation from the Government valuers has to be followed and particularly when there was a direction given by one single Judge there was no reason for another judge to depart there from. On both these counts, namely, on the ground of material irregularity as well as inadequacy of the price, the order passed by the learned single Judge on 12.2.2004 declining to review his earlier order passed on 22.8.2003 suffers from errors of law and will have to interfered.12. The prayer for reauction cannot be declined only on the claim of certainty if it is going to work against the interest of the Company, its creditors and its employees. Besides those who have put in their money do not stand to suffer since they will get it back with interest. The allegation of malafides is also adequately answered by Mr. Tulzapurkar by pointing out that at the first instance it was not possible for the bank to take immediate decision of participating in the bidding in open Court. The bank has averred so in the review applications. It has also pointed out that only when it received the copy of order dated 22.8.2003 that it learnt as to what was the valuation done by the liquidator. When it was found to be too much low that the bank decided to move for review. The bank was a secured creditor and its monies were at stake. To show its bona fides it has offered to deposit the requisite amount. The learned Single judge was clearly in error in holding that the application moved by the bank was not bona fide. In our view in the facts of the present case, the appellant bank was fully justified in moving for review. Mr. Tulzapurkar pointed out that larger public amounts were at stake and the claim of Bank of Maharashtra against the company was over Rs.17 crores. It is held by the Apex Court that the Court is the custodian of the interest of the company and its employees, and the Court has a duty to follow the proper procedure to arrive at the correct market price of the property. That aspect is equally important. ### Response: 1 ### Explanation: 11. We have considered the submissions made by both the counsel. What we find in this matter is that one learned Single Judge (Deshmukh J.) had passed an order earlier directing that the prevailing rates of the property be called for from theof the particular area, the learned Single Judge subsequently taking the same work (Radhakrishnan, J) proceeded to sell the property without this information becoming available from theand only on the basis of the valuation which was obtained by the Liquidator. When this was pointed out to the learned Judge in review, he did call for the information from thebut at that stage he reconfirmed the sale which he had effected earlier by observing that there was no much variation between the figures now received from theand the offers which he had accepted. There is a clear fallacy in this approach. Firstly, there was no reason to depart from the normal and the correct procedure to get the correct market price from the government official concerned. That apart, when these figures became available to the learned Judge he ought to have noted as can be seen from the Chart which we have reproduced above that the as far as properties at item Nos.1 and 2 is concerned, the valuation given by the valuer of the Official Liquidator was less than 50% as against the valuation given by theHe also ought to have noted that with respect to the third lot as against the valuation of Rs.1,96,25,000/made by the valuer of the Official Liquidator, there was a rise of nearly forty lakhs in the valuation submitted by theand the figure now stood at Rs.2,35,27,000/In this scenario, the learned Judge ought to have noted that if the bids were called in the light of the valuation which was sought by Deshmukh J., much better price could have been obtained. When the bids were assessed earlier on 22.8.2003, they were decided on theof much lower valuations. It is another matter that later on the learned Judge found that there is not much variation when the valuation figures are obtained from theAs stated above, if these figures were available earlier, obviously the parties would have been asked to give much better bids. In fact what we are noticing in this appeal also is that when the Appellant bank has given a better offer, the respondent No.2 is ready to meet the challenge by offering Rs.25,00,000/more. As per the accepted bids the three properties were being sold for Rs.The bank initially offered Rs.29,33,000 which is higher by Rs.23,75,000 and it further raised its offer by Rs.34,000 with respet to item No.1 (Managers bungalow). The respondent No.2 showed willingness to deposit Rs.25 lakhs more. Thus as against the original offer of over Rs.2.69 Crores, the price is going up (only on two properties) by nearly Rs.50 lakhs which is almost 20%. We thus find that the finding given by the learned Single judge in paragraph 12 of the judgment that there is enhancement of offer slightly by 5% to 10% is incorrect. This itself would support the submission of Mr. Tulzapurkar that this is a case where figures at which the auction was finalized were grossly inadequate. Again as rightly emphasizes by him, this may not be a case of fraud but it is certainly a case of material irregularity. The normal procedure of obtaining valuation from the Government valuers has to be followed and particularly when there was a direction given by one single Judge there was no reason for another judge to depart there from. On both these counts, namely, on the ground of material irregularity as well as inadequacy of the price, the order passed by the learned single Judge on 12.2.2004 declining to review his earlier order passed on 22.8.2003 suffers from errors of law and will have to interfered.12. The prayer for reauction cannot be declined only on the claim of certainty if it is going to work against the interest of the Company, its creditors and its employees. Besides those who have put in their money do not stand to suffer since they will get it back with interest. The allegation of malafides is also adequately answered by Mr. Tulzapurkar by pointing out that at the first instance it was not possible for the bank to take immediate decision of participating in the bidding in open Court. The bank has averred so in the review applications. It has also pointed out that only when it received the copy of order dated 22.8.2003 that it learnt as to what was the valuation done by the liquidator. When it was found to be too much low that the bank decided to move for review. The bank was a secured creditor and its monies were at stake. To show its bona fides it has offered to deposit the requisite amount. The learned Single judge was clearly in error in holding that the application moved by the bank was not bona fide. In our view in the facts of the present case, the appellant bank was fully justified in moving for review. Mr. Tulzapurkar pointed out that larger public amounts were at stake and the claim of Bank of Maharashtra against the company was over Rs.17 crores. It is held by the Apex Court that the Court is the custodian of the interest of the company and its employees, and the Court has a duty to follow the proper procedure to arrive at the correct market price of the property. That aspect is equally important.

Naihati Jute Mills Limited Vs. Hyaliram Jagannath

months. If is therefore manifest that their application was refused because of a personal disqualification and not by reason of any force majeure. Since this was the position there is no question of the performance becoming impossible by reason of any change in the Governments policy which could not be foreseen by the parties. No question also would arise of importing an implied term into the contract. 10. Assuming, however, that there was a change of policy and that the Government in the intervening period had decided to place an embargo on import of Pakistan jute the question would still be whether the appellants were relieved from liability for their failure to deliver the licence. A contract is not frustrated merely because the circumstances in which it was made are altered. The Courts have no general power to absolve a party from the performance of his part of the contract merely because its performance has become onerous on account of an unforeseen turn of events, Alopi Parshad and Sons v. Union of India, (1960) 2 SCR 793 at p. 808: (AIR 1960 SC 588 at p. 594). The question would depend upon whether the contract which the appellants entered into was that they would make their best endeavours to get the licence or whether the contract was that they would obtain it or else be liable for breach of that stipulation. In a case falling under the former category, Lord Reading, C. J. in Anglo-Russian Merchants-Traders v. John Batt and Co., 1917-2 KB 679 observed that there was no reason why the law should imply an absolute obligation to do that which the law forbids. It was so said because the Court construed the contract to mean only that the sellers there were to make their best efforts to obtain the requisite permits. As a contrast to such a case there are the cases of Partabmull Rajeshwar v. K. C. Sethia, (1951) 2 All ER 352 and Peter Cassidy Seed Co. v. Osuustukkuk Auppa, 1957-1 WLR 273 where the courts have observed that there is nothing improper or illegal for a party to take upon himself an absolute obligation to obtain a permit or a licence and in such a case if he took the risk he must be held bound to his stipulation. As Lord Sumner in Bank Lime Ltd. v. Capel (A) Co. Ltd., 1919 AC 435 at p. 455 said :"Where the contract makes provision (that is, full and complete provision, so intended) for a given contingency, it is not for the court to import into the contract some other different provisions for the same contingency called by different name." In such a case the doctrine of discharge by frustration cannot be available, nor that of an implied terms that the existing state of affairs would continue at the date of performance. The reason is that where thee is an express term the court cannot find on construction of the contract an implied term inconsistent with such express term. 11. In our view, the provision in the contract that whereas the delay to provide a licence in November 1958 was to be excused but that the contract was to be settled at the market rate prevailing on January 2, 1959 if the appellants failed to deliver the licence the December 1958 clearly meant that the appellants had taken upon themselves absolutely the burden of furnishing the licence latest by the end of December 1958 and had stipulated that in default they would pay damages on the basis of price prevailing of January 2, 1959. That being the position the defence of impossiblity of performance or of the contract being void for that reason nor that the court should spell out an implied term in the contract would not be available to them. 12. In the view that we take that the said contract cannot be said to be or to have been void and that in any event the stipulation as to obtaining the import licence was absolute, the question that the arbitration clause perished along with the contract and consequently the arbitrators had no jurisdiction cannot arise. But assuming that the appellants had established frustration even them it would not be as if the contract was ab initio void and therefore not in existence.In cases of frustration it is the performance of the contract which comes to an end but the contract would still be in existence for purposes such as the resolution of disputes arising under or in connection with it. The question as to whether the contract became impossible of performance and was discharged under the doctrine of frustration would still have to be decided under the arbitration clause which operates in respect of such purposes. Union of India v. Kishorilal, (1960) 1 SCR 493 (514) = (AIR 1959 SC 1362 (1371)). 13. Mr. B. Sen for the appellants also raised two other questions, as to the legal misconduct on the part of the arbitrators and as regards interest on damages awarded by them. We need not however say anything about these two questions as ultimately they were not pressed by him. 14. The last contention raised by him was that the arbitrators awarded damages on the basis of the market rate at Rs. 51 per maund instead of Rs 65 which was the export price fixed by the Government of Pakistan.The argument was that such a basis was contrary to the public policy laid down by the Government of Pakistan and it would not be expedient on our part to give our imprimature to an infringement by the arbitrators of such a policy. There is, in our view, no merit in the argument. The Government of Pakistan cannot lay down any public or economic policy for this country. If the arbitrators found the prevelent rate on January 2, 1959 in Calcutta to be Rs. 51 a maund there can be no objection to their adopting that rate for adjudicating the quantum of damages.

0[ds]It is not hardship or inconvenience or material loss which brings about the principle of frustration into play. There must be a change in the significance of obligation that the thing undertaken would, if performed, be a different thing from that which was contracted for6. These theories have been evolved in the main to adopt a realistic approach to the problem of performance of contract when it is found that owing to causes unforeseen and beyond the control of the parties intervening between the date of the contract and the date of its performance it would be both unreasonable and unjust to exact its performance in the changed circumstances. Though none of them was fully accepted and the courts construed the contracts coming before them applying one or the other of them as appearing to tee more rational than the other, the conclusion arrived at were the same. The necessity of evolving one or the other theory was due to the common law rule that courts have no power to absolve a party to the contract from his obligation. On the one hand, they were anxious to preserve intact the sanctity of contract while on the other the courts could not shut their eyes to the harshness of the situation in cases where performance became impossible by causes which could not have been foreseen and which beyond the control of partiesIt is clear from the circulars produced during the trial that as early as March 1958 the Government of India had issued warnings that import of Pakistan jute would be permitted to the absolute minimum and that the jute Mills should satisfy their needs by purchasing Indian Jute. It appears that at the time when the parties entered into the contract the policy was to grant licences in the ratio of 5:1, that is, if an importer had bought 500 maunds of Indian Jute he would he allowed a licence to import 100 maunds of Pakistan jute. This policy is indicated by the Circular dated July 17, 1958 issued by the Indian Jute Mills Association to its members. Such licences would be issued to mills who had stock of less than two months consumption. As already stated, the appellants applied on August 8, 1958 for an import licence for 14,900 maunds and the Jute Commissioner declined to certify that application on the ground that they held stock sufficient to last them for some months. In November 1958, they applied again this time stating that their stock had been reduced and in December 1958 they were told to buy Indian jute. The said Circular appears to show that the Government had not placed a total embargo on import of Pakistan jute. At any rate, such an embargo was not proved by the appellant. It appears, on the contrary, from the documents on record that the policy of the Government was that the licensing authorities would scrutinise the case of each applicant on its own meritThe contract, no doubt contained the printed term that the buyers would not be responsible for delay in delivering the licence but such delay as therein provided was to be excused only if it occurred by such reasons as an act of God, war, mobilisation etc., and other force majeure. It is nobodys case that the performance became impossible by reason of such force majeure. As already stated when the appellants applied for the licence, the authorities refused to certify their application because they held at that time stock for more than 2 months. If is therefore manifest that their application was refused because of a personal disqualification and not by reason of any force majeure. Since this was the position there is no question of the performance becoming impossible by reason of any change in the Governments policy which could not be foreseen by the parties. No question also would arise of importing an implied term into the contractIn such a case the doctrine of discharge by frustration cannot be available, nor that of an implied terms that the existing state of affairs would continue at the date of performance. The reason is that where thee is an express term the court cannot find on construction of the contract an implied term inconsistent with such express term11. In our view, the provision in the contract that whereas the delay to provide a licence in November 1958 was to be excused but that the contract was to be settled at the market rate prevailing on January 2, 1959 if the appellants failed to deliver the licence the December 1958 clearly meant that the appellants had taken upon themselves absolutely the burden of furnishing the licence latest by the end of December 1958 and had stipulated that in default they would pay damages on the basis of price prevailing of January 2, 1959. That being the position the defence of impossiblity of performance or of the contract being void for that reason nor that the court should spell out an implied term in the contract would not be available to them12. In the view that we take that the said contract cannot be said to be or to have been void and that in any event the stipulation as to obtaining the import licence was absolute, the question that the arbitration clause perished along with the contract and consequently the arbitrators had no jurisdiction cannot arise. But assuming that the appellants had established frustration even them it would not be as if the contract was ab initio void and therefore not in existence.In cases of frustration it is the performance of the contract which comes to an end but the contract would still be in existence for purposes such as the resolution of disputes arising under or in connection with it. The question as to whether the contract became impossible of performance and was discharged under the doctrine of frustration would still have to be decided under the arbitration clause which operates in respect of such purposesWe need not however say anything about these two questions as ultimately they were not pressed by himThere is, in our view, no merit in the argument. The Government of Pakistan cannot lay down any public or economic policy for this country. If the arbitrators found the prevelent rate on January 2, 1959 in Calcutta to be Rs. 51 a maund there can be no objection to their adopting that rate for adjudicating the quantum of damages.

### 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: months. If is therefore manifest that their application was refused because of a personal disqualification and not by reason of any force majeure. Since this was the position there is no question of the performance becoming impossible by reason of any change in the Governments policy which could not be foreseen by the parties. No question also would arise of importing an implied term into the contract. 10. Assuming, however, that there was a change of policy and that the Government in the intervening period had decided to place an embargo on import of Pakistan jute the question would still be whether the appellants were relieved from liability for their failure to deliver the licence. A contract is not frustrated merely because the circumstances in which it was made are altered. The Courts have no general power to absolve a party from the performance of his part of the contract merely because its performance has become onerous on account of an unforeseen turn of events, Alopi Parshad and Sons v. Union of India, (1960) 2 SCR 793 at p. 808: (AIR 1960 SC 588 at p. 594). The question would depend upon whether the contract which the appellants entered into was that they would make their best endeavours to get the licence or whether the contract was that they would obtain it or else be liable for breach of that stipulation. In a case falling under the former category, Lord Reading, C. J. in Anglo-Russian Merchants-Traders v. John Batt and Co., 1917-2 KB 679 observed that there was no reason why the law should imply an absolute obligation to do that which the law forbids. It was so said because the Court construed the contract to mean only that the sellers there were to make their best efforts to obtain the requisite permits. As a contrast to such a case there are the cases of Partabmull Rajeshwar v. K. C. Sethia, (1951) 2 All ER 352 and Peter Cassidy Seed Co. v. Osuustukkuk Auppa, 1957-1 WLR 273 where the courts have observed that there is nothing improper or illegal for a party to take upon himself an absolute obligation to obtain a permit or a licence and in such a case if he took the risk he must be held bound to his stipulation. As Lord Sumner in Bank Lime Ltd. v. Capel (A) Co. Ltd., 1919 AC 435 at p. 455 said :"Where the contract makes provision (that is, full and complete provision, so intended) for a given contingency, it is not for the court to import into the contract some other different provisions for the same contingency called by different name." In such a case the doctrine of discharge by frustration cannot be available, nor that of an implied terms that the existing state of affairs would continue at the date of performance. The reason is that where thee is an express term the court cannot find on construction of the contract an implied term inconsistent with such express term. 11. In our view, the provision in the contract that whereas the delay to provide a licence in November 1958 was to be excused but that the contract was to be settled at the market rate prevailing on January 2, 1959 if the appellants failed to deliver the licence the December 1958 clearly meant that the appellants had taken upon themselves absolutely the burden of furnishing the licence latest by the end of December 1958 and had stipulated that in default they would pay damages on the basis of price prevailing of January 2, 1959. That being the position the defence of impossiblity of performance or of the contract being void for that reason nor that the court should spell out an implied term in the contract would not be available to them. 12. In the view that we take that the said contract cannot be said to be or to have been void and that in any event the stipulation as to obtaining the import licence was absolute, the question that the arbitration clause perished along with the contract and consequently the arbitrators had no jurisdiction cannot arise. But assuming that the appellants had established frustration even them it would not be as if the contract was ab initio void and therefore not in existence.In cases of frustration it is the performance of the contract which comes to an end but the contract would still be in existence for purposes such as the resolution of disputes arising under or in connection with it. The question as to whether the contract became impossible of performance and was discharged under the doctrine of frustration would still have to be decided under the arbitration clause which operates in respect of such purposes. Union of India v. Kishorilal, (1960) 1 SCR 493 (514) = (AIR 1959 SC 1362 (1371)). 13. Mr. B. Sen for the appellants also raised two other questions, as to the legal misconduct on the part of the arbitrators and as regards interest on damages awarded by them. We need not however say anything about these two questions as ultimately they were not pressed by him. 14. The last contention raised by him was that the arbitrators awarded damages on the basis of the market rate at Rs. 51 per maund instead of Rs 65 which was the export price fixed by the Government of Pakistan.The argument was that such a basis was contrary to the public policy laid down by the Government of Pakistan and it would not be expedient on our part to give our imprimature to an infringement by the arbitrators of such a policy. There is, in our view, no merit in the argument. The Government of Pakistan cannot lay down any public or economic policy for this country. If the arbitrators found the prevelent rate on January 2, 1959 in Calcutta to be Rs. 51 a maund there can be no objection to their adopting that rate for adjudicating the quantum of damages. ### Response: 0 ### Explanation: beyond the control of the parties intervening between the date of the contract and the date of its performance it would be both unreasonable and unjust to exact its performance in the changed circumstances. Though none of them was fully accepted and the courts construed the contracts coming before them applying one or the other of them as appearing to tee more rational than the other, the conclusion arrived at were the same. The necessity of evolving one or the other theory was due to the common law rule that courts have no power to absolve a party to the contract from his obligation. On the one hand, they were anxious to preserve intact the sanctity of contract while on the other the courts could not shut their eyes to the harshness of the situation in cases where performance became impossible by causes which could not have been foreseen and which beyond the control of partiesIt is clear from the circulars produced during the trial that as early as March 1958 the Government of India had issued warnings that import of Pakistan jute would be permitted to the absolute minimum and that the jute Mills should satisfy their needs by purchasing Indian Jute. It appears that at the time when the parties entered into the contract the policy was to grant licences in the ratio of 5:1, that is, if an importer had bought 500 maunds of Indian Jute he would he allowed a licence to import 100 maunds of Pakistan jute. This policy is indicated by the Circular dated July 17, 1958 issued by the Indian Jute Mills Association to its members. Such licences would be issued to mills who had stock of less than two months consumption. As already stated, the appellants applied on August 8, 1958 for an import licence for 14,900 maunds and the Jute Commissioner declined to certify that application on the ground that they held stock sufficient to last them for some months. In November 1958, they applied again this time stating that their stock had been reduced and in December 1958 they were told to buy Indian jute. The said Circular appears to show that the Government had not placed a total embargo on import of Pakistan jute. At any rate, such an embargo was not proved by the appellant. It appears, on the contrary, from the documents on record that the policy of the Government was that the licensing authorities would scrutinise the case of each applicant on its own meritThe contract, no doubt contained the printed term that the buyers would not be responsible for delay in delivering the licence but such delay as therein provided was to be excused only if it occurred by such reasons as an act of God, war, mobilisation etc., and other force majeure. It is nobodys case that the performance became impossible by reason of such force majeure. As already stated when the appellants applied for the licence, the authorities refused to certify their application because they held at that time stock for more than 2 months. If is therefore manifest that their application was refused because of a personal disqualification and not by reason of any force majeure. Since this was the position there is no question of the performance becoming impossible by reason of any change in the Governments policy which could not be foreseen by the parties. No question also would arise of importing an implied term into the contractIn such a case the doctrine of discharge by frustration cannot be available, nor that of an implied terms that the existing state of affairs would continue at the date of performance. The reason is that where thee is an express term the court cannot find on construction of the contract an implied term inconsistent with such express term11. In our view, the provision in the contract that whereas the delay to provide a licence in November 1958 was to be excused but that the contract was to be settled at the market rate prevailing on January 2, 1959 if the appellants failed to deliver the licence the December 1958 clearly meant that the appellants had taken upon themselves absolutely the burden of furnishing the licence latest by the end of December 1958 and had stipulated that in default they would pay damages on the basis of price prevailing of January 2, 1959. That being the position the defence of impossiblity of performance or of the contract being void for that reason nor that the court should spell out an implied term in the contract would not be available to them12. In the view that we take that the said contract cannot be said to be or to have been void and that in any event the stipulation as to obtaining the import licence was absolute, the question that the arbitration clause perished along with the contract and consequently the arbitrators had no jurisdiction cannot arise. But assuming that the appellants had established frustration even them it would not be as if the contract was ab initio void and therefore not in existence.In cases of frustration it is the performance of the contract which comes to an end but the contract would still be in existence for purposes such as the resolution of disputes arising under or in connection with it. The question as to whether the contract became impossible of performance and was discharged under the doctrine of frustration would still have to be decided under the arbitration clause which operates in respect of such purposesWe need not however say anything about these two questions as ultimately they were not pressed by himThere is, in our view, no merit in the argument. The Government of Pakistan cannot lay down any public or economic policy for this country. If the arbitrators found the prevelent rate on January 2, 1959 in Calcutta to be Rs. 51 a maund there can be no objection to their adopting that rate for adjudicating the quantum of damages.

Oil & Natural Gas Corporation Limited Vs. Commissioner of Income Tax & Another

Entry 22 of List II of the 7th Schedule to the Constitution to understand the exclusion of mineral oils from the definition of minerals in Section 3(a) of the 1957 Act. Regard must also be had to the fact that mineral oils is separately defined in Section 3(b) of the 1957 Act to include natural gas and petroleum in respect of which Parliament has exclusive jurisdiction under Entry 53 of List I of the 7th Schedule and had enacted an earlier legislation i.e. Oil Fields (Regulation and Development) Act, 1948. Reading Section 2(j) and 2(jj) of the Mines Act, 1952 which define mines and minerals and the provisions of the Oil Fields (Regulation and Development) Act, 1948 specifically relating to prospecting and exploration of mineral oils, exhaustively referred to earlier, it is abundantly clear that drilling operations for the purpose of production of petroleum would clearly amount to a mining activity or a mining operation. Viewed thus, it is the proximity of the works contemplated under an agreement, executed with a non-resident assessee or a foreign company, with mining activity or mining operations that would be crucial for the determination of the question whether the payments made under such an agreement to the non-resident assessee or the foreign company is to be assessed under Section 44BB or Section 44D of the Act. The test of pith and substance of the agreement commends to us as reasonable for acceptance. Equally important is the fact that the CBDT had accepted the said test and had in fact issued a circular as far back as 22.10.1990 to the effect that mining operations and the expressions mining projects or like projects occurring in Explanation 2 to Section 9(1) of the Act would cover rendering of service like imparting of training and carrying out drilling operations for exploration of and extraction of oil and natural gas and hence payments made under such agreement to a non-resident/foreign company would be chargeable to tax under the provisions of Section 44BB and not Section 44D of the Act. We do not see how any other view can be taken if the works or services mentioned under a particular agreement is directly associated or inextricably connected with prospecting, extraction or production of mineral oil. Keeping in mind the above provision, we have looked into each of the contracts involved in the present group of cases and find that the brief description of the works covered under each of the said contracts as culled out by the appellants and placed before the Court is correct. The said details are set out below. S. No.Civil Appeal No.Work covered under the contract 1.4321Drilling of exploration wells and carrying out seismic surveys for exploratory drilling. 2.740Drilling, furnishing personnel for manning, maintenance and operation of drilling rig and training of personnel. 3.731Drilling, furnishing personnel for manning, maintenance and operation of drilling rig and training of personnel. 4.1722Furnishing supervisory staff with expertise in operation and management of Drilling unit. 5.729Capping including subduing of well, fire fighting. 6.738Capping including subduing of well, fire fighting. 7.1528Analysis of data to prepare job design, procedure for execution and details regarding monitoring. 8.1532Study for selection of enhanced Oil Recovery processes and conceptual design of Pilot Tests. 9.1520Engineering and technical support to ONGC in implementation of Cyclic Steam Stimulation in Heavy Oil Wells. 10.2794Assessment and processing of seismic data along with engineering and technical support in implementation of Cyclic Steam Stimulation. 11.1524Conducting reservoir stimulation studies in association with personnel of ONGC. 12.1535Laboratory testing under simulated reservoir conditions. 13.1514Consultancy for optimal exploitation of hydrocarbon resources. 14.2797Consultancy for all aspects of Coal Bed Methane. 15.6174Analysis of data of wells to prepare a job design. 16.1517Geological study of the area and analysis of seismic information reports to design 2 dimensional seismic surveys. 17.7226Opinion on hydrocarbon resources and foreseeable potential. 18.7227Opinion on hydrocarbon resources and foreseeable potential. 19.7230Opinion on hydrocarbon resources and foreseeable potential. 20.6016Opinion on hydrocarbon resources and foreseeable potential. 21.6008Evaluation of ultimate resource potential and presentations outside India in connection with promotional activities for Joint Venture Exploration program. 22.1531Review of sub-surface well data, provide repair plan of wells and supervise repairs. 23.733Repair of gas turbine, gas control system and inspection of gas turbine and generator. 24.741Repair and inspection of turbines. 25.737Repair, inspection and overhauling of turbines. 26.736Inspection, engine performance evaluation, instrument calibration and inspection of far turbines. 27.1522Replacement of choke and kill consoles on drilling rigs. 28.1521Inspection of gas generators. 29.1515Inspection of rigs. 30.2012Inspection of generator. 31.1240Inspection of existing control system and deputing engineer to attend to any problem arising in the machines. 32.1529Inspection of drilling rig and verification of reliability of control systems in the drilling rig. 33.2008Expert advice on the device to clean insides of a pipeline. 34.2795Feasibility study of rig to assess its remaining useful life and to carry out structural alterations. 35.925Engineering analysis of rig. 36.1519Imparting training on cased hold production log evaluation and analysis. 37.1533Training on well control. 38.1518Training on implementation of Six Sigma concepts. 39.1516Training on implementation of Six Sigma concepts. 40.6023Training on Drilling project management. 41.2796Training in Safety Rating System and assistance in development and audit of Safety Management System. 42.1239To develop technical specification for 3D Seismic API modules of work and to prepare bid packages. 43.1527Supply supervision and installation of software which is used for analysis of flow rate of mineral oil to determine reservoir conditions. 44.1523Supply, installation and familiarization of software for processing seismic data. The above facts would indicate that the pith and substance of each of the contracts/agreements is inextricably connected with prospecting, extraction or production of mineral oil. The dominant purpose of each of such agreement is for prospecting, extraction or production of mineral oils though there may be certain ancillary works contemplated thereunder. If that be so, we will have no hesitation in holding that the payments made by ONGC and received by the non-resident assessees or foreign companies under the said contracts is more appropriately assessable under the provisions of Section 44BB and not Section 44D of the Act.

1[ds]8. A careful reading of the aforesaid provisions of the Act goes to show that under Section 44BB(1) in case of a non-resident providing services or facilities in connection with or supplying plant and machinery used or to be used in prospecting, extraction or production of mineral oils the profit and gains from such business chargeable to tax is to be calculated at a sum equal to 10% of the aggregate of the amounts paid or payable to such non-resident assessee as mentioned in Sub-section (2). On the other hand, Section 44D contemplates that if the income of a foreign company with which the government or an Indian concern had an agreement executed before 1.4.1976 or on any date thereafter the computation of income would be made as contemplated under the aforesaid Section 44D. Explanation (a) to Section 44D however specifies that fees for technical services as mentioned in Section 44D would have the same meaning as in Explanation 2 to Clause (vii) of Section 9(1). The said explanation as quoted above defines fees for technical services to mean consideration for rendering of any managerial, technical or consultancy services. However, the later part of the explanation excludes from consideration for the purposes of the expression i.e. fees for technical services any payment received for construction, assembly, mining or like project undertaken by the recipient or consideration which would be chargeable under the head salaries. Fees for technical services, therefore, by virtue of the aforesaid explanation will not include payments made in connection with a mining projectReading Section 2(j) and 2(jj) of the Mines Act, 1952 which define mines and minerals and the provisions of the Oil Fields (Regulation and Development) Act, 1948 specifically relating to prospecting and exploration of mineral oils, exhaustively referred to earlier, it is abundantly clear that drilling operations for the purpose of production of petroleum would clearly amount to a mining activity or a mining operation. Viewed thus, it is the proximity of the works contemplated under an agreement, executed with a non-resident assessee or a foreign company, with mining activity or mining operations that would be crucial for the determination of the questionwhether the payments made under such an agreement to the non-resident assessee or the foreign company is to be assessed under Section 44BB or Section 44D of the Act.The test of pith and substance of the agreement commends to us as reasonable for acceptance. Equally important is the fact that the CBDT had accepted the said test and had in fact issued a circular as far back as 22.10.1990 to the effect that mining operations and the expressions mining projects or like projects occurring in Explanation 2 to Section 9(1) of the Act would cover rendering of service like imparting of training and carrying out drilling operations for exploration of and extraction of oil and natural gas and hence payments made under such agreement to a non-resident/foreign company would be chargeable to tax under the provisions of Section 44BB and not Section 44D of the Act. We do not see how any other view can be taken if the works or services mentioned under a particular agreement is directly associated or inextricably connected with prospecting, extraction or production of mineral oil. Keeping in mind the above provision, we have looked into each of the contracts involved in the present group of cases and find that the brief description of the works covered under each of the said contracts as culled out by the appellants and placed before the Court is correctThe above facts would indicate that the pith and substance of each of the contracts/agreements is inextricably connected with prospecting, extraction or production of mineral oil. The dominant purpose of each of such agreement is for prospecting, extraction or production of mineral oils though there may be certain ancillary works contemplated thereunder. If that be so, we will have no hesitation in holding that the payments made by ONGC and received by the non-resident assessees or foreign companies under the said contracts is more appropriately assessable under the provisions of Section 44BB and not Section 44D 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: Entry 22 of List II of the 7th Schedule to the Constitution to understand the exclusion of mineral oils from the definition of minerals in Section 3(a) of the 1957 Act. Regard must also be had to the fact that mineral oils is separately defined in Section 3(b) of the 1957 Act to include natural gas and petroleum in respect of which Parliament has exclusive jurisdiction under Entry 53 of List I of the 7th Schedule and had enacted an earlier legislation i.e. Oil Fields (Regulation and Development) Act, 1948. Reading Section 2(j) and 2(jj) of the Mines Act, 1952 which define mines and minerals and the provisions of the Oil Fields (Regulation and Development) Act, 1948 specifically relating to prospecting and exploration of mineral oils, exhaustively referred to earlier, it is abundantly clear that drilling operations for the purpose of production of petroleum would clearly amount to a mining activity or a mining operation. Viewed thus, it is the proximity of the works contemplated under an agreement, executed with a non-resident assessee or a foreign company, with mining activity or mining operations that would be crucial for the determination of the question whether the payments made under such an agreement to the non-resident assessee or the foreign company is to be assessed under Section 44BB or Section 44D of the Act. The test of pith and substance of the agreement commends to us as reasonable for acceptance. Equally important is the fact that the CBDT had accepted the said test and had in fact issued a circular as far back as 22.10.1990 to the effect that mining operations and the expressions mining projects or like projects occurring in Explanation 2 to Section 9(1) of the Act would cover rendering of service like imparting of training and carrying out drilling operations for exploration of and extraction of oil and natural gas and hence payments made under such agreement to a non-resident/foreign company would be chargeable to tax under the provisions of Section 44BB and not Section 44D of the Act. We do not see how any other view can be taken if the works or services mentioned under a particular agreement is directly associated or inextricably connected with prospecting, extraction or production of mineral oil. Keeping in mind the above provision, we have looked into each of the contracts involved in the present group of cases and find that the brief description of the works covered under each of the said contracts as culled out by the appellants and placed before the Court is correct. The said details are set out below. S. No.Civil Appeal No.Work covered under the contract 1.4321Drilling of exploration wells and carrying out seismic surveys for exploratory drilling. 2.740Drilling, furnishing personnel for manning, maintenance and operation of drilling rig and training of personnel. 3.731Drilling, furnishing personnel for manning, maintenance and operation of drilling rig and training of personnel. 4.1722Furnishing supervisory staff with expertise in operation and management of Drilling unit. 5.729Capping including subduing of well, fire fighting. 6.738Capping including subduing of well, fire fighting. 7.1528Analysis of data to prepare job design, procedure for execution and details regarding monitoring. 8.1532Study for selection of enhanced Oil Recovery processes and conceptual design of Pilot Tests. 9.1520Engineering and technical support to ONGC in implementation of Cyclic Steam Stimulation in Heavy Oil Wells. 10.2794Assessment and processing of seismic data along with engineering and technical support in implementation of Cyclic Steam Stimulation. 11.1524Conducting reservoir stimulation studies in association with personnel of ONGC. 12.1535Laboratory testing under simulated reservoir conditions. 13.1514Consultancy for optimal exploitation of hydrocarbon resources. 14.2797Consultancy for all aspects of Coal Bed Methane. 15.6174Analysis of data of wells to prepare a job design. 16.1517Geological study of the area and analysis of seismic information reports to design 2 dimensional seismic surveys. 17.7226Opinion on hydrocarbon resources and foreseeable potential. 18.7227Opinion on hydrocarbon resources and foreseeable potential. 19.7230Opinion on hydrocarbon resources and foreseeable potential. 20.6016Opinion on hydrocarbon resources and foreseeable potential. 21.6008Evaluation of ultimate resource potential and presentations outside India in connection with promotional activities for Joint Venture Exploration program. 22.1531Review of sub-surface well data, provide repair plan of wells and supervise repairs. 23.733Repair of gas turbine, gas control system and inspection of gas turbine and generator. 24.741Repair and inspection of turbines. 25.737Repair, inspection and overhauling of turbines. 26.736Inspection, engine performance evaluation, instrument calibration and inspection of far turbines. 27.1522Replacement of choke and kill consoles on drilling rigs. 28.1521Inspection of gas generators. 29.1515Inspection of rigs. 30.2012Inspection of generator. 31.1240Inspection of existing control system and deputing engineer to attend to any problem arising in the machines. 32.1529Inspection of drilling rig and verification of reliability of control systems in the drilling rig. 33.2008Expert advice on the device to clean insides of a pipeline. 34.2795Feasibility study of rig to assess its remaining useful life and to carry out structural alterations. 35.925Engineering analysis of rig. 36.1519Imparting training on cased hold production log evaluation and analysis. 37.1533Training on well control. 38.1518Training on implementation of Six Sigma concepts. 39.1516Training on implementation of Six Sigma concepts. 40.6023Training on Drilling project management. 41.2796Training in Safety Rating System and assistance in development and audit of Safety Management System. 42.1239To develop technical specification for 3D Seismic API modules of work and to prepare bid packages. 43.1527Supply supervision and installation of software which is used for analysis of flow rate of mineral oil to determine reservoir conditions. 44.1523Supply, installation and familiarization of software for processing seismic data. The above facts would indicate that the pith and substance of each of the contracts/agreements is inextricably connected with prospecting, extraction or production of mineral oil. The dominant purpose of each of such agreement is for prospecting, extraction or production of mineral oils though there may be certain ancillary works contemplated thereunder. If that be so, we will have no hesitation in holding that the payments made by ONGC and received by the non-resident assessees or foreign companies under the said contracts is more appropriately assessable under the provisions of Section 44BB and not Section 44D of the Act. ### Response: 1 ### Explanation: 8. A careful reading of the aforesaid provisions of the Act goes to show that under Section 44BB(1) in case of a non-resident providing services or facilities in connection with or supplying plant and machinery used or to be used in prospecting, extraction or production of mineral oils the profit and gains from such business chargeable to tax is to be calculated at a sum equal to 10% of the aggregate of the amounts paid or payable to such non-resident assessee as mentioned in Sub-section (2). On the other hand, Section 44D contemplates that if the income of a foreign company with which the government or an Indian concern had an agreement executed before 1.4.1976 or on any date thereafter the computation of income would be made as contemplated under the aforesaid Section 44D. Explanation (a) to Section 44D however specifies that fees for technical services as mentioned in Section 44D would have the same meaning as in Explanation 2 to Clause (vii) of Section 9(1). The said explanation as quoted above defines fees for technical services to mean consideration for rendering of any managerial, technical or consultancy services. However, the later part of the explanation excludes from consideration for the purposes of the expression i.e. fees for technical services any payment received for construction, assembly, mining or like project undertaken by the recipient or consideration which would be chargeable under the head salaries. Fees for technical services, therefore, by virtue of the aforesaid explanation will not include payments made in connection with a mining projectReading Section 2(j) and 2(jj) of the Mines Act, 1952 which define mines and minerals and the provisions of the Oil Fields (Regulation and Development) Act, 1948 specifically relating to prospecting and exploration of mineral oils, exhaustively referred to earlier, it is abundantly clear that drilling operations for the purpose of production of petroleum would clearly amount to a mining activity or a mining operation. Viewed thus, it is the proximity of the works contemplated under an agreement, executed with a non-resident assessee or a foreign company, with mining activity or mining operations that would be crucial for the determination of the questionwhether the payments made under such an agreement to the non-resident assessee or the foreign company is to be assessed under Section 44BB or Section 44D of the Act.The test of pith and substance of the agreement commends to us as reasonable for acceptance. Equally important is the fact that the CBDT had accepted the said test and had in fact issued a circular as far back as 22.10.1990 to the effect that mining operations and the expressions mining projects or like projects occurring in Explanation 2 to Section 9(1) of the Act would cover rendering of service like imparting of training and carrying out drilling operations for exploration of and extraction of oil and natural gas and hence payments made under such agreement to a non-resident/foreign company would be chargeable to tax under the provisions of Section 44BB and not Section 44D of the Act. We do not see how any other view can be taken if the works or services mentioned under a particular agreement is directly associated or inextricably connected with prospecting, extraction or production of mineral oil. Keeping in mind the above provision, we have looked into each of the contracts involved in the present group of cases and find that the brief description of the works covered under each of the said contracts as culled out by the appellants and placed before the Court is correctThe above facts would indicate that the pith and substance of each of the contracts/agreements is inextricably connected with prospecting, extraction or production of mineral oil. The dominant purpose of each of such agreement is for prospecting, extraction or production of mineral oils though there may be certain ancillary works contemplated thereunder. If that be so, we will have no hesitation in holding that the payments made by ONGC and received by the non-resident assessees or foreign companies under the said contracts is more appropriately assessable under the provisions of Section 44BB and not Section 44D of the Act.

Institute Of Law Vs. Neeraj Sharma

struck down as invalid……….’61. The Court also referred to the reasons recorded in the orders passed by the Minister for award of dealership of petrol pumps and gas agencies and observed: (Common Cause case, SCC p. 554, para 24)‘24. … While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category….’62. In Shrilekha Vidyarthi v. State of U.P. the Court unequivocally rejected the argument based on the theory of absolute discretion of the administrative authorities and immunity of their action from judicial review and observed: (SCC pp. 236, 239-40)‘29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional…….” In the light of the above mentioned cases, we have to record our finding that the discretionary power conferred upon the public authorities to carry out the necessary Regulations for allotting land for the purpose of constructing a public educational institution should not be misused.30. We further hold that the fundamental right to establish and run an educational institution in terms of Article 19 (1)(g) of the Constitution is subject to reasonable restrictions under Article 19(6) of the Constitution of India. Therefore, the State is within its competence to prohibit “commercialization of education”. 31. In Modern School v. Union of India and Others [(2004) 5 SCC 583] (supra), this Court has held thus :- “72. So far as allotment of land by the Delhi Development Authority is concerned, suffice it to point out that the same has no bearing on the enforcement of the provisions of the Act and the Rules framed thereunder but indisputably the institutions are bound by the terms and conditions of allotment. In the event such terms and conditions of allotment have been violated by the allottees, the appropriate statutory authorities would be at liberty to take appropriate step as is permissible in law.” 32. We, therefore, disregard the plea of charitable intention or philanthropic goal behind the establishment of the appellant educational institution as the establishment of the same does not serve any public interest and we cannot allow the allottee to make money or profiteer with the aid of the public property.33. Further, on a careful evaluation of the statutory object behind clause 18 of the “Allotment of Land to Educational Institutions (Schools)Rules Etc. on Lease Hold basis in Chandigarh Scheme, 1996” no systematic exercise has been undertaken by the Administration of Chandigarh to identify the needs of different kinds of professional institutions required to be established in Chandigarh. We thus concur with the reasoning of the High Court in the impugned orders that the Screening Committee comprising of senior and responsible functionaries allotted the institutional sites in favour of the allottee without following any objective criteria and policy. The Screening Committee acted in a manner which is contrary to the principles laid down by this Court in the judgments cited above in allotting the land in question in favour of the first appellant. We, therefore, conclude that the High Court has rightly held that the policy followed by the Chandigarh Administration where the allotment of land was done in favour of the appellant-Institute without giving any public notice and in the absence of a transparent policy based upon objective criteria and without even examining the fact that the Union Territory of Chandigarh is already under extreme pressure of over population and even in the case of allotment of school sites by making no attempt to enforce clause 18 of the Scheme, 1996, thereby confining the said provision merely to the statute book, is arbitrary, unreasonable and unjust and is opposed to the provisions of Article 14 of the Constitution of India.34. We now come to the opinion expressed by the then Chief justice in his order which was concurred by the nominated Judge hearing the Civil Misc. Applications that although different reasons have been recorded by the members of the Division Bench in their order who have disposed of CWP No.6916 of 2004, the conclusion arrived at by them was the same. Therefore, the order passed by the then Chief Justice cannot be said to have rendered a different opinion so as to attract the applicability of Rule 31 of Chapter 4, para F, of the High Court Rules and Orders, read with clause 26 of the Letters Patent.35. A perusal of the directions contained in the orders of the High Court reveals a common effect, i.e. the allotment of the institutional plot made in favour of the appellant-Institute stands cancelled as it did not conform to the constitutional philosophy enshrined in Article 14 of the Constitution of India. This was also conceded by the learned nominated Judge of the High Court hearing the Civil Misc. No.5016 of 2005 and Civil Misc. No. 6173 of 2005. Thus, there appears to be absolutely no point of difference or divergence between the then Chief justice and the companion puisne Judge, who have issued directions to the Administration of the Union Territory of Chandigarh. It has rightly been pointed out by the nominated Judge that there may apparently seem to be a difference in the thought process and also the relative rigour of the expressions used by both the learned Judges, yet, it has not been possible to conclude that there was any divergence in the directions recorded in their separate views.

0[ds]21. We will first consider and answer the question of maintainability of the Writ Petition and locus standi of the writ petitioner, the respondent No. 1 herein who has filed the writ petition.22. The property in question belongs to the Union Territory of Chandigarh Administration. Under our constitutional philosophy, it is a public property and therefore, belongs to the people. Hence, the Union Territory of Chandigarh Administration is the trustee of the land whose duty is to see that the property is allotted in favour of eligible persons by following the procedure laid down by the Chandigarh Administration, and the same should not be allowed to be squandered or sold away by it at a throw away price as it has been done in the instant case as pointed out by its Audit Department itself that there is a clear loss of about Rs.139 crores to the public exchequer.23. It has also come to our notice that the settlement of the land in question in favour of the appellant-Institute was done within a few days without following the mandatory procedure for the allotment of land. We do not doubt the intention of the appellants to set up the law institute, however, their private interest is pitted against the public interest. The loss to the public exchequer could have been easily avoided had the land in question been settled by way of public auction inviting applications from eligible persons.24. Further, as stated in the writ petition, the petitioner is a resident of State of Punjab and is also an Income Tax Payee. It has neither been shown nor proved by the appellants that he is a (i) meddlesome interloper (ii) that he is acting under malafide intention or (iii) that he has been set up by someone for settling his personal scores with Chandigarh Administration or the allottee. Dealing with the question of locus standi of the writ petitioner, we would like to refer to certain decisions of this Court to hold that the writ petition filed by the first respondent is a public interest litigation to protect public interest. In the case of Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v. Union of India & Ors. [AIR 1981 SC 344 , (1981) 1 SCC 568 ], the constitutional Bench of this Court has held as……Where does the citizen stand, in the context of the democracy of judicial remedies, absent an ombudsman? In the face of (rare, yet real) misuse of administrative power to play ducks and drakes with the public exchequer, especially where developmental expansion necessarily involves astronomical expenditure and concomitant corruption, do public bodies enjoy immunity from challenge save through the post-mortem of parliamentary organs. What is the role of [pic]the judicial process, read in the light of the dynamics of legal control and corporate autonomy?XXX XXX XXX47. ……Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public business, if breached, will become justiciable.48. If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But, if he belongs to an organisation which has special interest in the subject-matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Articlesupplied)Similarly, in the case of S.P. Gupta v. Union of India and Anr. [(1981) Supp SCC 87], this Court has categorically laid down the law in relation to locus standi as underthere is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice……It is also necessary to point out that if no one can have standing to maintain an action for judicial redress in respect of a public wrong or public injury, not only will the cause of legality suffer but the people not having any judicial remedy to redress such public wrong or public injury may turn to the street and in that process, the rule of law will be seriously impaired….19. There is also another reason why the Rule of locus standi needs to be liberalised. Today we find that law is being increasingly used as a device of organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction upon which we are engaged has brought about enormous increase in developmental activities and law is being utilised for the purpose of development, social and economic. It is creating more and more a new category of rights in favour of large sections of people and imposing a new category of duties on the State and the public officials with a view to reaching social justice to the common man……. In other words, the duty is one which is not correlative to any individual rights. Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be able to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created for the benefit of the deprived sections of the community meaningless and ineffectual.20. ………If public duties are to be enforced and social collectiverights and interests are to be protected, we have to utilise the initiative and zeal of public-minded persons and organisations by allowing them to move the court and act for a general or group interest, even though, they may not be directly injured in their own rights. It is for this reason that in public interest litigation — litigation undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective,rights and interests or vindicating public interest, any citizen who is acting bona fide and who has sufficient interest has to be accorded standing. What is sufficient interest to give standing to a member of the public would have to be determined by the court in each individual case. It is not possible for the court to lay down any hard and fast rule or any straitjacket formula for the purpose of defining or delimiting. It has necessarily to be left to the discretion of the court………XXX XXX XXX23. We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legalsupplied)Further, in the case of Dattaraj Nathuji Thaware v. State of Maharashtra & Ors. [( 2005) 1 SCC 590 ], this Court held that Public Interest Litigation is a weapon which has to be used with great care and circumspection. It has to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The aim of Public Interest Litigation should be to redress genuine public wrong or public injury.25. It is clear to us that the respondent No. 1-the writ petitioner has filed a bonafide writ petition and he has the necessary locus. There is an apparent favour shown by the Union Territory of Chandigarh in favour of the appellant-Institute which is a profit making company and it has not shown to this Court that the allotment of land in its favour is in accordance with law. Hence, we are of the view that there is a strong reason to hold that the writ petition is maintainable in public interest. We completely agree with the views taken by the High Court, wherein it has rightly held that the writ petition is a Public Interest Litigation and not a Private Interest Litigation. The writ petition in question is the first petition filed by the first respondent and his first endeavor to knock the doors of the constitutional court to protect the public interest by issuing a writ of certiorary.26. The appellants have miserably failed to show the malafide intention on the part of the respondent No. 1 in filing writ petition and we agree with the view of the then Chief Justice in his order who has held that he is a public spirited person. The cause ventilated by him is definitely worth consideration and the record of the AAO (Audit) submitted to the Chandigarh Administration proves the allegations made by him. Further it is observed that His Excellency, the Governor of Punjab-cum-Administrator, Chandigarh has rightly come to the conclusion in his decision that the impugned allotment of land in favour of the first appellant-Institute requires taking up of corrective steps. The Administration of the Union Territory of Chandigarh has conferred largesse on the appellant-Institute by allotting land in its favour for inadequate consideration without following procedure. Therefore, we hold that the writ petition filed by the first respondent is maintainable as the allotment of the land in question made in favour of the first appellant-Institute is arbitrary, illegal and the same is in violation of Article 14 of the Constitution.We have carefully considered and examined the question of the legality of the allotment order of the land made in favour of the appellant-Institute. It is submitted on behalf of the first respondent that the allotment of public land at throw away price or at no price to the private educational institutions with an avowed object to serve the public interest is contrary to the theory ofat serve the pious cause of literacy.30. We further hold that the fundamental right to establish and run an educational institution in terms of Article 19 (1)(g) of the Constitution is subject to reasonable restrictions under Article 19(6) of the Constitution of India. Therefore, the State is within its competence to prohibit2. We, therefore, disregard the plea of charitable intention or philanthropic goal behind the establishment of the appellant educational institution as the establishment of the same does not serve any public interest and we cannot allow the allottee to make money or profiteer with the aid of the public property.33. Further, on a careful evaluation of the statutory object behind clause 18 of theof Land to Educational Institutions (Schools)Rules Etc. on Lease Hold basis in Chandigarh Scheme,no systematic exercise has been undertaken by the Administration of Chandigarh to identify the needs of different kinds of professional institutions required to be established in Chandigarh. We thus concur with the reasoning of the High Court in the impugned orders that the Screening Committee comprising of senior and responsible functionaries allotted the institutional sites in favour of the allottee without following any objective criteria and policy. The Screening Committee acted in a manner which is contrary to the principles laid down by this Court in the judgments cited above in allotting the land in question in favour of the first appellant. We, therefore, conclude that the High Court has rightly held that the policy followed by the Chandigarh Administration where the allotment of land was done in favour of the appellant-Institute without giving any public notice and in the absence of a transparent policy based upon objective criteria and without even examining the fact that the Union Territory of Chandigarh is already under extreme pressure of over population and even in the case of allotment of school sites by making no attempt to enforce clause 18 of the Scheme, 1996, thereby confining the said provision merely to the statute book, is arbitrary, unreasonable and unjust and is opposed to the provisions of Article 14 of the Constitution of India.34. We now come to the opinion expressed by the then Chief justice in his order which was concurred by the nominated Judge hearing the Civil Misc. Applications that although different reasons have been recorded by the members of the Division Bench in their order who have disposed of CWP No.6916 of 2004, the conclusion arrived at by them was the same. Therefore, the order passed by the then Chief Justice cannot be said to have rendered a different opinion so as to attract the applicability of Rule 31 of Chapter 4, para F, of the High Court Rules and Orders, read with clause 26 of the Letters Patent.35. A perusal of the directions contained in the orders of the High Court reveals a common effect, i.e. the allotment of the institutional plot made in favour of the appellant-Institute stands cancelled as it did not conform to the constitutional philosophy enshrined in Article 14 of the Constitution of India. This was also conceded by the learned nominated Judge of the High Court hearing the Civil Misc. No.5016 of 2005 and Civil Misc. No. 6173 of 2005. Thus, there appears to be absolutely no point of difference or divergence between the then Chief justice and the companion puisne Judge, who have issued directions to the Administration of the Union Territory of Chandigarh. It has rightly been pointed out by the nominated Judge that there may apparently seem to be a difference in the thought process and also the relative rigour of the expressions used by both the learned Judges, yet, it has not been possible to conclude that there was any divergence in the directions recorded in their separate views.

### 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: struck down as invalid……….’61. The Court also referred to the reasons recorded in the orders passed by the Minister for award of dealership of petrol pumps and gas agencies and observed: (Common Cause case, SCC p. 554, para 24)‘24. … While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category….’62. In Shrilekha Vidyarthi v. State of U.P. the Court unequivocally rejected the argument based on the theory of absolute discretion of the administrative authorities and immunity of their action from judicial review and observed: (SCC pp. 236, 239-40)‘29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional…….” In the light of the above mentioned cases, we have to record our finding that the discretionary power conferred upon the public authorities to carry out the necessary Regulations for allotting land for the purpose of constructing a public educational institution should not be misused.30. We further hold that the fundamental right to establish and run an educational institution in terms of Article 19 (1)(g) of the Constitution is subject to reasonable restrictions under Article 19(6) of the Constitution of India. Therefore, the State is within its competence to prohibit “commercialization of education”. 31. In Modern School v. Union of India and Others [(2004) 5 SCC 583] (supra), this Court has held thus :- “72. So far as allotment of land by the Delhi Development Authority is concerned, suffice it to point out that the same has no bearing on the enforcement of the provisions of the Act and the Rules framed thereunder but indisputably the institutions are bound by the terms and conditions of allotment. In the event such terms and conditions of allotment have been violated by the allottees, the appropriate statutory authorities would be at liberty to take appropriate step as is permissible in law.” 32. We, therefore, disregard the plea of charitable intention or philanthropic goal behind the establishment of the appellant educational institution as the establishment of the same does not serve any public interest and we cannot allow the allottee to make money or profiteer with the aid of the public property.33. Further, on a careful evaluation of the statutory object behind clause 18 of the “Allotment of Land to Educational Institutions (Schools)Rules Etc. on Lease Hold basis in Chandigarh Scheme, 1996” no systematic exercise has been undertaken by the Administration of Chandigarh to identify the needs of different kinds of professional institutions required to be established in Chandigarh. We thus concur with the reasoning of the High Court in the impugned orders that the Screening Committee comprising of senior and responsible functionaries allotted the institutional sites in favour of the allottee without following any objective criteria and policy. The Screening Committee acted in a manner which is contrary to the principles laid down by this Court in the judgments cited above in allotting the land in question in favour of the first appellant. We, therefore, conclude that the High Court has rightly held that the policy followed by the Chandigarh Administration where the allotment of land was done in favour of the appellant-Institute without giving any public notice and in the absence of a transparent policy based upon objective criteria and without even examining the fact that the Union Territory of Chandigarh is already under extreme pressure of over population and even in the case of allotment of school sites by making no attempt to enforce clause 18 of the Scheme, 1996, thereby confining the said provision merely to the statute book, is arbitrary, unreasonable and unjust and is opposed to the provisions of Article 14 of the Constitution of India.34. We now come to the opinion expressed by the then Chief justice in his order which was concurred by the nominated Judge hearing the Civil Misc. Applications that although different reasons have been recorded by the members of the Division Bench in their order who have disposed of CWP No.6916 of 2004, the conclusion arrived at by them was the same. Therefore, the order passed by the then Chief Justice cannot be said to have rendered a different opinion so as to attract the applicability of Rule 31 of Chapter 4, para F, of the High Court Rules and Orders, read with clause 26 of the Letters Patent.35. A perusal of the directions contained in the orders of the High Court reveals a common effect, i.e. the allotment of the institutional plot made in favour of the appellant-Institute stands cancelled as it did not conform to the constitutional philosophy enshrined in Article 14 of the Constitution of India. This was also conceded by the learned nominated Judge of the High Court hearing the Civil Misc. No.5016 of 2005 and Civil Misc. No. 6173 of 2005. Thus, there appears to be absolutely no point of difference or divergence between the then Chief justice and the companion puisne Judge, who have issued directions to the Administration of the Union Territory of Chandigarh. It has rightly been pointed out by the nominated Judge that there may apparently seem to be a difference in the thought process and also the relative rigour of the expressions used by both the learned Judges, yet, it has not been possible to conclude that there was any divergence in the directions recorded in their separate views. ### Response: 0 ### Explanation: the Union Territory of Chandigarh in favour of the appellant-Institute which is a profit making company and it has not shown to this Court that the allotment of land in its favour is in accordance with law. Hence, we are of the view that there is a strong reason to hold that the writ petition is maintainable in public interest. We completely agree with the views taken by the High Court, wherein it has rightly held that the writ petition is a Public Interest Litigation and not a Private Interest Litigation. The writ petition in question is the first petition filed by the first respondent and his first endeavor to knock the doors of the constitutional court to protect the public interest by issuing a writ of certiorary.26. The appellants have miserably failed to show the malafide intention on the part of the respondent No. 1 in filing writ petition and we agree with the view of the then Chief Justice in his order who has held that he is a public spirited person. The cause ventilated by him is definitely worth consideration and the record of the AAO (Audit) submitted to the Chandigarh Administration proves the allegations made by him. Further it is observed that His Excellency, the Governor of Punjab-cum-Administrator, Chandigarh has rightly come to the conclusion in his decision that the impugned allotment of land in favour of the first appellant-Institute requires taking up of corrective steps. The Administration of the Union Territory of Chandigarh has conferred largesse on the appellant-Institute by allotting land in its favour for inadequate consideration without following procedure. Therefore, we hold that the writ petition filed by the first respondent is maintainable as the allotment of the land in question made in favour of the first appellant-Institute is arbitrary, illegal and the same is in violation of Article 14 of the Constitution.We have carefully considered and examined the question of the legality of the allotment order of the land made in favour of the appellant-Institute. It is submitted on behalf of the first respondent that the allotment of public land at throw away price or at no price to the private educational institutions with an avowed object to serve the public interest is contrary to the theory ofat serve the pious cause of literacy.30. We further hold that the fundamental right to establish and run an educational institution in terms of Article 19 (1)(g) of the Constitution is subject to reasonable restrictions under Article 19(6) of the Constitution of India. Therefore, the State is within its competence to prohibit2. We, therefore, disregard the plea of charitable intention or philanthropic goal behind the establishment of the appellant educational institution as the establishment of the same does not serve any public interest and we cannot allow the allottee to make money or profiteer with the aid of the public property.33. Further, on a careful evaluation of the statutory object behind clause 18 of theof Land to Educational Institutions (Schools)Rules Etc. on Lease Hold basis in Chandigarh Scheme,no systematic exercise has been undertaken by the Administration of Chandigarh to identify the needs of different kinds of professional institutions required to be established in Chandigarh. We thus concur with the reasoning of the High Court in the impugned orders that the Screening Committee comprising of senior and responsible functionaries allotted the institutional sites in favour of the allottee without following any objective criteria and policy. The Screening Committee acted in a manner which is contrary to the principles laid down by this Court in the judgments cited above in allotting the land in question in favour of the first appellant. We, therefore, conclude that the High Court has rightly held that the policy followed by the Chandigarh Administration where the allotment of land was done in favour of the appellant-Institute without giving any public notice and in the absence of a transparent policy based upon objective criteria and without even examining the fact that the Union Territory of Chandigarh is already under extreme pressure of over population and even in the case of allotment of school sites by making no attempt to enforce clause 18 of the Scheme, 1996, thereby confining the said provision merely to the statute book, is arbitrary, unreasonable and unjust and is opposed to the provisions of Article 14 of the Constitution of India.34. We now come to the opinion expressed by the then Chief justice in his order which was concurred by the nominated Judge hearing the Civil Misc. Applications that although different reasons have been recorded by the members of the Division Bench in their order who have disposed of CWP No.6916 of 2004, the conclusion arrived at by them was the same. Therefore, the order passed by the then Chief Justice cannot be said to have rendered a different opinion so as to attract the applicability of Rule 31 of Chapter 4, para F, of the High Court Rules and Orders, read with clause 26 of the Letters Patent.35. A perusal of the directions contained in the orders of the High Court reveals a common effect, i.e. the allotment of the institutional plot made in favour of the appellant-Institute stands cancelled as it did not conform to the constitutional philosophy enshrined in Article 14 of the Constitution of India. This was also conceded by the learned nominated Judge of the High Court hearing the Civil Misc. No.5016 of 2005 and Civil Misc. No. 6173 of 2005. Thus, there appears to be absolutely no point of difference or divergence between the then Chief justice and the companion puisne Judge, who have issued directions to the Administration of the Union Territory of Chandigarh. It has rightly been pointed out by the nominated Judge that there may apparently seem to be a difference in the thought process and also the relative rigour of the expressions used by both the learned Judges, yet, it has not been possible to conclude that there was any divergence in the directions recorded in their separate views.

Bangalore Development Authority Vs. N.Jayamma

possession having a lawful title, cannot divest another of that title by pretending that he had no title at all." 19) After taking note of the principle of law relating to adverse possession in the aforesaid manner, this Court commented about the erroneous approach of the High Court in the following manner: ?19. The Courts below have not seen the plaintiff-respondents claim from the above perspectives. The High Court has, in particular, remained oblivious of the principle enunciated in the decisions to which we have referred herein above. All that the High Court has found in favour of the plaintiffs is that their possession is established. That, however, does not conclude the controversy. The question is not just whether the plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the appellant-BDA. The fact that the plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorised occupation of property that stood vested in the BDA.? 20) In addition to the discussion contained in M. Venkatesh case noted above, we may also add what was held in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. (2007) 6 SCC 59 ): ?5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; and City of Rock Springs v. turm).? 21) In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors. (2013) 6 ADJ 119 ), the Allahabad High Court has observed as under: ?21. The principle of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation. The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in the East India Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies) 43. xx xx xx 23. The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an acquisitive prescription. A prescription by which a right is extinguished is called extinctive prescription. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time.? 22) The aforesaid analysis of the judgment in M. Venkatesh (supra) amply shows that it is squarely and directly applicable to the facts and circumstances of the present case. In the first instance, it shows that reliance of the respondent herein on the judgment of John B. James (supra) is of no avail. It would further demonstrate that the findings of the court below that only paper possession was taken and actual possession was not taken also becomes meaningless as the manner of taking possession in the instant case was also identical. In addition, it is pertinent that the respondent herein, in para 10 of the plaint, had herself admitted that the officials of the BDA had come to the suit property on April 24, 2001 and demolished the existing structure. This act of the BDA would amply demonstrate that there was no unhindered, peaceful and continuous possession of the suit land. 23) Learned counsel for the respondent had raised the plea of equity. He has also submitted that when the BDA itself is created for the purpose of formation of layouts and allotment of sites to the members of the public, the respondent should not be dispossessed when she is in continuous possession of the suit property. However, these would not be the relevant considerations in the present case as we cannot forget that the present appeal arises out of civil proceedings filed in the form of a suit by the respondent and once it is found that the respondent has not been able to prove title by adverse possession, no such aspects, not coming within the scope of the suit proceedings, can be looked into. Insofar as the argument predicated on Section 27 of the Bangalore Development Authority Act or Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 are concerned, again these issues were neither raised nor arise in the instant case. If the respondent, if at all, has any right to make claim on the aforesaid grounds, in any appropriate proceedings, she can do so, if permissible in law. We may clarify that this Court has not gone into these issues and, therefore, has not made any comments on the merits of such pleas raised by the respondent.

1[ds]16) In M. Venkatesh (supra) as well, land was acquired by the State Government of Karnataka and given at the disposal of the BDA. Preliminary Notification was issued on July 17, 1984 and final Notification dated November 28, 1986 was published on December 25, 1986. Determination of amount of compensation payable to the landowners having been approved by the competent authority on August 21, 1986, the BDA claimed that possession of the land was taken over from the landowners and handed over to the engineering section of the BDA by drawing a possession Mahazar on November 06, 1987. A Notification under Section 16(2) of the Act was also published in the Karnataka Gazette dated July 04, 1991 which, according to the BDA, signified that the land in question stood vested with the BDA free from all encumbrances whatsoever. Here also, after taking of the aforesaid steps by the BDA, the original land owners of the acquired land sold the said land to different persons after carving out the sites/plots. When the actual possession was sought to be taken, the said subsequent purchasers (like the respondent in the instant appeal) filed writ petitions in the High Court. Their writ petitions, along with the writ petition of the respondent herein and some others, were the subject matter of the judgment of the Division Bench of the High Court in John B. Jamess case (supra). Like the respondent herein, the individuals/subsequent purchasers in the case of M. Venkatesh (supra) were also relegated to the civil court giving them permission to file the suit if they were claiming adverse possession. Five such suits were the subject matter of the judgment in M. Venkatesh (supra).The aforesaid analysis of the judgment in M. Venkatesh (supra) amply shows that it is squarely and directly applicable to the facts and circumstances of the present case. In the first instance, it shows that reliance of the respondent herein on the judgment of John B. James (supra) is of no avail. It would further demonstrate that the findings of the court below that only paper possession was taken and actual possession was not taken also becomes meaningless as the manner of taking possession in the instant case was also identical. In addition, it is pertinent that the respondent herein, in para 10 of the plaint, had herself admitted that the officials of the BDA had come to the suit property on April 24, 2001 and demolished the existing structure. This act of the BDA would amply demonstrate that there was no unhindered, peaceful and continuous possession of the suitas the argument predicated on Section 27 of the Bangalore Development Authority Act or Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 are concerned, again these issues were neither raised nor arise in the instant case. If the respondent, if at all, has any right to make claim on the aforesaid grounds, in any appropriate proceedings, she can do so, if permissible in law. We may clarify that this Court has not gone into these issues and, therefore, has not made any comments on the merits of such pleas raised by the

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: possession having a lawful title, cannot divest another of that title by pretending that he had no title at all." 19) After taking note of the principle of law relating to adverse possession in the aforesaid manner, this Court commented about the erroneous approach of the High Court in the following manner: ?19. The Courts below have not seen the plaintiff-respondents claim from the above perspectives. The High Court has, in particular, remained oblivious of the principle enunciated in the decisions to which we have referred herein above. All that the High Court has found in favour of the plaintiffs is that their possession is established. That, however, does not conclude the controversy. The question is not just whether the plaintiffs were in possession, but whether they had by being in adverse possession for the statutory period of 12 years perfected their title. That question has neither been adverted to nor answered in the judgment impugned in this appeal. Such being the case the High Court, in our opinion, erred in dismissing the appeal filed by the appellant-BDA. The fact that the plaintiffs had not and could not possibly establish their adverse possession over the suit property should have resulted in dismissal of the suit for an unauthorised occupant had no right to claim relief that would perpetuate his illegal and unauthorised occupation of property that stood vested in the BDA.? 20) In addition to the discussion contained in M. Venkatesh case noted above, we may also add what was held in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors. (2007) 6 SCC 59 ): ?5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; and City of Rock Springs v. turm).? 21) In Rama Shankar & Anr. v. Om Prakash Likhdhari & Ors. (2013) 6 ADJ 119 ), the Allahabad High Court has observed as under: ?21. The principle of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation. The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in the East India Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies) 43. xx xx xx 23. The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an acquisitive prescription. A prescription by which a right is extinguished is called extinctive prescription. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time.? 22) The aforesaid analysis of the judgment in M. Venkatesh (supra) amply shows that it is squarely and directly applicable to the facts and circumstances of the present case. In the first instance, it shows that reliance of the respondent herein on the judgment of John B. James (supra) is of no avail. It would further demonstrate that the findings of the court below that only paper possession was taken and actual possession was not taken also becomes meaningless as the manner of taking possession in the instant case was also identical. In addition, it is pertinent that the respondent herein, in para 10 of the plaint, had herself admitted that the officials of the BDA had come to the suit property on April 24, 2001 and demolished the existing structure. This act of the BDA would amply demonstrate that there was no unhindered, peaceful and continuous possession of the suit land. 23) Learned counsel for the respondent had raised the plea of equity. He has also submitted that when the BDA itself is created for the purpose of formation of layouts and allotment of sites to the members of the public, the respondent should not be dispossessed when she is in continuous possession of the suit property. However, these would not be the relevant considerations in the present case as we cannot forget that the present appeal arises out of civil proceedings filed in the form of a suit by the respondent and once it is found that the respondent has not been able to prove title by adverse possession, no such aspects, not coming within the scope of the suit proceedings, can be looked into. Insofar as the argument predicated on Section 27 of the Bangalore Development Authority Act or Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 are concerned, again these issues were neither raised nor arise in the instant case. If the respondent, if at all, has any right to make claim on the aforesaid grounds, in any appropriate proceedings, she can do so, if permissible in law. We may clarify that this Court has not gone into these issues and, therefore, has not made any comments on the merits of such pleas raised by the respondent. ### Response: 1 ### Explanation: 16) In M. Venkatesh (supra) as well, land was acquired by the State Government of Karnataka and given at the disposal of the BDA. Preliminary Notification was issued on July 17, 1984 and final Notification dated November 28, 1986 was published on December 25, 1986. Determination of amount of compensation payable to the landowners having been approved by the competent authority on August 21, 1986, the BDA claimed that possession of the land was taken over from the landowners and handed over to the engineering section of the BDA by drawing a possession Mahazar on November 06, 1987. A Notification under Section 16(2) of the Act was also published in the Karnataka Gazette dated July 04, 1991 which, according to the BDA, signified that the land in question stood vested with the BDA free from all encumbrances whatsoever. Here also, after taking of the aforesaid steps by the BDA, the original land owners of the acquired land sold the said land to different persons after carving out the sites/plots. When the actual possession was sought to be taken, the said subsequent purchasers (like the respondent in the instant appeal) filed writ petitions in the High Court. Their writ petitions, along with the writ petition of the respondent herein and some others, were the subject matter of the judgment of the Division Bench of the High Court in John B. Jamess case (supra). Like the respondent herein, the individuals/subsequent purchasers in the case of M. Venkatesh (supra) were also relegated to the civil court giving them permission to file the suit if they were claiming adverse possession. Five such suits were the subject matter of the judgment in M. Venkatesh (supra).The aforesaid analysis of the judgment in M. Venkatesh (supra) amply shows that it is squarely and directly applicable to the facts and circumstances of the present case. In the first instance, it shows that reliance of the respondent herein on the judgment of John B. James (supra) is of no avail. It would further demonstrate that the findings of the court below that only paper possession was taken and actual possession was not taken also becomes meaningless as the manner of taking possession in the instant case was also identical. In addition, it is pertinent that the respondent herein, in para 10 of the plaint, had herself admitted that the officials of the BDA had come to the suit property on April 24, 2001 and demolished the existing structure. This act of the BDA would amply demonstrate that there was no unhindered, peaceful and continuous possession of the suitas the argument predicated on Section 27 of the Bangalore Development Authority Act or Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 are concerned, again these issues were neither raised nor arise in the instant case. If the respondent, if at all, has any right to make claim on the aforesaid grounds, in any appropriate proceedings, she can do so, if permissible in law. We may clarify that this Court has not gone into these issues and, therefore, has not made any comments on the merits of such pleas raised by the