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Dir. Gen. Of Inc.Tax(Inv) Pune Vs. M/S. Spacewood Funishers Pvt. Ltd.

affidavit filed before it were at variance with what was revealed by the satisfaction note(s) placed before the Court. Even if the satisfaction notes alone are to be gone by, the essential details with regard to source of information; the persons who were interrogated and with whom discreet enquiries were made are not disclosed. The necessary information revealed by such interrogation and discreet enquiries with regard to over invoicing, market information etc. are not indicated. Materials like high growth, high profit margins, doubts about international brand and details thereof etc. as mentioned in the satisfaction note(s) are admitted and known facts and therefore could not have induced the requisite belief. The above constitutes the broad basis on which the High Court thought it proper to cause inference with the measures undertaken by the Revenue against the assessee. 21. Before we advert to the specific reasoning of the High Court, one specific aspect of the opinion expressed by the High Court needs to be taken note of inasmuch as the precise position in law in this regard needs to be clarified. The above aspect is highlighted by the following observations of the High Court expressed in paragraph 6 of the impugned order:- “We, however, express that when the satisfaction recorded is justiciable, the documents pertaining to such satisfaction may not be immune and if appropriate prayer is made, the inspection of such documents may be required to be allowed.” 22. In the light of the views expressed by this Court in ITO vs. Seth Brothers (supra) and Pooran Mal (supra), the above opinion expressed by the High Court is plainly incorrect. The necessity of recording of reasons, despite the amendment of Rule 112 (2) with effect from 1st October, 1975, has been repeatedly stressed upon by this Court so as to ensure accountability and responsibility in the decision making process. The necessity of recording of reasons also acts as a cushion in the event of a legal challenge being made to the satisfaction reached. Reasons enable a proper judicial assessment of the decision taken by the Revenue. However, the above, by itself, would not confer in the assessee a right of inspection of the documents or to a communication of the reasons for the belief at the stage of issuing of the authorization. Any such view would be counter productive of the entire exercise contemplated by Section 132 of the Act. It is only at the stage of commencement of the assessment proceedings after completion of the search and seizure, if any, that the requisite material may have to be disclosed to the assessee. 23. At this stage we would like to say that the High Court had committed a serious error in reproducing in great details the contents of the satisfaction note (s) containing the reasons for the satisfaction arrived at by the authorities under the Act. We have already indicated the time and stage at which the reasons recorded may be required to be brought to the notice of the assessee. In the light of the above, we cannot approve of the aforesaid part of the exercise undertaken by the High Court which we will understand to be highly premature; having the potential of conferring an undue advantage to the assessee thereby frustrating the endeavor of the revenue, even if the High Court is eventually not to intervene in favour of the assessee.24. Having clarified the above issue in the manner indicated, we may turn to the reasons assigned by the High Court for its decision. The view expressed by the High Court with regard to the satisfaction note(s); the alleged absence of a final decision to issue the authorization at the level of the Additional Director and the Director; the absence of any satisfaction of the Director General who, according to the High Court took the decision to issue the authorization are all seriously flawed. The different steps in the decision making process is lucidly laid down in the instructions contained in the search and seizure manual published by the department, relevant part of which has been extracted above. The steps delineated have been scrupulously followed. Besides we may take note of the fact that the Additional Director was not one of the competent authorities under Section 132 on 8.6.2009 (date of his note) inasmuch as it is by the Finance Act, 2009 effective from 19th August, 2009 that the Additional Director came to be included amongst the authorized officials though with retrospective effect from 1.10.1998. The reading of the relevant part of the satisfaction note of the Director goes to show that on the basis of materials produced satisfaction was duly recorded by him that authorization for search should be issued. The file was put up before the Director General (Investigation) for accord of administrative approval as required by Notification dated 7.3.2001. In fact, the requirement to obtain administrative approval is prompted by the need to provide an additional safeguard to the tax payer. A careful reading of the order of the Director General would go to show that all that he did was to record the view that the satisfaction of the Director, Income Tax (Investigation) was reasonable and therefore administrative approval should be accorded. The view taken by the High Court, therefore, cannot be sustained.25. The possibility of manipulation of the records as found by the High Court also does not commend to us for acceptance. There is no basis, whatsoever, for coming to any such conclusion. Suspicion ought not to be the basis of any judicial order and this is where the High Court seems to have erred.26. The remaining findings of the High Court with regard to the satisfaction recorded by the authorities appear to be in the nature of an appellate exercise touching upon the sufficiency and adequacy of the reasons and the authenticity and acceptability of the information on which satisfaction had been reached by the authorities. Such an exercise is alien to the jurisdiction under Article 226 of the Constitution.

1[ds]13. In the present case the satisfaction note(s) leading to the issuing of the warrant of authorization against thewere placed before the High Court. As it would appear from the impugned order the contents thereof were exhaustively reproduced by the High Court. The said satisfaction note(s) have also been placed before us. A perusal of the file containing the satisfaction note(s) indicate that on 8.6.2009 the Assistant Director of Income Tax (Investigation), Nagpur had prepared an elaborate note containing several reasons as to why he had considered it reasonable to believe that if summons or notice were issued to the respondent to produce the necessary books of account and documents, the same would not be produced. The Assistant Director also recorded detailed reasons why he entertains reasons to believe that the promoters of thecompany would be found to be in possession of money, bullion, jewellery etc. which represents partly or wholly income which has not been disclosed for the purposes of the Act.The High Court by the impugned order dated 9.12.2011 has taken the view that in the present case there are four satisfaction notes of four different authorities. One of the said authority i.e. Assistant Director is not the competent authority under Section 132 of the Act. The Additional Director and the Director who are competent authorities to issue the warrant of authorization, though had recorded their satisfaction, have not taken the final decision to issue the authorization and each such authority had passed on the file to his immediate superior, namely, the Additional Director to the Director and the Director to the Director General. The High Court further held that it is eventually the Director General who took the decision to issue the search warrant but the said decision was not on the basis of its own satisfaction but on the basis of the satisfaction recorded by the Director of Income Tax (Investigation). Consequently, the High Court held that the satisfaction mandated by Section 132 of the Act was not that of the authority who has issued the search warrant, thereby vitiating the authorization issued.19. The High Court further held that each of the satisfaction notes was in loose sheets of paper and not a part of a single file maintained in proper sequence and order with due pagination. Therefore, according to the High Court, it is possible that the file containing the satisfaction note(s) was manipulated and thus is of doubtful credibility.20. The High Court also held that the materials indicated by the department in the counter affidavit and the additional affidavit filed before it were at variance with what was revealed by the satisfaction note(s) placed before the Court. Even if the satisfaction notes alone are to be gone by, the essential details with regard to source of information; the persons who were interrogated and with whom discreet enquiries were made are not disclosed. The necessary information revealed by such interrogation and discreet enquiries with regard to over invoicing, market information etc. are not indicated. Materials like high growth, high profit margins, doubts about international brand and details thereof etc. as mentioned in the satisfaction note(s) are admitted and known facts and therefore could not have induced the requisite belief. The above constitutes the broad basis on which the High Court thought it proper to cause inference with the measures undertaken by the Revenue against the assessee.assessee.24. Having clarified the above issue in the manner indicated, we may turn to the reasons assigned by the High Court for its decision. The view expressed by the High Court with regard to the satisfaction note(s); the alleged absence of a final decision to issue the authorization at the level of the Additional Director and the Director; the absence of any satisfaction of the Director General who, according to the High Court took the decision to issue the authorization are all seriously flawed. The different steps in the decision making process is lucidly laid down in the instructions contained in the search and seizure manual published by the department, relevant part of which has been extracted above. The steps delineated have been scrupulously followed. Besides we may take note of the fact that the Additional Director was not one of the competent authorities under Section 132 on 8.6.2009 (date of his note) inasmuch as it is by the Finance Act, 2009 effective from 19th August, 2009 that the Additional Director came to be included amongst the authorized officials though with retrospective effect from 1.10.1998. The reading of the relevant part of the satisfaction note of the Director goes to show that on the basis of materials produced satisfaction was duly recorded by him that authorization for search should be issued. The file was put up before the Director General (Investigation) for accord of administrative approval as required by Notification dated 7.3.2001. In fact, the requirement to obtain administrative approval is prompted by the need to provide an additional safeguard to the tax payer. A careful reading of the order of the Director General would go to show that all that he did was to record the view that the satisfaction of the Director, Income Tax (Investigation) was reasonable and therefore administrative approval should be accorded. The view taken by the High Court, therefore, cannot be sustained.25. The possibility of manipulation of the records as found by the High Court also does not commend to us for acceptance. There is no basis, whatsoever, for coming to any such conclusion. Suspicion ought not to be the basis of any judicial order and this is where the High Court seems to have erred.26. The remaining findings of the High Court with regard to the satisfaction recorded by the authorities appear to be in the nature of an appellate exercise touching upon the sufficiency and adequacy of the reasons and the authenticity and acceptability of the information on which satisfaction had been reached by the authorities. Such an exercise is alien to the jurisdiction under Article 226 of the Constitution.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: affidavit filed before it were at variance with what was revealed by the satisfaction note(s) placed before the Court. Even if the satisfaction notes alone are to be gone by, the essential details with regard to source of information; the persons who were interrogated and with whom discreet enquiries were made are not disclosed. The necessary information revealed by such interrogation and discreet enquiries with regard to over invoicing, market information etc. are not indicated. Materials like high growth, high profit margins, doubts about international brand and details thereof etc. as mentioned in the satisfaction note(s) are admitted and known facts and therefore could not have induced the requisite belief. The above constitutes the broad basis on which the High Court thought it proper to cause inference with the measures undertaken by the Revenue against the assessee. 21. Before we advert to the specific reasoning of the High Court, one specific aspect of the opinion expressed by the High Court needs to be taken note of inasmuch as the precise position in law in this regard needs to be clarified. The above aspect is highlighted by the following observations of the High Court expressed in paragraph 6 of the impugned order:- “We, however, express that when the satisfaction recorded is justiciable, the documents pertaining to such satisfaction may not be immune and if appropriate prayer is made, the inspection of such documents may be required to be allowed.” 22. In the light of the views expressed by this Court in ITO vs. Seth Brothers (supra) and Pooran Mal (supra), the above opinion expressed by the High Court is plainly incorrect. The necessity of recording of reasons, despite the amendment of Rule 112 (2) with effect from 1st October, 1975, has been repeatedly stressed upon by this Court so as to ensure accountability and responsibility in the decision making process. The necessity of recording of reasons also acts as a cushion in the event of a legal challenge being made to the satisfaction reached. Reasons enable a proper judicial assessment of the decision taken by the Revenue. However, the above, by itself, would not confer in the assessee a right of inspection of the documents or to a communication of the reasons for the belief at the stage of issuing of the authorization. Any such view would be counter productive of the entire exercise contemplated by Section 132 of the Act. It is only at the stage of commencement of the assessment proceedings after completion of the search and seizure, if any, that the requisite material may have to be disclosed to the assessee. 23. At this stage we would like to say that the High Court had committed a serious error in reproducing in great details the contents of the satisfaction note (s) containing the reasons for the satisfaction arrived at by the authorities under the Act. We have already indicated the time and stage at which the reasons recorded may be required to be brought to the notice of the assessee. In the light of the above, we cannot approve of the aforesaid part of the exercise undertaken by the High Court which we will understand to be highly premature; having the potential of conferring an undue advantage to the assessee thereby frustrating the endeavor of the revenue, even if the High Court is eventually not to intervene in favour of the assessee.24. Having clarified the above issue in the manner indicated, we may turn to the reasons assigned by the High Court for its decision. The view expressed by the High Court with regard to the satisfaction note(s); the alleged absence of a final decision to issue the authorization at the level of the Additional Director and the Director; the absence of any satisfaction of the Director General who, according to the High Court took the decision to issue the authorization are all seriously flawed. The different steps in the decision making process is lucidly laid down in the instructions contained in the search and seizure manual published by the department, relevant part of which has been extracted above. The steps delineated have been scrupulously followed. Besides we may take note of the fact that the Additional Director was not one of the competent authorities under Section 132 on 8.6.2009 (date of his note) inasmuch as it is by the Finance Act, 2009 effective from 19th August, 2009 that the Additional Director came to be included amongst the authorized officials though with retrospective effect from 1.10.1998. The reading of the relevant part of the satisfaction note of the Director goes to show that on the basis of materials produced satisfaction was duly recorded by him that authorization for search should be issued. The file was put up before the Director General (Investigation) for accord of administrative approval as required by Notification dated 7.3.2001. In fact, the requirement to obtain administrative approval is prompted by the need to provide an additional safeguard to the tax payer. A careful reading of the order of the Director General would go to show that all that he did was to record the view that the satisfaction of the Director, Income Tax (Investigation) was reasonable and therefore administrative approval should be accorded. The view taken by the High Court, therefore, cannot be sustained.25. The possibility of manipulation of the records as found by the High Court also does not commend to us for acceptance. There is no basis, whatsoever, for coming to any such conclusion. Suspicion ought not to be the basis of any judicial order and this is where the High Court seems to have erred.26. The remaining findings of the High Court with regard to the satisfaction recorded by the authorities appear to be in the nature of an appellate exercise touching upon the sufficiency and adequacy of the reasons and the authenticity and acceptability of the information on which satisfaction had been reached by the authorities. Such an exercise is alien to the jurisdiction under Article 226 of the Constitution. ### Response: 1

Tusi and Ors Vs. Divisional Manager, National Insurance Company Ltd. and Ors

1. Leave granted.2. Heard Mr. Hitendra Nath Rath, learned Counsel for the Petitioner and Mr. Rohit K. Sinha, learned Counsel for the Respondent.3. The husband of the Appellant met with an accident and sustained injuries to which he ultimately succumbed. The wife, the minor child and the parents as claimants instituted M.A.C. Case No. 11/2011 before the learned Additional District Judge-cum-4th Motor Accidents Claim Tribunal, Angul (for short "the Tribunal") putting forth a claim for Rs. 15,00,000/- (Rs. fifteen lakhs).4. The Tribunal upon consideration of material brought on record awarded a sum of Rs. 13,97,000/- (Rs. thirteen lakhs and ninety seven thousand) along with interest at the rate of 8% per annum from the date of filing of the claim petition till its realization.5. On an appeal being preferred the High Court noted the amount determined by the Tribunal and opined that the same was in excess and reduced it to, Rs. 9,56,000/- (Rs. nine lakhs and fifty six thousand).6. On a perusal of the order passed by the High Court we find that no reason has been ascribed. In fact, it is an extremely cryptic order. In our considered opinion the learned Single Judge would have been well advised to ascribe some reasons if it was of the view that the amount deserved to be reduced. There has to be a valid and cogent reasons while passing of a judgment or order. When people in distress approach the Tribunal and the amount has been granted on appreciation of certain aspect, the appellate court has to appreciate the evidence and thereafter express any view. It cannot arbitrarily modify the quantum that makes the order totally unsustainable.7. It is submitted by Mr. Hitendra Nath Rath, learned Counsel for the Appellant that the deceased has left behind his wife, minor child and the parents and he was the sole bread winner and was Tyre Mistry in M/s. Tripure Coal Transport Private Ltd. (TCTPL), Bharatpur, MCL, Talcher and the Tribunal had determined the monthly income at Rs. 9000/- after deducting the one-fourth of the amount towards expenditure on himself and applied the multiplier of 17. To the aforesaid, it added the certain amount for loss of consortium and other benefits eventually which came to Rs. 13,97,000/- (Rs. thirteen lakhs and ninety seven thousand).8. In our considered opinion the amount that was determined by the Tribunal was just and reasonable and there was no justification on the part of the High Court to reduce the same.

1[ds]6. On a perusal of the order passed by the High Court we find that no reason has been ascribed. In fact, it is an extremely cryptic order. In our considered opinion the learned Single Judge would have been well advised to ascribe some reasons if it was of the view that the amount deserved to be reduced. There has to be a valid and cogent reasons while passing of a judgment or order. When people in distress approach the Tribunal and the amount has been granted on appreciation of certain aspect, the appellate court has to appreciate the evidence and thereafter express any view. It cannot arbitrarily modify the quantum that makes the order totally unsustainable8. In our considered opinion the amount that was determined by the Tribunal was just and reasonable and there was no justification on the part of the High Court to reduce the same.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: 1. Leave granted.2. Heard Mr. Hitendra Nath Rath, learned Counsel for the Petitioner and Mr. Rohit K. Sinha, learned Counsel for the Respondent.3. The husband of the Appellant met with an accident and sustained injuries to which he ultimately succumbed. The wife, the minor child and the parents as claimants instituted M.A.C. Case No. 11/2011 before the learned Additional District Judge-cum-4th Motor Accidents Claim Tribunal, Angul (for short "the Tribunal") putting forth a claim for Rs. 15,00,000/- (Rs. fifteen lakhs).4. The Tribunal upon consideration of material brought on record awarded a sum of Rs. 13,97,000/- (Rs. thirteen lakhs and ninety seven thousand) along with interest at the rate of 8% per annum from the date of filing of the claim petition till its realization.5. On an appeal being preferred the High Court noted the amount determined by the Tribunal and opined that the same was in excess and reduced it to, Rs. 9,56,000/- (Rs. nine lakhs and fifty six thousand).6. On a perusal of the order passed by the High Court we find that no reason has been ascribed. In fact, it is an extremely cryptic order. In our considered opinion the learned Single Judge would have been well advised to ascribe some reasons if it was of the view that the amount deserved to be reduced. There has to be a valid and cogent reasons while passing of a judgment or order. When people in distress approach the Tribunal and the amount has been granted on appreciation of certain aspect, the appellate court has to appreciate the evidence and thereafter express any view. It cannot arbitrarily modify the quantum that makes the order totally unsustainable.7. It is submitted by Mr. Hitendra Nath Rath, learned Counsel for the Appellant that the deceased has left behind his wife, minor child and the parents and he was the sole bread winner and was Tyre Mistry in M/s. Tripure Coal Transport Private Ltd. (TCTPL), Bharatpur, MCL, Talcher and the Tribunal had determined the monthly income at Rs. 9000/- after deducting the one-fourth of the amount towards expenditure on himself and applied the multiplier of 17. To the aforesaid, it added the certain amount for loss of consortium and other benefits eventually which came to Rs. 13,97,000/- (Rs. thirteen lakhs and ninety seven thousand).8. In our considered opinion the amount that was determined by the Tribunal was just and reasonable and there was no justification on the part of the High Court to reduce the same. ### Response: 1

Commissioner of Income Tax, Kerala Vs. N.A. Mohamed Haneef

HEGDE, J.1. This is an appeal by special leave from the judgment of the High Court of Kerala in Income-tax Referred Case No. 11 of 1967 on its file The facts of the case lie within a narrow compass. The assessee carried on business as tin fabricator and oil miller. For the previous year ending on December 31, 1959, he returned an income of Rs. 52, 280. One Mohideen Kunju was managing the affairs of the assessee. The assessee had obtained key loans and over-drafts from the Canara Bank Ltd. As per the balance-sheets of the assessee as on December 31, 1959, the total amount due to the Canara Bank Ltd. was Rs. 2, 78, 015.72. According to the information supplied by the Canara Bank Ltd. in response to the enquiry made by the Income-tax Officer, the amount due to that bank from the assessee was only Rs. 2, 40, 792.29 as on December 31, 1959. There was thus a difference of Rs. 31, 858.78. The Income-tax Officer called upon the assessee to explain that discrepancy. The assessees representative was not able to reconcile the discrepancy and the assessee wrote to the Income-tax Officer on March 11, 1964, to the effect that Mohideen Kunju who was managing his affairs was in charge of his business ; he made the borrowings ; he was maintaining the accounts ; relationship between himself and Mohideen Kunju had become strained ; hence he is unable to explain the discrepancy. In view of that explanation the Income-tax Officer brought to tax Rs. 31, 858.78 as income from undisclosed sources. About that assessment, there is no dispute. After bringing to tax the said amount, the Income-tax Officer proceeded to levy penalty on the assessee on the ground that he had deliberately submitted a wrong return. The Tribunal accepted the case of the department and upheld the penalty imposed on the assessee. But, on a reference, the High Court set aside the order of the Tribunal. In view of the decision of this court in Commissioner of Income-tax v. Anwar Ali, the decision of the High Court on the facts of the case must be held to be correct.2. There is no basis for coming to a firm conclusion that the assessee deliberately supplied wrong particulars

0[ds]In view of the decision of this court in Commissioner ofv. Anwar Ali, the decision of the High Court on the facts of the case must be held to be correct.There is no basis for coming to a firm conclusion that the assessee deliberately supplied wrong particulars

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: HEGDE, J.1. This is an appeal by special leave from the judgment of the High Court of Kerala in Income-tax Referred Case No. 11 of 1967 on its file The facts of the case lie within a narrow compass. The assessee carried on business as tin fabricator and oil miller. For the previous year ending on December 31, 1959, he returned an income of Rs. 52, 280. One Mohideen Kunju was managing the affairs of the assessee. The assessee had obtained key loans and over-drafts from the Canara Bank Ltd. As per the balance-sheets of the assessee as on December 31, 1959, the total amount due to the Canara Bank Ltd. was Rs. 2, 78, 015.72. According to the information supplied by the Canara Bank Ltd. in response to the enquiry made by the Income-tax Officer, the amount due to that bank from the assessee was only Rs. 2, 40, 792.29 as on December 31, 1959. There was thus a difference of Rs. 31, 858.78. The Income-tax Officer called upon the assessee to explain that discrepancy. The assessees representative was not able to reconcile the discrepancy and the assessee wrote to the Income-tax Officer on March 11, 1964, to the effect that Mohideen Kunju who was managing his affairs was in charge of his business ; he made the borrowings ; he was maintaining the accounts ; relationship between himself and Mohideen Kunju had become strained ; hence he is unable to explain the discrepancy. In view of that explanation the Income-tax Officer brought to tax Rs. 31, 858.78 as income from undisclosed sources. About that assessment, there is no dispute. After bringing to tax the said amount, the Income-tax Officer proceeded to levy penalty on the assessee on the ground that he had deliberately submitted a wrong return. The Tribunal accepted the case of the department and upheld the penalty imposed on the assessee. But, on a reference, the High Court set aside the order of the Tribunal. In view of the decision of this court in Commissioner of Income-tax v. Anwar Ali, the decision of the High Court on the facts of the case must be held to be correct.2. There is no basis for coming to a firm conclusion that the assessee deliberately supplied wrong particulars ### Response: 0

State of Karnataka and Ors Vs. Krishna Kumar and Ors

appointed is less, the candidate has to teach Science and Mathematics subjects for 6th and 7th standards, to make up the workload. 6. The learned senior Counsel has further pointed out that since the hybrid category of higher primary schools was created, the matter was strictly not governed by the provisions of the Act of 2007 and the Rules framed thereunder and moreover, in order to implement the Sarva Shiksha Abhiyan, an independent scheme containing the provisions for mutual transfer in Clause 13 of Memo dated 7.4.2010 had been carved out, which is based upon the volition of an incumbent in case he opt for mutual transfer, then it is permissible for him to avail the aforesaid facility. The other service conditions were not to be adversely affected. The salary, as well as the seniority, are not to be adversely affected by mutual transfers in case an incumbent avails the provisions of Clause 13. Office Memorandum dated 07.04.2010 has been issued by the State Government taking care of the exigency of the SSA Scheme, particularly when such higher primary schools were not strictly governed by the provisions of the Act merely on the basis of analogy, the provisions of Clause 13 could not have been struck down by the Tribunal and the same has been illegally affirmed by the High Court. 7. The learned Counsel appearing on behalf of the Respondents has contended that considering the findings recorded by the Tribunal in Paragraphs 17 and 18 of the order, the High Court has found justification with the same and rightly ordered that the transfer of such teachers could have been ordered in accordance with the provisions of the Act and the Rules framed thereunder, and not as per the Office Memorandum, Clause 13 of which has been rightly struck down by the Tribunal. Thus, no case for interference in the order of the Tribunal, as affirmed by the High Court, is made out. The matter of transfer is governed by the provisions of the Act of 2007 and the Rules framed thereunder. It was not permissible to the State Government to issue memo dated 7.4.2010, same cannot hold the field in view of the statutory provisions. 8. After hearing the learned Counsel for the parties, we are of the considered opinion that the SSA Scheme is an independent scheme and considering its imperative, certain primary schools were upgraded to and styled as higher primary schools. The Class 8 was also added in such schools. The hybrid category of primary schools was created to make the education broad-based in rural areas. Considering the aforesaid scheme, the matter was strictly not governed by the provisions of the Act of 2007 and the Rules framed thereunder with respect to higher primary schools. The SSA Scheme was to deal with the primary objective of broad basing education. Clause 13 of the Office Memorandum deals with the mutual transfer. The same is extracted herein below: 13 MUTUAL TRANSFERS: a) If the pre-confirmation service period is declared as satisfactory, mutual transfer requests of such Teachers will be considered. While doing mutual transfer, it should be given effect only when cadre and subjects tally. b) All the mutual transfer at District, Division, and State level to be done at a time. c) Teachers who have computerized information through internet seeking mutual transfer has to be personally present at the Office of the B.E.O. concerned, for the verification of their service details. But for No. 1. Teachers transfer, both of them have to be present before the Transfer Authority for counseling. d) Primary and T.G.T. Teachers appointed under SARVA SHIKSHANA ABHIYAN shall be transferred to Teachers post of the same subject and appointed under the same project. e) S.S.A. and T.G.T. Teachers working under SARVA SHIKSHAN ABHIYAN, YOJANE, submit an application for mutual transfer with Teachers of state zone with the same basic pay or less may be considered for mutual transfer. f) If S.S.A. and T.G.T. Teachers submit an application for transfer to vacant posts it may be considered. 9. Even assuming that the provisions of the Act of 2007 and Rules thereunder are applicable, since there is no provision to the contrary therein, the provision in question providing for mutual transfer could have been carved out by issuing executive instructions contained in Memo dated 7.4.2010. No such provision in the Act and Rules has been pointed out with respect to mutual transfers. Particularly when the provisions of mutual transfer which is made in Office Memorandum of 2010, depends on the volition of an employee, there is no compulsion, it cannot be said to be arbitrary. It is ordered only when two incumbents opt for mutual transfer. Thus, Office Memorandum dated 07.04.2010 could not be said to be in violation of the provisions of the Act of 2007 and rules. The Tribunal and the High Court both have misdirected themselves in this regard. 10. In our considered opinion, the provisions of mutual transfer does not militate against the provisions of the Act and Rules framed thereunder and particularly, when it was with respect to SSA Scheme, it was open to making certain provisions by way of Office Memorandum dated 07.04.2010. Mere reference to the Act and the Rules framed in the same does not mean that the provisions have been adopted for all the purposes. In the same Memo the provisions have been carved out for mutual transfer. In the absence of statutory provision, the executive instructions would have force of law, more so when the SSA is an independent scheme. The SSA Scheme is funded by the Central Government and considering its exigency, independent provisions could have been carved out which is not to be found in the Act of 2007 and the Rules framed thereunder. 11. Thus, we find that there is no violation of the provisions of the Act and the Rules by Clause 13 of Office Memorandum dated 07.04.2010. The Tribunal and the High Court have erred in law in quashing the same.

1[ds]8. After hearing the learned Counsel for the parties, we are of the considered opinion that the SSA Scheme is an independent scheme and considering its imperative, certain primary schools were upgraded to and styled as higher primary schools. The Class 8 was also added in such schools. The hybrid category of primary schools was created to make the education broad-based in rural areas. Considering the aforesaid scheme, the matter was strictly not governed by the provisions of the Act of 2007 and the Rules framed thereunder with respect to higher primary schools. The SSA Scheme was to deal with the primary objective of broad basing education. Clause 13 of the Office Memorandum deals with the mutual transfer9. Even assuming that the provisions of the Act of 2007 and Rules thereunder are applicable, since there is no provision to the contrary therein, the provision in question providing for mutual transfer could have been carved out by issuing executive instructions contained in Memo dated 7.4.2010. No such provision in the Act and Rules has been pointed out with respect to mutual transfers. Particularly when the provisions of mutual transfer which is made in Office Memorandum of 2010, depends on the volition of an employee, there is no compulsion, it cannot be said to be arbitrary. It is ordered only when two incumbents opt for mutual transfer. Thus, Office Memorandum dated 07.04.2010 could not be said to be in violation of the provisions of the Act of 2007 and rules. The Tribunal and the High Court both have misdirected themselves in this regard10. In our considered opinion, the provisions of mutual transfer does not militate against the provisions of the Act and Rules framed thereunder and particularly, when it was with respect to SSA Scheme, it was open to making certain provisions by way of Office Memorandum dated 07.04.2010. Mere reference to the Act and the Rules framed in the same does not mean that the provisions have been adopted for all the purposes. In the same Memo the provisions have been carved out for mutual transfer. In the absence of statutory provision, the executive instructions would have force of law, more so when the SSA is an independent scheme. The SSA Scheme is funded by the Central Government and considering its exigency, independent provisions could have been carved out which is not to be found in the Act of 2007 and the Rules framed thereunder11. Thus, we find that there is no violation of the provisions of the Act and the Rules by Clause 13 of Office Memorandum dated 07.04.2010. The Tribunal and the High Court have erred in law in quashing the same.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: appointed is less, the candidate has to teach Science and Mathematics subjects for 6th and 7th standards, to make up the workload. 6. The learned senior Counsel has further pointed out that since the hybrid category of higher primary schools was created, the matter was strictly not governed by the provisions of the Act of 2007 and the Rules framed thereunder and moreover, in order to implement the Sarva Shiksha Abhiyan, an independent scheme containing the provisions for mutual transfer in Clause 13 of Memo dated 7.4.2010 had been carved out, which is based upon the volition of an incumbent in case he opt for mutual transfer, then it is permissible for him to avail the aforesaid facility. The other service conditions were not to be adversely affected. The salary, as well as the seniority, are not to be adversely affected by mutual transfers in case an incumbent avails the provisions of Clause 13. Office Memorandum dated 07.04.2010 has been issued by the State Government taking care of the exigency of the SSA Scheme, particularly when such higher primary schools were not strictly governed by the provisions of the Act merely on the basis of analogy, the provisions of Clause 13 could not have been struck down by the Tribunal and the same has been illegally affirmed by the High Court. 7. The learned Counsel appearing on behalf of the Respondents has contended that considering the findings recorded by the Tribunal in Paragraphs 17 and 18 of the order, the High Court has found justification with the same and rightly ordered that the transfer of such teachers could have been ordered in accordance with the provisions of the Act and the Rules framed thereunder, and not as per the Office Memorandum, Clause 13 of which has been rightly struck down by the Tribunal. Thus, no case for interference in the order of the Tribunal, as affirmed by the High Court, is made out. The matter of transfer is governed by the provisions of the Act of 2007 and the Rules framed thereunder. It was not permissible to the State Government to issue memo dated 7.4.2010, same cannot hold the field in view of the statutory provisions. 8. After hearing the learned Counsel for the parties, we are of the considered opinion that the SSA Scheme is an independent scheme and considering its imperative, certain primary schools were upgraded to and styled as higher primary schools. The Class 8 was also added in such schools. The hybrid category of primary schools was created to make the education broad-based in rural areas. Considering the aforesaid scheme, the matter was strictly not governed by the provisions of the Act of 2007 and the Rules framed thereunder with respect to higher primary schools. The SSA Scheme was to deal with the primary objective of broad basing education. Clause 13 of the Office Memorandum deals with the mutual transfer. The same is extracted herein below: 13 MUTUAL TRANSFERS: a) If the pre-confirmation service period is declared as satisfactory, mutual transfer requests of such Teachers will be considered. While doing mutual transfer, it should be given effect only when cadre and subjects tally. b) All the mutual transfer at District, Division, and State level to be done at a time. c) Teachers who have computerized information through internet seeking mutual transfer has to be personally present at the Office of the B.E.O. concerned, for the verification of their service details. But for No. 1. Teachers transfer, both of them have to be present before the Transfer Authority for counseling. d) Primary and T.G.T. Teachers appointed under SARVA SHIKSHANA ABHIYAN shall be transferred to Teachers post of the same subject and appointed under the same project. e) S.S.A. and T.G.T. Teachers working under SARVA SHIKSHAN ABHIYAN, YOJANE, submit an application for mutual transfer with Teachers of state zone with the same basic pay or less may be considered for mutual transfer. f) If S.S.A. and T.G.T. Teachers submit an application for transfer to vacant posts it may be considered. 9. Even assuming that the provisions of the Act of 2007 and Rules thereunder are applicable, since there is no provision to the contrary therein, the provision in question providing for mutual transfer could have been carved out by issuing executive instructions contained in Memo dated 7.4.2010. No such provision in the Act and Rules has been pointed out with respect to mutual transfers. Particularly when the provisions of mutual transfer which is made in Office Memorandum of 2010, depends on the volition of an employee, there is no compulsion, it cannot be said to be arbitrary. It is ordered only when two incumbents opt for mutual transfer. Thus, Office Memorandum dated 07.04.2010 could not be said to be in violation of the provisions of the Act of 2007 and rules. The Tribunal and the High Court both have misdirected themselves in this regard. 10. In our considered opinion, the provisions of mutual transfer does not militate against the provisions of the Act and Rules framed thereunder and particularly, when it was with respect to SSA Scheme, it was open to making certain provisions by way of Office Memorandum dated 07.04.2010. Mere reference to the Act and the Rules framed in the same does not mean that the provisions have been adopted for all the purposes. In the same Memo the provisions have been carved out for mutual transfer. In the absence of statutory provision, the executive instructions would have force of law, more so when the SSA is an independent scheme. The SSA Scheme is funded by the Central Government and considering its exigency, independent provisions could have been carved out which is not to be found in the Act of 2007 and the Rules framed thereunder. 11. Thus, we find that there is no violation of the provisions of the Act and the Rules by Clause 13 of Office Memorandum dated 07.04.2010. The Tribunal and the High Court have erred in law in quashing the same. ### Response: 1

M/S Kabaini Minerals Pvt. Ltd. Vs. State Of Orissa

grant of lease beyond fifty hectares before commencement of production on confirmation received from the financing institution or the Deputy Director of Mines or the Mining Officer. (iii) a person who is a raiyat of the land;(iv) any other category;Provided that in the case of an applicant under category (iii) or (iv) the lease may be granted by the competent authority on being satisfied that the applicant shall be able to invest or arrange sufficient funds to carry on his quarrying activity in a proper, skilful and workmen- like manner.(7) No quarry lease/permit/auction for road metals including ballas and ordinary boulders shall be granted within the area for which a lease has been granted for quarrying rocks used for decorative, industrial and export purposes including dimension stones." 6. On a reading of the language of Rule 6 it is clear that three types of precedence/priority are embodied in the provision. First is a normal case where the application which has been received earlier is given precedence over the latter application. An exception is carved out in sub-rule (5-a) to the effect that if the State Government is of the opinion that in the interest of mineral department it is necessary to do so it may for reasons to be recorded in writing grant quarry lease in preference to the applications made earlier. Sub-rule (6) deals with another category of priority. In the present case Sub-rule (6) does not have much relevance. Sub-rule (6-a) carves out a category of applicants who have applied for minor minerals of the enumerated categories i.e. all types of rocks used for decorative, industrial or export purpose including dimension stones. The present case relates to priority as provided in the said Sub-rule. It provides for priority to a person who has already set up an industry for processing of such minor minerals. From the documents placed on record more particularly the letter of the Corporation dated 23.5.2003 it is clear that M/s Valley Granites (P) Ltd. was operating a running unit. The letter in clear terms states that possession of the unit was handed over to respondent No.4 and the unit is being run by the said Company. 7. Learned counsel for appellant No.1 submitted that in fact the unit taken over by respondent No.4 was not functional and it had applied for permanent registration certificate which was under process as is evident from the letter of the District Industrial Centre, Mayurbhanj. 8. The question really is whether the unit had been set up and not whether it was running. Undisputedly, prior to its take over by respondent No.4 the industry had been set up and used for processing of decorative stones. Though, it was contended by learned counsel for appellants that by the time the applications were made the respondent No.4 had not taken over the unit yet that really is of consequence. 9. Appellant No.1 had also not set up an industry. It had merely entered into an agreement for purchasing the land and placed orders for the machineries. The expression set up has a definite connotation of its own. 10. The expression "setting up" means, as is defined in the Oxford English Dictionary, to place on foot or to establish, and is contradistinction to commence. The distinction is this that when a business is established and is ready to commence business, and then it can be said of that business that it is set up. But before it is ready to commence business it is not set up. (See Commissioner of Wealth Tax, Madras v. Ramaraju Surgical Cotton Mills Ltd. (1967 (1) SCR 761 ). 11. In the said case, it was further held that the word "set up" is equivalent to the word established but operations for establishment cannot be equated with the establishment of the unit itself of its setting up.12. The question of priority is to be adjudged only at the time of consideration of the applications. Undisputedly, respondent No.4 had taken over the unit on the date the applications were considered. Therefore, the stand of the appellants that at the time the applications were made by respondent No.4 it had not set up an industry is really without substance. As was observed by this Court in Indian Metals & Ferro Alloys Ltd. v. Union of India and Ors. (AIR 1991 SC 818 ), since the applicant had already set up an industry for processing minor minerals on the date of consideration of the application its claim for priority was to be judged on the basis of the factual position on the date of consideration of the applications. 13. It was submitted by learned counsel for the appellants that no reasons were indicated by the authorities as to why the respondent No.4 was to have priority over the appellants. Reference in this context is made to sub-rule (5-a) of Rule 6. 14. It is to be noted that in a case covered by sub-rule (5-a) the State Government has to objectively assess as to whether in the interest of mineral development preference is given to a person though he made the application later. In such a case the Governments opinion that in the interest of mineral development it is necessary to do so obviously has an objective angle involved and, therefore, there is necessity to record reasons. So far as Sub-rule (6-a) is concerned, there is no requirement indicated to record reasons. The fact that priority is given to a person who has already set up an industry is itself the reason for giving priority. Therefore, the enumeration of the order of priority is itself the reason inbuilt in the process of consideration of the applications. That itself is the foundation and forms the rational for the priority given. It is not the case of the appellant that the order of priority is irrational. That being so, stand of learned counsel for the appellants that reasons were not recorded and, therefore, the action is vitiated is really of no consequence.

0[ds]The present case relates to priority as provided in the said Sub-rule. It provides for priority to a person who has already set up an industry for processing of such minor minerals. From the documents placed on record more particularly the letter of the Corporation dated 23.5.2003 it is clear that M/s Valley Granites (P) Ltd. was operating a running unit. The letter in clear terms states that possession of the unit was handed over to respondent No.4 and the unit is being run by the said Company.Appellant No.1 had also not set up an industry. It had merely entered into an agreement for purchasing the land and placed orders for the machineries. The expression set up has a definite connotation of its own.In the said case, it was further held that the word "set up" is equivalent to the word established but operations for establishment cannot be equated with the establishment of the unit itself of its setting up.12. The question of priority is to be adjudged only at the time of consideration of the applications. Undisputedly, respondent No.4 had taken over the unit on the date the applications were considered. Therefore, the stand of the appellants that at the time the applications were made by respondent No.4 it had not set up an industry is really without substance. As was observed by this Court in Indian Metals & Ferro Alloys Ltd. v. Union of India and Ors. (AIR 1991 SC 818 ), since the applicant had already set up an industry for processing minor minerals on the date of consideration of the application its claim for priority was to be judged on the basis of the factual position on the date of consideration of the applications.It is to be noted that in a case covered by sub-rule (5-a) the State Government has to objectively assess as to whether in the interest of mineral development preference is given to a person though he made the application later. In such a case the Governments opinion that in the interest of mineral development it is necessary to do so obviously has an objective angle involved and, therefore, there is necessity to record reasons. So far as Sub-rule (6-a) is concerned, there is no requirement indicated to record reasons. The fact that priority is given to a person who has already set up an industry is itself the reason for giving priority. Therefore, the enumeration of the order of priority is itself the reason inbuilt in the process of consideration of the applications. That itself is the foundation and forms the rational for the priority given. It is not the case of the appellant that the order of priority is irrational. That being so, stand of learned counsel for the appellants that reasons were not recorded and, therefore, the action is vitiated is really of no. On a reading of the language of Rule 6 it is clear that three types of precedence/priority are embodied in the provision. First is a normal case where the application which has been received earlier is given precedence over the latter application. An exception is carved out in sub-rule (5-a) to the effect that if the State Government is of the opinion that in the interest of mineral department it is necessary to do so it may for reasons to be recorded in writing grant quarry lease in preference to the applications made earlier. Sub-rule (6) deals with another category of priority. In the present case Sub-rule (6) does not have much relevance. Sub-rule (6-a) carves out a category of applicants who have applied for minor minerals of the enumerated categories i.e. all types of rocks used for decorative, industrial or export purpose including dimension stones.The present case relates to priority as provided in the said Sub-rule. It provides for priority to a person who has already set up an industry for processing of such minor minerals. From the documents placed on record more particularly the letter of the Corporation dated 23.5.2003 it is clear that M/s Valley Granites (P) Ltd. was operating a running unit. The letter in clear terms states that possession of the unit was handed over to respondent No.4 and the unit is being run by the said Company.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: grant of lease beyond fifty hectares before commencement of production on confirmation received from the financing institution or the Deputy Director of Mines or the Mining Officer. (iii) a person who is a raiyat of the land;(iv) any other category;Provided that in the case of an applicant under category (iii) or (iv) the lease may be granted by the competent authority on being satisfied that the applicant shall be able to invest or arrange sufficient funds to carry on his quarrying activity in a proper, skilful and workmen- like manner.(7) No quarry lease/permit/auction for road metals including ballas and ordinary boulders shall be granted within the area for which a lease has been granted for quarrying rocks used for decorative, industrial and export purposes including dimension stones." 6. On a reading of the language of Rule 6 it is clear that three types of precedence/priority are embodied in the provision. First is a normal case where the application which has been received earlier is given precedence over the latter application. An exception is carved out in sub-rule (5-a) to the effect that if the State Government is of the opinion that in the interest of mineral department it is necessary to do so it may for reasons to be recorded in writing grant quarry lease in preference to the applications made earlier. Sub-rule (6) deals with another category of priority. In the present case Sub-rule (6) does not have much relevance. Sub-rule (6-a) carves out a category of applicants who have applied for minor minerals of the enumerated categories i.e. all types of rocks used for decorative, industrial or export purpose including dimension stones. The present case relates to priority as provided in the said Sub-rule. It provides for priority to a person who has already set up an industry for processing of such minor minerals. From the documents placed on record more particularly the letter of the Corporation dated 23.5.2003 it is clear that M/s Valley Granites (P) Ltd. was operating a running unit. The letter in clear terms states that possession of the unit was handed over to respondent No.4 and the unit is being run by the said Company. 7. Learned counsel for appellant No.1 submitted that in fact the unit taken over by respondent No.4 was not functional and it had applied for permanent registration certificate which was under process as is evident from the letter of the District Industrial Centre, Mayurbhanj. 8. The question really is whether the unit had been set up and not whether it was running. Undisputedly, prior to its take over by respondent No.4 the industry had been set up and used for processing of decorative stones. Though, it was contended by learned counsel for appellants that by the time the applications were made the respondent No.4 had not taken over the unit yet that really is of consequence. 9. Appellant No.1 had also not set up an industry. It had merely entered into an agreement for purchasing the land and placed orders for the machineries. The expression set up has a definite connotation of its own. 10. The expression "setting up" means, as is defined in the Oxford English Dictionary, to place on foot or to establish, and is contradistinction to commence. The distinction is this that when a business is established and is ready to commence business, and then it can be said of that business that it is set up. But before it is ready to commence business it is not set up. (See Commissioner of Wealth Tax, Madras v. Ramaraju Surgical Cotton Mills Ltd. (1967 (1) SCR 761 ). 11. In the said case, it was further held that the word "set up" is equivalent to the word established but operations for establishment cannot be equated with the establishment of the unit itself of its setting up.12. The question of priority is to be adjudged only at the time of consideration of the applications. Undisputedly, respondent No.4 had taken over the unit on the date the applications were considered. Therefore, the stand of the appellants that at the time the applications were made by respondent No.4 it had not set up an industry is really without substance. As was observed by this Court in Indian Metals & Ferro Alloys Ltd. v. Union of India and Ors. (AIR 1991 SC 818 ), since the applicant had already set up an industry for processing minor minerals on the date of consideration of the application its claim for priority was to be judged on the basis of the factual position on the date of consideration of the applications. 13. It was submitted by learned counsel for the appellants that no reasons were indicated by the authorities as to why the respondent No.4 was to have priority over the appellants. Reference in this context is made to sub-rule (5-a) of Rule 6. 14. It is to be noted that in a case covered by sub-rule (5-a) the State Government has to objectively assess as to whether in the interest of mineral development preference is given to a person though he made the application later. In such a case the Governments opinion that in the interest of mineral development it is necessary to do so obviously has an objective angle involved and, therefore, there is necessity to record reasons. So far as Sub-rule (6-a) is concerned, there is no requirement indicated to record reasons. The fact that priority is given to a person who has already set up an industry is itself the reason for giving priority. Therefore, the enumeration of the order of priority is itself the reason inbuilt in the process of consideration of the applications. That itself is the foundation and forms the rational for the priority given. It is not the case of the appellant that the order of priority is irrational. That being so, stand of learned counsel for the appellants that reasons were not recorded and, therefore, the action is vitiated is really of no consequence. ### Response: 0

A. Vishwanath Rao Vs. State of Mysore & Others

contention of the appellants that in the draft scheme the maximum number of vehicles and daily services was specified and not the minimum, but in the final scheme approved under Section 68-D of the Motor Vehicles Act there was specification of the minimum number of vehicles and daily services in respect of the route in question. The approved scheme stated that the maximum number of vehicles was 18 and the minimum was 1. It was also stated that the maximum number of daily services was 10 and the minimum was 3. It was maintained on behalf of the appellants that by prescribing the maximum and minimum number of vehicles and daily services and by permitting such a great disparity between the maximum and minimum number of vehicles and daily services there was a virtual modification of the draft scheme and the procedure prescribed by S 68-E of the Motor Vehicles Act should have been followed. In our opinion, there is no justification for this argument. It is true that in 13 H. Aswathanarayan Singh v. State of Mysore. (1966 1 SCR 87 = (AIR 1965 SC 1848 ),. it was pointed out by this Court that is the proportion which the minimum bears to the maximum is so great. and the gap between the two. is so wide as to make the prescription of the maximum and the minimum amount to a fraud on Sections 68-C and 68-E. the. scheme will stand vitiated.But at the same time it was explained that it was not possible to lay down specifically at what stage the fixing of minimum and maximum would turn into fraud; but it is only when the gap between the minimum and maximum is so great that it amounts to fraud on the Act that it will be open to a court to hold that the scheme is not in compliance with Section 68-C and is hit by Section 68-E. The gap between the minimum and maximum would depend upon a number of factors, particularly on the variation in the demand for transport at different seasons of the year.At page 97 of the Report, Wanchoo, J., as he then was, speaking for the Court, observed as follows :"There is no doubt that though fixing of minimum and maximum number of vehicles and trips with respect to each reuse is permissible under Section 68-C and would not be hit by Section 68-E. the proportion between the minimum and maximum should not be so great as to make the fixing of minimum and maximum a fraud on Sections 68-C and 68-E of the Act. It is not possible to lay down specifically at what stage the fixing of minimum and maximum would turn into fraud: but it is only when the gap between the minimum and maximum is so great that it amounts to fraud on the Act that it will be open to a court to hold that the scheme is not in compliance with Section 68-C and is hit by Section 68-E. The gap between the minimum and maximum would depend upon a number of factors, particularly on the variation in the demand for transport at different seasons of the year. Even so if the approved scheme were to fix minimum and maximum with very wide disparity between the two, it may be possible for the court to hold after examining the facts of the case that such fixation is not in accordance with Sec. 68-C and is a fraud on Section 88-E. But, with respect, it seems to us that a variation in minimum and maximum from 6 to 12 or 5 to 9 can hardly be of such an order as to amount to fraud on the Act. The observations with respect to fixing of minimum and maximum number of vehicles and trips in the scheme made in Rowjees case, (1964) 6 SCR 330 = (AIR l964 SC 962) must therefore be treated as obiter as in that case they did not require determination. In the present case the gap is not of such a wide nature." In the present case, the distance between Yadgir and Narayanapet is a short distance of twenty-eight miles and the order of the Chief Minister shows that there was seasonal variation of traffic density and during marriage and other seasons it was necessary to operate extra services. There was also variation on account of auspicious and inauspicious days. The scheme had to provide for operating extra services during Jathras, Car festivals and other occasions like Dasara fair at Mysore, Ulvi fair at Ulvi, Shivrathri fair at Gokarn etc.It was felt by the Chief Minister that the scheme will have to be sufficiently flexible to enable the State Transport Undertaking to adjust its services and vehicles to cater to Shandy or weekly Bazar traffic to various places. In the context of the particular facts of this case we are of opinion that the gap between the fixation of minimum and the maximum number of vehicles and of daily services is not so great as to amount to a fraud on Sections 68-C and 68-E of the Motor Vehicles Act. We accordingly reject the argument of the appellants on this aspect of the case. 6. Lastly, it was contended that the approved scheme violated Article 14 of the Constitution as there was a complete exclusion of the private operators on the portion of the route located in the Mysore State while permitting those who are plying their vehicles on the portion of the route lying in Andhra Pradesh State. We do not consider there is any substance in this argument. It is manifest that operators plying in the State of Mysore and those plying in the State of Andhra Pradesh constitute two different classes of persons and therefore no question of discrimination can arise if there is complete exclusion of the operators within the State of Mysore and if there is relaxation with regard to those operating in the State of Andhra Pradesh.

0[ds]4. On behalf of the appellants it was contended, in the first place, that the provisions of Section 20 ofthe Road Transport Corporations Act, 1950 were not complied with and the final scheme published by respondent No 1 was ultra vires.We are unable to accept this argument as correct. It is not necessary to examine, in this case, whether there is any inconsistency between the provisions of Section 20 ofthe Road Transport Corporations Act, 1950 and the proviso to Section 68-D of the Motor Vehicles Act. It is also not necessary to express any opinion as to whether the requirements of Section 20 of the Road Transport Corporations Act should be complied with even in the case of a scheme relating to inter-State route to which the Central Government has accorded approval, under the proviso to Section 68-D of the Motor Vehicles Act. We shall assume in favour of the appellants that the requirements of Section 20 of the Road Transport Corporations Act should also be followed in a case where the Central Government has given sanction under Section 68-D of the Motor Vehicles Act. Even upon that assumption we hold that there has been sufficient compliance with the requirements of Section 20 of the Road Transport Corporations Act in the present case. It is not disputed that the concurrence of the State of Andhra Pradesh was secured for the final scheme and the Government of the State of Mysore had also accorded its approval to it. In these circumstances the omission of respondent No. 1 to make the scheme in the precise manner in which Section 20 of the Road Transport Corporations Act directs the preparation of the scheme is a mere irregularity which cannot lead to the nullification of the final scheme publisher on July 16, 19646. Lastly, it was contended that the approved scheme violated Article 14 of the Constitution as there was a complete exclusion of the private operators on the portion of the route located in the Mysore State while permitting those who are plying their vehicles on the portion of the route lying in Andhra Pradesh State. We do not consider there is any substance in this argument. It is manifest that operators plying in the State of Mysore and those plying in the State of Andhra Pradesh constitute two different classes of persons and therefore no question of discrimination can arise if there is complete exclusion of the operators within the State of Mysore and if there is relaxation with regard to those operating in the State of Andhra Pradesh.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: contention of the appellants that in the draft scheme the maximum number of vehicles and daily services was specified and not the minimum, but in the final scheme approved under Section 68-D of the Motor Vehicles Act there was specification of the minimum number of vehicles and daily services in respect of the route in question. The approved scheme stated that the maximum number of vehicles was 18 and the minimum was 1. It was also stated that the maximum number of daily services was 10 and the minimum was 3. It was maintained on behalf of the appellants that by prescribing the maximum and minimum number of vehicles and daily services and by permitting such a great disparity between the maximum and minimum number of vehicles and daily services there was a virtual modification of the draft scheme and the procedure prescribed by S 68-E of the Motor Vehicles Act should have been followed. In our opinion, there is no justification for this argument. It is true that in 13 H. Aswathanarayan Singh v. State of Mysore. (1966 1 SCR 87 = (AIR 1965 SC 1848 ),. it was pointed out by this Court that is the proportion which the minimum bears to the maximum is so great. and the gap between the two. is so wide as to make the prescription of the maximum and the minimum amount to a fraud on Sections 68-C and 68-E. the. scheme will stand vitiated.But at the same time it was explained that it was not possible to lay down specifically at what stage the fixing of minimum and maximum would turn into fraud; but it is only when the gap between the minimum and maximum is so great that it amounts to fraud on the Act that it will be open to a court to hold that the scheme is not in compliance with Section 68-C and is hit by Section 68-E. The gap between the minimum and maximum would depend upon a number of factors, particularly on the variation in the demand for transport at different seasons of the year.At page 97 of the Report, Wanchoo, J., as he then was, speaking for the Court, observed as follows :"There is no doubt that though fixing of minimum and maximum number of vehicles and trips with respect to each reuse is permissible under Section 68-C and would not be hit by Section 68-E. the proportion between the minimum and maximum should not be so great as to make the fixing of minimum and maximum a fraud on Sections 68-C and 68-E of the Act. It is not possible to lay down specifically at what stage the fixing of minimum and maximum would turn into fraud: but it is only when the gap between the minimum and maximum is so great that it amounts to fraud on the Act that it will be open to a court to hold that the scheme is not in compliance with Section 68-C and is hit by Section 68-E. The gap between the minimum and maximum would depend upon a number of factors, particularly on the variation in the demand for transport at different seasons of the year. Even so if the approved scheme were to fix minimum and maximum with very wide disparity between the two, it may be possible for the court to hold after examining the facts of the case that such fixation is not in accordance with Sec. 68-C and is a fraud on Section 88-E. But, with respect, it seems to us that a variation in minimum and maximum from 6 to 12 or 5 to 9 can hardly be of such an order as to amount to fraud on the Act. The observations with respect to fixing of minimum and maximum number of vehicles and trips in the scheme made in Rowjees case, (1964) 6 SCR 330 = (AIR l964 SC 962) must therefore be treated as obiter as in that case they did not require determination. In the present case the gap is not of such a wide nature." In the present case, the distance between Yadgir and Narayanapet is a short distance of twenty-eight miles and the order of the Chief Minister shows that there was seasonal variation of traffic density and during marriage and other seasons it was necessary to operate extra services. There was also variation on account of auspicious and inauspicious days. The scheme had to provide for operating extra services during Jathras, Car festivals and other occasions like Dasara fair at Mysore, Ulvi fair at Ulvi, Shivrathri fair at Gokarn etc.It was felt by the Chief Minister that the scheme will have to be sufficiently flexible to enable the State Transport Undertaking to adjust its services and vehicles to cater to Shandy or weekly Bazar traffic to various places. In the context of the particular facts of this case we are of opinion that the gap between the fixation of minimum and the maximum number of vehicles and of daily services is not so great as to amount to a fraud on Sections 68-C and 68-E of the Motor Vehicles Act. We accordingly reject the argument of the appellants on this aspect of the case. 6. Lastly, it was contended that the approved scheme violated Article 14 of the Constitution as there was a complete exclusion of the private operators on the portion of the route located in the Mysore State while permitting those who are plying their vehicles on the portion of the route lying in Andhra Pradesh State. We do not consider there is any substance in this argument. It is manifest that operators plying in the State of Mysore and those plying in the State of Andhra Pradesh constitute two different classes of persons and therefore no question of discrimination can arise if there is complete exclusion of the operators within the State of Mysore and if there is relaxation with regard to those operating in the State of Andhra Pradesh. ### Response: 0

Anand Swarup Singh Vs. State of Punjab

K.S. Hegde, J. 1. This is a plaintiffs appeal. The plaintiff joined as Naib Tahsildar in Patiala State on June 14, 1930. He was removed from service on January 20, 1949. His representation against his removal was rejected. Thereafter on October 25, 1965, he filed a civil suit for recovery of arrears of pension, said to be due from August 25, 1959, till October 24, 1965. The trial Court decreed the claim as prayed for. 2. The State of Punjab went up in appeal against the decree of the trial Court. In the grounds of appeal it was specifically stated : it is prayed that the judgment and decree of the lower Court to the extent it awards the amount of pension for 6 years be set aside and it be held that the respondent is entitled to recover the said amount for 3 years. From this it is clear that in the appeal the State of Punjab merely disputed the plaintiffs right to claim arrears of pension for six years, but conceded his right to claim pension for three years immediately preceding the suit. But curiously enough at the time of the hearing of the appeal everyone appears to have overlooked the scope of the appeal. The High Court went into the question whether the suit brought by the plaintiff was maintainable. It came to the conclusion that the suit was not maintainable and it accordingly dismissed the suit in its entirety. This conclusion is wholly untenable in view of the scope of the appeal filed by the State of Punjab. It may further be noted that on October 14, 1966, the President of India revoked the order made on January 20, 1949, and restored the plaintiff to Service but by his order dated October 25, 1966, the President declared that the plaintiff must be deemed to have retired on September 28, 1955, when he attained the age of 55 years. In view of this order, which we are told was placed before the High court the High Court was not justified in holding that the plaintiffs suit was not maintainable as the plaintiff had not prayed for a declaration setting aside the order made on January 20, 1949. In this view, it is not necessary to consider the correctness of the High Courts conclusion that the suit as brought by the plaintiff is not maintainable. 3. Now coming to the question whether the plaintiff is entitled to claim arrears of 6 years pension, the question appears to be concluded by the decision of this Court in Shri Madhav Laxman Vaikunthe v. The State of Mysore, (1962) 1 S.C.R. 886, wherein this Court held that in the case of a claim for arrears of salary the period of limitation will be that laid down in Art. 102 of the Indian Limitation Act, 1908. It has not been shown that the ratio of that decision is inapplicable to the present case.

1[ds]From this it is clear that in the appeal the State of Punjab merely disputed the plaintiffs right to claim arrears of pension for six years, but conceded his right to claim pension for three years immediately preceding the suit. But curiously enough at the time of the hearing of the appeal everyone appears to have overlooked the scope of the appeal. The High Court went into the question whether the suit brought by the plaintiff was maintainable. It came to the conclusion that the suit was not maintainable and it accordingly dismissed the suit in its entirety. This conclusion is wholly untenable in view of the scope of the appeal filed by the State of Punjab. It may further be noted that on October 14, 1966, the President of India revoked the order made on January 20, 1949, and restored the plaintiff to Service but by his order dated October 25, 1966, the President declared that the plaintiff must be deemed to have retired on September 28, 1955, when he attained the age of 55 years. In view of this order, which we are told was placed before the High court the High Court was not justified in holding that the plaintiffs suit was not maintainable as the plaintiff had not prayed for a declaration setting aside the order made on January 20, 1949. In this view, it is not necessary to consider the correctness of the High Courts conclusion that the suit as brought by the plaintiff is not maintainablethe question appears to be concluded by the decision of this Court in Shri Madhav Laxman Vaikunthe v. The State of Mysore, (1962) 1 S.C.R. 886, wherein this Court held that in the case of a claim for arrears of salary the period of limitation will be that laid down in Art. 102 of the Indian Limitation Act, 1908. It has not been shown that the ratio of that decision is inapplicable to the present case.

### Instruction: Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant? ### Input: K.S. Hegde, J. 1. This is a plaintiffs appeal. The plaintiff joined as Naib Tahsildar in Patiala State on June 14, 1930. He was removed from service on January 20, 1949. His representation against his removal was rejected. Thereafter on October 25, 1965, he filed a civil suit for recovery of arrears of pension, said to be due from August 25, 1959, till October 24, 1965. The trial Court decreed the claim as prayed for. 2. The State of Punjab went up in appeal against the decree of the trial Court. In the grounds of appeal it was specifically stated : it is prayed that the judgment and decree of the lower Court to the extent it awards the amount of pension for 6 years be set aside and it be held that the respondent is entitled to recover the said amount for 3 years. From this it is clear that in the appeal the State of Punjab merely disputed the plaintiffs right to claim arrears of pension for six years, but conceded his right to claim pension for three years immediately preceding the suit. But curiously enough at the time of the hearing of the appeal everyone appears to have overlooked the scope of the appeal. The High Court went into the question whether the suit brought by the plaintiff was maintainable. It came to the conclusion that the suit was not maintainable and it accordingly dismissed the suit in its entirety. This conclusion is wholly untenable in view of the scope of the appeal filed by the State of Punjab. It may further be noted that on October 14, 1966, the President of India revoked the order made on January 20, 1949, and restored the plaintiff to Service but by his order dated October 25, 1966, the President declared that the plaintiff must be deemed to have retired on September 28, 1955, when he attained the age of 55 years. In view of this order, which we are told was placed before the High court the High Court was not justified in holding that the plaintiffs suit was not maintainable as the plaintiff had not prayed for a declaration setting aside the order made on January 20, 1949. In this view, it is not necessary to consider the correctness of the High Courts conclusion that the suit as brought by the plaintiff is not maintainable. 3. Now coming to the question whether the plaintiff is entitled to claim arrears of 6 years pension, the question appears to be concluded by the decision of this Court in Shri Madhav Laxman Vaikunthe v. The State of Mysore, (1962) 1 S.C.R. 886, wherein this Court held that in the case of a claim for arrears of salary the period of limitation will be that laid down in Art. 102 of the Indian Limitation Act, 1908. It has not been shown that the ratio of that decision is inapplicable to the present case. ### Response: 1

Smt. Rukmanibai Gupta Vs. Collector Jabalpur and Others

payment of rent or royalty payable under the lease deed. Therefore, Clause 15 read as a whole provides for referring future disputes to the arbitration of the Governor. Arbitration agreement is not required to be in any particular form. What is required to be ascertained is whether the parties have agreed that if disputes arise between them in respect of the subject-matter of contract such dispute shall be referred to arbitration, then such an arrangement would spell out an arbitration agreement, a passage from RUSSELL ON ARBITRATION, 19th Edn., p. 59, may be referred to with advantageIf it appears from the terms of the agreement by which a matter is submitted to a persons decision that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry and hear the respective case of the parties and decide upon evidence laid before him, then the case is one of an arbitration In the clause under discussion there is a provision for referring the disputes to the lessor and the decision of the lessor is made final. On its true construction it spells out an arbitration agreement 7. A feeble attempt was made to contend that Clause 15 provides a departmental appeal but does not provide for dispute by arbitration. There was no question of providing for an appellate forum by the terms of the lease. On the contrary, the language of Clause 15 leaves no room for doubt that it spell out an arbitration agreement. In this connection reference may be made to Chief Conservator of Forests v. Rattan Singh (1966 Supp SCR 158 : AIR 1967 SC 166 ), where an identical clause in a forest contract entered into between the forest contractor and the governor of Madhya Pradesh came in for consideration. Relevant clause was as under 9. In the event of any doubt or dispute arising between the parties as to the interpretation of any or the conditions of this contract or as to the performance or breach thereof, the matter shall be referred to the Chief Conservator of Forests, Madhya Pradesh, Nagpur, whose decision shall be final and bindings on the parties hereto This Court, interpreting this clause, held that it spells out an arbitration agreement and it confers authority on the Chief Conservator of Forests to adjudicate upon disputes, inter alia, as to the performance or breach of the contract. Apart from this, appellant herself has unreservedly accepted Clause 15 spelling out an arbitration agreement. In para 10 of her submission to respondent 4 it was stated as under 10. That as laid down in Clause 15 of lease deed read with Rule 50(XVI) of the Mining Manual substantial dispute and difference arise touching the construction of these presents of lease deed on the question of payment of royalty. The matter in dispute is, therefore, being referred to State Government for decision We, therefore, need not dilate on this aspect any more and hold in agreement with the High Court that Clause 15 spells out an arbitration agreement 8. There is no dispute between the parties that adequate hearing was giving to the appellant. Appellant was represented before respondent 4, the arbitrator, by her Advocate Shri L. V. Lele and her agent Shri L. P. Choubey. After noting the admission and objection raised on behalf of the appellant by her advocate and agent, fresh calculation were called for by respondent 4 from respondent 6 the officer in charge of royalty accounts. In fact, the dispute was considerably narrowed down because appellant through her advocate in terms admitted that there was no dispute about the calculations of royalty for the period from January 1, 1958 to June 30, 1961, and the dispute was only with regard to the calculations from July 1, 1961 to December 31, 1961. Some attempt was made by the appellant to go back upon the admission recorded in the order made by respondent 4, but the High Court discouraged the attempt. And with regard to the difference in the calculations were called for from the Mining Officer but thereafter a further hearing was given to the appellant and an award was made. Therefore, the arbitrator has acted in accordance with the principles of natural justice 9. If respondent 4 was an arbitrator and his decision an award, the next question is whether such an award can be questioned by way of a writ petition in the High Court 10. Arbitration Act, 11940, is a self-contained and exhaustive code. It provides for filing arbitration agreement to the jurisdiction of court, appointment and removal of arbitrator by court, making award a rule of court, remitting or setting aside an award, it can be questioned under Section 33. Section 32 bars a suit on any ground whatsoever for contesting an award and further provides that no award shall be enforced, set aside, amended, modified or in any way affected otherwise than as provided in the Arbitration Act itself. Thus, Arbitration Act, 1940, is a self-contained exhaustive code. Relief sought by the appellant by involving extraordinary jurisdiction of the High Court under Article 226 could have been obtained by proceeding in accordance with the relevant provisions of the Arbitration Act. In this situation, if the High Court declined to entertain the writ petition, no exception can be taken to it. Further the indenture of lease constitutes a contract between the parties. Right to excavate limestone from leased area and obligation to pay royalty under the relevant Minor Mineral Rules arise from the contract. The contract provided for resolution of dispute arising out of the carrying out of contract. The writ jurisdiction of the High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligation voluntarily incurred. (See Har Shankar v. Dy. Excise & Taxation Commissioner (1975 3 SCR 254 : 1975 1 SCC 737 : 1975 Tax LR 1569)) 11. The High Court, in our opinion, therefore, rightly declined to entertain the writ petition.

0[ds]A quarry lease is granted under the relevant Minor Mineral Rules by the State Government. The State is thus the lessor and the one who takes the quarry lease is the lessee. As required by Article 299 of the Constitution, all contracts made in exercise of the executive power of the State shall be expressed to be made by the Governor of the State and shall be executed on behalf of the Governor by such accordingly executed. It is thus a contract. This contract incorporates Clause 15 which we have extracted hereinaboveClause 15 provides that any doubt, difference or dispute, arising after the execution of the lease deed touching the construction of the terms of the lease deed or anything therein contained or any matter or things connected with the said lands or the working org thereof or the amount or payment of any rent or royalty reserved or made payable thereunder, the matter in difference shall be decided by the lessor whose decision shall be final. The reference has to be made to the lessor and the lessor is the Governor. His decision declared final by the terms of the contract. His decision has to be in respect of a dispute or difference that may arise either touching the construction of the terms of the lease deed or disputes or difference arising out the working org of the lease or any dispute about the payment of rent or royalty payable under the lease deed. Therefore, Clause 15 read as a whole provides for referring future disputes to the arbitration of the GovernorIn the clause under discussion there is a provision for referring the disputes to the lessor and the decision of the lessor is made final. On its true construction it spells out an arbitration agreementApart from this, appellant herself has unreservedly accepted Clause 15 spelling out an arbitration agreementWe, therefore, need not dilate on this aspect any more and hold in agreement with the High Court that Clause 15 spells out an arbitration agreementIn fact, the dispute was considerably narrowed down because appellant through her advocate in terms admitted that there was no dispute about the calculations of royalty for the period from January 1, 1958 to June 30, 1961, and the dispute was only with regard to the calculations from July 1, 1961 to December 31, 1961. Some attempt was made by the appellant to go back upon the admission recorded in the order made by respondent 4, but the High Court discouraged the attempt. And with regard to the difference in the calculations were called for from the Mining Officer but thereafter a further hearing was given to the appellant and an award was made. Therefore, the arbitrator has acted in accordance with the principles of natural justiceIn fact, the dispute was considerably narrowed down because appellant through her advocate in terms admitted that there was no dispute about the calculations of royalty for the period from January 1, 1958 to June 30, 1961, and the dispute was only with regard to the calculations from July 1, 1961 to December 31, 1961. Some attempt was made by the appellant to go back upon the admission recorded in the order made by respondent 4, but the High Court discouraged the attempt. And with regard to the difference in the calculations were called for from the Mining Officer but thereafter a further hearing was given to the appellant and an award was made. Therefore, the arbitrator has acted in accordance with the principles of natural justice11. The High Court, in our opinion, therefore, rightly declined to entertain the writ petition.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: payment of rent or royalty payable under the lease deed. Therefore, Clause 15 read as a whole provides for referring future disputes to the arbitration of the Governor. Arbitration agreement is not required to be in any particular form. What is required to be ascertained is whether the parties have agreed that if disputes arise between them in respect of the subject-matter of contract such dispute shall be referred to arbitration, then such an arrangement would spell out an arbitration agreement, a passage from RUSSELL ON ARBITRATION, 19th Edn., p. 59, may be referred to with advantageIf it appears from the terms of the agreement by which a matter is submitted to a persons decision that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry and hear the respective case of the parties and decide upon evidence laid before him, then the case is one of an arbitration In the clause under discussion there is a provision for referring the disputes to the lessor and the decision of the lessor is made final. On its true construction it spells out an arbitration agreement 7. A feeble attempt was made to contend that Clause 15 provides a departmental appeal but does not provide for dispute by arbitration. There was no question of providing for an appellate forum by the terms of the lease. On the contrary, the language of Clause 15 leaves no room for doubt that it spell out an arbitration agreement. In this connection reference may be made to Chief Conservator of Forests v. Rattan Singh (1966 Supp SCR 158 : AIR 1967 SC 166 ), where an identical clause in a forest contract entered into between the forest contractor and the governor of Madhya Pradesh came in for consideration. Relevant clause was as under 9. In the event of any doubt or dispute arising between the parties as to the interpretation of any or the conditions of this contract or as to the performance or breach thereof, the matter shall be referred to the Chief Conservator of Forests, Madhya Pradesh, Nagpur, whose decision shall be final and bindings on the parties hereto This Court, interpreting this clause, held that it spells out an arbitration agreement and it confers authority on the Chief Conservator of Forests to adjudicate upon disputes, inter alia, as to the performance or breach of the contract. Apart from this, appellant herself has unreservedly accepted Clause 15 spelling out an arbitration agreement. In para 10 of her submission to respondent 4 it was stated as under 10. That as laid down in Clause 15 of lease deed read with Rule 50(XVI) of the Mining Manual substantial dispute and difference arise touching the construction of these presents of lease deed on the question of payment of royalty. The matter in dispute is, therefore, being referred to State Government for decision We, therefore, need not dilate on this aspect any more and hold in agreement with the High Court that Clause 15 spells out an arbitration agreement 8. There is no dispute between the parties that adequate hearing was giving to the appellant. Appellant was represented before respondent 4, the arbitrator, by her Advocate Shri L. V. Lele and her agent Shri L. P. Choubey. After noting the admission and objection raised on behalf of the appellant by her advocate and agent, fresh calculation were called for by respondent 4 from respondent 6 the officer in charge of royalty accounts. In fact, the dispute was considerably narrowed down because appellant through her advocate in terms admitted that there was no dispute about the calculations of royalty for the period from January 1, 1958 to June 30, 1961, and the dispute was only with regard to the calculations from July 1, 1961 to December 31, 1961. Some attempt was made by the appellant to go back upon the admission recorded in the order made by respondent 4, but the High Court discouraged the attempt. And with regard to the difference in the calculations were called for from the Mining Officer but thereafter a further hearing was given to the appellant and an award was made. Therefore, the arbitrator has acted in accordance with the principles of natural justice 9. If respondent 4 was an arbitrator and his decision an award, the next question is whether such an award can be questioned by way of a writ petition in the High Court 10. Arbitration Act, 11940, is a self-contained and exhaustive code. It provides for filing arbitration agreement to the jurisdiction of court, appointment and removal of arbitrator by court, making award a rule of court, remitting or setting aside an award, it can be questioned under Section 33. Section 32 bars a suit on any ground whatsoever for contesting an award and further provides that no award shall be enforced, set aside, amended, modified or in any way affected otherwise than as provided in the Arbitration Act itself. Thus, Arbitration Act, 1940, is a self-contained exhaustive code. Relief sought by the appellant by involving extraordinary jurisdiction of the High Court under Article 226 could have been obtained by proceeding in accordance with the relevant provisions of the Arbitration Act. In this situation, if the High Court declined to entertain the writ petition, no exception can be taken to it. Further the indenture of lease constitutes a contract between the parties. Right to excavate limestone from leased area and obligation to pay royalty under the relevant Minor Mineral Rules arise from the contract. The contract provided for resolution of dispute arising out of the carrying out of contract. The writ jurisdiction of the High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligation voluntarily incurred. (See Har Shankar v. Dy. Excise & Taxation Commissioner (1975 3 SCR 254 : 1975 1 SCC 737 : 1975 Tax LR 1569)) 11. The High Court, in our opinion, therefore, rightly declined to entertain the writ petition. ### Response: 0

State Bank Of India Vs. Ghamandi Ram (Dead) Through Shri Gurbax Rai

the juristic nature of the Hindu joint family, according to the doctrine of Mitakshara, we are of the opinion that the Hindu joint family firm of Ghamandi Ram Gurbax Rai cannot be treated as an individual within the meaning of the notification of the Pakistan Government dated 19th February, 1952, but the said firm must be treated as a body of individuals whether incorporated or not within the meaning of that notification.8. We proceed to consider the next question arising in this appeal viz., whether the liability of the appellant to the respondent in India be deemed to be extinguished in view of the operation of the Pakistan Evacuee Property Ordinance and in view of our finding that the amount in dispute had become vested in the Custodian of Evacuee Property, Pakistan with effect from March 1,1947 by virtue of the provisions of the Ordinance.It is not disputed that appellant had got garnishable assets in Pakistan out of which the Pakistan Government could realise the amount by attachment of the property of the appellant. The question is: what is the rule of Private International Law in such a case of involuntary assignment of debts. The question has arisen in English Courts with regard to the legislation passed during or after a war by which the contractual rights of the enemies vested in the public authorities such as custodians or administrators of enemy property.It was held in English Courts that in such a case the question whether a given contractual right, e. g. a debt, is transferred under such legislation and whether therefore payment to a custodian or administrator has the effect of discharging the debtor, depends on the situs of that right and not so much on the proper law of the contract from which the right arises.(See Dicey Conflict of Laws, 8th Ed. p. 780), For example in Arab Bank Ltd. v. Barclays Bank .(Dominion, Colonial and Overseas), 1954 AC 495, the appellant Bank had a credit balance on the current account with the respondent banks branch in Jerusalem. The British Mandate over Palestine expired at midnight on May 14, 1948, and thereupon the Provisional Council of State and the Provisional Government of the State of Israel were constituted. War broke out between Israel and the Arab States, which rendered the further performance of the contract of current account impossible. From the date of the termination of the Mandate the appellant Banks premises were situate in Arab-controlled territory and the respondent Banks premises were situated in Israel territory. By legislation the State of Israel vested in an official called the Custodian of the Property of Absentees; the property in the State of Israel belonging to a class of persons and corporations which included the Arab Bank. The respondents paid the appellants credit balances, amounting to some ? 583000 to the Custodian. In 1950 the appellant sued the respondents for this sum. It was held that the right to be paid the credit balance survived the outbreak of war, remaining in existence subject to the suspension of the appellant banks right to recover it. Being locally situate in Israel, it became subject to the legislation of that State and vested in the custodian, and was not recoverable by the appellant bank from the respondent bank.The key to the problem lies in distinguishing between . (1) questions of assignability, which are governed by the proper law of the debt, and (2) question of attachment or garnishment (involuntary assignment) governed by the situs of the debt. If, for example an involuntary assignment occurs after a voluntary assignment has already been made, the lex situs determines whether the rights of the voluntary assignee have been postponed or defeated. If the voluntary assignment occurs first, the lex situs determines what rights, if any, the voluntary assignee has acquired. A question of priorities arose in the case of Re Queensland Mercantile and Agency Co., 1891-1 Ch 536, the fact of which were as follows:"The Union Bank of Australia held debentures issued by the Queensland Company charging the shares in that company that were not fully paid up. The Bank was domiciled in England and the company in Queensland. After the capital had been called up, but before it was paid by the shareholders, who thus became debtors of the company, the X Company domiciled in Scotland, began an action for negligence in Scotland against the Queensland Company, and immediately issued the Scotish process of arrestment against numerous shareholders who were domiciled in Scotland. The effect of this process according to Scottish law was to prevent the shareholders, pending a decision in the action of negligence, from paying the calls to the company".The question that fell to be decided was whether the Union Bank, as debenture- holders, were entitled to be paid first out of the unpaid shares, according to the law of England and of Queensland; or whether the X Company in accordance with the law of Scotland, had , prior right over the shares to the extent of the damages that they might be awarded in the action of negligence. A question of priorities between two assignees was thus raised. The Union Bank contended that the question fell to be decided by the law of Queensland, since the Queens and company was a creditor in respect of the unpaid shares and any assignment by it must be tested by the law of its domicil. North, J., however, applied Scottish law. His reasoning was that since the debtors were resident in Scotland and therefore the unpaid calls which formed the subject-matter of the assignments were situated in that country, the assignments must rank in the order prescribed by Scottish Law. He assimilated choses in action to tangible movables, asserting that an assignment of the latter class of property was governed by the lex situs.In our opinion the same legal position prevails in India and therefore the liability of the appellant in this case to the respondent in India must be deemed to have been extinguished.

1[ds]Having regard to the juristic nature of the Hindu joint family, according to the doctrine of Mitakshara, we are of the opinion that the Hindu joint family firm of Ghamandi Ram Gurbax Rai cannot be treated as an individual within the meaning of the notification of the Pakistan Government dated 19th February, 1952, but the said firm must be treated as a body of individuals whether incorporated or not within the meaning of that notification.According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasicorporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Chapter I, 1-27).The incidents of co-parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors.A coparcenery under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of thequestion has arisen in English Courts with regard to the legislation passed during or after a war by which the contractual rights of the enemies vested in the public authorities such as custodians or administrators of enemy property.It was held in English Courts that in such a case the question whether a given contractual right, e. g. a debt, is transferred under such legislation and whether therefore payment to a custodian or administrator has the effect of discharging the debtor, depends on the situs of that right and not so much on the proper law of the contract from which the right arises.(See Dicey Conflict of Laws, 8th Ed. p. 780), For example inArab Bank Ltd. v. Barclays Bank .(Dominion, Colonial and Overseas), 1954 ACthe appellant Bank had a credit balance on the current account with the respondent banks branch in Jerusalem. The British Mandate over Palestine expired at midnight on May 14, 1948, and thereupon the Provisional Council of State and the Provisional Government of the State of Israel were constituted. War broke out between Israel and the Arab States, which rendered the further performance of the contract of current account impossible. From the date of the termination of the Mandate the appellant Banks premises were situate in Arab-controlled territory and the respondent Banks premises were situated in Israel territory. By legislation the State of Israel vested in an official called the Custodian of the Property of Absentees; the property in the State of Israel belonging to a class of persons and corporations which included the Arab Bank. The respondents paid the appellants credit balances, amounting to some ? 583000 to the Custodian. In 1950 the appellant sued the respondents for this sum. It was held that the right to be paid the credit balance survived the outbreak of war, remaining in existence subject to the suspension of the appellant banks right to recover it. Being locally situate in Israel, it became subject to the legislation of that State and vested in the custodian, and was not recoverable by the appellant bank from the respondent bank.The key to the problem lies in distinguishing between . (1) questions of assignability, which are governed by the proper law of the debt, and (2) question of attachment or garnishment (involuntary assignment) governed by the situs of the debt. If, for example an involuntary assignment occurs after a voluntary assignment has already been made, the lex situs determines whether the rights of the voluntary assignee have been postponed or defeated. If the voluntary assignment occurs first, the lex situs determines what rights, if any, the voluntary assignee has acquired. A question of priorities arose in the case of Re Queensland Mercantile and Agency Co., 1891-1 Ch 536, the fact of which were asUnion Bank of Australia held debentures issued by the Queensland Company charging the shares in that company that were not fully paid up. The Bank was domiciled in England and the company in Queensland. After the capital had been called up, but before it was paid by the shareholders, who thus became debtors of the company, the X Company domiciled in Scotland, began an action for negligence in Scotland against the Queensland Company, and immediately issued the Scotish process of arrestment against numerous shareholders who were domiciled in Scotland. The effect of this process according to Scottish law was to prevent the shareholders, pending a decision in the action of negligence, from paying the calls to the company".The question that fell to be decided was whether the Union Bank, as debenture- holders, were entitled to be paid first out of the unpaid shares, according to the law of England and of Queensland; or whether the X Company in accordance with the law of Scotland, had , prior right over the shares to the extent of the damages that they might be awarded in the action of negligence. A question of priorities between two assignees was thus raised. The Union Bank contended that the question fell to be decided by the law of Queensland, since the Queens and company was a creditor in respect of the unpaid shares and any assignment by it must be tested by the law of its domicil. North, J., however, applied Scottish law. His reasoning was that since the debtors were resident in Scotland and therefore the unpaid calls which formed the subject-matter of the assignments were situated in that country, the assignments must rank in the order prescribed by Scottish Law. He assimilated choses in action to tangible movables, asserting that an assignment of the latter class of property was governed by the lex situs.In our opinion the same legal position prevails in India and therefore the liability of the appellant in this case to the respondent in India must be deemed to have been extinguished.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: the juristic nature of the Hindu joint family, according to the doctrine of Mitakshara, we are of the opinion that the Hindu joint family firm of Ghamandi Ram Gurbax Rai cannot be treated as an individual within the meaning of the notification of the Pakistan Government dated 19th February, 1952, but the said firm must be treated as a body of individuals whether incorporated or not within the meaning of that notification.8. We proceed to consider the next question arising in this appeal viz., whether the liability of the appellant to the respondent in India be deemed to be extinguished in view of the operation of the Pakistan Evacuee Property Ordinance and in view of our finding that the amount in dispute had become vested in the Custodian of Evacuee Property, Pakistan with effect from March 1,1947 by virtue of the provisions of the Ordinance.It is not disputed that appellant had got garnishable assets in Pakistan out of which the Pakistan Government could realise the amount by attachment of the property of the appellant. The question is: what is the rule of Private International Law in such a case of involuntary assignment of debts. The question has arisen in English Courts with regard to the legislation passed during or after a war by which the contractual rights of the enemies vested in the public authorities such as custodians or administrators of enemy property.It was held in English Courts that in such a case the question whether a given contractual right, e. g. a debt, is transferred under such legislation and whether therefore payment to a custodian or administrator has the effect of discharging the debtor, depends on the situs of that right and not so much on the proper law of the contract from which the right arises.(See Dicey Conflict of Laws, 8th Ed. p. 780), For example in Arab Bank Ltd. v. Barclays Bank .(Dominion, Colonial and Overseas), 1954 AC 495, the appellant Bank had a credit balance on the current account with the respondent banks branch in Jerusalem. The British Mandate over Palestine expired at midnight on May 14, 1948, and thereupon the Provisional Council of State and the Provisional Government of the State of Israel were constituted. War broke out between Israel and the Arab States, which rendered the further performance of the contract of current account impossible. From the date of the termination of the Mandate the appellant Banks premises were situate in Arab-controlled territory and the respondent Banks premises were situated in Israel territory. By legislation the State of Israel vested in an official called the Custodian of the Property of Absentees; the property in the State of Israel belonging to a class of persons and corporations which included the Arab Bank. The respondents paid the appellants credit balances, amounting to some ? 583000 to the Custodian. In 1950 the appellant sued the respondents for this sum. It was held that the right to be paid the credit balance survived the outbreak of war, remaining in existence subject to the suspension of the appellant banks right to recover it. Being locally situate in Israel, it became subject to the legislation of that State and vested in the custodian, and was not recoverable by the appellant bank from the respondent bank.The key to the problem lies in distinguishing between . (1) questions of assignability, which are governed by the proper law of the debt, and (2) question of attachment or garnishment (involuntary assignment) governed by the situs of the debt. If, for example an involuntary assignment occurs after a voluntary assignment has already been made, the lex situs determines whether the rights of the voluntary assignee have been postponed or defeated. If the voluntary assignment occurs first, the lex situs determines what rights, if any, the voluntary assignee has acquired. A question of priorities arose in the case of Re Queensland Mercantile and Agency Co., 1891-1 Ch 536, the fact of which were as follows:"The Union Bank of Australia held debentures issued by the Queensland Company charging the shares in that company that were not fully paid up. The Bank was domiciled in England and the company in Queensland. After the capital had been called up, but before it was paid by the shareholders, who thus became debtors of the company, the X Company domiciled in Scotland, began an action for negligence in Scotland against the Queensland Company, and immediately issued the Scotish process of arrestment against numerous shareholders who were domiciled in Scotland. The effect of this process according to Scottish law was to prevent the shareholders, pending a decision in the action of negligence, from paying the calls to the company".The question that fell to be decided was whether the Union Bank, as debenture- holders, were entitled to be paid first out of the unpaid shares, according to the law of England and of Queensland; or whether the X Company in accordance with the law of Scotland, had , prior right over the shares to the extent of the damages that they might be awarded in the action of negligence. A question of priorities between two assignees was thus raised. The Union Bank contended that the question fell to be decided by the law of Queensland, since the Queens and company was a creditor in respect of the unpaid shares and any assignment by it must be tested by the law of its domicil. North, J., however, applied Scottish law. His reasoning was that since the debtors were resident in Scotland and therefore the unpaid calls which formed the subject-matter of the assignments were situated in that country, the assignments must rank in the order prescribed by Scottish Law. He assimilated choses in action to tangible movables, asserting that an assignment of the latter class of property was governed by the lex situs.In our opinion the same legal position prevails in India and therefore the liability of the appellant in this case to the respondent in India must be deemed to have been extinguished. ### Response: 1

Union Of India Vs. Central India Machinery Manufacturing Co. Ltd. & Others

property of the company before its delivery to the purchaser. But as pointed out by Lord Halsbury in the above-quoted passage from his renowned work neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials used in the manufacture is conclusive. Nevertheless, if the bulk of the material used in the construction belongs to the manufacturer who sells the end-product for a price that will be a strong pointer to the conclusion that the contract is in substance one for the sale of goods and not one for work and labour.Be that as it may clause (1) of Standard Condition 15 dispels all doubt with regard to the nature of the contract. This clause stipulates in unmistakable terms that as soon as a vehicle has been completed, the company will get it examined by the Inspecting Officer and submit to the purchaser an "on account" bill for 90 per cent of the value of the vehicle and within 14 days of the receipt of such bill together with a certificate of the Inspecting Officer, the purchaser will pay 90 per cent bill and on such payment, the vehicle in question will become the property of the purchaser. There could be no clearer expression of the intention of the contracting parties than this clause that the contract was, in substance, one for the sale of manufactured wagons by the company for a stipulated price. 15. We would therefore affirms the finding of the High Court on this point. 16. The ratio of Hindustan Aeronautics [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927] is not applicable. The present case has some special features which did not figure in Hindustan Aeronautics [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927]. In that case, from the terms and conditions of the contract then under consideration and the report of the Commercial Tax Officer, these facts appear to be well-established :"(i) The material used in the construction of coaches before its use was the property of the railways. (ii) There was no possibility of any other material being used excepting which belonged to the President/railways before its use in the construction. This fact was borne out from the report of the Commercial Tax Officer. (iii) Further in the contract in question in that case, there was no term corresponding to clause (1) of Standard Condition 15. This Court therefore found that the difference between the price of a coach and the cost of material could only be the cost of services rendered by the assessee. Such is not the case here. The bulk of the material used in the construction of the wagons, as already discussed above, in the instant case, belongs to the company before its use.State of Gujarat (Commissioner of Sales Tax, Ahmedabad) v. Variety Body Builders [[1976] 38 S.T.C. 176 (S.C.); A.I.R. 1976 S.C. 2108] cited by Shri Mehta, also is clearly distinguishable from the facts of the instant case. There, the bulk of the materials used in the construction of coaches was supplied by the railways. Even labour was supplied by the railways. The contractor mainly contributed his labour and skill to manufacture the end-product, being the railway coaches, under the constant supervision and control of the railways. From the totality of the material terms and conditions in the agreement, in that case, it was not possible to hold that the parties intended that the contractor transferred the property in the coach to the railways after its completion. Reality of the transaction as a whole indicated that the contract was one for work and labour, while in the instant case the coverse is true." 17. The case before us is more in line with the decision of this Court in Patnaik and Company v. State of Orissa [[1965] 16 S.T.C. 364 (S.C.)]. The appellants therein had entered into an agreement with the State of Orissa for the construction of bus bodies on the chassis supplied by the Governor. The agreement provided, inter alia, that the appellants were responsible for the safe custody of the chassis from the date of their receipt from the Governor till their delivery and they had to insure their premises against fire, theft, etc., at their own costs. The appellants had to construct the bus bodies in the most substantial and workmanlike manner, both as regards materials and otherwise in every respect in strict accordance with the specifications. They had to guarantee the durability of the body for two years from the date of delivery. It was also provided that all works under the contract should be open to inspection by the Controller or officers authorised by him and such officers had the right to stop any work which had been executed badly or with materials of inferior quality, and on receipt of a written order the appellants had to dismantle or replace such defective work or material at their own cost. The builders were entitled to 50 per cent of the cost of the body building at the time of delivery and the rest one month thereafter. The question before the Constitution Bench of this Court was whether, on these facts, the contract was one for work or a contract for sale of goods. This Court held (by majority) that the contract as a whole was a contract for sale of goods and, therefore, the appellants were liable to sales tax on the amounts received from the State of Orissa for the construction of the bus bodies. In reaching at this conclusion the Court paid due regard to the fact that under that contract the property in the bus body did not pass to the Government till the chassis with the bus body was delivered at the destination to be named by the Controller. Till the delivery was made the bus body remained the property of the builder. This clinching circumstance prominently figures in Standard Condition 15 in the instant case also. 18.

0[ds]The real intention of the contracting parties is primarily to be sought within the four corners of the documents containing the Standard and Special Conditions of Contract. If such intention is clearly discernible from these documents, it will not be proper to seek external aid from the stereotyped indemnity bond which is not only collateral but also posterior in point of time to the contract. It will bear repetition that there is no conflict or inconsistency between Standard Condition 15 and the special Conditions. The terms and conditions of the contact, read as a whole, indubitably lead to the conclusion that the property in the materials procured or purchased by the company, against the 90 per cent value of which advance is taken from the railways, does not, before their use in the construction of the wagons, pass to the railways. Reasons for arriving at this conclusion are as under :(i) Clause (a) of Special Condition 4 which provides for "on account" payment up to 90 per cent of the value of steel and other raw materials procured by the firm (company) is to be read with clause (b) which makes it clear that such "on account" payment is a part of the "full contract price" "for each completed) Condition 5, while imposing restrictions as to the use and disposal of materials against which advance is taken, further gives a pre-emptive right to the Government to purchase all surplus or unserviceable materials from the company on its "being paid such price as Government may fix with due regard to the condition of the material". If the materials belonged to the Government or the railways, no question of purchasing the same from the company could arise. No one can be a seller and purchaser of the same property at the same time(iii) Special Condition 10 provides in unequivocal terms that "no sales tax on materials including steel or components will be reimbursed by the Railways Board". This condition postulates two things : First, that the company becomes the owner of the materials by purchase and, therefore, in that capacity becomes liable to the charge of sales tax which it cannot, because of this covenant to the contrary, pass on to the President/Railway Board. Second, such steel and components are not the property of the railways. They are not supplied by the President/railways free of charge under Special Condition 6(iv) There is no condition or term in the contract that the material purchased by the company after drawing "on account" payment to the extent of 90 per cent of the value of the material shall become the property of the railways(v) Standard Condition 16 provides that if within twelve months after delivery, any "defect arises from inferiority of material or workmanship" the company shall be liable to remedy the defect, and to deduction of money due to it. This condition also presupposes that the inferior material used was not the property of the railways but of the company(vi) The stipulation in the indemnity bond making the company responsible for safe custody and protection of the "stores and articles" against all risks till they are duly delivered to the railways, or as they may direct, nor the use of the words "of the railways", therein, in our opinion, in the face of clear conditions of the contract, is a ground to hold that the materials purchased by the company for construction of the wagons would become the property of the railways immediately on advance of an amount equal to 90 per cent of their value under Special Condition 4.As rightly pointed out by the High Court the word "of" in the expression "of the railways" used in the indemnity bound in the context of "stores and articles" appears to have been loosely used. Moreover these "stores and articles" might include the wheelsets and articles supplied by the railways free of charge from its stores under Special Condition 6. The expression "of the railways" might have been possibly used in the context of such components belonging to the railways. Furthermore under condition 5, in respect of all surplus material, the railways had been given a right of pre-emption. Even so, much capital cannot be made out of the use of this loose expression in the indemnity bond, when the conditions embodied in the contract documents, read as a whole, clearly show that the property in the materials purchased by the company with the assistance of the railways/Government does not pass to the railwaysThe upshot of the above discussion is that with the exception of wheelsets (with axle-boxes and couplers), substantially all the raw materials required for the construction of the wagons before their use belong to the company and not to the President/Railway Board. In other words, with the exception of a relatively small proportion of the components supplied under Special Condition 6, the entire wagon including the material at the time of its completion for delivery is the property of the company. This means that the general test suggested by Pollock and Chalmers has been substantially, albeit not absolutely, satisfied so as to indicate that the contract in question was one for the sale of wagons for a price, the company being the seller and the President/Railway Board being the buyer. It is true that technically the entire wagon including all the material and components used in its construction cannot be said to be the sole property of the company before its delivery to the purchaser. But as pointed out by Lord Halsbury in the above-quoted passage from his renowned work neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials used in the manufacture is conclusive. Nevertheless, if the bulk of the material used in the construction belongs to the manufacturer who sells the end-product for a price that will be a strong pointer to the conclusion that the contract is in substance one for the sale of goods and not one for work and labour.Be that as it may clause (1) of Standard Condition 15 dispels all doubt with regard to the nature of the contract. This clause stipulates in unmistakable terms that as soon as a vehicle has been completed, the company will get it examined by the Inspecting Officer and submit to the purchaser an "on account" bill for 90 per cent of the value of the vehicle and within 14 days of the receipt of such bill together with a certificate of the Inspecting Officer, the purchaser will pay 90 per cent bill and on such payment, the vehicle in question will become the property of the purchaser. There could be no clearer expression of the intention of the contracting parties than this clause that the contract was, in substance, one for the sale of manufactured wagons by the company for a stipulated priceWe would therefore affirms the finding of the High Court on this pointThe case before us is more in line with the decision of this Court in Patnaik and Company v. State of Orissa [[1965] 16 S.T.C. 364 (S.C.)]. The appellants therein had entered into an agreement with the State of Orissa for the construction of bus bodies on the chassis supplied by the Governor. The agreement provided, inter alia, that the appellants were responsible for the safe custody of the chassis from the date of their receipt from the Governor till their delivery and they had to insure their premises against fire, theft, etc., at their own costs. The appellants had to construct the bus bodies in the most substantial and workmanlike manner, both as regards materials and otherwise in every respect in strict accordance with the specifications. They had to guarantee the durability of the body for two years from the date of delivery. It was also provided that all works under the contract should be open to inspection by the Controller or officers authorised by him and such officers had the right to stop any work which had been executed badly or with materials of inferior quality, and on receipt of a written order the appellants had to dismantle or replace such defective work or material at their own cost. The builders were entitled to 50 per cent of the cost of the body building at the time of delivery and the rest one month thereafter. The question before the Constitution Bench of this Court was whether, on these facts, the contract was one for work or a contract for sale of goods. This Court held (by majority) that the contract as a whole was a contract for sale of goods and, therefore, the appellants were liable to sales tax on the amounts received from the State of Orissa for the construction of the bus bodies. In reaching at this conclusion the Court paid due regard to the fact that under that contract the property in the bus body did not pass to the Government till the chassis with the bus body was delivered at the destination to be named by the Controller. Till the delivery was made the bus body remained the property of the builder. This clinching circumstance prominently figures in Standard Condition 15 in the instant case also.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: property of the company before its delivery to the purchaser. But as pointed out by Lord Halsbury in the above-quoted passage from his renowned work neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials used in the manufacture is conclusive. Nevertheless, if the bulk of the material used in the construction belongs to the manufacturer who sells the end-product for a price that will be a strong pointer to the conclusion that the contract is in substance one for the sale of goods and not one for work and labour.Be that as it may clause (1) of Standard Condition 15 dispels all doubt with regard to the nature of the contract. This clause stipulates in unmistakable terms that as soon as a vehicle has been completed, the company will get it examined by the Inspecting Officer and submit to the purchaser an "on account" bill for 90 per cent of the value of the vehicle and within 14 days of the receipt of such bill together with a certificate of the Inspecting Officer, the purchaser will pay 90 per cent bill and on such payment, the vehicle in question will become the property of the purchaser. There could be no clearer expression of the intention of the contracting parties than this clause that the contract was, in substance, one for the sale of manufactured wagons by the company for a stipulated price. 15. We would therefore affirms the finding of the High Court on this point. 16. The ratio of Hindustan Aeronautics [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927] is not applicable. The present case has some special features which did not figure in Hindustan Aeronautics [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927]. In that case, from the terms and conditions of the contract then under consideration and the report of the Commercial Tax Officer, these facts appear to be well-established :"(i) The material used in the construction of coaches before its use was the property of the railways. (ii) There was no possibility of any other material being used excepting which belonged to the President/railways before its use in the construction. This fact was borne out from the report of the Commercial Tax Officer. (iii) Further in the contract in question in that case, there was no term corresponding to clause (1) of Standard Condition 15. This Court therefore found that the difference between the price of a coach and the cost of material could only be the cost of services rendered by the assessee. Such is not the case here. The bulk of the material used in the construction of the wagons, as already discussed above, in the instant case, belongs to the company before its use.State of Gujarat (Commissioner of Sales Tax, Ahmedabad) v. Variety Body Builders [[1976] 38 S.T.C. 176 (S.C.); A.I.R. 1976 S.C. 2108] cited by Shri Mehta, also is clearly distinguishable from the facts of the instant case. There, the bulk of the materials used in the construction of coaches was supplied by the railways. Even labour was supplied by the railways. The contractor mainly contributed his labour and skill to manufacture the end-product, being the railway coaches, under the constant supervision and control of the railways. From the totality of the material terms and conditions in the agreement, in that case, it was not possible to hold that the parties intended that the contractor transferred the property in the coach to the railways after its completion. Reality of the transaction as a whole indicated that the contract was one for work and labour, while in the instant case the coverse is true." 17. The case before us is more in line with the decision of this Court in Patnaik and Company v. State of Orissa [[1965] 16 S.T.C. 364 (S.C.)]. The appellants therein had entered into an agreement with the State of Orissa for the construction of bus bodies on the chassis supplied by the Governor. The agreement provided, inter alia, that the appellants were responsible for the safe custody of the chassis from the date of their receipt from the Governor till their delivery and they had to insure their premises against fire, theft, etc., at their own costs. The appellants had to construct the bus bodies in the most substantial and workmanlike manner, both as regards materials and otherwise in every respect in strict accordance with the specifications. They had to guarantee the durability of the body for two years from the date of delivery. It was also provided that all works under the contract should be open to inspection by the Controller or officers authorised by him and such officers had the right to stop any work which had been executed badly or with materials of inferior quality, and on receipt of a written order the appellants had to dismantle or replace such defective work or material at their own cost. The builders were entitled to 50 per cent of the cost of the body building at the time of delivery and the rest one month thereafter. The question before the Constitution Bench of this Court was whether, on these facts, the contract was one for work or a contract for sale of goods. This Court held (by majority) that the contract as a whole was a contract for sale of goods and, therefore, the appellants were liable to sales tax on the amounts received from the State of Orissa for the construction of the bus bodies. In reaching at this conclusion the Court paid due regard to the fact that under that contract the property in the bus body did not pass to the Government till the chassis with the bus body was delivered at the destination to be named by the Controller. Till the delivery was made the bus body remained the property of the builder. This clinching circumstance prominently figures in Standard Condition 15 in the instant case also. 18. ### Response: 0

K.P. Varghese Vs. The Income Tax Officer,Ernakulam, And Another

48 which provides the mode of computation and under which the starting point of computation is the full value of the consideration received or accruing . What in fact never accrued or was never received cannot be computed as capital gains under s.48. Therefore, sub-s. (2) cannot be construed as bringing within the computation of capital gains an amount which, by no stretch of imagination, can be said to have accrued to the assessee or been received by him and it must be confined to cases where the actual consideration received for the transfer is understated and since in such cases it is very difficult, if not impossible, to determine and prove the exact quantum of the suppressed consideration, sub-s. (2) provides the statutory measure for determining the consideration actually received by the assessee and permits the revenue to take the fair market value of the capital asset as the full value of the consideration received in respect of the transfer 20. This construction which we are placing on sub-s. (2) also marches in step with the Gift-tax Act, 1958. If a capital asset is transferred for a consideration below its market value, the difference between the market value and the full value of the consideration received in respect of the transfer would amount to a gift liable to tax under the G.T. Act, 1958, but if the construction of sub-s. (2) contended for on behalf of the revenue were accepted, such difference would also be liable to be added as part of capital gains taxable under the provisions of the I.T. Act, 1961. This would be an anomalous result which could never have been contemplated by the Legislature, since the I.T. Act, 1961, and the G.T. Act, 1958, are parts of an integrated scheme of taxation and the same amount which is chargeable as gift could not be intended to be charged also as capital gains 21. Moreover, if sub-s. (2) is literally construed as applying even to cases where the full value of the consideration in respect of the transfer is correctly declared or disclosed by the assessee and there is no understatement of the consideration, it would result in an amount being taxed which has neither accrued to the assessee nor been received by him and which from no view-point can be rationally considered as capital gains or any other type of income. It is a well settled rule of interpretation that the court should as far as possible avoid that construction which attributes irrationality to the Legislature. Besides, under entry 82 in List I of the Seventh Schedule to the Constitution, which deals with Taxes on income other than agricultural income and under which the I.T. Act, 1961, has been enacted, Parliament cannot choose to tax as income an item which in no rational sense can be regarded as citizens income or even receipt. Sub-section (2) would, therefore, on the construction of the revenue, go outside the legislative power of Parliament and it would not be possible to justify it even as an incidental or ancillary provision or a provision intended to prevent evasion of tax. Sub-section (2) would also be violative of the fundamental right of the assessee under art. 19(1)(f) which fundamental right was in existence at the time when sub-s. (2) came to be enacted-since on the construction canvassed on behalf of the revenue, the effect of sub-s. (2) would be to penalise the assessee for transferring his capital asset for a consideration lesser by 15% or more than the fair market value and that would constitute unreasonable restriction on the fundamental right of the assessee to dispose of his capital asset at the price of his choice. The court must obviously prefer construction which renders the statutory provision constitutionally valid rather than that which makes it void 22. We must, therefore, hold that sub-s. (2) of s. 52 can be invoked only where the consideration for the transfer has been understated by the assessee or, in other words, the consideration actually received by the assessee is more than what is declared or disclosed by him and the burden of proving such an understatement or concealment is on the revenue. This burden may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is an understatement or concealment of the consideration in respect of the transfer. Sub-section (2) has no application in the case of an honest and bona fide transaction where the consideration received by the assessee has been correctly declared or disclosed by him, and there is no concealment or suppression of the consideration. We find that in the present case, it was not the contention of the revenue that the property was sold by the assessee to his daughter-in-law and five of his children for consideration which was more than the sum of Rs. 16, 500 shown to be the consideration for the property in the instrument of transfer and there was an understatement or concealment of the consideration in respect of the transfer. It was common ground between the parties and that was a finding of fact reached by the I.T. authorities that the transfer of the property by the assessee was a perfectly honest and bona fide transaction where the full value of the consideration received by the assessee was correctly disclosed at the figure of Rs. 16, 500. Therefore, on the construction placed by us, sub-s. (2) had no application to the present case and the ITO could have no reason to believe that any part of the income of the assessee had escaped assessment so as to justify the issue of a notice under s. 148. The order of reassessment made by the ITO pursuant to the notice issued under s. 148 was accordingly without jurisdiction and the majority judges of the Full Bench were in error in refusing to quash it

1[ds]This argument was based on a strictly literal relief s. 52, subs. (2), but we do not think such a construction can be accepted. It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and, as pointed out by Lord Denning, it would be idle to expect every statutory provision to bedrafted with divine prescience and perfect clarity .e must not adopt a strictly literal interpretation of s. 52, sub-s. (2), but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which s. 52, sub-s. (2), appears, because, as pointed out by judge Learned Hand in the most felicitous language.. ...... the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create7. The primary objection against the literal construction of s. 52, subs. (2), is that it leads to manifestly unreasonable and absurd. It is true that the consequences of a suggested construction cannot alter the meaning of a statutory provision but it can certainly help to fix its meaning. It is a well-recognised rule of construction that a statutory provision must be so construed, if possible, that absurdity and mischief may be avoided. There are many situations Where the construction suggested on behalf of the revenue would lead to a wholly unreasonable result which could never have been intended by the Legislature. Take, for example, a case where A agrees to sell his property to B for a certain price and before the sale is completed pursuant to the agreement-and it is quite well known that sometimes the completion of the sale may take place even a couple of years after the date of the agreement-the market price shoots up with the result that the market price prevailing on the date of the sale exceeds the agreed price, at which the property is sold, by more than 15% of such agreed price. This is not at all an uncommon case in an economy of rising prices and in fact we would find in a large number of cases where the sale is completed more than a year or two after the date of the agreement that the market price prevailing on the date of the sale is very much more than the price at which the property is sold under the agreement.would indeed be most harsh and inequitable to tax the assessee on income which has neither arisen to him nor is received by him, merely because he has carried out the contractual obligation undertaken by him. It is difficult to conceive of any rational reason why the Legislature should have thought it fit to impose liability to tax on an assessee who is bound by law to carry out his contractual obligation to sell the property at the agreed price and honestly carries out such a contractual obligation. It would indeed be strange if obedience to the law should attract the levy of tax on income which has neither arisen to the assessee nor has been received by him. If we may take another illustration, let us consider a case where sells his property to B with a stipulation that after some time which may be a couple of years or more, he shall re-sell the property to A for the same price. Could it be contended in such a case that when B transfers the property to A for the same price at which he originally purchased it, he should be liable to pay tax on the basis as if he has received the market value of the property as on the date of re-sale, if, in the meanwhile, the market price has shot up and exceeds the agreed price by more than 15%. Many other similar situations can be contemplated where it would be absurd and unreasonable to apply s. 52, sub-s. (2), according to its strict literal construction. We must, therefore, eschew literalness in the interpretation of s. 52, sub-s. (2), and try to arrive at an interpretation which avoids this absurdity and mischief and makes the provision rational and sensible, unless of course, our hands are tied and we cannot find any escape from the tyranny of the literal interpretation. It is now a well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the Legislature, the court may modify the language used by the Legislature or evento it, so as to achieve the obvious intention of the Legislature and produce a rational construction: VideLuke v. IRC [1963] AC 557; [1964] 54 ITR. The court may also in such a case read into the statutory provision a condition which, though not expressed, is implicit as constituting the basic assumption underlying the statutory provision. We think that, having regard to this well-recognised rule of interpretation, a fair and reasonable construction of s. 52, sub-s. (2), would be to read into it a condition that it would apply only where the consideration for the transfer is understated or, in other words, the assessee has actually received a larger consideration for the transfer than what is declared in the instrument of transfer and it would have no application in the case of a bona fide transaction where the full value of the consideration for the transfer is correctly declared by the assessee. There are several important considerations which incline us to accept this construction of s. 52, sub-s. (2)8. The first consideration to which we must refer is the object and purpose of the enactment of s. 52, sub-s. (2).Now, it is necessary to bear in mind that when capital gains are computed by invoking sub-s. (1) it is not any fictional accrual or receipt of income which is brought to tax. Sub-section (1) does not deem income to accrue or to be received which in fact never accrued or was never received. It seeks to bring within the net of taxation only that income which has accrued or is received by the assessee as a result of the transfer of the capital asset. But since the actual consideration received by the assessee is not declared or disclosed and in most of the cases, if not all, it would not be possible for the ITO to determine precisely what is the actual consideration received by the assessee or in other words how much more consideration is received by the assessee than that declared by him, sub-s. (1) provides that the fair market value of the property as on the date of the transfer shall be taken to be the full value of the consideration for the transfer which has accrued to or is received by the assessee. Once it is found that the consideration in respect of the transfer is under-stated and the conditions specified in sub-s. (1) are fulfilled, the ITO will not be called upon to prove the precise extent of the under-valuation or, in other words, the actual extent of the concealment and the full value of the consideration received for the transfer shall be computed in the manner provided in sub-s. (1). The net effect of this provision is as if a statutory best judgment assessment of the actual consideration received by the assessee is made, in the absence of reliable materials9. But the scope of sub-s. (1) of s. 52 is extremely restricted because it applies only where the transferee is a person directly or indirectly connected with the assessee and the object of the under-statement is to avoid or reduce the income-tax liability of the assessee to tax on capital gains. There may be cases where the consideration for the transfer is shown at a lesser figure than that actually received by the assessee but the transferee is not a person directly or indirectly connected with the assessee or the object of under-statement of the consideration is unconnected with tax on capital gains. Such cases would not be within the reach of sub-s. (1) and the assessee, though dishonest, would escape the rigour of the provision enacted in that sub-section. Parliament, therefore, enacted sub-s. (2) with a view to extending the coverage of the provision in sub-s. (1) to other cases of under-statement of consideration.This becomes clear if we have regard to the object and purpose of the introduction of sub-s. (2) as appearing from travaux preparatoire relating to the enactment of that provision. It is a sound rule of construction of a statute firmly established in England as far back as 158410. This rule being a rule of construction has been repeatedly applied in India in interpreting statutory provisions. It would therefore, be legitimate in interpreting sub-s. (2) to consider what was the mischief and defect for which s. 52 as it then stood did not provide and which was sought to be remedied by the enactment of sub-s. (2) or, in other words, what was the object and purpose of enacting that sub-section.. Now, it is true that the speeches made by the Members of the Legislature on the floor of the House when a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision but the speech made by the mover of the Bill explaining the reason for the introduction of the Bill can certainly be referred to for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation was enacted. This is in accord with the recent trend in juristic thought not only in Western countries but also in India that interpretation of a statute being an exercise in the ascertainment of meaning everything which is logically relevant should be admissible.Now, in this connection the speech made by the Finance Minister while moving the amendment introducing sub-s, (2) is extremely relevant, as it throws considerable light on the object and purpose of the enactment of sub-s. (2).speech made by the Finance Minister while moving the amendment introducing sub-s. (2) clearly states what were the circumstances in which sub-s. (2) came to be passed, what was the mischief for which s. 52 as it then stood did not provide and which was son lit to be remedied by the enactment of sub-s. (2) and why the enactment of sub-s. (2) was found necessary. It is apparent from the speech of the Finance Minister that sub-s. (2) was enacted for the purpose of reaching those cases where there was under-statement of consideration in respect of the transfer or to put it differently the actual consideration received for the transfer was considerably more than that declared or shown by the assessee, but which were not covered by sub-s. (1) because the transferee was not directly or indirectly connected with the assessee . The object and purpose of sub-s. (2), as explicated from the speech of the Finance Minister, was not to strike at honest and bona fide transactions where the consideration for the transfer was correctly disclosed by the assessee but to bring within the net of taxation those transactions where the consideration in respect of the transfer was shown at a lesser figure than that actually received by the assessee, so that they do not escape the charge of tax on capital gains by understatement of the consideration. This was the real object and purpose of the enactment of sub-s. (2) and the interpretation of this sub-section must fall in line with the advancement of that object and purpose. We must, therefore, accept as the underlying assumption of sub-s. (2) that there is an under-statement of consideration in respect of the transfer and sub-s. (2) applies only where the actual consideration received by the assessee is not disclosed and the consideration declared in respect of the transfer is shown at a lesser figure than that actually received12. This interpretation of sub-s. (2) is strongly supported by the marginal note to s. 52It is undoubtedly true that the marginal note to a section cannot be referred to for the purpose of construing the section but it can certainly be relied upon as indicating the drift of the section or, to use the words of Collins M.R. inBushel v. Hammond [1904] 2 KB 563to show what the section is dealing with. It cannot control the interpretation of the words of a section particularly when the language of the section is clear and unambiguous but, being part of the statute, it prima facie furnishes some clue as to the meaning and purpose of the section: vide Bengal Immunity Co. Ltd. v. State of Bihar [1955] 2 SCR 603 ; [1955] 6 STC 446. The marginal note to s. 52, as it now stands, was originally marginal note only to what is presently sub-s. (1), and significantly enough, this marginal note remains unchanged even after the introduction of subs. (2), suggesting clearly that it was meant by Parliament to apply to both sub-sections of s. 52 and it must, therefore, be taken as indicating that, like sub-s. (1), sub-s. (2) is also intended to deal with cases where there is an understatement of the consideration in respect of the transfer13. But apart from these considerations, the placement of sub-s. (2) in s. 52 does indicate in some small measure that Parliament intended that sub-section to apply only to cases where the consideration in respect of the transfer is understated by the assessee. It is not altogether without significance that the provision in sub-s. (2) was enacted by Parliament not as a separate section, but as part of s. 52 which, as it originally stood, dealt only with cases of under-statement of consideration. If Parliament intended sub-s. (2) to cover all cases where the condition of 15% difference is satisfied, irrespective of whether there is understatement of consideration or not, it is reasonable to assume that Parliament would have enacted that provision as a separate section and not pitchforked it into s. 52 with a total stranger under an inappropriate marginal note. Moreover, there is inherent evidence in sub-s. (2) which suggests that the thrust of that subsection is directed against cases of understatement of consideration. The crucial and important words in sub-s. (2) are:the full value of the consideration declared by the assesseeis very eloquent and revealing. It clearly indicates that the focus of sub-s. (2) is on the consideration declared or disclosed by the assessee as distinguished from the consideration actually received by him and it contemplates case where the consideration received by the assessee in respect of the transfer is not truly declared or disclosed by him but is shown at a different figure. This of course is a very small factor and by itself is of little consequence but along with the other factors which we have discussed above, it assumes same significance as throwing light on the true intent of sub-s. (2)There is also one other circumstance which strongly reinforces the view we are taking in regard to the construction of sub-s. (2). Soon after the introduction of sub-s. (2), the CBDT, in exercise of the power conferred under s. 119 of the Act, issued a circular dated 7th July, 1964, explaining the scope and object of sub-s. (2)14. The circular also drew the attention of the I.T. authorities to the assurance given by the Finance Minister in his speech that sub-s. (2) was not aimed at perfectly honest and bona fide transactions where the consideration in respect of the transfer was correctly disclosed or declared by the assessee, but was intended to deal only with cases-where the consideration for the transfer was understated by the assessee and was shown at a lesser figure than that actually received by him. It appears that despite this circular, the I.T. authorities in several cases levied tax by invoking the provision in sub-s. (2) even in cases where the transaction was perfectly honest and bona fide and there was no understatement of the consideration. This was quite contrary to the instructions issued in the circular which was binding on the tax department and the CBDT was, therefore, constrained to issue another circular on 14th January, 1974,These two circulars of the CBDT are, as we shall presently point out, binding on the tax department in administering or executing the provision enacted in sub-s. (2), but quite apart from their binding character, they are clearly in the nature of contemporanea expositio furnishing legitimate aid in the construction of sub-s. (2). The rule of construction by reference to contemporanea expositio is a well-established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguousis clear from these two circulars that the CBDT, which is the highest authority entrusted with the execution of the provisions of the Act, understood sub-s. (2) as limited to cases where the consideration for the transfer has been understated by the assessee and this must be regarded as a strong circumstance supporting the construction which we are placing on that sub-sectionThis rule has been succinctly and felicitously expressed in Crawford on Statutory Construction, 1940 Edn., where it is stated in paragraph 219 that:administrative construction (i.e., contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly referred to as practical construction, although non-controlling, is nevertheless entitled to considerable weight, it is highly persuasive.15. But the construction which is commending itself to us does not rest merely on the principle of contemporanea expositio. The two circulars of the CBDT to which we have just referred are legally binding on the revenue and this binding character attaches to the two circulars even if they be found not in accordance with the correct interpretation of subs. (2) and they depart or deviate from such construction. It is now well settled as a result of two decisions of this court, one in Navnit Lal C. Javeri v. K. K. Sen, AAC [1965] 56 ITR 198 and the other in Ellerman Lines Ltd. v. CIT [1971] 82 ITR 913 that circulars issued by the CBDT under s. 119 of the Act are binding on all officers and persons employed in the execution of the Act even if they deviate from the provisions of the Act.16. The two circulars of the CBDT, referred to above, must, therefore, be held to be binding on the revenue in the administration or implementation of sub-s. (2) and this sub-section must be read as applicable only to cases where there is understatement of the consideration in respect of the transfer17. Thus, it is not enough to attract the applicability of sub-s. (2), that the fair market value of the capital asset transferred by the assessee as on the date of the transfer exceeds the full value of the consideration declared in respect of the transfer by not less than 15% of the value so declared, but it is furthermore necessary that the full value of the consideration in respect of the transfer is understated or, in other words, shown at a lesser figure than that actually received by the assessee. Sub-section (2) has no application in the case of an honest and bona fide transaction where the consideration in respect of the transfer has been correctly declared or disclosed by the assessee, even if the condition of 15% difference between the fair market value of the capital asset as on the date of the transfer andthe full value of the consideration declared by the assesseeis satisfied. If, therefore, the revenue seeks to bring a case within sub-s. (2), it must show not only that the fair market value of the capital asset as on the date of the transfer exceedsthe full value of the consideration declared by the assesseeby not less than 15% of the value so declared, but also that the consideration has been understated and the assessee has actually received more than what is declared by him. There are two distinct conditions which have to be satisfied before sub-s. (2) can be invoked by the revenue and the burden of showing that these two conditions are satisfied rests on the revenue. It is for the revenue to show that each of these two conditions is satisfied and the revenue cannot claim to have discharged this burden which lies upon it, by merely establishing that the fair market value of the capital asset as on the date of the transfer exceeds by 15% or more the full value of the consideration declared in respect of the transfer and the first condition is, therefore, satisfied. The revenue must go further and prove that the second condition is also satisfied. Merely by showing that the first condition is satisfied, the revenue cannot ask the court to presume that the second condition too is fulfilled, because even in a case where the first condition of 15% difference is satisfied, the transaction may be a perfectly honest and bona fide transaction and there may be no understatement of the consideration. The fulfilment of the second condition has, therefore, to be established independently of the first condition and merely because the first condition is satisfied, no inference can necessarily follow that the second condition is also fulfilled. Each condition has got to be viewed and established independently before sub-s. (2) can be invoked and the burden of doing so is clearly on the revenue. It is well-settled rule of law that the onus of establishing that the conditions of taxability are fulfilled is always on the revenue and the second condition being as much a condition of taxability as the first, the burden lies on the revenue to show that there is an understatement of the consideration and the second condition is fulfilled. Moreover, to throw the burden of showing that there is no understatement of the consideration, on the assessee would be to cast an almost impossible burden upon him to establish a negative, namely, that he did not receive any consideration beyond that declared by himis a well-known fact borne out by practical experience that the determination of fair market value of a capital asset is generally a matter of estimate based to some extent on guess work and despite the utmost bona fides, the estimate of the fair market value is bound to vary from individual to individual. It is obvious that if the restrictive condition of a difference of 15% or more between the fair market value of the capital asset as on the date of the transfer and the consideration declared in respect of the transfer were not provided in sub-s. (2), many marginal cases would, having regard to the possibility of difference of opinion in subjective assessment of the fair market value, fall within the mischief of that sub-section and the statutory measure enacted in that sub-section for determining the consideration actually received by the assessee would be applicable in all its rigour in such cases. This condition of 15% or more difference is merely intended to be a safeguard against the undue hardship which would be occasioned to the assessee if the inflexible rule of thumb enacted in sub-s. (2) were applied in marginal cases and it has nothing to do with the question of burden of proof, for, the burden of establishing that there is an understatement of the consideration in respect of the transfer always rests on the revenue. The postulate underlying subs. (2) is that the difference between one honest valuation and another may range up to 15% and that constitutes the class of marginal cases which are taken out of the purview of sub-s. (2) in order to avoid hardship to the assessee19. It is, therefore, clear that sub-s. (2) cannot be invoked by the revenue unless there is understatement of the consideration in respect of the transfer and the burden of showing that there is such understatement is on the revenue. Once it is established by the revenue that the consideration for the transfer has been understated or, to put it differently, the consideration actually received by the assessee is more than what is declared or disclosed by him, sub-s. (2) is immediately attracted, subject of course to the fulfilment of the condition of 15% or more difference, and the revenue is then not required to show what is the precise extent of the understatement or in other words, what is the consideration actually received by the assessee. That would in most cases be difficult, if not impossible, to show and hence sub-s. (2) relieves the revenue of all burden of proof regarding the extent of understatement or concealment and provides a statutory measure of the consideration received in respect of the transfer. It does not create any fictional receipt. It does not deem as receipt something which is not in fact received. It merely provides a statutory best judgment assessment of the consideration actually received by the assessee and brings to tax capital gains on the footing that the fair market value of the capital asset represents the actual consideration received by the assessee as against the consideration untruly declared or disclosed by him. This approach in the construction of sub-s. (2) falls in line with the scheme of the provisions relating to tax on capital gains. It may be noted that s. 52 is not a charging section but is a computation section. It has to be read along with s. 48 which provides the mode of computation and under which the starting point of computation isthe full value of the consideration received or accruing . What in fact never accrued or was never received cannot be computed as capital gains under s.48. Therefore, sub-s. (2) cannot be construed as bringing within the computation of capital gains an amount which, by no stretch of imagination, can be said to have accrued to the assessee or been received by him and it must be confined to cases where the actual consideration received for the transfer is understated and since in such cases it is very difficult, if not impossible, to determine and prove the exact quantum of the suppressed consideration, sub-s. (2) provides the statutory measure for determining the consideration actually received by the assessee and permits the revenue to take the fair market value of the capital asset as the full value of the consideration received in respect of the transfer20. This construction which we are placing on sub-s. (2) also marches in step with the Gift-tax Act, 1958. If a capital asset is transferred for a consideration below its market value, the difference between the market value and the full value of the consideration received in respect of the transfer would amount to a gift liable to tax under the G.T. Act, 1958, but if the construction of sub-s. (2) contended for on behalf of the revenue were accepted, such difference would also be liable to be added as part of capital gains taxable under the provisions of the I.T. Act, 1961. This would be an anomalous result which could never have been contemplated by the Legislature, since the I.T. Act, 1961, and the G.T. Act, 1958, are parts of an integrated scheme of taxation and the same amount which is chargeable as gift could not be intended to be charged also as capital gains21. Moreover, if sub-s. (2) is literally construed as applying even to cases where the full value of the consideration in respect of the transfer is correctly declared or disclosed by the assessee and there is no understatement of the consideration, it would result in an amount being taxed which has neither accrued to the assessee nor been received by him and which from no view-point can be rationally considered as capital gains or any other type of income. It is a well settled rule of interpretation that the court should as far as possible avoid that construction which attributes irrationality to the Legislature. Besides, under entry 82 in List I of the Seventh Schedule to the Constitution, which deals with Taxes on income other than agricultural income and under which the I.T. Act, 1961, has been enacted, Parliament cannot choose to tax as income an item which in no rational sense can be regarded as citizens income or even receipt. Sub-section (2) would, therefore, on the construction of the revenue, go outside the legislative power of Parliament and it would not be possible to justify it even as an incidental or ancillary provision or a provision intended to prevent evasion of tax. Sub-section (2) would also be violative of the fundamental right of the assessee under art. 19(1)(f) which fundamental right was in existence at the time when sub-s. (2) came to be enacted-since on the construction canvassed on behalf of the revenue, the effect of sub-s. (2) would be to penalise the assessee for transferring his capital asset for a consideration lesser by 15% or more than the fair market value and that would constitute unreasonable restriction on the fundamental right of the assessee to dispose of his capital asset at the price of his choice. The court must obviously prefer construction which renders the statutory provision constitutionally valid rather than that which makes it voidThe argument of the revenue was, and this argument found favour with the majority judges of the Full Bench, that on a plain and natural construction of the language of s. 52, sub-s. (2), the only condition for attracting the applicability of that provision was that the fair market value of the capital asset transferred by the assessee as on the date of the transfer exceededthe full value of the consideration declared by the assesseein respect of the transfer by an amount of not less than 15% of the value so declared. Once the ITO is satisfied that this condition exists, he can proceed to invoke the provision in s. 52, sub-s. (2), and take the fair market value of the capital asset transferred by the assessee as on the date of the transfer as representing the full value of the consideration for the transfer of the capital asset and compute the capital gains on that basis. No more is necessary to be proved, contended the revenue. To introduce any further condition such as under-statement of consideration in respect of the transfer would be to read into the statutory provision something which is not there; indeed, it would amount to re-writing the section.order of reassessment made by the ITO pursuant to the notice issued under s. 148 was accordingly without jurisdiction and the majority judges of the Full Bench were in error in refusing to quash it22. We must, therefore, hold that sub-s. (2) of s. 52 can be invoked only where the consideration for the transfer has been understated by the assessee or, in other words, the consideration actually received by the assessee is more than what is declared or disclosed by him and the burden of proving such an understatement or concealment is on the revenue. This burden may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is an understatement or concealment of the consideration in respect of the transfer. Sub-section (2) has no application in the case of an honest and bona fide transaction where the consideration received by the assessee has been correctly declared or disclosed by him, and there is no concealment or suppression of the consideration. We find that in the present case, it was not the contention of the revenue that the property was sold by the assessee to his daughter-in-law and five of his children for consideration which was more than the sum of Rs. 16, 500 shown to be the consideration for the property in the instrument of transfer and there was an understatement or concealment of the consideration in respect of the transfer. It was common ground between the parties and that was a finding of fact reached by the I.T. authorities that the transfer of the property by the assessee was a perfectly honest and bona fide transaction where the full value of the consideration received by the assessee was correctly disclosed at the figure of Rs. 16, 500. Therefore, on the construction placed by us, sub-s. (2) had no application to the present case and the ITO could have no reason to believe that any part of the income of the assessee had escaped assessment so as to justify the issue of a notice under s. 148.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: 48 which provides the mode of computation and under which the starting point of computation is the full value of the consideration received or accruing . What in fact never accrued or was never received cannot be computed as capital gains under s.48. Therefore, sub-s. (2) cannot be construed as bringing within the computation of capital gains an amount which, by no stretch of imagination, can be said to have accrued to the assessee or been received by him and it must be confined to cases where the actual consideration received for the transfer is understated and since in such cases it is very difficult, if not impossible, to determine and prove the exact quantum of the suppressed consideration, sub-s. (2) provides the statutory measure for determining the consideration actually received by the assessee and permits the revenue to take the fair market value of the capital asset as the full value of the consideration received in respect of the transfer 20. This construction which we are placing on sub-s. (2) also marches in step with the Gift-tax Act, 1958. If a capital asset is transferred for a consideration below its market value, the difference between the market value and the full value of the consideration received in respect of the transfer would amount to a gift liable to tax under the G.T. Act, 1958, but if the construction of sub-s. (2) contended for on behalf of the revenue were accepted, such difference would also be liable to be added as part of capital gains taxable under the provisions of the I.T. Act, 1961. This would be an anomalous result which could never have been contemplated by the Legislature, since the I.T. Act, 1961, and the G.T. Act, 1958, are parts of an integrated scheme of taxation and the same amount which is chargeable as gift could not be intended to be charged also as capital gains 21. Moreover, if sub-s. (2) is literally construed as applying even to cases where the full value of the consideration in respect of the transfer is correctly declared or disclosed by the assessee and there is no understatement of the consideration, it would result in an amount being taxed which has neither accrued to the assessee nor been received by him and which from no view-point can be rationally considered as capital gains or any other type of income. It is a well settled rule of interpretation that the court should as far as possible avoid that construction which attributes irrationality to the Legislature. Besides, under entry 82 in List I of the Seventh Schedule to the Constitution, which deals with Taxes on income other than agricultural income and under which the I.T. Act, 1961, has been enacted, Parliament cannot choose to tax as income an item which in no rational sense can be regarded as citizens income or even receipt. Sub-section (2) would, therefore, on the construction of the revenue, go outside the legislative power of Parliament and it would not be possible to justify it even as an incidental or ancillary provision or a provision intended to prevent evasion of tax. Sub-section (2) would also be violative of the fundamental right of the assessee under art. 19(1)(f) which fundamental right was in existence at the time when sub-s. (2) came to be enacted-since on the construction canvassed on behalf of the revenue, the effect of sub-s. (2) would be to penalise the assessee for transferring his capital asset for a consideration lesser by 15% or more than the fair market value and that would constitute unreasonable restriction on the fundamental right of the assessee to dispose of his capital asset at the price of his choice. The court must obviously prefer construction which renders the statutory provision constitutionally valid rather than that which makes it void 22. We must, therefore, hold that sub-s. (2) of s. 52 can be invoked only where the consideration for the transfer has been understated by the assessee or, in other words, the consideration actually received by the assessee is more than what is declared or disclosed by him and the burden of proving such an understatement or concealment is on the revenue. This burden may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is an understatement or concealment of the consideration in respect of the transfer. Sub-section (2) has no application in the case of an honest and bona fide transaction where the consideration received by the assessee has been correctly declared or disclosed by him, and there is no concealment or suppression of the consideration. We find that in the present case, it was not the contention of the revenue that the property was sold by the assessee to his daughter-in-law and five of his children for consideration which was more than the sum of Rs. 16, 500 shown to be the consideration for the property in the instrument of transfer and there was an understatement or concealment of the consideration in respect of the transfer. It was common ground between the parties and that was a finding of fact reached by the I.T. authorities that the transfer of the property by the assessee was a perfectly honest and bona fide transaction where the full value of the consideration received by the assessee was correctly disclosed at the figure of Rs. 16, 500. Therefore, on the construction placed by us, sub-s. (2) had no application to the present case and the ITO could have no reason to believe that any part of the income of the assessee had escaped assessment so as to justify the issue of a notice under s. 148. The order of reassessment made by the ITO pursuant to the notice issued under s. 148 was accordingly without jurisdiction and the majority judges of the Full Bench were in error in refusing to quash it ### Response: 1

Municipal Corporation of Delhi Vs. Ram Sarup

Shinghal, J. This appeal by special leave is directed against the judgment of the Delhi High Court dated September 4, 1972, dismissing the appeal of the Municipal Corporation of Delhi against the acquittal of respondent Ram Sarup and upholding his acquittal by the appellate judgment of the Additional Sessions Judge of Delhi for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act. It is not disputed that a sample of besan was taken by the Food Inspector from the respondents shop on October 3, 1970 and the Public Analyst reported that it was "very highly insect infested". The trial Magistrate had found him guilty of the offence under Section 7 read with Section 16 of the Act and sentenced him to rigorous imprisonment for six months and a fine of Rs. 1000. 2. The High Court took note of the following standard of quality of besan prescribed in the Prevention of Food Adulteration Rules, 1955, Appendix B, item A. 18.04 : Besan means the product obtained by grinding dehusked Bengal gram (cicer arietinum) and shall not contain any added colouring matter or any other foreign ingredient. It was argued there on behalf of the appellant Corporation that even though it was the requirement of the Rules that besan shall not contain any "foreign ingredient, the report of the Public Analyst showed that it was insect infested and was therefore found to contain a "foreign ingredient". The High Court made a reference to the statement of the Public Analyst that he had use the expression "very highly insect infested" in his report because "there must have been dead or living insects in the instant sample in great number". It also read that part of the statement of the Public Analyst where he had stated that there must have been at least 9 or 10 insects "living" in the whole sample before he declared it insect infested and that by living insect was meant fully grown insects and not larvae. Even so, the High Court upheld the argument that the words "very highly insect infested" were "relative words", and that the report did not state specifically and with scientific precision the "foreign ingredient" in the sample and whether living or dead insects or larvae or eggs were found in it. In taking that view, the High Court made a reference to some decided cases and held that the Public Analysts report suffered from weakness as it did not supply the "data on which a correct conclusion can be reached by the Court". 3. It is true that the report of the Public Analyst did not state the extent of the insect infestation or whether the insects were living or dead, but the High Court failed to take into consideration the fact that he had categorically deposed that there must have been dead or living insects in the sample in "great number", that there were white living insects in the sample, that there were at least 9 or 10 such insects in it, and that they were fully grown live insects and not larvae. As nothing to the contrary was elicited in spite of the lengthy cross-examination on behalf of the respondent, these facts had been amply established by the statement of the Public Analyst and were sufficient to prove that the sample of besan was "adulterated". The High Court did not take into consideration the provision of Section 2(ia)(f) of the Act according to which an article of food is deemed to be adulterated if, inter alia, it is wholly or in part insect infested. So when it had been proved that this was so, the only possible conclusion was that the respondent had committed an offence under Section 7 read with Section 16 of the Act for that reason and there was no occasion to examine the standard of quality of besan specified under Rule 5 of the Rules. 4. In the view we have taken we would have set aside the acquittal of the respondent and restored the judgment of the trial Court, but we are inclined to think that it will not be proper to do so in the facts and circumstances of this case. There is nothing in the three judgments on record, and more particularly in the impugned judgment of the High Court, to show whether the respondent was put on trial for selling an adulterated article of food within the meaning of clause (f) of Section 2(ia) of the Act, or whether he was tried for selling, within the meaning of clause (l) of that section, an article of food of which the quality or purity fell below the standard prescribed by the Rules. The possibility that the respondent was prejudiced in his defence because of the ambiguity cannot therefore be ruled out.

1[ds]4. In the view we have taken we would have set aside the acquittal of the respondent and restored the judgment of the trial Court, but we are inclined to think that it will not be proper to do so in the facts and circumstances of this case. There is nothing in the three judgments on record, and more particularly in the impugned judgment of the High Court, to show whether the respondent was put on trial for selling an adulterated article of food within the meaning of clause (f) of Section 2(ia) of the Act, or whether he was tried for selling, within the meaning of clause (l) of that section, an article of food of which the quality or purity fell below the standard prescribed by the Rules. The possibility that the respondent was prejudiced in his defence because of the ambiguity cannot therefore be ruled out.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: Shinghal, J. This appeal by special leave is directed against the judgment of the Delhi High Court dated September 4, 1972, dismissing the appeal of the Municipal Corporation of Delhi against the acquittal of respondent Ram Sarup and upholding his acquittal by the appellate judgment of the Additional Sessions Judge of Delhi for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act. It is not disputed that a sample of besan was taken by the Food Inspector from the respondents shop on October 3, 1970 and the Public Analyst reported that it was "very highly insect infested". The trial Magistrate had found him guilty of the offence under Section 7 read with Section 16 of the Act and sentenced him to rigorous imprisonment for six months and a fine of Rs. 1000. 2. The High Court took note of the following standard of quality of besan prescribed in the Prevention of Food Adulteration Rules, 1955, Appendix B, item A. 18.04 : Besan means the product obtained by grinding dehusked Bengal gram (cicer arietinum) and shall not contain any added colouring matter or any other foreign ingredient. It was argued there on behalf of the appellant Corporation that even though it was the requirement of the Rules that besan shall not contain any "foreign ingredient, the report of the Public Analyst showed that it was insect infested and was therefore found to contain a "foreign ingredient". The High Court made a reference to the statement of the Public Analyst that he had use the expression "very highly insect infested" in his report because "there must have been dead or living insects in the instant sample in great number". It also read that part of the statement of the Public Analyst where he had stated that there must have been at least 9 or 10 insects "living" in the whole sample before he declared it insect infested and that by living insect was meant fully grown insects and not larvae. Even so, the High Court upheld the argument that the words "very highly insect infested" were "relative words", and that the report did not state specifically and with scientific precision the "foreign ingredient" in the sample and whether living or dead insects or larvae or eggs were found in it. In taking that view, the High Court made a reference to some decided cases and held that the Public Analysts report suffered from weakness as it did not supply the "data on which a correct conclusion can be reached by the Court". 3. It is true that the report of the Public Analyst did not state the extent of the insect infestation or whether the insects were living or dead, but the High Court failed to take into consideration the fact that he had categorically deposed that there must have been dead or living insects in the sample in "great number", that there were white living insects in the sample, that there were at least 9 or 10 such insects in it, and that they were fully grown live insects and not larvae. As nothing to the contrary was elicited in spite of the lengthy cross-examination on behalf of the respondent, these facts had been amply established by the statement of the Public Analyst and were sufficient to prove that the sample of besan was "adulterated". The High Court did not take into consideration the provision of Section 2(ia)(f) of the Act according to which an article of food is deemed to be adulterated if, inter alia, it is wholly or in part insect infested. So when it had been proved that this was so, the only possible conclusion was that the respondent had committed an offence under Section 7 read with Section 16 of the Act for that reason and there was no occasion to examine the standard of quality of besan specified under Rule 5 of the Rules. 4. In the view we have taken we would have set aside the acquittal of the respondent and restored the judgment of the trial Court, but we are inclined to think that it will not be proper to do so in the facts and circumstances of this case. There is nothing in the three judgments on record, and more particularly in the impugned judgment of the High Court, to show whether the respondent was put on trial for selling an adulterated article of food within the meaning of clause (f) of Section 2(ia) of the Act, or whether he was tried for selling, within the meaning of clause (l) of that section, an article of food of which the quality or purity fell below the standard prescribed by the Rules. The possibility that the respondent was prejudiced in his defence because of the ambiguity cannot therefore be ruled out. ### Response: 1

Boothalinga Agencies Vs. V. T. C. Poriaswami Nadar

and reasonable in the new situation.""The day is gone," the learned Judge went on to say "when we can excuse an unforeseen injustice by saying to the sufferer it is your own folly, you ought not to have passed that form of words. You ought to have put in a clause to protect yourself. We no longer credit a party with the foresight of a Prophet or his lawyer with the draftsmanship of a Chalmers. We realise that they have their limitations and make allowances accordingly. It is better thus. The old maxim reminds us that he who clings to the letter clings to the dry and barren shell and misses the truth and substance of the matter. We have of late paid heed to this warning, and we must pay like heed now." The decision of the Court of Appeal was reversed by the House of Lords, 1952 AC 166 at p. 184 and Viscount Simon expressed disapproval of the view taken by Denning, L. J. At page 184 of the Report, Viscount Simon said:"The principle remains the same. Particular applications of it may greatly vary and theoretical lawyers may debate whether the rule should be regarded as arising from implied term or because the basis of the contract no longer exists. In any view, it is a question of construction as Lord Wright pointed out in Constantines case and as has been repeatedly asserted by other masters of law."13. In English Law therefore the question of frustration of contract has been treated by courts as a question of construction depending upon the true intention of the parties. In contrast, the statutory provisions contained in S. 56 of the Indian Contract Act lay down a positive rule of law and English authorities cannot therefore be of direct assistance, though they have persuasive value in showing how English courts have approached and decided cases under similar circumstances.14. Counsel on behalf of the respondent, however, contended that the contract was not impossible of performance and the appellant cannot take recourse to the provisions of Section 56 of the Indian Contract Act. It was contended that under Clause 1 of the Import Trade Control Order No. 2-ITC/48 dated March 8, 1948 it was open to the appellant to apply for a written permission of the licensing authority to sell the chicory. It is not shown by the appellant that he applied for such permission and the licensing authority had refused such permission. It was therefore maintained on behalf of the respondent that the contract was not impossible of performance. We do not think there is any substance in this argument. It is true that the licensing authority could have given written permission or disposal of the chicory under Clause 1 of Order 2-ITC/48 dated March 8, 1948 but the condition imposed in Ex. B-9 in the present case is a special condition imposed under Clause (v) of Paragraph (a) of Order No. 2-ITC/ 48 dated March 6, 1948 and there was no option given under this clause for the licensing authority to modify the condition of licence that"the goods will be utilised only for consumption as raw material or accessories in the licence holders factory and that no portion thereof will be sold to any party".It was further argued on behalf of the respondent that, in any event, the appellant could have purchased chicory from the open market and supplied it to the respondent in terms of the contract. There is no substance in this argument also. Under the contract the quality of chicory to be sold was chicory of specific description-"Egberts Chicory, packed in 495 wooden cases, each case containing 2 tins of 58 lb nett".The delivery of the chicory was to be given by S. S. Alwaki" in December, 1955. It is manifest that the contract, Ex. A-1 was for sale of certain specific goods as described therein and it was not open to the appellant to supply chicory of any other description. Reference was made on behalf of the respondent to the decision in Maritime National Fish Ltd. v. Ocean Trawlers, Ltd., 1935 AC 524. In that case, the respondents chartered to the appellants a steam trawler fitted with an otter trawl. Both parties knew at the time of the contract that it was illegal to use an otter trawl without a licence from the Canadian Government. Some months later the appellants applied for licences for five trawlers which they were operating, including the respondents trawler. They were informed that only three licences would be granted, and were requested to state for which of the three trawlers they desired to have licences. They named three trawless other than the respondents, and then claimed that they were no longer bound by the charter-party as its object had been frustrated. It was held by the Judicial Committee that the failure of the contract was the result of the appellants own election, and that there was therefore no frustration of the contractWe think the principle of this case applies to the Indian law and the provisions of Section 56 of the Indian Contract Act cannot apply to g case of "self induced frustration ." In other words, the doctrine of frustration of contract cannot apply where the event which is alleged to have frustrated the contract arises from the act or election of a party. But for the reasons already given, we hold that this principle cannot be applied to the present case for there was no choice or election left to the appellant to supply chicory other than under the terms of the contract. On the other hand, there was a positive prohibition imposed by the licence upon the appellant not to sell the imported chicory to any other party but he was permitted to utilise it only for consumption as raw material in his own factory.We are accordingly of the opinion that Counsel for the respondent has been unable to make good his argument on this aspect of the case.

1[ds]1. Notification No. 23-ITC/43, dated the 1st July, 1943, issued by the late Department of Commerce, as amended.Notification No. 2-ITC/48, dated 6th March, 1948, issued by the late Ministry of Commerce.8. On the basis of these provisions was contended by Mr. Gokhale on behalf of the appellant that the contract which is the subject-matter of the suit was unlawful and the respondent cannot claim damages for breach of such a contract. It was not disputed by Mr. Gokhale that the contract between the parties was entered into on November 26, 1955 before the coming into force of the Imports (Control) Order. It was nevertheless argued that a breach of the conditions of the licence was punishable under Section 5 of Act XVIII of 1947 as it stood at the relevant time and therefore the contract was illegal and no claim for the breach thereof was maintainable. The contention of the appellant was that the contravention of the terms of the licence issued under the notification dated March 6,1948 was a contravention of the notification itself within the meaning of Section 5 of Act XVIII of 1947 and was punishable. We are unable to accept this argument as correct. It is clear that Section 5 before its amendment only penalised the contravention of any order made or deemed to have been made under the Act. It is true that a licence was granted by virtue of a statutory notification dated March 6, 1948 issued under the Defence of India Rules and later deemed to have been issued under Act XVIII of 1947. Notification No. 23N-ITC/43 dated July 1, 1943 merely provides that no goods shall be imported except the goods covered by special licences issued by an authorised officer. Notification No. 2. ITC/48 dated March 6, 1948 authorises the licensing officer to impose one or more conditions prescribed by that order and the licensing officer has therefore power to impose conditions in the licence issued by him, but if the licensee contravenes the conditions imposed by the licence it is difficult to hold that it is not merely a contravention of the conditions of a licence but there is contravention of the terms of the notification and so the provisions of Section 5 of Act XVIII of 1947 are attracted. Reference was made on behalf of the appellant to the amendment made to S. 5 of Act XVIII of 1947 by the Amending Act 4 of 1960. By the Amending Act Section 5 of Act XVIII of 1947 was amended so as to include contravention of a condition of a licence granted under any order as an offence under Section 5 of the Act.It is not, however, permissible, in the circumstances of the present case, to construe the language of Section 5 of the parent Act with the aid of the Amending Act (Act 4 of 1960). It is not possible for us to accept the contention of Mr. Gokhale that the Amending Act of 1960 is something in the nature of a Parliamentary exposition of the meaning of Section 5 as it stood in the parent Act. It follows therefore that on the material date a breach of the condition of a licence was not tantamount to a breach of the statutory order within the meaning of Section 5 of Act XVIII of 1947.The view that we have expressed is borne out by the decision of this Court in East India Commercial Co. Ltd. Calcutta v. Collector of Customs, Calcutta, (1963) 3 SCR 338 = (AIR 1962 SC 1893 ) in which it was held by the majority judgment that an infringement of the condition of a licence was not equivalent to an infringement of the two orders dated July 1, 1943 and March 6, 1948 i. e., Nos. 23 ITC/43 and 2-ITC/48 made under the Imports and Exports (Control) Act, 1947 and therefore the provisions of Section 167 (8) of the Sea Customs Act were not attracted. We accordingly reject the argument of Mr. Gokhale on this aspect of the case.The doctrine of frustration of contract is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. It should be noticed that Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties.In English Law therefore the question of frustration of contract has been treated by courts as a question of construction depending upon the true intention of the parties. In contrast, the statutory provisions contained in S. 56 of the Indian Contract Act lay down a positive rule of law and English authorities cannot therefore be of direct assistance, though they have persuasive value in showing how English courts have approached and decided cases under similar circumstances.

### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: and reasonable in the new situation.""The day is gone," the learned Judge went on to say "when we can excuse an unforeseen injustice by saying to the sufferer it is your own folly, you ought not to have passed that form of words. You ought to have put in a clause to protect yourself. We no longer credit a party with the foresight of a Prophet or his lawyer with the draftsmanship of a Chalmers. We realise that they have their limitations and make allowances accordingly. It is better thus. The old maxim reminds us that he who clings to the letter clings to the dry and barren shell and misses the truth and substance of the matter. We have of late paid heed to this warning, and we must pay like heed now." The decision of the Court of Appeal was reversed by the House of Lords, 1952 AC 166 at p. 184 and Viscount Simon expressed disapproval of the view taken by Denning, L. J. At page 184 of the Report, Viscount Simon said:"The principle remains the same. Particular applications of it may greatly vary and theoretical lawyers may debate whether the rule should be regarded as arising from implied term or because the basis of the contract no longer exists. In any view, it is a question of construction as Lord Wright pointed out in Constantines case and as has been repeatedly asserted by other masters of law."13. In English Law therefore the question of frustration of contract has been treated by courts as a question of construction depending upon the true intention of the parties. In contrast, the statutory provisions contained in S. 56 of the Indian Contract Act lay down a positive rule of law and English authorities cannot therefore be of direct assistance, though they have persuasive value in showing how English courts have approached and decided cases under similar circumstances.14. Counsel on behalf of the respondent, however, contended that the contract was not impossible of performance and the appellant cannot take recourse to the provisions of Section 56 of the Indian Contract Act. It was contended that under Clause 1 of the Import Trade Control Order No. 2-ITC/48 dated March 8, 1948 it was open to the appellant to apply for a written permission of the licensing authority to sell the chicory. It is not shown by the appellant that he applied for such permission and the licensing authority had refused such permission. It was therefore maintained on behalf of the respondent that the contract was not impossible of performance. We do not think there is any substance in this argument. It is true that the licensing authority could have given written permission or disposal of the chicory under Clause 1 of Order 2-ITC/48 dated March 8, 1948 but the condition imposed in Ex. B-9 in the present case is a special condition imposed under Clause (v) of Paragraph (a) of Order No. 2-ITC/ 48 dated March 6, 1948 and there was no option given under this clause for the licensing authority to modify the condition of licence that"the goods will be utilised only for consumption as raw material or accessories in the licence holders factory and that no portion thereof will be sold to any party".It was further argued on behalf of the respondent that, in any event, the appellant could have purchased chicory from the open market and supplied it to the respondent in terms of the contract. There is no substance in this argument also. Under the contract the quality of chicory to be sold was chicory of specific description-"Egberts Chicory, packed in 495 wooden cases, each case containing 2 tins of 58 lb nett".The delivery of the chicory was to be given by S. S. Alwaki" in December, 1955. It is manifest that the contract, Ex. A-1 was for sale of certain specific goods as described therein and it was not open to the appellant to supply chicory of any other description. Reference was made on behalf of the respondent to the decision in Maritime National Fish Ltd. v. Ocean Trawlers, Ltd., 1935 AC 524. In that case, the respondents chartered to the appellants a steam trawler fitted with an otter trawl. Both parties knew at the time of the contract that it was illegal to use an otter trawl without a licence from the Canadian Government. Some months later the appellants applied for licences for five trawlers which they were operating, including the respondents trawler. They were informed that only three licences would be granted, and were requested to state for which of the three trawlers they desired to have licences. They named three trawless other than the respondents, and then claimed that they were no longer bound by the charter-party as its object had been frustrated. It was held by the Judicial Committee that the failure of the contract was the result of the appellants own election, and that there was therefore no frustration of the contractWe think the principle of this case applies to the Indian law and the provisions of Section 56 of the Indian Contract Act cannot apply to g case of "self induced frustration ." In other words, the doctrine of frustration of contract cannot apply where the event which is alleged to have frustrated the contract arises from the act or election of a party. But for the reasons already given, we hold that this principle cannot be applied to the present case for there was no choice or election left to the appellant to supply chicory other than under the terms of the contract. On the other hand, there was a positive prohibition imposed by the licence upon the appellant not to sell the imported chicory to any other party but he was permitted to utilise it only for consumption as raw material in his own factory.We are accordingly of the opinion that Counsel for the respondent has been unable to make good his argument on this aspect of the case. ### Response: 1

Prem Chand Somchand Shah and Another Vs. Union of India and Another

provide an exception to the rule and to declare that an importer might import a canalised item directly. It is in that sense and that sense only that the court could have intended to define the entitlement of diamond exporters. They would be entitled to import items which were canalised or not if the import policy prevailing at the time of the import permitted them to import items falling under such category. This was also viewed in that light in the case of Indo Afghan Chambers of Commerce (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 )." * 15. These observations only indicate that import of the canalised items under Additional Licences issued to Export Houses, like the petitioners, would be permissible if the import policy prevailing at the time of import permits them to import such items. In other words it would depend on the terms of the import policy prevailing at the time of import. The decision in Indo Afghan Chambers of Commerce v. Union of India (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 )" to which reference has been made, is also the same effect. In that case Export Houses, like the petitioners, wanted to import Dry Fruits under the Additional Licences issued to them. Under the Import Policy 1985-88 prevailing at the time of such import, the import of dry fruits was permissible only by dealers engaged in the trade of stocking and selling dry fruits. It was held that the Export Houses could not import dry fruits in view of the said restriction placed in the Import Policy 1985-88. The decision of this Court in D. Navinchandra & Co. case [ 1987 (3) SCC 66 : 1987 (2) SCR 989 ] reiterates that the rights of the petitioners under the Additional Licences issued to them would be governed by the terms of the import policy prevailing at the time of import 16. Here we find that in the Import and Export Policy 1988-91 there has been relaxation to a limited extent in respect of imports by Export Houses who are granted Additional Licences under the said Policy on the basis of their exports during that period 1987-88 and subsequent periods. Since the basis for the grant of Additional Licences which are entitled to this relaxation is different from the basis on which Additional Licences were granted to the petitioners, the petitioners cannot claim the benefit of the same relaxation and assail the validity of sub-para (10) of para 218 of the Import and Export Policy 1988-91 17. Shri Salve has invited our attention to the Import Licence dated November 21, 1988 issued in favour of M/s. Suraj Diamonds Industries Pvt. Ltd. wherein it is stated that this licence is valid for import of items as per para 215 of Import and Export Policy 1988-91 subject to restrictions/conditions laid down therein. It has been submitted that this licence has also been issued under the Import and Export Policy 1978-79 on the basis of the f.o.b. value of exports. It has been urged that the petitioners as well as the said licensee, namely M/s. Suraj Diamonds Industries Pvt. Ltd. are persons similarly situate and whereas M/s. Suraj Diamonds Industries Pvt. Ltd. have been granted an Additional Licence whereunder it is permissible to import items as per para 215 of the Import and Export Policy 1988-91, the said facility has been denied to the petitioners and that the petitioners have been subjected to arbitrary and hostile discrimination. The learned Additional Solicitor General has pointed out that the said licence to M/s. Suraj Diamonds Industries Pvt. Ltd. was issued under a mistake and the said mistake has been rectified on December 2, 1988, i.e., within 10 days of the issue of the said licence. In view of the fact that the licence issued in favour of M/s. Suraj Diamonds Industries was issued under a mistake and the said mistake has been rectified, it cannot be said that the petitioners have been subjected to hostile discrimination vis-a-vis other Export Houses similarly situate 18. Before we conclude, we may take note of the recent decision of this Court in B. Vijay Kumar & Co. v. Collector of Central Excise and Customs ((1991) 1 Scale 33). The appellants therein had been granted Additional Import Licence in pursuance of this Courts order dated April 18, 1985 in Rajnikant Brothers case 1986 Supp(SCC) 692) and had imported canalised items under the said licence. The goods were not cleared by the customs authorities and the Collector of Customs imposed penalty and passed orders for confiscation of the foods and permitted the appellants to take delivery of goods on payment of redemption fine. The Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Appellate Tribunal) on appeal, while upholding the order of imposition of redemption fine, set aside the order of Collector imposing penalty. In view of the special facts and circumstances of the case and specially having regard to the findings of the Appellate Tribunal that the appellants imported canalised items bona fide, this Court set aside the orders of the Collector and the Appellate Tribunal with regard to confiscation of goods and imposition or redemption fine without dealing with the submissions of learned counsel for the parties with regard to the interpretation and the effect of the earlier judgments of this Court in Raj Prakash Chemicals case ( 1986 (2) SCC 297 : 1986 (1) SCR 448 ) Indo-Afghan case (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 ), Godrej Soap case (Star Diamond Co., India v. Union of India, 1986 (4) SCC 246 : 1986 SCC(Cri) 431) and D. Navinchandra & Co. case ( 1987 (3) SCC 66 : 1987 (2) SCR 989 ) This decision is, therefore, a decision based on the facts of that particular case only

0[ds]7. Shri Salve has invited our attention to the Import Licence dated November 21, 1988 issued in favour of M/s. Suraj Diamonds Industries Pvt. Ltd. wherein it is stated that this licence is valid for import of items as per para 215 of Import and Export Policy 1988-91 subject to restrictions/conditions laid down therein. It has been submitted that this licence has also been issued under the Import and Export Policy 1978-79 on the basis of the f.o.b. value of exports. It has been urged that the petitioners as well as the said licensee, namely M/s. Suraj Diamonds Industries Pvt. Ltd. are persons similarly situate and whereas M/s. Suraj Diamonds Industries Pvt. Ltd. have been granted an Additional Licence whereunder it is permissible to import items as per para 215 of the Import and Export Policy 1988-91, the said facility has been denied to the petitioners and that the petitioners have been subjected to arbitrary and hostile discrimination. The learned Additional Solicitor General has pointed out that the said licence to M/s. Suraj Diamonds Industries Pvt. Ltd. was issued under a mistake and the said mistake has been rectified on December 2, 1988, i.e., within 10 days of the issue of the said licence. In view of the fact that the licence issued in favour of M/s. Suraj Diamonds Industries was issued under a mistake and the said mistake has been rectified, it cannot be said that the petitioners have been subjected to hostile discrimination vis-a-vis other Export Houses similarlyShri H.N. Salve, has, however, urged that the view of the decision of this Court in D. Navinchandra & Co. case ( 1987 (3) SCC 66 : 1987 (2) SCR 989 ) the Export Houses who were granted Additional Licences under the Import and Export Policy 1978-79 have to be treated at par with Export Houses who have been granted Additional Licences under the Import and Export Policy for the subsequent years and since there has been relaxation in the matter of policy of canalisation of imports under sub-para (4) of para 215 in respect of Additional Licences granted to Export Houses under the Import and Export Policy 1988-91, the petitioners are also entitled to a similar relaxation. We are unable to agree withHere we find that in the Import and Export Policy 1988-91 there has been relaxation to a limited extent in respect of imports by Export Houses who are granted Additional Licences under the said Policy on the basis of their exports during that period 1987-88 and subsequent periods. Since the basis for the grant of Additional Licences which are entitled to this relaxation is different from the basis on which Additional Licences were granted to the petitioners, the petitioners cannot claim the benefit of the same relaxation and assail the validity of sub-para (10) of para 218 of the Import and Export PolicyBefore we conclude, we may take note of the recent decision of this Court in B. Vijay Kumar & Co. v. Collector of Central Excise and Customs ((1991) 1 Scale 33). The appellants therein had been granted Additional Import Licence in pursuance of this Courts order dated April 18, 1985 in Rajnikant Brothers case 1986 Supp(SCC) 692) and had imported canalised items under the said licence. The goods were not cleared by the customs authorities and the Collector of Customs imposed penalty and passed orders for confiscation of the foods and permitted the appellants to take delivery of goods on payment of redemption fine. The Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Appellate Tribunal) on appeal, while upholding the order of imposition of redemption fine, set aside the order of Collector imposing penalty. In view of the special facts and circumstances of the case and specially having regard to the findings of the Appellate Tribunal that the appellants imported canalised items bona fide, this Court set aside the orders of the Collector and the Appellate Tribunal with regard to confiscation of goods and imposition or redemption fine without dealing with the submissions of learned counsel for the parties with regard to the interpretation and the effect of the earlier judgments of this Court in Raj Prakash Chemicals case ( 1986 (2) SCC 297 : 1986 (1) SCR 448 ) Indo-Afghan case (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 ), Godrej Soap case (Star Diamond Co., India v. Union of India, 1986 (4) SCC 246 : 1986 SCC(Cri) 431) and D. Navinchandra & Co. case ( 1987 (3) SCC 66 : 1987 (2) SCR 989 ) This decision is, therefore, a decision based on the facts of that particular case only

### Instruction: Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0). ### Input: provide an exception to the rule and to declare that an importer might import a canalised item directly. It is in that sense and that sense only that the court could have intended to define the entitlement of diamond exporters. They would be entitled to import items which were canalised or not if the import policy prevailing at the time of the import permitted them to import items falling under such category. This was also viewed in that light in the case of Indo Afghan Chambers of Commerce (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 )." * 15. These observations only indicate that import of the canalised items under Additional Licences issued to Export Houses, like the petitioners, would be permissible if the import policy prevailing at the time of import permits them to import such items. In other words it would depend on the terms of the import policy prevailing at the time of import. The decision in Indo Afghan Chambers of Commerce v. Union of India (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 )" to which reference has been made, is also the same effect. In that case Export Houses, like the petitioners, wanted to import Dry Fruits under the Additional Licences issued to them. Under the Import Policy 1985-88 prevailing at the time of such import, the import of dry fruits was permissible only by dealers engaged in the trade of stocking and selling dry fruits. It was held that the Export Houses could not import dry fruits in view of the said restriction placed in the Import Policy 1985-88. The decision of this Court in D. Navinchandra & Co. case [ 1987 (3) SCC 66 : 1987 (2) SCR 989 ] reiterates that the rights of the petitioners under the Additional Licences issued to them would be governed by the terms of the import policy prevailing at the time of import 16. Here we find that in the Import and Export Policy 1988-91 there has been relaxation to a limited extent in respect of imports by Export Houses who are granted Additional Licences under the said Policy on the basis of their exports during that period 1987-88 and subsequent periods. Since the basis for the grant of Additional Licences which are entitled to this relaxation is different from the basis on which Additional Licences were granted to the petitioners, the petitioners cannot claim the benefit of the same relaxation and assail the validity of sub-para (10) of para 218 of the Import and Export Policy 1988-91 17. Shri Salve has invited our attention to the Import Licence dated November 21, 1988 issued in favour of M/s. Suraj Diamonds Industries Pvt. Ltd. wherein it is stated that this licence is valid for import of items as per para 215 of Import and Export Policy 1988-91 subject to restrictions/conditions laid down therein. It has been submitted that this licence has also been issued under the Import and Export Policy 1978-79 on the basis of the f.o.b. value of exports. It has been urged that the petitioners as well as the said licensee, namely M/s. Suraj Diamonds Industries Pvt. Ltd. are persons similarly situate and whereas M/s. Suraj Diamonds Industries Pvt. Ltd. have been granted an Additional Licence whereunder it is permissible to import items as per para 215 of the Import and Export Policy 1988-91, the said facility has been denied to the petitioners and that the petitioners have been subjected to arbitrary and hostile discrimination. The learned Additional Solicitor General has pointed out that the said licence to M/s. Suraj Diamonds Industries Pvt. Ltd. was issued under a mistake and the said mistake has been rectified on December 2, 1988, i.e., within 10 days of the issue of the said licence. In view of the fact that the licence issued in favour of M/s. Suraj Diamonds Industries was issued under a mistake and the said mistake has been rectified, it cannot be said that the petitioners have been subjected to hostile discrimination vis-a-vis other Export Houses similarly situate 18. Before we conclude, we may take note of the recent decision of this Court in B. Vijay Kumar & Co. v. Collector of Central Excise and Customs ((1991) 1 Scale 33). The appellants therein had been granted Additional Import Licence in pursuance of this Courts order dated April 18, 1985 in Rajnikant Brothers case 1986 Supp(SCC) 692) and had imported canalised items under the said licence. The goods were not cleared by the customs authorities and the Collector of Customs imposed penalty and passed orders for confiscation of the foods and permitted the appellants to take delivery of goods on payment of redemption fine. The Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Appellate Tribunal) on appeal, while upholding the order of imposition of redemption fine, set aside the order of Collector imposing penalty. In view of the special facts and circumstances of the case and specially having regard to the findings of the Appellate Tribunal that the appellants imported canalised items bona fide, this Court set aside the orders of the Collector and the Appellate Tribunal with regard to confiscation of goods and imposition or redemption fine without dealing with the submissions of learned counsel for the parties with regard to the interpretation and the effect of the earlier judgments of this Court in Raj Prakash Chemicals case ( 1986 (2) SCC 297 : 1986 (1) SCR 448 ) Indo-Afghan case (Indo Afghan Chambers of Commerce v. Union of India, 1986 (3) SCC 352 : 1986 (3) SCR 88 ), Godrej Soap case (Star Diamond Co., India v. Union of India, 1986 (4) SCC 246 : 1986 SCC(Cri) 431) and D. Navinchandra & Co. case ( 1987 (3) SCC 66 : 1987 (2) SCR 989 ) This decision is, therefore, a decision based on the facts of that particular case only ### Response: 0

The Pioneer Limited Vs. V.S. Tajdar Hussain (Dead) & Others

the fact that there has been a contravention of S.6 (i) of the U.P. Industrial Disputes Act, by the appellant management being represented by Mr. O. P. Vatsa. This question loomed very large, as is seen from the elaborate discussion contained in the judgment of the learned Single Judge. Though it was contended on behalf of the appellant that this quesion should not be allowed to be raised and that, in any event, there has been no violation of Section 6 (i) of the U. P. Industrial Disputes Act, the learned Single Judge ultimately accepted the contention advanced on behalf of the workman and quashed the award. The learned Single Judge, by his judgment and order dated February 16, 1966 remanded the dispute, for fresh consideration by the Labour Court.5. The appellant challenged the decision of the Single Judge before the Division Bench in Special Appeal No. 75 of 1966. The Division Bench agreed with the decision of the learned Single Judge and confirmed the order, quashing the award and remanding the proceedings to the Labour Court for fresh consideration.6. Mr. Gupte, learned counsel for the appellant, raised two contentions; (1) that the workman was not entitled to raise in proceedings under arts. 226 and 227 before the High Court for the first time the alleged irregularity or illegality, if any, pertaining to the representation of the appellant by Mr. O. P. Vatsa, specially as no such contention was raised before the Labour Court; and (2) In any event, there has been no violation of the provisions of S.6 (i) of the U. P. Industrial Disputes Act in Mr. O. P. Vatsas having represented the appellant in the proceedings before the Labour Court. It has now become unnecessary, so to say, to consider the correctness or otherwise of the views expressed both by the learned Single Judge and the Division Bench of the High Court, as the workman, who was the first respondent in this appeal died on March 8, 1971. The Union also has not appeared before us.7. On behalf of the appellant, it has been represented before us by Mr. B. P. Maheshwari, learned counsel, that his clients are prepared to pay to the legal representatives of the deceased respondent No.1 the retrenchment compensation amount due to the deceased workman under S.25F of the Industrial Disputes Act as also an additional ex-gratia amount of Rs.1000/-. We consider this offer to be quite reasonable, because even if we do not accept ultimately the contentions of the appellant, the position would be that the proceedings will have to go on afresh before the Labour Court as per the orders of the High Court, in which case, the parties will be put to considerable expenses. Over and above that the appellants may also raise an objection before the Labour Court regarding its jurisdiction to consider the matter afresh after the death of the workman concerned.8. If we accept the contention of the appellant, the result will be that the order of the High Court remanding the proceedings to the Labour Court will have to be set aside, in which case, the award upholding the validity of the retrenchment will stand. In such a case the legal representatives of the deceased workman willnot be entitled to get anything more that what was due to the workman under S.25F of the Industrial Disputes Act. On the other hand, as mentioned earlier, the appellant has offered to pay an additional ex-gratia amount of Rs.1000/- over and above the amount due by way of retrenchment compensation. That is why we are of the opinion that it is unnecessary to proceed further with the matter and that the offer made by the appellant is quite fair to all parties.9. Having due regard to the circumstances mentioned above, and without expressing any opinion about the correctness or otherwise of the decision of the High Court, in its interpretation of S. (i) of the U. P. Industrial Disputes Act, we pass the following order:1. The appellant will pay the legal representatives of the deceased first respondent, namely his son S. Wakar Husain and his wife Malka Begam, referred to in C.M. P. No. 1973 of 1972, the amounts due to the deceased by way of retrenchment compensation under S.25-F of the Industrial Disputes Act.2. The appellant will also pay to the said legal representatives the costs awarded to the deceased first respondent both by the learned Single Judge and the Division Bench, in the High Court:3. The appellant will also further pay to the said legal representatives the costs incurred in this Court by the deceased - first respondent upto the date of his death, viz. March 8, 1971, as per the orders passed by this Court on November 21, 1967 at the time of granting special leave; and4. In addition to the amounts mentioned above, the appellant will also pay an ex-gratia amount of Rs.1000/- to the said legal representatives of the deceased - first respondent.10. On payment of the above amounts by the appellant to the said legal representatives, the appellant will get a complete discharge. If by chance, there are any other legal representatives, it will be open to them to claim reimbursement in accordance with their shares from the two legal representatives above named. By way of abundant caution, we further direct that in order to save unnecessary litigation, the two legal representatives, referred to above, will draw the amounts from the appellant on executing an indemnity bond to provide for a contingency of any other legal representatives of the deceased first respondent making a claim for a share in these amounts.11. On the basis of the materials available with them, the Office of this Court will prepare a bill of costs in respect of the expenses incurred by the first respondent in this Court upto the date of his death, and furnish the same to the appellant, so that he may pay the said amount to the legal representatives, as per this order.

1[ds]n behalf of the appellant, it has been represented before us by Mr. B. P. Maheshwari, learned counsel, that his clients are prepared to pay to the legal representatives of the deceased respondent No.1 the retrenchment compensation amount due to the deceased workman under S.25F of the Industrial Disputes Act as also an additionalWe consider this offer to be quite reasonable, because even if we do not accept ultimately the contentions of the appellant, the position would be that the proceedings will have to go on afresh before the Labour Court as per the orders of the High Court, in which case, the parties will be put to considerable expenses. Over and above that the appellants may also raise an objection before the Labour Court regarding its jurisdiction to consider the matter afresh after the death of the workman concerned.8. If we accept the contention of the appellant, the result will be that the order of the High Court remanding the proceedings to the Labour Court will have to be set aside, in which case, the award upholding the validity of the retrenchment will stand. In such a case the legal representatives of the deceased workman willnot be entitled to get anything more that what was due to the workman under S.25F of the Industrial Disputes Act. On the other hand, as mentioned earlier, the appellant has offered to pay an additionalamount of Rs.1000/over and above the amount due by way of retrenchment compensation. That is why we are of the opinion that it is unnecessary to proceed further with the matter and that the offer made by the appellant is quite fair to all parties.9. Having due regard to the circumstances mentioned above, and without expressing any opinion about the correctness or otherwise of the decision of the High Court, in its interpretation of S. (i) of the U. P. Industrial Disputes Act, we pass the followingThe appellant will pay the legal representatives of the deceased first respondent, namely his son S. Wakar Husain and his wife Malka Begam, referred to in C.M. P. No. 1973 of 1972, the amounts due to the deceased by way of retrenchment compensation underS.25F of the Industrial Disputes Act.Act.2. The appellant will also pay to the said legal representatives the costs awarded to the deceased first respondent both by the learned Single Judge and the Division Bench, in the High Court:3. The appellant will also further pay to the said legal representatives the costs incurred in this Court by the deceasedfirst respondent upto the date of his death, viz. March 8, 1971, as per the orders passed by this Court on November 21, 1967 at the time of granting special leave; and4. In addition to the amounts mentioned above, the appellant will also pay ant of Rs.1000/to the said legal representatives of the deceased. On payment of the above amounts by the appellant to the said legal representatives, the appellant will get a complete discharge. If by chance, there are any other legal representatives, it will be open to them to claim reimbursement in accordance with their shares from the two legal representatives above named. By way of abundant caution, we further direct that in order to save unnecessary litigation, the two legal representatives, referred to above, will draw the amounts from the appellant on executing an indemnity bond to provide for a contingency of any other legal representatives of the deceased first respondent making a claim for a share in these amounts.11. On the basis of the materials available with them, the Office of this Court will prepare a bill of costs in respect of the expenses incurred by the first respondent in this Court upto the date of his death, and furnish the same to the appellant, so that he may pay the said amount to the legal representatives, as per this order.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: the fact that there has been a contravention of S.6 (i) of the U.P. Industrial Disputes Act, by the appellant management being represented by Mr. O. P. Vatsa. This question loomed very large, as is seen from the elaborate discussion contained in the judgment of the learned Single Judge. Though it was contended on behalf of the appellant that this quesion should not be allowed to be raised and that, in any event, there has been no violation of Section 6 (i) of the U. P. Industrial Disputes Act, the learned Single Judge ultimately accepted the contention advanced on behalf of the workman and quashed the award. The learned Single Judge, by his judgment and order dated February 16, 1966 remanded the dispute, for fresh consideration by the Labour Court.5. The appellant challenged the decision of the Single Judge before the Division Bench in Special Appeal No. 75 of 1966. The Division Bench agreed with the decision of the learned Single Judge and confirmed the order, quashing the award and remanding the proceedings to the Labour Court for fresh consideration.6. Mr. Gupte, learned counsel for the appellant, raised two contentions; (1) that the workman was not entitled to raise in proceedings under arts. 226 and 227 before the High Court for the first time the alleged irregularity or illegality, if any, pertaining to the representation of the appellant by Mr. O. P. Vatsa, specially as no such contention was raised before the Labour Court; and (2) In any event, there has been no violation of the provisions of S.6 (i) of the U. P. Industrial Disputes Act in Mr. O. P. Vatsas having represented the appellant in the proceedings before the Labour Court. It has now become unnecessary, so to say, to consider the correctness or otherwise of the views expressed both by the learned Single Judge and the Division Bench of the High Court, as the workman, who was the first respondent in this appeal died on March 8, 1971. The Union also has not appeared before us.7. On behalf of the appellant, it has been represented before us by Mr. B. P. Maheshwari, learned counsel, that his clients are prepared to pay to the legal representatives of the deceased respondent No.1 the retrenchment compensation amount due to the deceased workman under S.25F of the Industrial Disputes Act as also an additional ex-gratia amount of Rs.1000/-. We consider this offer to be quite reasonable, because even if we do not accept ultimately the contentions of the appellant, the position would be that the proceedings will have to go on afresh before the Labour Court as per the orders of the High Court, in which case, the parties will be put to considerable expenses. Over and above that the appellants may also raise an objection before the Labour Court regarding its jurisdiction to consider the matter afresh after the death of the workman concerned.8. If we accept the contention of the appellant, the result will be that the order of the High Court remanding the proceedings to the Labour Court will have to be set aside, in which case, the award upholding the validity of the retrenchment will stand. In such a case the legal representatives of the deceased workman willnot be entitled to get anything more that what was due to the workman under S.25F of the Industrial Disputes Act. On the other hand, as mentioned earlier, the appellant has offered to pay an additional ex-gratia amount of Rs.1000/- over and above the amount due by way of retrenchment compensation. That is why we are of the opinion that it is unnecessary to proceed further with the matter and that the offer made by the appellant is quite fair to all parties.9. Having due regard to the circumstances mentioned above, and without expressing any opinion about the correctness or otherwise of the decision of the High Court, in its interpretation of S. (i) of the U. P. Industrial Disputes Act, we pass the following order:1. The appellant will pay the legal representatives of the deceased first respondent, namely his son S. Wakar Husain and his wife Malka Begam, referred to in C.M. P. No. 1973 of 1972, the amounts due to the deceased by way of retrenchment compensation under S.25-F of the Industrial Disputes Act.2. The appellant will also pay to the said legal representatives the costs awarded to the deceased first respondent both by the learned Single Judge and the Division Bench, in the High Court:3. The appellant will also further pay to the said legal representatives the costs incurred in this Court by the deceased - first respondent upto the date of his death, viz. March 8, 1971, as per the orders passed by this Court on November 21, 1967 at the time of granting special leave; and4. In addition to the amounts mentioned above, the appellant will also pay an ex-gratia amount of Rs.1000/- to the said legal representatives of the deceased - first respondent.10. On payment of the above amounts by the appellant to the said legal representatives, the appellant will get a complete discharge. If by chance, there are any other legal representatives, it will be open to them to claim reimbursement in accordance with their shares from the two legal representatives above named. By way of abundant caution, we further direct that in order to save unnecessary litigation, the two legal representatives, referred to above, will draw the amounts from the appellant on executing an indemnity bond to provide for a contingency of any other legal representatives of the deceased first respondent making a claim for a share in these amounts.11. On the basis of the materials available with them, the Office of this Court will prepare a bill of costs in respect of the expenses incurred by the first respondent in this Court upto the date of his death, and furnish the same to the appellant, so that he may pay the said amount to the legal representatives, as per this order. ### Response: 1

M/s. Mund & Samont Company Private Limited Vs. Commissioner of Income Tax, Bihar & Orissa

11,436/- out of the remuneration paid to the Managing Director and Deputy Managing Director in accordance with the provisions of the Articles of Association of the Company?"The High Court held that the Income-tax Officer had jurisdiction under Section 10 (4-A) to disallow a part of the remuneration, and that the disallowance of a part of the claim cannot be said "to be unjustifiable or illegally disallowed by the authorities".4. In an application filed by the assessee the High Court certified the case under Section 66-A (2) stating that "as regards the value and nature of the case, it fulfils the requirements under Section 66-A (2) of the Income-tax Act, 1922, and is a fit case for appeal to the Supreme Court."5. In this appeal the Solicitor-General has contended that the certificate was defective in that it did not set out the substantial question of law which, in the view of the High Court, fell to be determined by this Court. For reasons which we have stated in Civil Appeal No. 376 of 1967 (SC): India Machinery Stores (P) Ltd. v. C. I. T. Bihar, we are of the view that the certificate is defective.6. Mr. Chagla appearing on behalf of the assessee has offered to file a petition for special leave in this case. We have accepted the undertaking given by the Advocate on record to file a special leave petition.7. We have heard counsel on the merits of the appeal. Section 10 (4-A) of the Indian Income-tax Act which was added by the Finance Act of 1956 with effect from April 1, 1956, provides, insofar as it is material:"Nothing in sub-section (2) shall, in the computation of the profits and gains of a company, be deemed to authorise the making of -(a) any allowance in respect of any expenditure which results directly or indirectly in the provisions of any remuneration or benefit or amenity to a director or a person who had a substantial interest in the company within the meaning of sub-clause (iii) of clause (6C) of Section 2, or(b) x x x x x xif in the opinion of the Income-tax Officer any such allowance is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by or accruing to it therefrom."Under the Articles of Association, the rate of remuneration to be paid to the Managing Director and the Deputy Managing Director was fixed. The case was clearly covered by the terms for Section 10 (4A), and the Income-tax Officer had jurisdiction to consider whether the allowance was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by or accruing to it therefrom.Counsel for the assessee submits that the decision of the taxing authorities and the Tribunal that in the circumstances of the case the allowance was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by or accruing to it therefrom is erroneous.8. It appears that the Income-tax Officer had, for the assessment years 1957-58 and 1958-59 disallowed a part of the remuneration paid to the Directors. The matter was carried to the Tribunal. For the assessment year 1957-58 the Tribunal allowed the claim in full: in respect for the year 1958-59 the Tribunal allowed an amount of Rs. 48,000/- as against the claim for Rs. 74,190/-. The assessment orders for the years 1957-58 and 1958-59 are not before the Court. In his order relating to the assessment year 1959-60 the Income-tax Officer adopted the reasons recorded in his previous order relating to the earlier years, and held that the remuneration paid to the Directors was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by and accruing to it therefrom. The Appellate Assistant Commissioner agreed with that view. He rejected the contention of the Company that the Managing Director and the Deputy Managing Director "had practically built up the business and it was due to their whole-time service and effort that large profits were earned by the Company." Apparently there was no evidence in support of such a case. He agreed with the Income-tax Officer that the remuneration allowed to the Directors should be at an average rate of the last three years. The Tribunal held that even though it was not proved that the remuneration was "influenced by extra-commercial considerations" the Income-tax Officer had determined the appropriate allowance by striking an average of remuneration charged in the account for the immediate preceding three years.9. Mr. Chagla contends that in striking an average for three years the Tribunal erred. Counsel contended that under Section 10 (4-A) of the Act, the Income-tax Officer must reach a conclusion that the allowance was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by or accruing to it therefrom.It is however for the tax-payer to establish by evidence that a particular allowance is justifiable.Apparently no evidence was tendered by the assessee relating to the duties of the Managing Director and the Deputy Managing Director, the services rendered by them, the manner in which the profits earned by the assessee were enhanced by reason of their special aptitude or qualifications, the legitimate business needs of the assessee and the benefit derived by or accruing to the assessee in consequence of the services rendered by the Managing Director and Deputy Managing Director. In the absence of any such evidence, the finding recorded by the Income-tax Officer and confirm by the Appellate Assistant Commissioner and the Tribunal must be accepted.We are unable to agree with counsel for the assessee that even if the tax-payer does not produce any evidence in support of the claim for allowance, the Income-tax Officer must independently collect evidence and decide that the allowance claimed is excessive or unreasonable having regard to the legitimate business needs of the assessee before the power under Section 10 (4-A) may be exercised.

0[ds]We have accepted the undertaking given by the Advocate on record to file a special leavethe Articles of Association, the rate of remuneration to be paid to the Managing Director and the Deputy Managing Director was fixed. The case was clearly covered by the terms for Section 10 (4A), and theOfficer had jurisdiction to consider whether the allowance was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by or accruing to it therefrom.It appears that theOfficer had, for the assessment years59 disallowed a part of the remuneration paid to the Directors. The matter was carried to the Tribunal. For the assessment yearthe Tribunal allowed the claim in full: in respect for the yearthe Tribunal allowed an amount of Rs. 48,000/as against the claim for Rs.The assessment orders for the years59 are not before the Court. In his order relating to the assessment yearax Officer adopted the reasons recorded in his previous order relating to the earlier years, and held that the remuneration paid to the Directors was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by and accruing to it therefrom. The Appellate Assistant Commissioner agreed with that view. He rejected the contention of the Company that the Managing Director and the Deputy Managing Director "had practically built up the business and it was due to theirservice and effort that large profits were earned by the Company." Apparently there was no evidence in support of such a case. He agreed with theOfficer that the remuneration allowed to the Directors should be at an average rate of the last three years. The Tribunal held that even though it was not proved that the remuneration was "influenced bytax Officer had determined the appropriate allowance by striking an average of remuneration charged in the account for the immediate preceding threeis however for theo establish by evidence that a particular allowance isno evidence was tendered by the assessee relating to the duties of the Managing Director and the Deputy Managing Director, the services rendered by them, the manner in which the profits earned by the assessee were enhanced by reason of their special aptitude or qualifications, the legitimate business needs of the assessee and the benefit derived by or accruing to the assessee in consequence of the services rendered by the Managing Director and Deputy Managing Director. In the absence of any such evidence, the finding recorded by theOfficer and confirm by the Appellate Assistant Commissioner and the Tribunal must be accepted.We are unable to agree with counsel for the assessee that even if thedoes not produce any evidence in support of the claim for allowance, theOfficer must independently collect evidence and decide that the allowance claimed is excessive or unreasonable having regard to the legitimate business needs of the assessee before the power under Section 10may be exercised.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: 11,436/- out of the remuneration paid to the Managing Director and Deputy Managing Director in accordance with the provisions of the Articles of Association of the Company?"The High Court held that the Income-tax Officer had jurisdiction under Section 10 (4-A) to disallow a part of the remuneration, and that the disallowance of a part of the claim cannot be said "to be unjustifiable or illegally disallowed by the authorities".4. In an application filed by the assessee the High Court certified the case under Section 66-A (2) stating that "as regards the value and nature of the case, it fulfils the requirements under Section 66-A (2) of the Income-tax Act, 1922, and is a fit case for appeal to the Supreme Court."5. In this appeal the Solicitor-General has contended that the certificate was defective in that it did not set out the substantial question of law which, in the view of the High Court, fell to be determined by this Court. For reasons which we have stated in Civil Appeal No. 376 of 1967 (SC): India Machinery Stores (P) Ltd. v. C. I. T. Bihar, we are of the view that the certificate is defective.6. Mr. Chagla appearing on behalf of the assessee has offered to file a petition for special leave in this case. We have accepted the undertaking given by the Advocate on record to file a special leave petition.7. We have heard counsel on the merits of the appeal. Section 10 (4-A) of the Indian Income-tax Act which was added by the Finance Act of 1956 with effect from April 1, 1956, provides, insofar as it is material:"Nothing in sub-section (2) shall, in the computation of the profits and gains of a company, be deemed to authorise the making of -(a) any allowance in respect of any expenditure which results directly or indirectly in the provisions of any remuneration or benefit or amenity to a director or a person who had a substantial interest in the company within the meaning of sub-clause (iii) of clause (6C) of Section 2, or(b) x x x x x xif in the opinion of the Income-tax Officer any such allowance is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by or accruing to it therefrom."Under the Articles of Association, the rate of remuneration to be paid to the Managing Director and the Deputy Managing Director was fixed. The case was clearly covered by the terms for Section 10 (4A), and the Income-tax Officer had jurisdiction to consider whether the allowance was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by or accruing to it therefrom.Counsel for the assessee submits that the decision of the taxing authorities and the Tribunal that in the circumstances of the case the allowance was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by or accruing to it therefrom is erroneous.8. It appears that the Income-tax Officer had, for the assessment years 1957-58 and 1958-59 disallowed a part of the remuneration paid to the Directors. The matter was carried to the Tribunal. For the assessment year 1957-58 the Tribunal allowed the claim in full: in respect for the year 1958-59 the Tribunal allowed an amount of Rs. 48,000/- as against the claim for Rs. 74,190/-. The assessment orders for the years 1957-58 and 1958-59 are not before the Court. In his order relating to the assessment year 1959-60 the Income-tax Officer adopted the reasons recorded in his previous order relating to the earlier years, and held that the remuneration paid to the Directors was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by and accruing to it therefrom. The Appellate Assistant Commissioner agreed with that view. He rejected the contention of the Company that the Managing Director and the Deputy Managing Director "had practically built up the business and it was due to their whole-time service and effort that large profits were earned by the Company." Apparently there was no evidence in support of such a case. He agreed with the Income-tax Officer that the remuneration allowed to the Directors should be at an average rate of the last three years. The Tribunal held that even though it was not proved that the remuneration was "influenced by extra-commercial considerations" the Income-tax Officer had determined the appropriate allowance by striking an average of remuneration charged in the account for the immediate preceding three years.9. Mr. Chagla contends that in striking an average for three years the Tribunal erred. Counsel contended that under Section 10 (4-A) of the Act, the Income-tax Officer must reach a conclusion that the allowance was excessive or unreasonable having regard to the legitimate business needs of the Company and the benefit derived by or accruing to it therefrom.It is however for the tax-payer to establish by evidence that a particular allowance is justifiable.Apparently no evidence was tendered by the assessee relating to the duties of the Managing Director and the Deputy Managing Director, the services rendered by them, the manner in which the profits earned by the assessee were enhanced by reason of their special aptitude or qualifications, the legitimate business needs of the assessee and the benefit derived by or accruing to the assessee in consequence of the services rendered by the Managing Director and Deputy Managing Director. In the absence of any such evidence, the finding recorded by the Income-tax Officer and confirm by the Appellate Assistant Commissioner and the Tribunal must be accepted.We are unable to agree with counsel for the assessee that even if the tax-payer does not produce any evidence in support of the claim for allowance, the Income-tax Officer must independently collect evidence and decide that the allowance claimed is excessive or unreasonable having regard to the legitimate business needs of the assessee before the power under Section 10 (4-A) may be exercised. ### Response: 0

Edward Keventer Pvt.Ltd Vs. Bihar State Agrl.Mkt.Board

the tray packing machine, where it is accumulated in trays. The said tray containing the fruit drink pack is then shrink wrapped by means of the shrink wrapper machine. After everything is completed, the fruit drink packs are kept under incubation for a period of seven days for detection of growth of any microorganism, organoliptic test is also conducted for testing the colour and taste of the beverage. After all that the `Frooti and `Appy are ready for being delivered in the market." 5. A perusal of Section 2(1)(a) unambiguously shows that the agricultural produce which are to be covered by the sweep of the Act necessarily has to be specified in the Schedule. If any agricultural produce is not specified in the Schedule, it goes beyond the purview of the Act and respondent has no power to levy fee on such produce. In the Schedule under caption `fruits mango and apple have been specified as agricultural produce. We further find in the Schedule that under caption `cereals wheat is specified at item No. 3, whereas `wheat atta `sujji and `maida which are the products of wheat are separately specified at item Nos. 14, 15 and 16, respectively. This shows that the agricultural produce `wheat has been treated as a separate agricultural produce as compared to its own product manufactured out of `wheat namely, `atta, `sujji and `maida. `Atta, `sujji and `maida are basically the agricultural products of `wheat. Similarly, the Schedule shows that under the caption `Animal Husbandary Product, milk excluding liquid milk is specified at item No. 10 whereas `butter, `ghee, `cream, and `khoya which are manufactured out of milk are separately specified at item Nos. 7, 8, 16, 17 & 19 respectively. Under caption `miscellaneous, `mango pickles is specified at items No. 18 `Mango pickles is a product of mango, which is a fruit; and specified in Schedule but `mango pickles have been specified separately. The shows basic ingredients may be the same but the end product which is known differently is treated as a separate item. It is true `Frooti and `Appy are manufactured out of mango pulp and apple concentrate, but after the mango pulps and apple concentrate are processed and beverages are manufactured, the products become entirely different items and the fruits mango and apply loose their identity. In common parlance, these beverages are no longer known as mango and apple as fruits. In other words, after processing manago pulp and apple concentrate, although the basic character of the mango pulp and apple concentrate may be present in beverages, but the end products are not fruits i.e. mango and apple which are specified in the Schedule. Our views also find support from a Constitution Bench decision of this Court in the case of Belsund Sugar Co. Ltd. v. State of Bihar & Ors., 1999(9) SCC, 620 wherein it was held that Lactodex and Raptakos which are baby foods do fall under the description milk, specified in the Schedule of the Act. Under such circumstances, we find that the products like `Frooti and `Appy which are ready to serve beverages not being specified in the Schedule are not covered by the term agricultural produce, as defined in Section 2(1)(a) of the Act. 6. Learned Additional Solicitor General then cited a decision of this Court in the case of Krishi Utpadan Mandi Samiti and another v. Ms Shankar Industries and others, 1993 Supp. (3) SCc 361(II) for the proposition that the meaning of `agriculture produce in the definition is not restricted to any products of agriculture specified in the Schedule, but also include such items which come into being in the processed form, and has strongly relied para 12 of the said decision, which reads as under: "We have considered the arguments advanced on behalf of the parties and have perused the record. A perusal of the definition of agriculture produce under Section 2(a) of the Act shows that apart from items of produce of agriculture, horticulture, viticulture, piculture, sericulture, pisciculture, animal husbandry or forest as are specified in the Schedule, the definition further `includes admixture of two or more such items and thereafter it further `includes taking any such item in processed form and again for the third time the words used are ` and further includes gur, rab, shakkar, khandsari and jaggery. It is a well settled rule of interpretation that where the legislature uses the words `means and `includes such definition is to be given a wider meaning and is not exhaustive or restricted to the items contained or included in such definition. Thus the meaning of `agricultural produce in the above definition is not restricted to any products of agriculture as specified in the Schedule but also includes such items which come into being in processed form and further includes such items which are called as gur, rab, shakkar, khandsari and jaggery." We are of the view that the said decision is wholly inapplicable to the present controversy. In the Uttar Pradesh Act, the agricultural produce is defined as under: "Section 2(a) `agricultural produce means such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisciculture, animal husbandary or forest as are specified in the Schedule, and includes admixture of two or more of such items, and also includes any such item in processed form, and further includes gur, rab, shakkar, khandsari and jaggery." 7. The controversy in the case of Krishi Utpadan Samiti (supra), was whether gur-lauta and raskat and rabgolawat and salawat, which are products of molasses, are agricultural produce. This Court while interpreting word `means and `includes used in the definition, was of the view that these words have to be given wider meaning and processed item of a good specified in Schedule would be agricultural produce. In U.P. Act, the definition of `agricultural produce provided that any processed item of a specified good is an agricultural produce. Such is not the definition of `agricultural produce in the Bihar Act with which we are concerned in the present case.

1[ds]5. A perusal of Section 2(1)(a) unambiguously shows that the agricultural produce which are to be covered by the sweep of the Act necessarily has to be specified in the Schedule. If any agricultural produce is not specified in the Schedule, it goes beyond the purview of the Act and respondent has no power to levy fee on such produce. In the Schedule under caption `fruits mango and apple have been specified as agricultural produce. We further find in the Schedule that under caption `cereals wheat is specified at item No. 3, whereas `wheat atta `sujji and `maida which are the products of wheat are separately specified at item Nos. 14, 15 and 16, respectively. This shows that the agricultural produce `wheat has been treated as a separate agricultural produce as compared to its own product manufactured out of `wheat namely, `atta, `sujji and `maida. `Atta, `sujji and `maida are basically the agricultural products of `wheat. Similarly, the Schedule shows that under the caption `Animal Husbandary Product, milk excluding liquid milk is specified at item No. 10 whereas `butter, `ghee, `cream, and `khoya which are manufactured out of milk are separately specified at item Nos. 7, 8, 16, 17 & 19 respectively. Under caption `miscellaneous, `mango pickles is specified at items No. 18 `Mango pickles is a product of mango, which is a fruit; and specified in Schedule but `mango pickles have been specified separately. The shows basic ingredients may be the same but the end product which is known differently is treated as a separate item. It is true `Frooti and `Appy are manufactured out of mango pulp and apple concentrate, but after the mango pulps and apple concentrate are processed and beverages are manufactured, the products become entirely different items and the fruits mango and apply loose their identity. In common parlance, these beverages are no longer known as mango and apple as fruits. In other words, after processing manago pulp and apple concentrate, although the basic character of the mango pulp and apple concentrate may be present in beverages, but the end products are not fruits i.e. mango and apple which are specified in the Schedule. Our views also find support from a Constitution Bench decision of this Court in the case of Belsund Sugar Co. Ltd. v. State of Bihar & Ors., 1999(9) SCC, 620 wherein it was held that Lactodex and Raptakos which are baby foods do fall under the description milk, specified in the Schedule of the Act. Under such circumstances, we find that the products like `Frooti and `Appy which are ready to serve beverages not being specified in the Schedule are not covered by the term agricultural produce, as defined in Section 2(1)(a) of theare of the view that the said decision is wholly inapplicable to the present controversy.The controversy in the case of Krishi Utpadan Samiti (supra), was whetherand raskat and rabgolawat and salawat, which are products of molasses, are agricultural produce. This Court while interpreting word `means and `includes used in the definition, was of the view that these words have to be given wider meaning and processed item of a good specified in Schedule would be agricultural produce. In U.P. Act, the definition of `agricultural produce provided that any processed item of a specified good is an agricultural produce. Such is not the definition of `agricultural produce in the Bihar Act with which we are concerned in the present case.

### Instruction: Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0). ### Input: the tray packing machine, where it is accumulated in trays. The said tray containing the fruit drink pack is then shrink wrapped by means of the shrink wrapper machine. After everything is completed, the fruit drink packs are kept under incubation for a period of seven days for detection of growth of any microorganism, organoliptic test is also conducted for testing the colour and taste of the beverage. After all that the `Frooti and `Appy are ready for being delivered in the market." 5. A perusal of Section 2(1)(a) unambiguously shows that the agricultural produce which are to be covered by the sweep of the Act necessarily has to be specified in the Schedule. If any agricultural produce is not specified in the Schedule, it goes beyond the purview of the Act and respondent has no power to levy fee on such produce. In the Schedule under caption `fruits mango and apple have been specified as agricultural produce. We further find in the Schedule that under caption `cereals wheat is specified at item No. 3, whereas `wheat atta `sujji and `maida which are the products of wheat are separately specified at item Nos. 14, 15 and 16, respectively. This shows that the agricultural produce `wheat has been treated as a separate agricultural produce as compared to its own product manufactured out of `wheat namely, `atta, `sujji and `maida. `Atta, `sujji and `maida are basically the agricultural products of `wheat. Similarly, the Schedule shows that under the caption `Animal Husbandary Product, milk excluding liquid milk is specified at item No. 10 whereas `butter, `ghee, `cream, and `khoya which are manufactured out of milk are separately specified at item Nos. 7, 8, 16, 17 & 19 respectively. Under caption `miscellaneous, `mango pickles is specified at items No. 18 `Mango pickles is a product of mango, which is a fruit; and specified in Schedule but `mango pickles have been specified separately. The shows basic ingredients may be the same but the end product which is known differently is treated as a separate item. It is true `Frooti and `Appy are manufactured out of mango pulp and apple concentrate, but after the mango pulps and apple concentrate are processed and beverages are manufactured, the products become entirely different items and the fruits mango and apply loose their identity. In common parlance, these beverages are no longer known as mango and apple as fruits. In other words, after processing manago pulp and apple concentrate, although the basic character of the mango pulp and apple concentrate may be present in beverages, but the end products are not fruits i.e. mango and apple which are specified in the Schedule. Our views also find support from a Constitution Bench decision of this Court in the case of Belsund Sugar Co. Ltd. v. State of Bihar & Ors., 1999(9) SCC, 620 wherein it was held that Lactodex and Raptakos which are baby foods do fall under the description milk, specified in the Schedule of the Act. Under such circumstances, we find that the products like `Frooti and `Appy which are ready to serve beverages not being specified in the Schedule are not covered by the term agricultural produce, as defined in Section 2(1)(a) of the Act. 6. Learned Additional Solicitor General then cited a decision of this Court in the case of Krishi Utpadan Mandi Samiti and another v. Ms Shankar Industries and others, 1993 Supp. (3) SCc 361(II) for the proposition that the meaning of `agriculture produce in the definition is not restricted to any products of agriculture specified in the Schedule, but also include such items which come into being in the processed form, and has strongly relied para 12 of the said decision, which reads as under: "We have considered the arguments advanced on behalf of the parties and have perused the record. A perusal of the definition of agriculture produce under Section 2(a) of the Act shows that apart from items of produce of agriculture, horticulture, viticulture, piculture, sericulture, pisciculture, animal husbandry or forest as are specified in the Schedule, the definition further `includes admixture of two or more such items and thereafter it further `includes taking any such item in processed form and again for the third time the words used are ` and further includes gur, rab, shakkar, khandsari and jaggery. It is a well settled rule of interpretation that where the legislature uses the words `means and `includes such definition is to be given a wider meaning and is not exhaustive or restricted to the items contained or included in such definition. Thus the meaning of `agricultural produce in the above definition is not restricted to any products of agriculture as specified in the Schedule but also includes such items which come into being in processed form and further includes such items which are called as gur, rab, shakkar, khandsari and jaggery." We are of the view that the said decision is wholly inapplicable to the present controversy. In the Uttar Pradesh Act, the agricultural produce is defined as under: "Section 2(a) `agricultural produce means such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisciculture, animal husbandary or forest as are specified in the Schedule, and includes admixture of two or more of such items, and also includes any such item in processed form, and further includes gur, rab, shakkar, khandsari and jaggery." 7. The controversy in the case of Krishi Utpadan Samiti (supra), was whether gur-lauta and raskat and rabgolawat and salawat, which are products of molasses, are agricultural produce. This Court while interpreting word `means and `includes used in the definition, was of the view that these words have to be given wider meaning and processed item of a good specified in Schedule would be agricultural produce. In U.P. Act, the definition of `agricultural produce provided that any processed item of a specified good is an agricultural produce. Such is not the definition of `agricultural produce in the Bihar Act with which we are concerned in the present case. ### Response: 1

DINESH KUMAR KASHYAP Vs. SOUTH EAST CENTRAL RAILWAY

panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panel In this behalf we may make reference to the judgment of this Court in R.S. Mittal vs. Union of India (UOI) (1995) Suppl.2 SCC 230 , wherein it was held as follows:-" 10. ……………………...…………………….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, was 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 Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government?s approach in this case was wholly unjustified.?7. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same.They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held.If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of the SECR. 8. On behalf of the SECR it has been contended that before calling for replacement candidates the CPO was to satisfy himself that the procedure for cancellation of the order of appointment of the original empanelled candidates has been strictly followed.It is urged that since this was not done the appellants could not be appointed. This argument holds no merit. There is no indication in the pleadings that the vacancies were not to be filled up. If an official of the Respondent No. 1 fails to do his duty the appellants cannot suffer for the same. They are not at fault. 9. On behalf of the respondents it was urged before us that after the selection process in question 2 more selection processes were started in 2012 and 2013. Resultantly, three recruitment cycles were running concurrently and, therefore, the vacancies were filled up in the subsequent selections. This argument deserves to be rejected since it was not even raised before the Tribunal. Furthermore, the rights of the appellants who had appeared in the selection pursuant to the notification of 2010 could not be taken away by the selection processes started much later.They cannot be made to suffer for the delays on the part of the SECR. 10. The fact that three simultaneous selection processes were undertaken, itself proves that the Respondent No. 1 wanted to fill up all the posts and did not want any vacancies to be left unfilled. This negates the plea of the Respondent No. 1 that it was not necessary to fill up the vacant posts. 11. It has been urged before us that the validity of the panel was only for two years and since the last merit list was published for March 2014, validity of the list has expired in March 2016. This submission is only to be rejected. The appellants herein who approached the CAT and the High Court with promptitude cannot suffer only because the matter was pending in Court. 12. Another submission raised on behalf of the SECR is that the appellants have obtained lower marks than the cut- offs prescribed in the selection processes held in the year 2012 and 2013. This amounts to comparing apples to oranges. Every selection process has a different examination with different level of assessment. By no stretch of imagination can comparison be made between the three different selection processes. 13. Another argument raised is that recruitment policy is an executive decision and the courts should not question the efficacy of such policy.Neither the appellants nor this Court is questioning the efficacy of the policy contained in the letter dated 02.07.2008. All that has been done is to ensure implementation of the policy by the Respondent No. 1, especially when it has failed to give any cogent reason to justify its action of not calling for candidates from the replacement list of extra 20% candidates.

1[ds]No doubt, it is true, that mere selection does not give any vested right to the selected candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panelOur country is governed by the rule of law. Arbitrariness is an anathema to the rule of law When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same.They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held.If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectationthat they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution.It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State.It is in the light of these principles that we need to examine the contentions of the. On behalf of the SECR it has been contended that before calling for replacement candidates the CPO was to satisfy himself that the procedure for cancellation of the order of appointment of the original empanelled candidates has been strictly followed.It is urged that since this was not done the appellants could not be appointed.This argument holds no merit. There is no indication in the pleadings that the vacancies were not to be filled up. If an official of the Respondent No. 1 fails to do his duty the appellants cannot suffer for the same.They are not at. On behalf of therespondents it was urged before us that after the selection process in question 2 more selection processeswere started in 2012 and 2013.Resultantly, three recruitment cycles were running concurrently and, therefore, the vacancies were filled up in the subsequent selections.This argument deserves to be rejected since it was not even raised before the Tribunal. Furthermore, the rights of the appellants who had appeared in the selection pursuant to the notification of 2010 could not be taken away by the selection processes started much later.They cannot be made to suffer for the delays on the part of the. The fact that three simultaneous selection processes were undertaken, itself proves that the Respondent No. 1 wantedto fill up all the posts and did not want any vacancies to be left unfilled. This negates the plea of the Respondent No. 1 that it was not necessary to fill up the vacant. It has beenurged before us that the validity of the panel was only for two years and since the last merit list waspublished for March 2014, validity of the list has expired in March 2016.This submission is onlyto be rejected. The appellants herein who approached the CAT and the High Court with promptitude cannot suffer only because the matter was pending inr submission raised on behalf of the SECR is that the appellants have obtained lower marks than the cut- offs prescribed in the selection processes held in the year 2012and 2013. This amounts to comparing apples to oranges. Every selection process has a different examination with different level of assessment.By no stretch of imagination can comparison be made between the three different selection. Another argument raised is that recruitment policy is an executive decision and the courts should not question the efficacy of such policy.Neither the appellants nor this Court is questioning the efficacy of the policy contained in the letter dated 02.07.2008. All that has been done is to ensure implementation of the policy by the Respondent No. 1, especially when it has failed to give any cogent reason to justifyits action of not calling for candidates from the replacement list of extra 20% candidates.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panel In this behalf we may make reference to the judgment of this Court in R.S. Mittal vs. Union of India (UOI) (1995) Suppl.2 SCC 230 , wherein it was held as follows:-" 10. ……………………...…………………….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, was 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 Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government?s approach in this case was wholly unjustified.?7. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same.They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held.If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of the SECR. 8. On behalf of the SECR it has been contended that before calling for replacement candidates the CPO was to satisfy himself that the procedure for cancellation of the order of appointment of the original empanelled candidates has been strictly followed.It is urged that since this was not done the appellants could not be appointed. This argument holds no merit. There is no indication in the pleadings that the vacancies were not to be filled up. If an official of the Respondent No. 1 fails to do his duty the appellants cannot suffer for the same. They are not at fault. 9. On behalf of the respondents it was urged before us that after the selection process in question 2 more selection processes were started in 2012 and 2013. Resultantly, three recruitment cycles were running concurrently and, therefore, the vacancies were filled up in the subsequent selections. This argument deserves to be rejected since it was not even raised before the Tribunal. Furthermore, the rights of the appellants who had appeared in the selection pursuant to the notification of 2010 could not be taken away by the selection processes started much later.They cannot be made to suffer for the delays on the part of the SECR. 10. The fact that three simultaneous selection processes were undertaken, itself proves that the Respondent No. 1 wanted to fill up all the posts and did not want any vacancies to be left unfilled. This negates the plea of the Respondent No. 1 that it was not necessary to fill up the vacant posts. 11. It has been urged before us that the validity of the panel was only for two years and since the last merit list was published for March 2014, validity of the list has expired in March 2016. This submission is only to be rejected. The appellants herein who approached the CAT and the High Court with promptitude cannot suffer only because the matter was pending in Court. 12. Another submission raised on behalf of the SECR is that the appellants have obtained lower marks than the cut- offs prescribed in the selection processes held in the year 2012 and 2013. This amounts to comparing apples to oranges. Every selection process has a different examination with different level of assessment. By no stretch of imagination can comparison be made between the three different selection processes. 13. Another argument raised is that recruitment policy is an executive decision and the courts should not question the efficacy of such policy.Neither the appellants nor this Court is questioning the efficacy of the policy contained in the letter dated 02.07.2008. All that has been done is to ensure implementation of the policy by the Respondent No. 1, especially when it has failed to give any cogent reason to justify its action of not calling for candidates from the replacement list of extra 20% candidates. ### Response: 1

Messrs The Andhra Bank Limited, Hyderabad Vs. Commissioner of Income Tax, A.P. Iii, Hyderabad

not exceeding the amount required under the provisions of Section 17 to be so transferred. Any other sum transferred to a reserve fund under the direction of Reserve Bank or any other law will not qualify for deduction. For example, under the Banking Regulation Act, a bank has to maintain a cash reserve under Section 1 of the Banking Regulation Act. Any sum transferred to this reserve will not be eligible for deduction from total income computed under the Income Tax Act. Only the amount transferred to the reserve fund created under Section 17 will be eligible for deduction and the quantum of deduction is restricted to the amount required under the provisions of Section 17 of the Banking Regulation Act to be transferred.Section 17 lays down that before any dividend is daclared, out of the balance of profit of each year as disclosed in the profit and loss account, a sum not less than 20% of such profit will have to be transferred to the reserve fund. Deduction under clause (xi) has been specifically limited to this amount which is required by Section 17 to be transferred to the reserve fund. The phrase not exceeding the amount required ...... to be so transferred indicates that any other sum in excess of the requirement of Section 17 will not be eligible for deduction. 6. Assuming that the assessee bank was under a legal obligation to transfer a sum in excess of 20% by virtue of a. direction given by the Reserve Bank of India, then the excess contribution to the reserve fund was not because of any requirement of Section 17 but because of the provisions of some other Section. The exclusion permissible under clause (xi) of Rule 1 of the first Schedule of the Act is limited only to the sum "not exceeding the amount required under the aforesaid provisions to be so transferred ....". The aforesaid provisions in this clause means the provisions of Section 17 (1) of the Banking Regulation Act. If any further sum is transferred to the reserve fund by virtue of provisions of some other Sections of the Act, such sum will not quality for exclusion in computation of chargeable profits. 7. Moreover, from the various circulars relied upon by the assessee Bank, it does not appear that the Reserve Bank of India gave any direction under Section 35A to transfer more than 20% to the reserve fund. A circular letter dated 27.12.1961 was issued by the Governor, Reserve Bank of India, to all the scheduled Banks in which it was stated:- "I am aware that several banks obliged to transfer 20 per cent of their declared profits in terms of section 17, actually transfer a quantum larger than that, I have no doubt such banks will continue to maintain this practice." * 8. This cannot be construed as a direction by the Reserve Bank of India under Section 35A. Similarly, the circular letter written on 25th January, 1962 deals with a point which has been raised by the Bank. In reply the Executive Director of the Reserve Bank of India stated:- "In this connection, we advise as under: 2. Certain banks have already reserves which are equal to or exceed their paid- up capital. The intention is that such banks should transfer not less than twenty per cent of their disclosed profits arrived at after making the usual and necessary provisions and after deduction of the provision f or taxation. 3. There are several banks the reserves of which are not equal to their paid-up capital. The intent of the Governors letter is that such banks should, till they reach parity of paid- up capit l and reserves, follow the same basis of computation as they observed in their profit and loss account for 1960. That is to say, if they compute transfers to reserves on profits before tax they should continue to Co so till parity is reached." * 9. This letter is in the nature of advice and contains direction as to how profit should be calculated before transfer of the requisite 20% is made to the reserve fund. Banks having reserves equal to or in excess of their paid-up capital should transfer 20% of the profits after making the usual provisions and after deduction of provisions for taxation. But those Banks whose reserves are not equal to their paid-up capital should transfer 20% of their profits Deforo tax to the reserve fund till the parity of paid-up capital is reached. This circular letter was written by the Executive Director of the Reserve Bank of India. 10. Reliance has been placed upon two other letters written by the Reserve Bank of India to the assessee Bank. The first letter is dated 29th March, 1971 in which the Banks practice of effecting transfer to the statutory reserve, after making provisions for Income Tax, has been commented upon. In this letter, the Deputy Chief Officer of the Reserve Bank has made it clear that lin future, bank should transfer to the above reserves a sum not less than 20% of its profits before providing for income tax. We may add that our approval does not affect in any way the obligation imposed on your bank by or under any other provisions of the Banking Regulation Act, 1949 or of the Companies Act, 1956 or any other law for the time being in force.The other letter dated 25.5.1972 is also in the same vein. None of these circular-letters sent by the Reserve Bank of India nor the letters written specifically to the assessee-Bank go to show that the Reserve Bank of India had directed the Banks or the assessee-bank to transfer a larger amount than what was required by Section 17 (1) of the Banking Regulation Act. Therefore, this argument that the assessee had been directed by the Reserve Bank of India under Section 35A to contribute a larger amount to the reserve fund than what was required by Section 17(1) is misconceived. 11.

1[ds]This letter is in the nature of advice and contains direction as to how profit should be calculated before transfer of the requisite 20% is made to the reserve fund. Banks having reserves equal to or in excess of their paid-up capital should transfer 20% of the profits after making the usual provisions and after deduction of provisions for taxation. But those Banks whose reserves are not equal to their paid-up capital should transfer 20% of their profits Deforo tax to the reserve fund till the parity of paid-up capital is reached. This circular letter was written by the Executive Director of the Reserve Bank ofhas been placed upon two other letters written by the Reserve Bank of India to the assessee Bank. The first letter is dated 29th March, 1971 in which the Banks practice of effecting transfer to the statutory reserve, after making provisions for Income Tax, has been commented upon. In this letter, the Deputy Chief Officer of the Reserve Bank has made it clear that lin future, bank should transfer to the above reserves a sum not less than 20% of its profits before providing for income tax. We may add that our approval does not affect in any way the obligation imposed on your bank by or under any other provisions of the Banking Regulation Act, 1949 or of the Companies Act, 1956 or any other law for the time being in force.The other letter dated 25.5.1972 is also in the same vein. None of these circular-letters sent by the Reserve Bank of India nor the letters written specifically to the assessee-Bank go to show that the Reserve Bank of India had directed the Banks or the assessee-bank to transfer a larger amount than what was required by Section 17 (1) of the Banking Regulation Act. Therefore, this argument that the assessee had been directed by the Reserve Bank of India under Section 35A to contribute a larger amount to the reserve fund than what was required by Section 17(1) is misconceived.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: not exceeding the amount required under the provisions of Section 17 to be so transferred. Any other sum transferred to a reserve fund under the direction of Reserve Bank or any other law will not qualify for deduction. For example, under the Banking Regulation Act, a bank has to maintain a cash reserve under Section 1 of the Banking Regulation Act. Any sum transferred to this reserve will not be eligible for deduction from total income computed under the Income Tax Act. Only the amount transferred to the reserve fund created under Section 17 will be eligible for deduction and the quantum of deduction is restricted to the amount required under the provisions of Section 17 of the Banking Regulation Act to be transferred.Section 17 lays down that before any dividend is daclared, out of the balance of profit of each year as disclosed in the profit and loss account, a sum not less than 20% of such profit will have to be transferred to the reserve fund. Deduction under clause (xi) has been specifically limited to this amount which is required by Section 17 to be transferred to the reserve fund. The phrase not exceeding the amount required ...... to be so transferred indicates that any other sum in excess of the requirement of Section 17 will not be eligible for deduction. 6. Assuming that the assessee bank was under a legal obligation to transfer a sum in excess of 20% by virtue of a. direction given by the Reserve Bank of India, then the excess contribution to the reserve fund was not because of any requirement of Section 17 but because of the provisions of some other Section. The exclusion permissible under clause (xi) of Rule 1 of the first Schedule of the Act is limited only to the sum "not exceeding the amount required under the aforesaid provisions to be so transferred ....". The aforesaid provisions in this clause means the provisions of Section 17 (1) of the Banking Regulation Act. If any further sum is transferred to the reserve fund by virtue of provisions of some other Sections of the Act, such sum will not quality for exclusion in computation of chargeable profits. 7. Moreover, from the various circulars relied upon by the assessee Bank, it does not appear that the Reserve Bank of India gave any direction under Section 35A to transfer more than 20% to the reserve fund. A circular letter dated 27.12.1961 was issued by the Governor, Reserve Bank of India, to all the scheduled Banks in which it was stated:- "I am aware that several banks obliged to transfer 20 per cent of their declared profits in terms of section 17, actually transfer a quantum larger than that, I have no doubt such banks will continue to maintain this practice." * 8. This cannot be construed as a direction by the Reserve Bank of India under Section 35A. Similarly, the circular letter written on 25th January, 1962 deals with a point which has been raised by the Bank. In reply the Executive Director of the Reserve Bank of India stated:- "In this connection, we advise as under: 2. Certain banks have already reserves which are equal to or exceed their paid- up capital. The intention is that such banks should transfer not less than twenty per cent of their disclosed profits arrived at after making the usual and necessary provisions and after deduction of the provision f or taxation. 3. There are several banks the reserves of which are not equal to their paid-up capital. The intent of the Governors letter is that such banks should, till they reach parity of paid- up capit l and reserves, follow the same basis of computation as they observed in their profit and loss account for 1960. That is to say, if they compute transfers to reserves on profits before tax they should continue to Co so till parity is reached." * 9. This letter is in the nature of advice and contains direction as to how profit should be calculated before transfer of the requisite 20% is made to the reserve fund. Banks having reserves equal to or in excess of their paid-up capital should transfer 20% of the profits after making the usual provisions and after deduction of provisions for taxation. But those Banks whose reserves are not equal to their paid-up capital should transfer 20% of their profits Deforo tax to the reserve fund till the parity of paid-up capital is reached. This circular letter was written by the Executive Director of the Reserve Bank of India. 10. Reliance has been placed upon two other letters written by the Reserve Bank of India to the assessee Bank. The first letter is dated 29th March, 1971 in which the Banks practice of effecting transfer to the statutory reserve, after making provisions for Income Tax, has been commented upon. In this letter, the Deputy Chief Officer of the Reserve Bank has made it clear that lin future, bank should transfer to the above reserves a sum not less than 20% of its profits before providing for income tax. We may add that our approval does not affect in any way the obligation imposed on your bank by or under any other provisions of the Banking Regulation Act, 1949 or of the Companies Act, 1956 or any other law for the time being in force.The other letter dated 25.5.1972 is also in the same vein. None of these circular-letters sent by the Reserve Bank of India nor the letters written specifically to the assessee-Bank go to show that the Reserve Bank of India had directed the Banks or the assessee-bank to transfer a larger amount than what was required by Section 17 (1) of the Banking Regulation Act. Therefore, this argument that the assessee had been directed by the Reserve Bank of India under Section 35A to contribute a larger amount to the reserve fund than what was required by Section 17(1) is misconceived. 11. ### Response: 1

District Mining Officer and others Vs. Tata Iron and Steel Co. & Others

that pattern of validation, as indicated by Mr. Parasaran, may not be a clinching factor in construing the provisions of the Act, but at the same time the fact that in Joara Sugar Mills case as well as in some other cases, while validating, laws have been enacted and saving clause has been provided which are in pari materia with Section 6 of the General Clauses Act and absence of such a provision in the present Validation Act is in consonance with the very object and reasons, as appended to the Act. The said object being to validate the cess and taxes on minerals, already collected under a void law. Dr. Singhvi is also right in his submission that this Court in Kannadasans case drew wrong analogy from Gangopadhyays cas and erroneously held that provisions therein were identical to the provisions of the Validation Act of 1992. Section 2(1) of the Validation Act having used the expression "upto 4.4.1991", it unequivocally indicates that what is validated is the process of levy and collection made upto that date and no further. This being the position and the Validation Act not having provided any provision, permitting levy or collection after 4.4.1991, we are of the opinion that the Act never conferred a right of levy or collection after 4.4.1991. The Judgment of Patna High Court, therefore, must be held to be in accordance with law and the judgment of this Court in Kannadasans case must be held to have been wrongly decided. 22. In Kannadasans case, this Court while interpreting the Validation Act, held that the Act authorises levy and collection even after 4.4.1991, as otherwise, it will be held to be discriminatory and violative of Article 14 inasmuch as if two persons would be equally liable to pay, the person who has paid the tax would be at the disadvantage, than the person, who did not pay and challenge the demand. This reasoning of the Court in Kannadasan runs contrary to the observations of this Court in Mafatlal Industries, 1997(5) SCC 536, while this Court dealing with the principle of unjust enrichment, categorically stated that a person who has not paid and has successfully challenged the demand in a Court of law stands on a different footing from a person who has chosen to pay and has not challenged the same. We are, therefore, of the considered opinion that this Court erroneously held that Article 14 would be attracted unless the provisions of the Validation Act is interpreted to mean that it not only validates the collection made but also entitles fresh collection and levy, even after 4.4.1991 of the dues which was collectable upto 4.4.1991. 23. The contention advanced by the State with reference to Section 2(3) of the Validation Act to the effect that it is indicative to confer a substantive power to levy and collect cess and other taxes on minerals, is in our opinion, wholly misconceived. All that sub-section (3) of Section 2, means, which has been introduced for removal of difficulty is that notwithstanding the fact that the State law remained in force till April, 1991, if an assessee has paid more than what he is legally liable to pay and an application for refund had already been made, then he would have the right to get refund of the excess tax paid, even though the life of the Act expires on April 04, 1991. This can be held to be a limited saving clause, conferring a right of refund on the assessee, if such assessee has paid in excess of what is due and the said provision cannot be invoked to give a wider interpretation of Section 2(1) or Section 2(2). In this context, we are persuaded to accept the submission of Mr. Ganguli that the removal of difficulty clause, engrafted in Section 2(3) of the Validation Act is of a limited application, dealing with the right of the assessee to get refund of the excess tax paid and by no stretch of imagination could be construed to hold that it conceives of both levy and collection of cess and taxes on minerals by the State even after expiry of 4.4.1991. 24. It will be appropriate to notice one of the contentions raised by Mr. Ranjit Kumar, appearing for India Cement Limited in S.L.P. (Civil) Nos. 12993-12995 of 1998 to the effect that notwithstanding the promulgation of the Tamil Nadu Act, the assessee challenged the levy and the High Court had granted stay of the levy and collection of cess. Even after the judgment of the High Court, while the appeal was pending in this Court, the stay order was operating and the assessee never passed on the cess component to the consumer or end user, and also could not have passed on the same, as the commodity was a controlled commodity. If after this length of time, the Validation Act is interpreted to mean a right being conferred upon the State to impose the levy and collection of the same from 1964, it would work out gross injustice to the assessee and even would run contrary to the levy judgment of the Court inter-parties. Though this contention may not be a clinching issue in interpreting the provisions of the Validation Act, but it cannot be totally lost sight of, and if any other interpretation is permissible, then the same must be adhered to, particularly, in relation to a taxing Statute. We do find considerable force in the aforesaid submission, as in our view, the interpretation, we have already given to the Validation Act was the real intention of the Parliament and it never intended to confer a right of collection of cess. In agreement with the conclusion arrived at by Patna High Court, we hold the Validation Act to be valid, but such validated Acts do not authorise any fresh levy or collection in respect of liabilities accrued prior to 4.4.1991, though it prohibits refund of the collection already made prior to that date.

0[ds]t us now examine the question, as to whether the Statute is a temporary Stature or not ?When we examine this question in the cse in hand, we are not examining the Validation Act, but we are required to examine the relevant provisions of the different State laws, included in the Schedule to the Validation Act, which laws had been declared ultra vires by this Court in the decision of India cement and Orissa Cement, on the ground of lack of legislative competence and that legislative competence has been purported to have been conferred by virtue of a deeming enactment by Parliament and further enacting that such provisions shall be deem to have been remained in force upto the 4th April, 1991. A Statute can be said to be either perpetual or temporary. It is perpetual when no time is fixed for its duration and such a statute remains in force until its repeal which may be express or implied. But a Statute is temporary when its duration is only for a specified time and such a Statute expires on the expiry of the specified time, unless it is repealed earlier. The relevant provisions of the different State laws relating to cesses or taxes on minerals having been deemed to have been enacted by Parliament and having been deemed to have remained in force upto 4th April, 1991 under the Validation Act, those laws relating to cesses or taxes on minerals must be held to be temporary Statute in the eye of law. Necessarily, therefore, its life expired and it would be difficult to conceive that notwithstanding the expiry of the law itself, the collecting machinery under the law could be operated upon for making the collection of the cess or tax collectible upto 4.4.1991. Admittedly, to a temporary Statute, the provisions of Section 6 of the General Clauses Act, 1897 will have no application. Very often legislature enacts in the temporary Statute a saving provision, similar in effect to Section 6 of the General Clauses Act, as was done in Joura Sugar Mills, 1966(1) S.C.R. 523. But in the absence of sucha a provisions in the Validation Act in question, which has purported to have conferred the legislative competence in respect of the several State Laws mentioned in the Schedule and kept it alive till 4.4.91, and not beyond that date, the life of such State laws stood expired on 4th of April, 1991. Consequently, there would be no residuary provision or authority of law conferring a power on the State to make any levy or collection of cess or taxes on minerals, after the expiry of the relevant laws. A temporary Statute even in the absence of a saving provision like Section 6 of the General Clauses Act may not be construed dead for all purposes and the effect of expiry is essentially one of the construction of the Act. The leading authority on the point is the case of Steavensonv. Oliver, (1841)151 ERThese principles have been applied by this Court in the case of State of Orissa v. Bhupendra Kumar Bose, AIR 1962(SC) Page 945, and it is in this context, the argument of Mr. Dwivedi, regarding law of an enduring nature requires consideration. In State of Orissa v. Bhupendra Kumar Bose, on which Mr. Dwivedi heavily relied upon, what arose for consideration before this Court, is whether the electoral rolls were improperly prepared, and the Court having declared the election invalid and validating the Ordinance, which had been promulaged validating the elections to the municipality as well as validating the electoral rolls prepared in respect of other municipalities. When the validity of the ordinance was assailed before the High Court, the High Court struck down the ordinance as having contravened Article 14 and it was held to have offended Article 254(1) of the Constitution. On appeal, this Court held that the ordinance did not offend Article 14 of th8e Constitution and that it effectively removed the defects in the electoral rools found by the first Judgment of the High Court. When arguments were advanced that the invalidity of the electoral rolls and the elections to the municipalities did not revive on the expiry of the Ordinance, that was repelled by this Court, that the right that had been created by the Statute namely the validating ordnance, is of an ending character and has vested in the person concerned, namely the voters, a right to vote as well as the elected counselors. That right cannot be taken away merely because the ordinance has lapsed, since the object of the ordinance was to remove the invalidity permanently. It is in that context the Court observed that if the right created by a Statute is of an enduring nature and has vested in the person, that right cannot be taken away, because the Statute by which it created has expired. In applying that principles to the facts of that case, the Court observed :"In our opinion, having regard to the object of the Ordinance adn to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived. The rights created by this Ordinance are, in our opinion, very similar to the rights with which the Court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance."Applying the ratio of the aforesaid case to the case in hand and in view of our conclusion earlier as to the true object and import for which the Validation Act had been enacted by the Parliament, giving the life to a State law till 4th of April, 1991, it is not possible for us to hold that any right can be said to have been created in favour of the State of an enduring nature, which could be enforced even after the expiry of the life of the Act itself. The Parliament had stepped in and had fictionally enacted certain provisions of the State laws being confronted with the situation that the liability to refund the taxes, illegally collected woudl have a disastrous effect on the State economy. It was indicated also that a Validation Ordinance had been promulgated by the President to validate collection of such levies by the State Government upto the 4th of April, 1991. In the context, it obviously refers to the collection of levies already made and would never relate to any collection to be made thereafter. In this view of the matter, we are not in a position to accept the submission of Mr. Dwivedi, appearing for the State of Bihar that on account of the Validation Act, the relevant provisions of the Case Act of 1880, as applicable in the State of Bihar, conferred an indefeasible right on the State Government to make levy and collect cess or taxes on minerals, which was collectible upto 4th of April, 1991, even after the expiry of the very law itself. In our considered opinion, the decision of this Court in State of Orissa v. Bhupendra Kumar Bose case, will have no application to the facts of the present caes. The next cae, Mr. Dwivedi relied upon was the case of R.C. Jall v. Union of India, 1962 Supp.(3) S.C.R. 436. In that case, an Ordinance had been promulgated on 26th August, 1944 in exercise of powers vested in the Governor General of India under Section 72 of the Ninth Schedule to the Government of India Act, 1935 read with India and Burma (Emergency Provisions) Act, 1940, called the Coal Production Fund Ordinance, 1944, for constituting a fund for financing of activities for the improvement of production, marketing and distribution of coal and coke. The said Ordinance was a permanent one and was to be continued to be in force till repealed, as is apparent from the judgment of this Court in Hansraj Mooljis case 1957 S.C.r. 634. A second Ordinance was promulgated repealing the earlier one on 26th of April, 1947 and in the repealing Ordinance, an express term was there, making the provisions of Section 6 of the General Clause Act, shall apply in respect of the appeal. The question arose whether after expiry of the life of the repealing Ordinance on November 1, 1947, what would be its effect in respect of the liability continued in respect of the past transactions ? This Court held that the repealing Ordinance had continued the life of the original, which was a permanent one, in respect of past transactions and, therefore, the expiry of its life (life of repealing Ordinance) could not have any effect on that law to the extent saved, and, therefore, it must be held to have continued to have force under Article 372 of the Constitution, until it was altered, repealed or amended by competent Legislature, and consequently, it cannot be said that the coal cess was levied or collected without the authority of law. We fail to understand how this decision will be of any assistance to the case in mind, where the original law namely the Cess Act of 1880, as applicable in the State of Bihar, did not have the legislative competence and as such was declared void. By the Validation Act, Parliament fictionally and by a deeming provision, enacted the provisions of the invalid law in relation to cess or taxes on minerals and that also till 4th of April, 1991. Thus, there was no permanent law, authorising the levy which was being validated but on the other hand by a fictional enactment, a law permitting collection made upto 4th of April, 1991 was allowed to be retained. As has been observed earlier in the Validation Act, no provision has been made, corresponding to the provision contained in Section 6 of the General Clauses Act, and therefore, after the expiry of the life of the law that is after 4.4.1991, there cannot be any authority of law for making any levy or collection of the cess and taxes on minerals. This decision also will have no application to the case in hand. The other decision of this Court relied upon by Mr. Dwivedi is the case of M/s. Velji Lakhamsi and Co. and others v. M/s. Benett Coleman and Co. and others, 1977(3) SCC 160. In this case the question for consideration was whether the Municipal Commissioner could order demolition of a building in exercise of power under the provisions of City of Bombay (Building Works Restriction) Act, 1944, after the expiry of the said Act, which was a temporary Statute ? This Court in the aforesaid case held that question whether the restrictions, rights and obligations flowing from the provisions of a temporary statute which came to an automatic end by efflux of time expire with the expiry of the statute depends upon the construction of the statute and the nature and character of the rights, restrictions and obligations and no rigid and inflexible rule can be laid down in this behalf. It is in that context, the Court also further observed that the transactions which are concluded and completed under the temporary statute while the same was in force often endure and continue in being despite the expiry of the statute and so do the rights or obligations acquired or incurred thereunder depending upon the provisions of the statute and nature and character of the rights and liabilities. Applying the aforesaid ratio to the case in hand, it is difficult for us to hold that the State laws which infused life into it under the Validation Act by a fictional enactment of the laws by Parliament and keeping it alive till 4th April, 1991, can at all be said to have created any right on the State to levy and collect the cess and tax on minerals which can be held to be of enduring nature so as to enable the State to levy and collect even after the expiry of the State laws in question. Consequently, the aforesaid decision is also of no assistance to the State of Bihar. The only other case relied upon by Mr. Dwivedi is the case of T. Venkata Reddy and others v. State of Andhra Pradesh, 1985(3) SCC 198. In this case by virtue of promulgation of an Ordinance certain posts were abolished, but the Ordinance could not be made an Act as the State Legislature did not approve of the same. The question for consideration was whether after the expiry of the life of an Ordinance, the post which stood abolished can be said to have been revived ? This Court, on examining the provisions of Section 3 of the Ordinance itself came to hold that the post of part time village officers stood abolished on 6th January, 1984 and the employees ceased to be employees of the State Government. These matters became accomplished on that date and were completed events and consequently even if the Ordinance is assumed to have ceased to operate from a subsequent date the effect of Section 3 of the Ordinance was irreversible except by express legislation. In our considered opinion, this decision is also of no assistance to support the contention of Mr. Dwivedi, appearing for the State of Bihar, in as much as while infusing life into the void State laws by fictional Parliamentary enactment under the Validation Act and keeping it alive till 4th April, 1991, the Parliament never conferred any right upon the State Government to make any levy or collect cess which have not been collected though collectable upto 4.4.1991. The Parliament merely conferred the life to the void statute by fictional re-enactment and granting legislative competence for limited purpose so that the State would not be called upon to refund the cess already collected under such void law. In the aforesaid premises, we do not find much force in the contention of Mr. Dwivedi about the enduring nature of the law in question and we hold that relevant provisions of the State laws which were validated under the Validation Act and were alive till 4.4.1991 having expired on that date there is no authority of law under which the State would raise any demand or make any collection of cess and tax on minerals under the expired provisions of the State laws. The conclusion of this Court in Kannadasans case to the contrary, therefore, must be held to be not correct in law. In Orissa Cement Case, this Court though declared the levy of cess to be unconstitutional, but further directed that there shall be no direction to refund to the assessee of any amounts of cess collected until the date on which the levy in question has been declared unconstitutional. This date so far as Bihar was concerned, was the date of the judgment i.e. 4.4.1991, in case of Orissa, the date was 22nd December, 1989 and in case of Madhya Pradesh, the date was 28th of March, 1986. It was held that any cess collected after the aforesaid dates by the respective States has to be refunded and the States cannot be permitted to retain the cess collected. It is to obviate the aforesaid difficulty, particularly in case of States of Orissa and Madhya Pradesh, though such difficulty was not there in case of Bihar, the Parliament came forward with the Validation Act. It is true, as Mr. Dwivedi contended that there was no necessity for including the Bihar Act in the Schedule, since the Parliament was enacting the Act only till 4.4.1991, but since several State laws were being re-enacted and 4.4.1991 was the last date of the judgment of this Court in Orissa Cement, it was thought fit to have the legislation effective till 4.4.1991 but for the limited purpose, so that the State would not be liable to refund any cess which it might have collected even subsequent to the relevant State laws having been declared unconstitutional. We find sufficient force also in the contention of Mr. K.K. Venugopal that the law never existed after 4.4.1991 and consequently, there cannot be any right with the State to make any levy or collection of the cess, which was collectable upto 4.4.1991. Mr. Venugopal is right in his submission that under the Validation Act, only past actions have been sought to be validated and that too by a fictional enactment of the State laws by the Parliament, keeping it alive till 4.4.1991. There is also some force in the contention of Mr. Venugopal that even if there might have been an imposition of levy but not collected, the same cannot be collected after 4.4.1991, as the machinery for collection would not be available and permitting any such collection beyond that date would contravene Article 265 and such an action may be violative of Article 300-A of the Constitution. The expression "law" in the context of Article 300-A must mean an Act of Parliament or of a State legislature, a rule or a statutory order having the force of law, as has been held by this Court in Bishambhar Dayal, 1982(1) SCC 39. Consequently, in the absence of any such law after 4.4.1991 being in force, the State cannot be conferred a right to levy or collection after 4.4.1991.21. When Parliament enacted the Validation Act and infused life into the void Act for lack of legislative competence, it must be assumed that the Parliament knew the constitutional position and was fully aware of the position of law and the necessity of providing a saving Clause, in the event, the Parliament intended to confer a right of collection as well as levy subsequent to 4.4.1991. The deliberate and conscious omission of the saving clause by the Parliament, as contended by Dr. A.M. Singhvi, is of considerable significance and cannot be lightly brushed aside, as contended by Mr. Dwivedi, appearing for the State of Bihar. It is true that pattern of validation, as indicated by Mr. Parasaran, may not be a clinching factor in construing the provisions of the Act, but at the same time the fact that in Joara Sugar Mills case as well as in some other cases, while validating, laws have been enacted and saving clause has been provided which are in pari materia with Section 6 of the General Clauses Act and absence of such a provision in the present Validation Act is in consonance with the very object and reasons, as appended to the Act. The said object being to validate the cess and taxes on minerals, already collected under a void law. Dr. Singhvi is also right in his submission that this Court in Kannadasans case drew wrong analogy from Gangopadhyays cas and erroneously held that provisions therein were identical to the provisions of the Validation Act of 1992. Section 2(1) of the Validation Act having used the expression "upto 4.4.1991", it unequivocally indicates that what is validated is the process of levy and collection made upto that date and no further. This being the position and the Validation Act not having provided any provision, permitting levy or collection after 4.4.1991, we are of the opinion that the Act never conferred a right of levy or collection after 4.4.1991. The Judgment of Patna High Court, therefore, must be held to be in accordance with law and the judgment of this Court in Kannadasans case must be held to have been wrongly decided.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: that pattern of validation, as indicated by Mr. Parasaran, may not be a clinching factor in construing the provisions of the Act, but at the same time the fact that in Joara Sugar Mills case as well as in some other cases, while validating, laws have been enacted and saving clause has been provided which are in pari materia with Section 6 of the General Clauses Act and absence of such a provision in the present Validation Act is in consonance with the very object and reasons, as appended to the Act. The said object being to validate the cess and taxes on minerals, already collected under a void law. Dr. Singhvi is also right in his submission that this Court in Kannadasans case drew wrong analogy from Gangopadhyays cas and erroneously held that provisions therein were identical to the provisions of the Validation Act of 1992. Section 2(1) of the Validation Act having used the expression "upto 4.4.1991", it unequivocally indicates that what is validated is the process of levy and collection made upto that date and no further. This being the position and the Validation Act not having provided any provision, permitting levy or collection after 4.4.1991, we are of the opinion that the Act never conferred a right of levy or collection after 4.4.1991. The Judgment of Patna High Court, therefore, must be held to be in accordance with law and the judgment of this Court in Kannadasans case must be held to have been wrongly decided. 22. In Kannadasans case, this Court while interpreting the Validation Act, held that the Act authorises levy and collection even after 4.4.1991, as otherwise, it will be held to be discriminatory and violative of Article 14 inasmuch as if two persons would be equally liable to pay, the person who has paid the tax would be at the disadvantage, than the person, who did not pay and challenge the demand. This reasoning of the Court in Kannadasan runs contrary to the observations of this Court in Mafatlal Industries, 1997(5) SCC 536, while this Court dealing with the principle of unjust enrichment, categorically stated that a person who has not paid and has successfully challenged the demand in a Court of law stands on a different footing from a person who has chosen to pay and has not challenged the same. We are, therefore, of the considered opinion that this Court erroneously held that Article 14 would be attracted unless the provisions of the Validation Act is interpreted to mean that it not only validates the collection made but also entitles fresh collection and levy, even after 4.4.1991 of the dues which was collectable upto 4.4.1991. 23. The contention advanced by the State with reference to Section 2(3) of the Validation Act to the effect that it is indicative to confer a substantive power to levy and collect cess and other taxes on minerals, is in our opinion, wholly misconceived. All that sub-section (3) of Section 2, means, which has been introduced for removal of difficulty is that notwithstanding the fact that the State law remained in force till April, 1991, if an assessee has paid more than what he is legally liable to pay and an application for refund had already been made, then he would have the right to get refund of the excess tax paid, even though the life of the Act expires on April 04, 1991. This can be held to be a limited saving clause, conferring a right of refund on the assessee, if such assessee has paid in excess of what is due and the said provision cannot be invoked to give a wider interpretation of Section 2(1) or Section 2(2). In this context, we are persuaded to accept the submission of Mr. Ganguli that the removal of difficulty clause, engrafted in Section 2(3) of the Validation Act is of a limited application, dealing with the right of the assessee to get refund of the excess tax paid and by no stretch of imagination could be construed to hold that it conceives of both levy and collection of cess and taxes on minerals by the State even after expiry of 4.4.1991. 24. It will be appropriate to notice one of the contentions raised by Mr. Ranjit Kumar, appearing for India Cement Limited in S.L.P. (Civil) Nos. 12993-12995 of 1998 to the effect that notwithstanding the promulgation of the Tamil Nadu Act, the assessee challenged the levy and the High Court had granted stay of the levy and collection of cess. Even after the judgment of the High Court, while the appeal was pending in this Court, the stay order was operating and the assessee never passed on the cess component to the consumer or end user, and also could not have passed on the same, as the commodity was a controlled commodity. If after this length of time, the Validation Act is interpreted to mean a right being conferred upon the State to impose the levy and collection of the same from 1964, it would work out gross injustice to the assessee and even would run contrary to the levy judgment of the Court inter-parties. Though this contention may not be a clinching issue in interpreting the provisions of the Validation Act, but it cannot be totally lost sight of, and if any other interpretation is permissible, then the same must be adhered to, particularly, in relation to a taxing Statute. We do find considerable force in the aforesaid submission, as in our view, the interpretation, we have already given to the Validation Act was the real intention of the Parliament and it never intended to confer a right of collection of cess. In agreement with the conclusion arrived at by Patna High Court, we hold the Validation Act to be valid, but such validated Acts do not authorise any fresh levy or collection in respect of liabilities accrued prior to 4.4.1991, though it prohibits refund of the collection already made prior to that date. ### Response: 0

Tax Officer-Cum-Regional Transport Officer Raipur, and Others Vs. Durg Transport Company Private Limited

passenger tax under the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1959, hereinafter referred to as "the Act". It is said that it failed to pay the tax due from it for the period from October 1, 1961, to May 6, 1962. Admittedly, it submitted no return as required by section 5 of the Act, nor did it make the required deposit under section 6 of that Act. No action appears to have been taken against it till November 6, 1963, on which date the Tax Officer issued to it a notice under section 7 of the Act. Thereafter he proceeded to assess it. The impugned assessment order was made on June 19, 1965. That order was challenged before the Madhya Pradesh High Court by means of a writ petition under sections 226 and 227 of the Constitution. The High Court accepted that petition and quashed the impugned order The question before this court is whether the order of the High Court is sustainable. The only question that calls for decision in this appeal is whether the proceedings initiated by the Tax Officer by means of a notice under section 7 of the Act were beyond the time prescribed and therefore the proceedings taken were not maintainable against the assessee. In order to answer this question, we shall read sections 5, 6, 7 and 8 of the Act" Section 5: Submission of returns.-(1) In respect of the stage carriage or stage carriages held by him, the operator shall deliver or cause to be delivered to the Tax Officer or to such prescribed officer as the Tax Officer may specify a return in the prescribed form and manner, either daily or at such intervals as may be prescribedrovided that different rules may be prescribed for the purpose of this sub-section in relation to fleet-owner from those in relation to other operators (2) When any return is received by a prescribed officer he shall forward it to the Tax Officer within the prescribed period and in the prescribed manner Section 6: Tax to be paid every month into Government Treasury.--The tax payable during any month in accordance with the returns submitted under section 5 shall be paid into a Government treasury by the operator and the receipt evidencing such payment forwarded to the Tax Officer, on or before such date or dates of the month immediately succeeding as may be prescribed in the case of fleet-owners and other operators Section 7 : Procedure where no returns are submitted, etc.--In the following cases, that is to say-- (a) where no returns have been submitted by the operator in respect of any stage carriage for any month or portion thereof; or (b) where the returns submitted by the operator in respect of any stage carriage for any month or portion thereof appear to the Tax Officer to be incorrect or incomplete; the Tax Officer shall, after giving the operator a reasonable opportunity, in case, (a) of making his representation, if any, and in case, (b) of establishing the correctness and completeness of the returns submitted by him, determine the sum payable to the State Government by the operator by way of tax during such month or portion thereof Provided that the sum so determined shall not exceed the maximum tax which would have been payable to the State Government if the stage carriage had carried its full complement of passengers during such month or portion thereofSection 8: Fares escaping assessment.--If, for any reason, the whole or any portion of the tax leviable under this Act, for any month has escaped assessment, the Tax Officer may, at any time within, but not beyond, one year from the expiry of that month, assess the tax which has escaped assessment, after issuing a notice to the operator and making such inquiry as the officer may consider necessary." It may be noted that the expression "escaped assessment" has not been defined in the Act. Therefore, we have to consider whether an assessment that was not made as a result of the assessee not submitting his return can be considered as an escaped assessment. According to Mr. Shroff, learned counsel for the State of Madhya Pradesh, "escaped assessment" means an amount that had escaped from being included in the tax assessed. According to him no amount can be considered as "escaped assessment" unless there has been an assessment anterior to the finding out of the amount that had escaped from being included in the assessment made. He submitted that only such cases come within the scope of section 8. According to his submission when a return is not submitted as a consequence of which there was no assessment the tax thus evaded does not become escaped assessment. This contention does not appeal to us. In our opinion, when the liability to pay tax is evaded by one method or other there is an escapement of assessment. The term "escaped assessment " includes both non-assessment as well as under-assessment. When a person is not assessed to tax though he is liable to be taxed he escapes assessment 2. We are unable to agree with Mr. Shroff that while the legislature fixed one year time within which a reassessment has to be made it fixed no time limit for making the assessment. This is a prima facie unacceptable argument. The provisions of the Act are somewhat similar to the Madhya Bharat Sales Tax Act, 1950. While considering the meaning to be given to the expression "escaped assessment" this court in Regional Assistant, Commissioner of Sales Tax, Indore v. Malva Vanaspati & Chemical Co. Ltd. held that where a dealer has not filed the prescribed return of his turnover at all, it would be a case of "escaped assessment" and the proceedings for assessment must be commenced in respect of that turnover within the period of three years prescribed by section 10. We are of the opinion that the ratio of that decision apply to the facts in the present case.

0[ds]This contention does not appeal to us. In our opinion, when the liability to pay tax is evaded by one method or other there is an escapement of assessment. The term "escaped assessment " includes botht as well as. When a person is not assessed to tax though he is liable to be taxed he escapes assessment2. We are unable to agree with Mr. Shroff that while the legislature fixed one year time within which a reassessment has to be made it fixed no time limit for making the assessment. This is a prima facie unacceptable argument. The provisions of the Act are somewhat similar to the Madhya Bharat Sales Tax Act, 1950. While considering the meaning to be given to the expression "escaped assessment" this court in Regional Assistant, Commissioner of Sales Tax, Indore v. Malva Vanaspati & Chemical Co. Ltd. held that where a dealer has not filed the prescribed return of his turnover at all, it would be a case of "escaped assessment" and the proceedings for assessment must be commenced in respect of that turnover within the period of three years prescribed by section 10. We are of the opinion that the ratio of that decision apply to the facts in the present case

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: passenger tax under the Madhya Pradesh Motor Vehicles (Taxation of Passengers) Act, 1959, hereinafter referred to as "the Act". It is said that it failed to pay the tax due from it for the period from October 1, 1961, to May 6, 1962. Admittedly, it submitted no return as required by section 5 of the Act, nor did it make the required deposit under section 6 of that Act. No action appears to have been taken against it till November 6, 1963, on which date the Tax Officer issued to it a notice under section 7 of the Act. Thereafter he proceeded to assess it. The impugned assessment order was made on June 19, 1965. That order was challenged before the Madhya Pradesh High Court by means of a writ petition under sections 226 and 227 of the Constitution. The High Court accepted that petition and quashed the impugned order The question before this court is whether the order of the High Court is sustainable. The only question that calls for decision in this appeal is whether the proceedings initiated by the Tax Officer by means of a notice under section 7 of the Act were beyond the time prescribed and therefore the proceedings taken were not maintainable against the assessee. In order to answer this question, we shall read sections 5, 6, 7 and 8 of the Act" Section 5: Submission of returns.-(1) In respect of the stage carriage or stage carriages held by him, the operator shall deliver or cause to be delivered to the Tax Officer or to such prescribed officer as the Tax Officer may specify a return in the prescribed form and manner, either daily or at such intervals as may be prescribedrovided that different rules may be prescribed for the purpose of this sub-section in relation to fleet-owner from those in relation to other operators (2) When any return is received by a prescribed officer he shall forward it to the Tax Officer within the prescribed period and in the prescribed manner Section 6: Tax to be paid every month into Government Treasury.--The tax payable during any month in accordance with the returns submitted under section 5 shall be paid into a Government treasury by the operator and the receipt evidencing such payment forwarded to the Tax Officer, on or before such date or dates of the month immediately succeeding as may be prescribed in the case of fleet-owners and other operators Section 7 : Procedure where no returns are submitted, etc.--In the following cases, that is to say-- (a) where no returns have been submitted by the operator in respect of any stage carriage for any month or portion thereof; or (b) where the returns submitted by the operator in respect of any stage carriage for any month or portion thereof appear to the Tax Officer to be incorrect or incomplete; the Tax Officer shall, after giving the operator a reasonable opportunity, in case, (a) of making his representation, if any, and in case, (b) of establishing the correctness and completeness of the returns submitted by him, determine the sum payable to the State Government by the operator by way of tax during such month or portion thereof Provided that the sum so determined shall not exceed the maximum tax which would have been payable to the State Government if the stage carriage had carried its full complement of passengers during such month or portion thereofSection 8: Fares escaping assessment.--If, for any reason, the whole or any portion of the tax leviable under this Act, for any month has escaped assessment, the Tax Officer may, at any time within, but not beyond, one year from the expiry of that month, assess the tax which has escaped assessment, after issuing a notice to the operator and making such inquiry as the officer may consider necessary." It may be noted that the expression "escaped assessment" has not been defined in the Act. Therefore, we have to consider whether an assessment that was not made as a result of the assessee not submitting his return can be considered as an escaped assessment. According to Mr. Shroff, learned counsel for the State of Madhya Pradesh, "escaped assessment" means an amount that had escaped from being included in the tax assessed. According to him no amount can be considered as "escaped assessment" unless there has been an assessment anterior to the finding out of the amount that had escaped from being included in the assessment made. He submitted that only such cases come within the scope of section 8. According to his submission when a return is not submitted as a consequence of which there was no assessment the tax thus evaded does not become escaped assessment. This contention does not appeal to us. In our opinion, when the liability to pay tax is evaded by one method or other there is an escapement of assessment. The term "escaped assessment " includes both non-assessment as well as under-assessment. When a person is not assessed to tax though he is liable to be taxed he escapes assessment 2. We are unable to agree with Mr. Shroff that while the legislature fixed one year time within which a reassessment has to be made it fixed no time limit for making the assessment. This is a prima facie unacceptable argument. The provisions of the Act are somewhat similar to the Madhya Bharat Sales Tax Act, 1950. While considering the meaning to be given to the expression "escaped assessment" this court in Regional Assistant, Commissioner of Sales Tax, Indore v. Malva Vanaspati & Chemical Co. Ltd. held that where a dealer has not filed the prescribed return of his turnover at all, it would be a case of "escaped assessment" and the proceedings for assessment must be commenced in respect of that turnover within the period of three years prescribed by section 10. We are of the opinion that the ratio of that decision apply to the facts in the present case. ### Response: 0

Food Corporation Of India Through Its Districtmanager, Fari Vs. Makhan Singh And Anr. Etc.Etc

Road. It is evidently close to the DAV College. Besides, it surrounds the office of the Market Committee. As observed by the learned Single Judge of the High Court the grain market land covered by award Ex. A-24 had a better access and better potential than the land under acquisition. Obviously the two lands could not be treated at par as the market value of the instant land cannot be the same. So far there can be no dispute. Amongst the three sale instances figuring in the discussion, sale Ex. A-11 is the closest in point of time having taken place on December 18, 1978 (about a year after the date of notification under Section 4 of the Act) and distancewise closest from the land acquired for grain market, Malout. This discloses the rate of Rs. 96, 800 per acre, even though the area involved is less than half-a-Kanal. Only a plot, sizeable though, intervenes between this plot and the land under acquisition. This sale instance engaged the attention of Letters Patent Bench of the High Court and not by any of the two courts below. The next in point of time is sale instance Ex. A-23 showing the rate of Rs. 1, 20, 000 per acre but the land sold was only one Kanal. It took place on June 6, 1979 about 1-1/2 years later than the date of Section 4 notification. This sale instance engaged the attention of the Additional District Judge and the Letters Patent Bench but was dropped from consideration by the learned Single Judge on the concession of the claimant-land-owners. Lastly in point of time is sale instance Ex. A-16 of June 30, 1981 involving one Kanal of land, the rate being Rs. 2, 40, 000 per acre. In point of situation, plot covered under Ex. A-16 is almost opposite to plot covered by sale Ex. A-23 but slightly towards Malout town. Ex. A-16 took place two years after sale Ex. A-23 and as such was about 3-1/2 years after the date of notification. Sale Ex. A-16 appealed to the Additional District Judge only as a supporting material to grant compensation at the rate of Rs. 1, 20, 000 per acre on the basis of sale Ex. A-23. Sale Ex. A-16 neither appealed to the learned Single Judge nor to the Letters Patent Bench. Sale Ex. A-16 having been discarded by the learned Single Judge as well as by the Letters Patent Bench of the High Court and the Additional District Judge too having used it only in a limited way, as disclosed in his reasoning, we feel that sale Ex. A-16 should be totally ruled out from consideration because it was too distant in point of time having taken place 3-1/2 years after the date of notification. Having discarded the same the supporting foundation to maintain sale price at the rate of Rs. 1, 20, 000 per acre either on the basis of sale instance Ex. A-23 or on the basis of award Ex. A-24 become shaky and open to question 17. Now we have seen sales Ex. A-11 as well as Ex. A-23 are of very small areas and have taken place a year and a-year-and-half respectively from the date of Section 4 notification. Evidently they are at an advantageous position being on the G.T. Road as compared to the land under acquisition which has no access to the G.T. Road and is of the large area. These sales have as such no positive role to play. If at all, some role is due to sale Ex. A-11, which is closest in point of time, and distancewise more close to Malout town, and on account of its situation. This tells us that for a small plot at an advantageous position on the G.T. Road the rate was Rs. 96, 000 per acre a year after the date of the notification under Section 4. The land under acquisition cannot fetch on any reasoning the same price as fixed in sale Ex. A-11, because comparably the area acquired is large, almost 800 times than the land sold, vide Ex. A-11. So the land acquired has to fetch a price lesser than the price of Rs. 96, 800 per acre. At this stage, it would be relevant to mention that in the grounds of appeal before the High Court, the Food Corporation of India disclosed its willingness to pay a sum of Rs. 80, 000 per acre for the land acquired. In the same strand the learned counsel appearing for the F.C.I. had projected before the learned Single Judge that there should be further cut to reduce the compensation from Rs. 1, 20, 000 per acre to about Rs. 93, 000 per acre. These statements by themselves are no concessions and are at best indications of vacillation to find the correct market value. On such statements public purses cannot be allowed to open their mounts. Having regard to these conflicting claims we get to the view that important points affecting valuation had been overlooked or misapplied in arriving at and sticking to the rate of compensation at Rs. 1, 20, 000, which would require a correction from us. We feel that in the facts and circumstances of the case the compensation must in comparison get lower than the price at which sale Ex. A-11 took place, but at a figure which does not overlook the rate as given in award Ex. A-24. Now we lift our thumb and put it to reduce the compensation to Rs. 80, 000 per acre slicing down 1/6th (roundedly) from the rate reflective from sale instance Ex. A-11 and 1/3rd from the rate of Rs. 1, 20, 000, as deduced from award Ex. A-24, because of the poor locale, disadvantageous position and lack of contiguity to the expansion of Malout town due to the obstructing railway line. In our opinion, compensation at the rate of Rs. 80, 000 per acre is just and fair in the circumstances, and we hold so

1[ds]are not inclined to agree with Mr. Sachar for three reasons. In the first place, it is evident that in the references sought the claimant-land-owners themselves had impleaded the F.C.I. and the State of Punjab as contesting parties. Before the Additional District Judge, the F.C.I. was keen contestant. Having suffered the award from the Additional District Judge after a grim battle it had the right to file an appeal under Section 54 to the High Court. The F.C.I. may not have had the right to ask a reference under Section 18 but this only meant that it could not seek reduction of the compensation as awarded by the Collector because the award was an offer by the State through the Collector. Section 25 too is also a pointer to that effect that the amount of award by the Collector is kept sacrosanct and compensation can in no event be less than one awarded by the Collector. Conversely, subject to the provisions of Section 25, there is no bar for enhancement of compensation from the sum awarded by the Collector. And when there is no such bar the appeals of the F.C.I. in the very nature of things attack the amount awarded by the court over and above the amount awarded by the Collector. In the second place, such an objection was not raised at any stage in the proceedings before the courts below. No effort was made by the claimant-land-owners to get struck off the F.C.I. as party in the proceedings before the Additional District Judge. No objection was made either before the learned Single Judge or before the Division Bench of the High Court with regard to the maintainability of the appeals preferred at those two stages by the F.C.I. The objection now at such a belated stage cannot be allowed to be raised for the first time in the Supreme Court, whatever be its merit. In the third place, this Court in its discretion under Article 136 of the Constitution, has wide powers to permit any person to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. The objection raised in either event does not appeal to us and we accordingly rejectThis Court as the last Court of appeal, will ordinarily not interfere in an award granting compensation unless there is something to show not merely that on the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied. Besides, generally speaking, the appellate court interferes not when the judgment under appeal is not right but only when it is shown to beThe land under acquisition cannot fetch on any reasoning the same price as fixed in sale Ex. A-11, because comparably the area acquired is large, almost 800 times than the land sold, vide Ex. A-11. So the land acquired has to fetch a price lesser than the price of Rs. 96, 800 per acre. At this stage, it would be relevant to mention that in the grounds of appeal before the High Court, the Food Corporation of India disclosed its willingness to pay a sum of Rs. 80, 000 per acre for the land acquired. In the same strand the learned counsel appearing for the F.C.I. had projected before the learned Single Judge that there should be further cut to reduce the compensation from Rs. 1, 20, 000 per acre to about Rs. 93, 000 per acre. These statements by themselves are no concessions and are at best indications of vacillation to find the correct market value. On such statements public purses cannot be allowed to open their mounts. Having regard to these conflicting claims we get to the view that important points affecting valuation had been overlooked or misapplied in arriving at and sticking to the rate of compensation at Rs. 1, 20, 000, which would require a correction from us. We feel that in the facts and circumstances of the case the compensation must in comparison get lower than the price at which sale Ex. A-11 took place, but at a figure which does not overlook the rate as given in award Ex. A-24. Now we lift our thumb and put it to reduce the compensation to Rs. 80, 000 per acre slicing down 1/6th (roundedly) from the rate reflective from sale instance Ex. A-11 and 1/3rd from the rate of Rs. 1, 20, 000, as deduced from award Ex. A-24, because of the poor locale, disadvantageous position and lack of contiguity to the expansion of Malout town due to the obstructing railway line. In our opinion, compensation at the rate of Rs. 80, 000 per acre is just and fair in the circumstances, and we hold

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: Road. It is evidently close to the DAV College. Besides, it surrounds the office of the Market Committee. As observed by the learned Single Judge of the High Court the grain market land covered by award Ex. A-24 had a better access and better potential than the land under acquisition. Obviously the two lands could not be treated at par as the market value of the instant land cannot be the same. So far there can be no dispute. Amongst the three sale instances figuring in the discussion, sale Ex. A-11 is the closest in point of time having taken place on December 18, 1978 (about a year after the date of notification under Section 4 of the Act) and distancewise closest from the land acquired for grain market, Malout. This discloses the rate of Rs. 96, 800 per acre, even though the area involved is less than half-a-Kanal. Only a plot, sizeable though, intervenes between this plot and the land under acquisition. This sale instance engaged the attention of Letters Patent Bench of the High Court and not by any of the two courts below. The next in point of time is sale instance Ex. A-23 showing the rate of Rs. 1, 20, 000 per acre but the land sold was only one Kanal. It took place on June 6, 1979 about 1-1/2 years later than the date of Section 4 notification. This sale instance engaged the attention of the Additional District Judge and the Letters Patent Bench but was dropped from consideration by the learned Single Judge on the concession of the claimant-land-owners. Lastly in point of time is sale instance Ex. A-16 of June 30, 1981 involving one Kanal of land, the rate being Rs. 2, 40, 000 per acre. In point of situation, plot covered under Ex. A-16 is almost opposite to plot covered by sale Ex. A-23 but slightly towards Malout town. Ex. A-16 took place two years after sale Ex. A-23 and as such was about 3-1/2 years after the date of notification. Sale Ex. A-16 appealed to the Additional District Judge only as a supporting material to grant compensation at the rate of Rs. 1, 20, 000 per acre on the basis of sale Ex. A-23. Sale Ex. A-16 neither appealed to the learned Single Judge nor to the Letters Patent Bench. Sale Ex. A-16 having been discarded by the learned Single Judge as well as by the Letters Patent Bench of the High Court and the Additional District Judge too having used it only in a limited way, as disclosed in his reasoning, we feel that sale Ex. A-16 should be totally ruled out from consideration because it was too distant in point of time having taken place 3-1/2 years after the date of notification. Having discarded the same the supporting foundation to maintain sale price at the rate of Rs. 1, 20, 000 per acre either on the basis of sale instance Ex. A-23 or on the basis of award Ex. A-24 become shaky and open to question 17. Now we have seen sales Ex. A-11 as well as Ex. A-23 are of very small areas and have taken place a year and a-year-and-half respectively from the date of Section 4 notification. Evidently they are at an advantageous position being on the G.T. Road as compared to the land under acquisition which has no access to the G.T. Road and is of the large area. These sales have as such no positive role to play. If at all, some role is due to sale Ex. A-11, which is closest in point of time, and distancewise more close to Malout town, and on account of its situation. This tells us that for a small plot at an advantageous position on the G.T. Road the rate was Rs. 96, 000 per acre a year after the date of the notification under Section 4. The land under acquisition cannot fetch on any reasoning the same price as fixed in sale Ex. A-11, because comparably the area acquired is large, almost 800 times than the land sold, vide Ex. A-11. So the land acquired has to fetch a price lesser than the price of Rs. 96, 800 per acre. At this stage, it would be relevant to mention that in the grounds of appeal before the High Court, the Food Corporation of India disclosed its willingness to pay a sum of Rs. 80, 000 per acre for the land acquired. In the same strand the learned counsel appearing for the F.C.I. had projected before the learned Single Judge that there should be further cut to reduce the compensation from Rs. 1, 20, 000 per acre to about Rs. 93, 000 per acre. These statements by themselves are no concessions and are at best indications of vacillation to find the correct market value. On such statements public purses cannot be allowed to open their mounts. Having regard to these conflicting claims we get to the view that important points affecting valuation had been overlooked or misapplied in arriving at and sticking to the rate of compensation at Rs. 1, 20, 000, which would require a correction from us. We feel that in the facts and circumstances of the case the compensation must in comparison get lower than the price at which sale Ex. A-11 took place, but at a figure which does not overlook the rate as given in award Ex. A-24. Now we lift our thumb and put it to reduce the compensation to Rs. 80, 000 per acre slicing down 1/6th (roundedly) from the rate reflective from sale instance Ex. A-11 and 1/3rd from the rate of Rs. 1, 20, 000, as deduced from award Ex. A-24, because of the poor locale, disadvantageous position and lack of contiguity to the expansion of Malout town due to the obstructing railway line. In our opinion, compensation at the rate of Rs. 80, 000 per acre is just and fair in the circumstances, and we hold so ### Response: 1

P. Chinnanna & Others Vs. State of Andhra Pradesh & Others

Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances." 10. The said provision enables the appropriate Government to take possession of the land concerned on the expiration of 15 days from the publication of the notice mentioned in Section 9 sub-section (1) notwithstanding the fact that no award has been made in respect of it. When the possession of the land concerned is once taken as provided for thereunder such land is made to vest absolutely in the Government free from all encumbrances. It must be noted here that taking possession of the land concerned and its vesting absolutely in the Government free from all encumbrances does not depend upon an award to be made under Section 11, making of which award alone in the case of ordinary acquisition of land could have empowered the Collector to take possession of the land under Section 16 and the taking of which possession would have made the land vest absolutely in the Government free from all encumbrances. As seen from the judgment dated 23-8- 1982 of the High Court in WP No. 3416 of 1978, taking possession of the appellants land along with land of others by the Collector on 10-7-1978 under Section 17(1) is, in fact, made the basis for its holding that invoking of urgency clause to dispense with Section 5-A enquiry was made by the Government mechanically. No doubt, when the High Court took the view that acquisition of the land concerned under Section 17 of the Act was made pursuant to an order of the Government without application of its mind in the matter of making Section 5-A not to apply, it was open to it to set aside or quash the subsequent acquisition proceedings except Section 4(1) notification which had followed and restore the ownership of the land to the appellants land if it had to order fresh enquiry on the basis of Section 4(1) notification. Such a setting aside or quashing was inevitable because the acquisition proceedings had been completed under Section 17 and the land had vested in the State Government, inasmuch as, without setting aside that vesting of the land in the State Government and restoring the land to the appellant-owners, hat land was unavailable for subsequent acquisition by following the procedure under Section 5-A, Section 6, Section 11 and Section 16. Thus in the circumstances of the case in respect of the land of the appellants, when publication of Section 4(1) notification was made on 21-7- 1977, when declaration under Section 6 was published on 21-7-1977 and taking possession of that land under Section 17(1) by the Collector was made on 10-7-1978 and the vesting in the State Government of that land had occurred on that day, setting aside by the judgment of the High Court in WP No. 3416 of 1978 of merely the direction given by the Government relating to nonapplicability of Section 5-A to the land, given on 7-7-1977, in our view, did not enable to Court to order the starting of fresh proceedings for acquisition of the land concerned under Section 5-A, inasmuch as, that land concerned on Section 4(1) notification had already become the land of the Government. In this state of facts, when the previous acquisition of the land of the appellants made under Section 17 of the Act did never stood affected. Section 5-A enquiry held and subsequent declaration made were superfluous proceedings which were inconsequential. Hence, we feel that there is no need to set aside the impugned declaration inasmuch as the earlier acquisition was complete and had resulted in vesting of the land in the State Government and there was no land available for acquisition in the subsequent proceedings which have been carried pursuant to the judgment of the High Court made in WP No. 3416 of 1978. Therefore, in the stated facts, although we find that no need arises to declare the impugned declaration as void we clarify that the earlier proceedings which had taken place in respect of the appellants land, resulting in its vesting in the State Government free from encumbrances, has stood unaffected and any award made by the Collector or be made by him under the L.A. Act shall be regarded as that based on earlier acquisition proceedings.11. We may, however, state that though we have examined the fresh ground of challenge in respect of Section 6(1) declaration raised on behalf of the appellants nearly seven years after it had become available to them, the same had been done solely to decide on the scope and applicability of the first proviso to Section 6(1) and its explanation, inserted into the L.A. Act by the L.A. (Amendment) Act, 1984. Such examination cannot, therefore, be understood as laying down that notwithstanding the lapse of time or laches in raising a legal ground in a proceeding under Article 226 of the Constitution or a proceeding under Article 136 of the Constitution there is an obligation on the part of the court concerned to examine such fresh ground. In fact, in relation to acquisition proceeding involving acquisition of land for public purposes, the court concerned must be averse to entertain writ petitions involving the challenge to such acquisition where there is avoidable delay or laches since such acquisition, if set aside, would not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good. When a fresh ground of attack to acquisition proceedings, even if it involves purely a question of law, its entertainment cannot be governed by a principle different from that which governs entertainment of writ petitions before the High Court or proceedings arising therefrom before this Court under Article 136 of the Constitution. however without costs.

0[ds]Hence, we feel that there is no need to set aside the impugned declaration inasmuch as the earlier acquisition was complete and had resulted in vesting of the land in the State Government and there was no land available for acquisition in the subsequent proceedings which have been carried pursuant to the judgment of the High Court made in WP No. 3416 of 1978. Therefore, in the stated facts, although we find that no need arises to declare the impugned declaration as void we clarify that the earlier proceedings which had taken place in respect of the appellants land, resulting in its vesting in the State Government free from encumbrances, has stood unaffected and any award made by the Collector or be made by him under the L.A. Act shall be regarded as that based on earlier acquisition proceedings.11. We may, however, state that though we have examined the fresh ground of challenge in respect of Section 6(1) declaration raised on behalf of the appellants nearly seven years after it had become available to them, the same had been done solely to decide on the scope and applicability of the first proviso to Section 6(1) and its explanation, inserted into the L.A. Act by the L.A. (Amendment) Act, 1984. Such examination cannot, therefore, be understood as laying down that notwithstanding the lapse of time or laches in raising a legal ground in a proceeding under Article 226 of the Constitution or a proceeding under Article 136 of the Constitution there is an obligation on the part of the court concerned to examine such fresh ground. In fact, in relation to acquisition proceeding involving acquisition of land for public purposes, the court concerned must be averse to entertain writ petitions involving the challenge to such acquisition where there is avoidable delay or laches since such acquisition, if set aside, would not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good. When a fresh ground of attack to acquisition proceedings, even if it involves purely a question of law, its entertainment cannot be governed by a principle different from that which governs entertainment of writ petitions before the High Court or proceedings arising therefrom before this Court under Article 136 of the Constitution. however without costs.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances." 10. The said provision enables the appropriate Government to take possession of the land concerned on the expiration of 15 days from the publication of the notice mentioned in Section 9 sub-section (1) notwithstanding the fact that no award has been made in respect of it. When the possession of the land concerned is once taken as provided for thereunder such land is made to vest absolutely in the Government free from all encumbrances. It must be noted here that taking possession of the land concerned and its vesting absolutely in the Government free from all encumbrances does not depend upon an award to be made under Section 11, making of which award alone in the case of ordinary acquisition of land could have empowered the Collector to take possession of the land under Section 16 and the taking of which possession would have made the land vest absolutely in the Government free from all encumbrances. As seen from the judgment dated 23-8- 1982 of the High Court in WP No. 3416 of 1978, taking possession of the appellants land along with land of others by the Collector on 10-7-1978 under Section 17(1) is, in fact, made the basis for its holding that invoking of urgency clause to dispense with Section 5-A enquiry was made by the Government mechanically. No doubt, when the High Court took the view that acquisition of the land concerned under Section 17 of the Act was made pursuant to an order of the Government without application of its mind in the matter of making Section 5-A not to apply, it was open to it to set aside or quash the subsequent acquisition proceedings except Section 4(1) notification which had followed and restore the ownership of the land to the appellants land if it had to order fresh enquiry on the basis of Section 4(1) notification. Such a setting aside or quashing was inevitable because the acquisition proceedings had been completed under Section 17 and the land had vested in the State Government, inasmuch as, without setting aside that vesting of the land in the State Government and restoring the land to the appellant-owners, hat land was unavailable for subsequent acquisition by following the procedure under Section 5-A, Section 6, Section 11 and Section 16. Thus in the circumstances of the case in respect of the land of the appellants, when publication of Section 4(1) notification was made on 21-7- 1977, when declaration under Section 6 was published on 21-7-1977 and taking possession of that land under Section 17(1) by the Collector was made on 10-7-1978 and the vesting in the State Government of that land had occurred on that day, setting aside by the judgment of the High Court in WP No. 3416 of 1978 of merely the direction given by the Government relating to nonapplicability of Section 5-A to the land, given on 7-7-1977, in our view, did not enable to Court to order the starting of fresh proceedings for acquisition of the land concerned under Section 5-A, inasmuch as, that land concerned on Section 4(1) notification had already become the land of the Government. In this state of facts, when the previous acquisition of the land of the appellants made under Section 17 of the Act did never stood affected. Section 5-A enquiry held and subsequent declaration made were superfluous proceedings which were inconsequential. Hence, we feel that there is no need to set aside the impugned declaration inasmuch as the earlier acquisition was complete and had resulted in vesting of the land in the State Government and there was no land available for acquisition in the subsequent proceedings which have been carried pursuant to the judgment of the High Court made in WP No. 3416 of 1978. Therefore, in the stated facts, although we find that no need arises to declare the impugned declaration as void we clarify that the earlier proceedings which had taken place in respect of the appellants land, resulting in its vesting in the State Government free from encumbrances, has stood unaffected and any award made by the Collector or be made by him under the L.A. Act shall be regarded as that based on earlier acquisition proceedings.11. We may, however, state that though we have examined the fresh ground of challenge in respect of Section 6(1) declaration raised on behalf of the appellants nearly seven years after it had become available to them, the same had been done solely to decide on the scope and applicability of the first proviso to Section 6(1) and its explanation, inserted into the L.A. Act by the L.A. (Amendment) Act, 1984. Such examination cannot, therefore, be understood as laying down that notwithstanding the lapse of time or laches in raising a legal ground in a proceeding under Article 226 of the Constitution or a proceeding under Article 136 of the Constitution there is an obligation on the part of the court concerned to examine such fresh ground. In fact, in relation to acquisition proceeding involving acquisition of land for public purposes, the court concerned must be averse to entertain writ petitions involving the challenge to such acquisition where there is avoidable delay or laches since such acquisition, if set aside, would not only involve enormous loss of public money but also cause undue delay in carrying out projects meant for general public good. When a fresh ground of attack to acquisition proceedings, even if it involves purely a question of law, its entertainment cannot be governed by a principle different from that which governs entertainment of writ petitions before the High Court or proceedings arising therefrom before this Court under Article 136 of the Constitution. however without costs. ### Response: 0

Uniflex Cables Ltd Vs. Commnr., Central Excise, Surat-Ii

duty amounting to Rs.66,92,604/-. According to the Authorities, the electric cables were neither parts nor specially designed devices, which were necessary for manufacturing or running wind mills. For the aforestated reasons, according to the authorities, benefit under the aforestated notification could not have been availed by the appellant. Ultimately, the Commissioner, Central Excise, Surat - II by an order dated 20.2.1998, confirmed the demand of excise duty amounting to Rs. 66,92,604 and imposed penalty under Rule 173Q(1) of the Rules. The said order was challenged before the Tribunal and the Tribunal allowed the appeal by remanding the matter to the Commissioner. After hearing the appellant, the Commissioner again took the same view by his order dated 22.3.2001.4. Being aggrieved by the aforestated order dated 22.3.01, the appellant preferred an appeal before the Tribunal which was dismissed. The Tribunal relied on its earlier order passed in NICCO CORPORATION LIMITED v. COMMISSIONER OF CENTRAL EXCISE, CALCUTTA, whereby an analogous issue was adjudicated and decided against the concerned assessee. Aggrieved by the said order dated 7.7.2005, the appellant has preferred the appeal before this Court. 5. The order passed by the Tribunal in NICCO CORPORATION LIMITED (supra) was appealed against in C.A. No 1118/2001 before this Court. This Court, vide its order dated 22.3.06 dismissed the appeal and held that insulated electrical cables designed for use in wind mills would not be eligible for exemption under notification no 205/88 as amended. The said judgment is now reported as Nicco Corporation Ltd. v. Commissioner of Central Excise, Calcutta 2006 (203) ELT 362(S.C.). During the pendency of the proceedings, the Authorities had issued a notice of demand directing the appellant to pay central excise duty and penalty amounting to Rs 1, 33, 85,208. The appellant, in compliance of the said notice, deposited a sum of Rs 66, 92,604 towards the excise duty payable by it. However, the amount of penalty has not been paid as stay has been granted against the said demand. 6. We have heard the learned counsel appearing for the concerned parties. It has been mainly submitted on behalf of the appellant that the electrical cables supplied to the manufacturers of wind mills were specifically designed for use in wind mills. They were special type of cables, without which the wind mills could not have been operated and, therefore, the revenue authorities ought to have granted exemption as stated in the notification referred to hereinabove. The learned counsel appearing for the appellant gave details as to how the electric cables were specially used for running the wind mills. He further stated that without use of the electric cables supplied by the appellant, functioning of the wind mills would not have been possible. He, therefore, submitted that the appellant ought to have been given the benefit of the notification referred to hereinabove. 7. On the other hand, Shri H.P. Raval, learned Additional Solicitor General appearing for the respondent-authorities relied upon the judgment delivered in Nicco Corporation Ltd. v. Commissioner of Central Excise, Calcutta (supra) and submitted that the electric cables manufactured and supplied by the appellant were not so indispensable that without which the wind mills could not have been operated. He further submitted that for the reasons recorded in the order passed by the Tribunal, the appellant is not entitled to exemption. He further submitted that the order imposing penalty is also just and proper as the appellant deliberately did not pay excise duty payable by it. Thus, he submitted that the impugned order is just and proper and, therefore, the appeal deserves to be dismissed. 8. Two issues arise for adjudication in the present case:I. Whether the insulated electrical cables manufactured by the appellant would be eligible for exemption under the above mentioned exemption notification.II. Whether imposition of penalty is justified in view of the facts and circumstances of the case. 9. So far as the first issue is concerned, it is no more res integra in view of the judgment delivered by this Court in the case of Nicco Corporation Ltd. v. Commissioner of Central Excise, Calcutta (supra). The facts in the said case as well as in the present case are similar and, therefore, we need not consider the said issue again. In the circumstances, the first issue is decided in favour of the Revenue. It is also pertinent to note that the appellant has already paid a sum of Rs.66,92,604/- towards excise duty. As regards the second issue about the imposition of penalty, we are of the opinion that the said order cannot be justified in the facts of the case.10. So far as the second issue with regard to the imposition of penalty in the present case is concerned, the Commissioner, himself in his order-in- original has stated that the issue involved in the case is of interpretational nature. Keeping in mind the said factor, the Commissioner thought it fit not to impose harsh penalty and a penalty of an amount of Rs. 5 lakhs was imposed on the appellant while confirming the demand of the duty.11. It is also evident from the said order that the Commissioner also found that except for the statement of the Excise Executive Director and Excise Clerk of the assessee company there was no other evidence pointing out any accusing finger at them in dealing with offending goods knowingly. A clear finding has been recorded by the Commissioner that it was difficult to hold that the appellant knowingly dealt with excisable goods which were cleared without payment of duty. Nor the department itself took it as a formal case of offence.12. When we take into consideration the aforesaid facts and also the fact that the Commissioner himself found that it is only a case of interpretational nature, in our considered opinion, no penalty could be and is liable to be imposed on the appellant herein.13. Therefore, in the facts and circumstances of the present case we are of the view that penalty should not have been imposed upon the appellant. Consequently,

1[ds]The order passed by the Tribunal in NICCO CORPORATION LIMITED (supra) was appealed against in C.A. No 1118/2001 before this Court. This Court, vide its order dated 22.3.06 dismissed the appeal and held that insulated electrical cables designed for use in wind mills would not be eligible for exemption under notification no 205/88 as amended. The said judgment is now reported as Nicco Corporation Ltd. v. Commissioner of Central Excise, Calcutta 2006 (203) ELT 362(S.C.). During the pendency of the proceedings, the Authorities had issued a notice of demand directing the appellant to pay central excise duty and penalty amounting to Rs 1, 33, 85,208. The appellant, in compliance of the said notice, deposited a sum of Rs 66, 92,604 towards the excise duty payable by it. However, the amount of penalty has not been paid as stay has been granted against the saidneed not consider the said issue again. In the circumstances, the first issue is decided in favour of the Revenue. It is also pertinent to note that the appellant has already paid a sum of Rs.66,92,604/- towards excise duty. As regards the second issue about the imposition of penalty, we are of the opinion that the said order cannot be justified in the facts of the case.10. So far as the second issue with regard to the imposition of penalty in the present case is concerned, the Commissioner, himself in his order-in- original has stated that the issue involved in the case is of interpretational nature. Keeping in mind the said factor, the Commissioner thought it fit not to impose harsh penalty and a penalty of an amount of Rs. 5 lakhs was imposed on the appellant while confirming the demand of the duty.11. It is also evident from the said order that the Commissioner also found that except for the statement of the Excise Executive Director and Excise Clerk of the assessee company there was no other evidence pointing out any accusing finger at them in dealing with offending goods knowingly. A clear finding has been recorded by the Commissioner that it was difficult to hold that the appellant knowingly dealt with excisable goods which were cleared without payment of duty. Nor the department itself took it as a formal case of offence.12. When we take into consideration the aforesaid facts and also the fact that the Commissioner himself found that it is only a case of interpretational nature, in our considered opinion, no penalty could be and is liable to be imposed on the appellant herein.13. Therefore, in the facts and circumstances of the present case we are of the view that penalty should not have been imposed upon the appellant.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: duty amounting to Rs.66,92,604/-. According to the Authorities, the electric cables were neither parts nor specially designed devices, which were necessary for manufacturing or running wind mills. For the aforestated reasons, according to the authorities, benefit under the aforestated notification could not have been availed by the appellant. Ultimately, the Commissioner, Central Excise, Surat - II by an order dated 20.2.1998, confirmed the demand of excise duty amounting to Rs. 66,92,604 and imposed penalty under Rule 173Q(1) of the Rules. The said order was challenged before the Tribunal and the Tribunal allowed the appeal by remanding the matter to the Commissioner. After hearing the appellant, the Commissioner again took the same view by his order dated 22.3.2001.4. Being aggrieved by the aforestated order dated 22.3.01, the appellant preferred an appeal before the Tribunal which was dismissed. The Tribunal relied on its earlier order passed in NICCO CORPORATION LIMITED v. COMMISSIONER OF CENTRAL EXCISE, CALCUTTA, whereby an analogous issue was adjudicated and decided against the concerned assessee. Aggrieved by the said order dated 7.7.2005, the appellant has preferred the appeal before this Court. 5. The order passed by the Tribunal in NICCO CORPORATION LIMITED (supra) was appealed against in C.A. No 1118/2001 before this Court. This Court, vide its order dated 22.3.06 dismissed the appeal and held that insulated electrical cables designed for use in wind mills would not be eligible for exemption under notification no 205/88 as amended. The said judgment is now reported as Nicco Corporation Ltd. v. Commissioner of Central Excise, Calcutta 2006 (203) ELT 362(S.C.). During the pendency of the proceedings, the Authorities had issued a notice of demand directing the appellant to pay central excise duty and penalty amounting to Rs 1, 33, 85,208. The appellant, in compliance of the said notice, deposited a sum of Rs 66, 92,604 towards the excise duty payable by it. However, the amount of penalty has not been paid as stay has been granted against the said demand. 6. We have heard the learned counsel appearing for the concerned parties. It has been mainly submitted on behalf of the appellant that the electrical cables supplied to the manufacturers of wind mills were specifically designed for use in wind mills. They were special type of cables, without which the wind mills could not have been operated and, therefore, the revenue authorities ought to have granted exemption as stated in the notification referred to hereinabove. The learned counsel appearing for the appellant gave details as to how the electric cables were specially used for running the wind mills. He further stated that without use of the electric cables supplied by the appellant, functioning of the wind mills would not have been possible. He, therefore, submitted that the appellant ought to have been given the benefit of the notification referred to hereinabove. 7. On the other hand, Shri H.P. Raval, learned Additional Solicitor General appearing for the respondent-authorities relied upon the judgment delivered in Nicco Corporation Ltd. v. Commissioner of Central Excise, Calcutta (supra) and submitted that the electric cables manufactured and supplied by the appellant were not so indispensable that without which the wind mills could not have been operated. He further submitted that for the reasons recorded in the order passed by the Tribunal, the appellant is not entitled to exemption. He further submitted that the order imposing penalty is also just and proper as the appellant deliberately did not pay excise duty payable by it. Thus, he submitted that the impugned order is just and proper and, therefore, the appeal deserves to be dismissed. 8. Two issues arise for adjudication in the present case:I. Whether the insulated electrical cables manufactured by the appellant would be eligible for exemption under the above mentioned exemption notification.II. Whether imposition of penalty is justified in view of the facts and circumstances of the case. 9. So far as the first issue is concerned, it is no more res integra in view of the judgment delivered by this Court in the case of Nicco Corporation Ltd. v. Commissioner of Central Excise, Calcutta (supra). The facts in the said case as well as in the present case are similar and, therefore, we need not consider the said issue again. In the circumstances, the first issue is decided in favour of the Revenue. It is also pertinent to note that the appellant has already paid a sum of Rs.66,92,604/- towards excise duty. As regards the second issue about the imposition of penalty, we are of the opinion that the said order cannot be justified in the facts of the case.10. So far as the second issue with regard to the imposition of penalty in the present case is concerned, the Commissioner, himself in his order-in- original has stated that the issue involved in the case is of interpretational nature. Keeping in mind the said factor, the Commissioner thought it fit not to impose harsh penalty and a penalty of an amount of Rs. 5 lakhs was imposed on the appellant while confirming the demand of the duty.11. It is also evident from the said order that the Commissioner also found that except for the statement of the Excise Executive Director and Excise Clerk of the assessee company there was no other evidence pointing out any accusing finger at them in dealing with offending goods knowingly. A clear finding has been recorded by the Commissioner that it was difficult to hold that the appellant knowingly dealt with excisable goods which were cleared without payment of duty. Nor the department itself took it as a formal case of offence.12. When we take into consideration the aforesaid facts and also the fact that the Commissioner himself found that it is only a case of interpretational nature, in our considered opinion, no penalty could be and is liable to be imposed on the appellant herein.13. Therefore, in the facts and circumstances of the present case we are of the view that penalty should not have been imposed upon the appellant. Consequently, ### Response: 1

Gajanan Samadhan Lande Vs. Sanjay Shyamrao Dhotre

functions of the elected Director of the Corporation.5. On the basis of the pleadings of the parties, the High Court framed 14 issues. The appellant examined two witnesses, including himself and tendered documentary evidence. On the other hand, the returned candidate examined himself and one more witness who was Deputy General Manager (Audit) of the Corporation. He also produced documentary evidence in support of his defence.6. The High Court by an elaborate judgment, on consideration of the evidence on record and on hearing the counsel for the parties, held that the returned candidate was not disqualified to be a member of Parliament either under Article 102(1)(a) of the Constitution or under Section 10 of the 1951 Act. 7. Mr. Vishaal Jogdand, learned counsel for the appellant, assailed the correctness of the judgment of the High Court and submitted that the returned candidate at the time of nomination and election was holding the office of profit. In this regard, he referred to the allowances received by the returned candidate, namely, Rs. 0.75 Lakh meeting allowance calculated at the rate of Rs. 300/- per day; telephone allowance in the sum of Rs. 2,000/- per month; dearness allowance paid at the rate of Rs. 100/- for metropolitan cities and Rs. 85/- for other places and also sale of seeds at concessional price. Learned counsel further submitted that the Corporation was a Government company and Government has full control and supervision over the company as well as its directors. Learned counsel also submitted that the returned candidate as an elected Director was entitled to enter into contract with the company and make profit from such contract. He invited our attention to Section 10 of the 1951 Act and Article 102(1)(a) of the Constitution and submitted that the facts clearly demonstrate that the returned candidate was holding the office of profit. 8. On the other hand, Mr. Saurav S. Shamshery, learned counsel for the respondent, stoutly defended the findings recorded by the High Court. He also invited our attention to a decision of this Court in Pradyut Bordoloi Vs. Swapan Roy (AIR 2001 SC 296 ) in support of his argument that the first and foremost thing that the election petitioner, in a case as the present one, is required to show is whether the Government has appointed the returned candidate and has power to remove him from the office and if the election petitioner has not been able to show that, nothing further is required to be seen. 9. Section 10 of the 1951 Act reads as follows :- “10. Disqualification for office under Government company.--A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share.” 10. Section 10 refers to category of persons who shall be disqualified from contesting election, inter alia, of either House of Parliament. These persons are, managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share. The Government of Maharashtra admittedly has more than 25 per cent share in the Corporation. The Corporation is, thus, covered by Section 10. However, the returned candidate is an elected Director from the Growers constituency on the Board of the Corporation. He is neither managing agent nor manager nor secretary in the Corporation. Section 10 of the 1951 Act is, therefore, not at all attracted in the present case. 11. Article 102 of the Constitution provides for disqualifications for membership. Article 102(1)(a) is relevant for the present purposes and it reads as follows :- “102. Disqualifications for membership.-- (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;(b) x x x(c) x x x(d) x x x(e) x x x” 12. For attracting the disqualification provided in the above provision of the Constitution, a person must be holder of office of profit under the Government of India or the Government of any State. The returned candidate is not the holder of any office of profit under the Government of India. Is he the holder of the office under the Government of Maharashtra? Our answer is in the negative for more than one reason. 13. In the first place, the returned candidate was holding an elected office and not an office by appointment. The test of appointment is decisive. The Government had nothing to do in the election of Director from the Growers constituency. Moreover, being an elected office, the Government has no power to remove the returned candidate from that office. On this ground alone, it must be held that the returned candidate does not hold an office much less an office of profit under the Government.14. Secondly, one of the essential necessities in determining the question whether the office is an office of profit or not is whether such office carries remuneration in the form of pay or commission. As an elected Director, the amount paid to the returned candidate by way of allowances, by no stretch of imagination, can be said to be renumeration in the form of pay or commission. It is only a sort of reimbursement of the expenses incurred by the returned candidate. Essential condition that office carries remuneration in the form of pay or commission is also not satisfied.15. Lastly, the peculiar features of an elected office of Director in the Corporation, do not bring such office within the meaning of office of profit.16. Thus, we are satisfied that the view of the High Court does not suffer from any legal infirmity justifying interference by us in this Appeal. 17.

0[ds]In the first place, the returned candidate was holding an elected office and not an office by appointment. The test of appointment is decisive. The Government had nothing to do in the election of Director from the Growers constituency. Moreover, being an elected office, the Government has no power to remove the returned candidate from that office. On this ground alone, it must be held that the returned candidate does not hold an office much less an office of profit under the Government.14. Secondly, one of the essential necessities in determining the question whether the office is an office of profit or not is whether such office carries remuneration in the form of pay or commission. As an elected Director, the amount paid to the returned candidate by way of allowances, by no stretch of imagination, can be said to be renumeration in the form of pay or commission. It is only a sort of reimbursement of the expenses incurred by the returned candidate. Essential condition that office carries remuneration in the form of pay or commission is also not satisfied.15. Lastly, the peculiar features of an elected office of Director in the Corporation, do not bring such office within the meaning of office of profit.16. Thus, we are satisfied that the view of the High Court does not suffer from any legal infirmity justifying interference by us in this Appeal.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: functions of the elected Director of the Corporation.5. On the basis of the pleadings of the parties, the High Court framed 14 issues. The appellant examined two witnesses, including himself and tendered documentary evidence. On the other hand, the returned candidate examined himself and one more witness who was Deputy General Manager (Audit) of the Corporation. He also produced documentary evidence in support of his defence.6. The High Court by an elaborate judgment, on consideration of the evidence on record and on hearing the counsel for the parties, held that the returned candidate was not disqualified to be a member of Parliament either under Article 102(1)(a) of the Constitution or under Section 10 of the 1951 Act. 7. Mr. Vishaal Jogdand, learned counsel for the appellant, assailed the correctness of the judgment of the High Court and submitted that the returned candidate at the time of nomination and election was holding the office of profit. In this regard, he referred to the allowances received by the returned candidate, namely, Rs. 0.75 Lakh meeting allowance calculated at the rate of Rs. 300/- per day; telephone allowance in the sum of Rs. 2,000/- per month; dearness allowance paid at the rate of Rs. 100/- for metropolitan cities and Rs. 85/- for other places and also sale of seeds at concessional price. Learned counsel further submitted that the Corporation was a Government company and Government has full control and supervision over the company as well as its directors. Learned counsel also submitted that the returned candidate as an elected Director was entitled to enter into contract with the company and make profit from such contract. He invited our attention to Section 10 of the 1951 Act and Article 102(1)(a) of the Constitution and submitted that the facts clearly demonstrate that the returned candidate was holding the office of profit. 8. On the other hand, Mr. Saurav S. Shamshery, learned counsel for the respondent, stoutly defended the findings recorded by the High Court. He also invited our attention to a decision of this Court in Pradyut Bordoloi Vs. Swapan Roy (AIR 2001 SC 296 ) in support of his argument that the first and foremost thing that the election petitioner, in a case as the present one, is required to show is whether the Government has appointed the returned candidate and has power to remove him from the office and if the election petitioner has not been able to show that, nothing further is required to be seen. 9. Section 10 of the 1951 Act reads as follows :- “10. Disqualification for office under Government company.--A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share.” 10. Section 10 refers to category of persons who shall be disqualified from contesting election, inter alia, of either House of Parliament. These persons are, managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share. The Government of Maharashtra admittedly has more than 25 per cent share in the Corporation. The Corporation is, thus, covered by Section 10. However, the returned candidate is an elected Director from the Growers constituency on the Board of the Corporation. He is neither managing agent nor manager nor secretary in the Corporation. Section 10 of the 1951 Act is, therefore, not at all attracted in the present case. 11. Article 102 of the Constitution provides for disqualifications for membership. Article 102(1)(a) is relevant for the present purposes and it reads as follows :- “102. Disqualifications for membership.-- (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;(b) x x x(c) x x x(d) x x x(e) x x x” 12. For attracting the disqualification provided in the above provision of the Constitution, a person must be holder of office of profit under the Government of India or the Government of any State. The returned candidate is not the holder of any office of profit under the Government of India. Is he the holder of the office under the Government of Maharashtra? Our answer is in the negative for more than one reason. 13. In the first place, the returned candidate was holding an elected office and not an office by appointment. The test of appointment is decisive. The Government had nothing to do in the election of Director from the Growers constituency. Moreover, being an elected office, the Government has no power to remove the returned candidate from that office. On this ground alone, it must be held that the returned candidate does not hold an office much less an office of profit under the Government.14. Secondly, one of the essential necessities in determining the question whether the office is an office of profit or not is whether such office carries remuneration in the form of pay or commission. As an elected Director, the amount paid to the returned candidate by way of allowances, by no stretch of imagination, can be said to be renumeration in the form of pay or commission. It is only a sort of reimbursement of the expenses incurred by the returned candidate. Essential condition that office carries remuneration in the form of pay or commission is also not satisfied.15. Lastly, the peculiar features of an elected office of Director in the Corporation, do not bring such office within the meaning of office of profit.16. Thus, we are satisfied that the view of the High Court does not suffer from any legal infirmity justifying interference by us in this Appeal. 17. ### Response: 0

Fazal Bhai Dhala Vs. Custodian-General Of Evacueeproperty, Delhi

serve the notice would be fatal; where however proper hearing can be given without service or notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a reasonable opportunity of being heard was given.8. A perusal of the Custodians judgment makes it reasonably clear that he informed the counsel who appeared on Fazal Bhai Dhalas behalf, that he proposed to consider whether the order made by the Custodian in respect of the hides business and the Sch. A III properties had been rightly made and to revise the same, if necessary, after giving a reasonable opportunity of being heard to Fazal Bhai on this point It is equally clear that the appellants advocate was fully heard in the matter.9. We have no doubt therefore that the requirements of law as embodied in the proviso to S. 26(1) of the Act were fully satisfied. The contention that the Custodian acted without jurisdiction or irregularly exercised his jurisdiction must therefore fail.10. The next contention raised in the appeal is-to use the learned counsels own words-that in view of S. 43 of the Indian Partnership Act the partnership stood dissolved from November 2, 1948 and the Custodian had no jurisdiction to declare the "business" to be an evacuee property. It does not appear to have been disputed either before the Assistant Custodian or the Custodian that the partnership of Fazalbhai Dhala and Co., was a partnership-at-will. The deed of dissolution was dated August 12, 1949 and it has been found by the Custodian that the deed of dissolution was purposely concluded to provide a common safeguard for properties to remain in the hands of the brothers. The mention of the date November 2, 1948 as the date of dissolution cannot therefore be accepted. The firm must however be held to have been dissolved on August 12, 1949 on which date the deed of dissolution was executed. The argument of the learned counsel appears to be that once the partnership-business was dissolved there could be no question of declaring the dissolved partnership as an evacuee property. Once the fact of dissolution is accepted the declaration as regards the business must necessarily be construed as a declaration that the property that remained in Abdulla Bhai on the dissolution of the firm was an evacuee property. It seems to us clear that that was really what is intended to be meant by the order made by the Custodian.11. A further contention of the appellant is that the transactions evidenced by the two deeds, viz., the sale deed and the dissolution were merely in furtherance of the winding up of the affaires of the dissolved partnership and therefore in determining the validity or otherwise of the transactions it has to be borne in mind that Fazal Bhai could not resist the claim of the other partners to wind up. The story that the dissolution of partnership had taken place earlier and the two deeds were executed later on has not been accepted by the Custodian and we can see no reason to interfere with his conclusion. The deeds of sale were executed prior to the actual dissolution which was effected by the deed of dissolution; there is no scope therefore for saying that the sale deed was in the course of the winding up of the affairs of the dissolution of partnership. As regards the deed of dissolution itself it is wholly beside the point whether Abdulla Bhai could have resisted the claim to wind up for the declaration merely is that Abdulla Bhais share in the dissolved partnership as it stood on the date of dissolution is an evacuee property. The validity of the dissolution is not touched. It is hardly necessary to add that the dissolution of the partnership did not by itself mean that Abdullas share stood transferred to Fazal Bhai any more than that Fazal Bhais share stood transferred to Abdulla Bhai. A purported transfer of Abdullas share was made by the deed itself. But this having been held to be without good faith, had in view of S. 40 of the Evacuees Property Act , no effect. It has to be made clear that the Custodian would not be bound by the statements made in the deed of dissolution as regards the settlement of the accounts of the firm and that the Custodian, in whom the evacuee properties vest will have in respect of the dissolved business all the rights which Abdulla had under sections 37, 46, 47, 48 and other sections of the Partnership Act.12. There remains for consideration the appellants contention that in any case the Custodian acted illegally in the exercise of his jurisdiction in ordering that "the entire properties in Schs. A and B should now be treated as evacuee properties." It appears that the order by the Custodian was made in these terms even though his conclusion was that "the entire 8 annas share of the properties mentioned in Schs. A and B of the evacuee Abdulla should be treated as evacuee properties." in view of the fact that under the original definition of evacuee property in S. 2(f) of the Administration of Evacuee Property Act (Act XXXI of 1950) it meant "any property in which any evacuee has any right or interest." This definition has however since been amended and now evacuee property means "any property of an evacuee" instead of "any property in which an evacuee has any right or interest." The legal position after the amendment therefore is that it is only the 8 annas share of Abdulla set out in the Schedule in the Assistant Custodians order dated the 28th January, 1950, which is evacuee property., It is therefore necessary to state in clarification of the position that instead of the entire Schedules A and B properties being treated as evacuee property only 8 annas share of these properties which belonged to the evacuee Abdulla should be treated as evacuee properties.

0[ds]it is clear that the only jurisdiction the Custodian could exercise, in the absence of any appeal against that portion of the Assistant Custodians order would be his revisional jurisdiction under S. 26. When we find that the custodian has made the order it is proper and reasonable to hold that he passed it in the exercise of the only jurisdiction he had-viz., the revisional jurisdiction and the fact that this was not clearly stated in the order can be no ground for holding that he was not exercising revisional jurisdiction. It is quite another matter whether in the exercise of that jurisdiction, he proceeded in accordance withgoes without saying that in the large majority of cases the Custodian will, in order to give the party concerned a reasonable opportunity of being heard, first give him a notice of his intention to examine the records to satisfy himself as to the legality or the propriety of any order passed the subordinate officer and require such person to show cause if any why the order should not be revised or modified, and then if and when the party appears before him in response to the notice, the Custodian has also to allow him, either personally or through counsel, a reasonable opportunity of being heard. In suitable cases it may be proper and necessary for the Custodian to allow the party concerned even to adduce evidence. There may be cases however where the party concerned is already before the Custodian, so that all that is necessary for the Custodian to do is to inform such party of his intention to examine the records to satisfy himself whether a particular order should be revised, and then to give him a reasonable opportunity of being heard. There would be no necessity in such a case to serve a formal notice on the party who is already before the Custodian and the omission to serve the notice can be of no consequence. What the law requires is that the person concerned should be given a reasonable opportunity of being heard before any order prejudicial to him is made in revision. If this reasonable opportunity of being heard cannot be given without the service of the notice the omission to serve the notice would be fatal; where however proper hearing can be given without service or notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a reasonable opportunity of being heard wasthe fact of dissolution is accepted the declaration as regards the business must necessarily be construed as a declaration that the property that remained in Abdulla Bhai on the dissolution of the firm was an evacuee property. It seems to us clear that that was really what is intended to be meant by the order made by theregards the deed of dissolution itself it is wholly beside the point whether Abdulla Bhai could have resisted the claim to wind up for the declaration merely is that Abdulla Bhais share in the dissolved partnership as it stood on the date of dissolution is an evacuee property. The validity of the dissolution is not touched. It is hardly necessary to add that the dissolution of the partnership did not by itself mean that Abdullas share stood transferred to Fazal Bhai any more than that Fazal Bhais share stood transferred to Abdulla Bhai. A purported transfer of Abdullas share was made by the deed itself. But this having been held to be without good faith, had in view of S. 40 of the Evacuees Property Act , no effect. It has to be made clear that the Custodian would not be bound by the statements made in the deed of dissolution as regards the settlement of the accounts of the firm and that the Custodian, in whom the evacuee properties vest will have in respect of the dissolved business all the rights which Abdulla had under sections 37, 46, 47, 48 and other sections of the Partnershiplegal position after the amendment therefore is that it is only the 8 annas share of Abdulla set out in the Schedule in the Assistant Custodians order dated the 28th January, 1950, which is evacuee property., It is therefore necessary to state in clarification of the position that instead of the entire Schedules A and B properties being treated as evacuee property only 8 annas share of these properties which belonged to the evacuee Abdulla should be treated as evacueehas to be borne in mind that the purported dissolution of the firm in November, 1948, the settlement of accounts recorded in the deed of August, 1949 and the transfer of properties effect were all integral and indivisible parts of the same transaction. While it is true that the notice issued to Fazal Bhai made no reference to the deed of dissolution, it is clear from Fazal Bhais own statement filed in response to this notice that he clearly understood that the revising authority would be considering the question of bona fides in respect of the numerous statements about the settlement of accounts in connection with the dissolution of business made in the deed of dissolution.We are satisfied therefore that the appellant Fazal Bhai had reasonable opportunity of being heard as regards the bona fides of the transactions mentioned in the deed of dissolution. As we have already mentioned in connection with the other appeal, the fact that the firm stood dissolved with effect from the date on which the deed of dissolution was executed can no longer be disputed. The effect of the Custodians order in regard to the deed of dissolution merely is that the transactions mentioned in that deed on the purported basis of an earlier dissolution has been declared to be not bona fide and confirmation was refused of whatever transfers of properties were purported to have been effected by that deed.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: serve the notice would be fatal; where however proper hearing can be given without service or notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a reasonable opportunity of being heard was given.8. A perusal of the Custodians judgment makes it reasonably clear that he informed the counsel who appeared on Fazal Bhai Dhalas behalf, that he proposed to consider whether the order made by the Custodian in respect of the hides business and the Sch. A III properties had been rightly made and to revise the same, if necessary, after giving a reasonable opportunity of being heard to Fazal Bhai on this point It is equally clear that the appellants advocate was fully heard in the matter.9. We have no doubt therefore that the requirements of law as embodied in the proviso to S. 26(1) of the Act were fully satisfied. The contention that the Custodian acted without jurisdiction or irregularly exercised his jurisdiction must therefore fail.10. The next contention raised in the appeal is-to use the learned counsels own words-that in view of S. 43 of the Indian Partnership Act the partnership stood dissolved from November 2, 1948 and the Custodian had no jurisdiction to declare the "business" to be an evacuee property. It does not appear to have been disputed either before the Assistant Custodian or the Custodian that the partnership of Fazalbhai Dhala and Co., was a partnership-at-will. The deed of dissolution was dated August 12, 1949 and it has been found by the Custodian that the deed of dissolution was purposely concluded to provide a common safeguard for properties to remain in the hands of the brothers. The mention of the date November 2, 1948 as the date of dissolution cannot therefore be accepted. The firm must however be held to have been dissolved on August 12, 1949 on which date the deed of dissolution was executed. The argument of the learned counsel appears to be that once the partnership-business was dissolved there could be no question of declaring the dissolved partnership as an evacuee property. Once the fact of dissolution is accepted the declaration as regards the business must necessarily be construed as a declaration that the property that remained in Abdulla Bhai on the dissolution of the firm was an evacuee property. It seems to us clear that that was really what is intended to be meant by the order made by the Custodian.11. A further contention of the appellant is that the transactions evidenced by the two deeds, viz., the sale deed and the dissolution were merely in furtherance of the winding up of the affaires of the dissolved partnership and therefore in determining the validity or otherwise of the transactions it has to be borne in mind that Fazal Bhai could not resist the claim of the other partners to wind up. The story that the dissolution of partnership had taken place earlier and the two deeds were executed later on has not been accepted by the Custodian and we can see no reason to interfere with his conclusion. The deeds of sale were executed prior to the actual dissolution which was effected by the deed of dissolution; there is no scope therefore for saying that the sale deed was in the course of the winding up of the affairs of the dissolution of partnership. As regards the deed of dissolution itself it is wholly beside the point whether Abdulla Bhai could have resisted the claim to wind up for the declaration merely is that Abdulla Bhais share in the dissolved partnership as it stood on the date of dissolution is an evacuee property. The validity of the dissolution is not touched. It is hardly necessary to add that the dissolution of the partnership did not by itself mean that Abdullas share stood transferred to Fazal Bhai any more than that Fazal Bhais share stood transferred to Abdulla Bhai. A purported transfer of Abdullas share was made by the deed itself. But this having been held to be without good faith, had in view of S. 40 of the Evacuees Property Act , no effect. It has to be made clear that the Custodian would not be bound by the statements made in the deed of dissolution as regards the settlement of the accounts of the firm and that the Custodian, in whom the evacuee properties vest will have in respect of the dissolved business all the rights which Abdulla had under sections 37, 46, 47, 48 and other sections of the Partnership Act.12. There remains for consideration the appellants contention that in any case the Custodian acted illegally in the exercise of his jurisdiction in ordering that "the entire properties in Schs. A and B should now be treated as evacuee properties." It appears that the order by the Custodian was made in these terms even though his conclusion was that "the entire 8 annas share of the properties mentioned in Schs. A and B of the evacuee Abdulla should be treated as evacuee properties." in view of the fact that under the original definition of evacuee property in S. 2(f) of the Administration of Evacuee Property Act (Act XXXI of 1950) it meant "any property in which any evacuee has any right or interest." This definition has however since been amended and now evacuee property means "any property of an evacuee" instead of "any property in which an evacuee has any right or interest." The legal position after the amendment therefore is that it is only the 8 annas share of Abdulla set out in the Schedule in the Assistant Custodians order dated the 28th January, 1950, which is evacuee property., It is therefore necessary to state in clarification of the position that instead of the entire Schedules A and B properties being treated as evacuee property only 8 annas share of these properties which belonged to the evacuee Abdulla should be treated as evacuee properties. ### Response: 0

M/s Ganges Waterproof Works (P) Ltd Vs. Union of India

and have been turned down. Having heard the learned counsel for the parties, we are also of the opinion that here too the petitioner must meet the same fate. 3. As to the first contention the learned Single Judge had perused the record of the arbitration proceedings made available to the Court by the Arbitration. The learned Single Judge found that there was in fact nothing filed by or on behalf of the respondent-Union of India before the Arbitrator on 11th August, 1982. The proceeding of that date recorded by the Arbitrator states - "Union of India filed an additional statement and documents. Heard the parties. The case is closed for making the order. Let the Union of India submit the requisite stamp papers." This order is signed by Mr. P.K. Sen, the counsel for the petitioner, Mr. D.K. Shone, the counsel for the respondent as well as the Arbitrator. The learned Single Judge has found that the additional statement and documents were filed before the Arbitrator by the Union of India on 31st May, 1982 and it is that set of papers which has been referred to in the record of proceedings dated 11th August, 1982, though it was already referred to in the previous proceedings. The learned Single Judge had afforded the parties an opportunity of filing supplementary affidavits so as to clarify the position as to what had really transpired before the Arbitrator on 11th August, 1982. The Union of India has not admitted having filed any new additional written statement or new documents before the Arbitrator on 11th August, 1982. On behalf of the petitioner also, no specific case was made out in the additional affidavit supporting the plea raised on its behalf. The learned Single Judge was convinced that there was no merit in the plea so raised on behalf of the petitioner. 4. The learned counsel for the petitioner submitted that in the record of the arbitration proceedings made available by the Arbitrator to the Court, proceedings dated 11th August, 1982 are not be found recorded and that creates a suspicion. The learned counsel submitted that the Arbitrator does not appear to have recorded any order sheet of the proceedings held on 11th August, 1982. We are not impressed. As already stated, the learned Single Judge having perused the record of the Arbitrator has noted in her order that the order sheet dated 11th August, 1982 was available and has reproduced the contents thereof in her order dated 2nd September, 1983, dismissing the objections preferred by the petitioner. The statement of fact recorded by the learned Single Judge in her order cannot be permitted to be disputed by oral submissions made at the Bar, more so, when we do not find any plea disputing the correctness of the factual observations made by the learned Single Judge in her order having been raised before the Division Bench of the High Court hearing the appeal. We are in entire agreement with the observations made by the learned Single Judge that no substantive statement or documents were filed on behalf of the Union of India on 11th August, 1982. The question of the same having been taken into consideration by the Arbitrator without affording the petitioner an opportunity of meeting the same does not arise. The first contention is accordingly rejected. 5. As to the second contention, we have perused the contents of the Award dated 23rd August, 1982. It is a non-speaking award. Just before recording the finding, the learned Arbitrator has stated "And Whereas I heard and examined and considered the statements of the parties and their evidence". It is the use of the word `evidence wherefrom the learned counsel for the petitioner has sought to build up a plea that the Arbitrator had in his mind the oral testimony of the witnesses while there is none adduced by the parties and hence none available on the record of the Arbitrator and this shows the non-application of mind on the part of the Arbitrator to the record of the proceedings. We find the plea so raised entirely mis-conceived. The learned Single Judge, as also the Division Bench, have rightly explained that the word `evidence as used by the Arbitrator does not necessarily mean oral evidence adduced. There were documents available on record of the Arbitrator which also amount to evidence and that is what the Arbitrator had in his mind. An inference as to non-application of mind or mis-statement on the part of the Arbitrator while pronouncing the award cannot be drawn by assigning the term evidence such a meaning as is sought to be assigned by the learned counsel for the petitioner. The second contention is also rejected. 6. The third and the last plea urged is equally devoid of any merit. The burden of substantiating the averment urged as an objection tantamounting to misconduct on the part of the Arbitrator or complaining of violation of principles of natural justice was on the petitioner. No evidence was adduced to substantiate the plea. The best person to depose as to what had actually transpired at the hearing and whether the same was a real hearing or an eye-wash merely was the counsel who actually made submission on behalf of the petitioner before the Arbitrator. The least that was expected of the petitioner was to have filed an affidavit of the counsel before the Court. That was not done. No timely protest was raised before the Arbitrator. The hearing was concluded on 11.8.1982 and the award was made on 23.8.1982. During these 12 days also, the petitioner company never urged before the Arbitrator that submissions on its behalf were not permitted to be made by the Arbitrator. The Learned Single Judge, as also the Division Bench, have arrived at a finding that the plea was an after-thought and certainly not substantiated. We also do not find any reason to take a view different from the one taken by the High Court. No other point was urged.

0[ds]5. As to the second contention, we have perused the contents of the Award dated 23rd August, 1982. It is aaward. Just before recording the finding, the learned Arbitrator has stated "And Whereas I heard and examined and considered the statements of the parties and their evidence". It is the use of the word `evidence wherefrom the learned counsel for the petitioner has sought to build up a plea that the Arbitrator had in his mind the oral testimony of the witnesses while there is none adduced by the parties and hence none available on the record of the Arbitrator and this shows theof mind on the part of the Arbitrator to the record of the proceedings. We find the plea so raised entirelyThe learned Single Judge, as also the Division Bench, have rightly explained that the word `evidence as used by the Arbitrator does not necessarily mean oral evidence adduced. There were documents available on record of the Arbitrator which also amount to evidence and that is what the Arbitrator had in his mind. An inference as toof mind oron the part of the Arbitrator while pronouncing the award cannot be drawn by assigning the term evidence such a meaning as is sought to be assigned by the learned counsel for the petitioner. The second contention is also rejected.The third and the last plea urged is equally devoid of any merit. The burden of substantiating the averment urged as an objection tantamounting to misconduct on the part of the Arbitrator or complaining of violation of principles of natural justice was on the petitioner. No evidence was adduced to substantiate the plea. The best person to depose as to what had actually transpired at the hearing and whether the same was a real hearing or anmerely was the counsel who actually made submission on behalf of the petitioner before the Arbitrator. The least that was expected of the petitioner was to have filed an affidavit of the counsel before the Court. That was not done. No timely protest was raised before the Arbitrator. The hearing was concluded on 11.8.1982 and the award was made on 23.8.1982. During these 12 days also, the petitioner company never urged before the Arbitrator that submissions on its behalf were not permitted to be made by the Arbitrator. The Learned Single Judge, as also the Division Bench, have arrived at a finding that the plea was anand certainly not substantiated. We also do not find any reason to take a view different from the one taken by the Highother point wasare not impressed. As already stated, the learned Single Judge having perused the record of the Arbitrator has noted in her order that the order sheet dated 11th August, 1982 was available and has reproduced the contents thereof in her order dated 2nd September, 1983, dismissing the objections preferred by the petitioner. The statement of fact recorded by the learned Single Judge in her order cannot be permitted to be disputed by oral submissions made at the Bar, more so, when we do not find any plea disputing the correctness of the factual observations made by the learned Single Judge in her order having been raised before the Division Bench of the High Court hearing the appeal. We are in entire agreement with the observations made by the learned Single Judge that no substantive statement or documents were filed on behalf of the Union of India on 11th August, 1982. The question of the same having been taken into consideration by the Arbitrator without affording the petitioner an opportunity of meeting the same does not arise. The first contention is accordingly rejected.

### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: and have been turned down. Having heard the learned counsel for the parties, we are also of the opinion that here too the petitioner must meet the same fate. 3. As to the first contention the learned Single Judge had perused the record of the arbitration proceedings made available to the Court by the Arbitration. The learned Single Judge found that there was in fact nothing filed by or on behalf of the respondent-Union of India before the Arbitrator on 11th August, 1982. The proceeding of that date recorded by the Arbitrator states - "Union of India filed an additional statement and documents. Heard the parties. The case is closed for making the order. Let the Union of India submit the requisite stamp papers." This order is signed by Mr. P.K. Sen, the counsel for the petitioner, Mr. D.K. Shone, the counsel for the respondent as well as the Arbitrator. The learned Single Judge has found that the additional statement and documents were filed before the Arbitrator by the Union of India on 31st May, 1982 and it is that set of papers which has been referred to in the record of proceedings dated 11th August, 1982, though it was already referred to in the previous proceedings. The learned Single Judge had afforded the parties an opportunity of filing supplementary affidavits so as to clarify the position as to what had really transpired before the Arbitrator on 11th August, 1982. The Union of India has not admitted having filed any new additional written statement or new documents before the Arbitrator on 11th August, 1982. On behalf of the petitioner also, no specific case was made out in the additional affidavit supporting the plea raised on its behalf. The learned Single Judge was convinced that there was no merit in the plea so raised on behalf of the petitioner. 4. The learned counsel for the petitioner submitted that in the record of the arbitration proceedings made available by the Arbitrator to the Court, proceedings dated 11th August, 1982 are not be found recorded and that creates a suspicion. The learned counsel submitted that the Arbitrator does not appear to have recorded any order sheet of the proceedings held on 11th August, 1982. We are not impressed. As already stated, the learned Single Judge having perused the record of the Arbitrator has noted in her order that the order sheet dated 11th August, 1982 was available and has reproduced the contents thereof in her order dated 2nd September, 1983, dismissing the objections preferred by the petitioner. The statement of fact recorded by the learned Single Judge in her order cannot be permitted to be disputed by oral submissions made at the Bar, more so, when we do not find any plea disputing the correctness of the factual observations made by the learned Single Judge in her order having been raised before the Division Bench of the High Court hearing the appeal. We are in entire agreement with the observations made by the learned Single Judge that no substantive statement or documents were filed on behalf of the Union of India on 11th August, 1982. The question of the same having been taken into consideration by the Arbitrator without affording the petitioner an opportunity of meeting the same does not arise. The first contention is accordingly rejected. 5. As to the second contention, we have perused the contents of the Award dated 23rd August, 1982. It is a non-speaking award. Just before recording the finding, the learned Arbitrator has stated "And Whereas I heard and examined and considered the statements of the parties and their evidence". It is the use of the word `evidence wherefrom the learned counsel for the petitioner has sought to build up a plea that the Arbitrator had in his mind the oral testimony of the witnesses while there is none adduced by the parties and hence none available on the record of the Arbitrator and this shows the non-application of mind on the part of the Arbitrator to the record of the proceedings. We find the plea so raised entirely mis-conceived. The learned Single Judge, as also the Division Bench, have rightly explained that the word `evidence as used by the Arbitrator does not necessarily mean oral evidence adduced. There were documents available on record of the Arbitrator which also amount to evidence and that is what the Arbitrator had in his mind. An inference as to non-application of mind or mis-statement on the part of the Arbitrator while pronouncing the award cannot be drawn by assigning the term evidence such a meaning as is sought to be assigned by the learned counsel for the petitioner. The second contention is also rejected. 6. The third and the last plea urged is equally devoid of any merit. The burden of substantiating the averment urged as an objection tantamounting to misconduct on the part of the Arbitrator or complaining of violation of principles of natural justice was on the petitioner. No evidence was adduced to substantiate the plea. The best person to depose as to what had actually transpired at the hearing and whether the same was a real hearing or an eye-wash merely was the counsel who actually made submission on behalf of the petitioner before the Arbitrator. The least that was expected of the petitioner was to have filed an affidavit of the counsel before the Court. That was not done. No timely protest was raised before the Arbitrator. The hearing was concluded on 11.8.1982 and the award was made on 23.8.1982. During these 12 days also, the petitioner company never urged before the Arbitrator that submissions on its behalf were not permitted to be made by the Arbitrator. The Learned Single Judge, as also the Division Bench, have arrived at a finding that the plea was an after-thought and certainly not substantiated. We also do not find any reason to take a view different from the one taken by the High Court. No other point was urged. ### Response: 0

Anna Transport Corporation Ltd Vs. Regional Transport Authority, Dharmapuri & Ors

directed further that the revision petitioners before it as well as the present appellant Corporation would continue to provide transport facilities on the route in question until the disposal of the renewal applications of the revision petitioners.2. The facts of the three appeals are quite simple and are not in controversy. They have been heard together at the instance of the learned Counsel for the parties and will be disposed of by this common judgment.3. The controversy relates to the plying of vehicles on the Salem-Krishnagiri route. The facts of one of the three cases have been placed for our consideration by the learned Counsel for the parties and they have informed us that they are sufficient for the adequate disposal of all the appeals.4. Balakrishna Bus Service and Company, respondent No. 2, was a private operator on the aforesaid route. Its permit was due to expire on October 9, 1974, and it applied for its renewal within the time prescribed by law. Its application was notified on June 5, 1974, under section 57(3) of the Motor Vehicles Act, hereinafter referred to as the Act. Objections to the renewal application were filed by the Anna Transport Corporation Limited, which is the present appellant, on June 25, 1974. The Corporation, at the same time, also applied for the grant of a permit to it. A controversy therefore arose in the matter and the Regional Transport Authority fixed December 21, 1974, for its hearing. The case was, however, adjourned. Balakrishna Bus Service and Co., in the meantime, filed a writ petition and challenged the validity of rule 155-A of the Motor Vehicle Rules of the State and obtained a stay of the hearing of the matter which was pending before the Regional Trans port Authority. A draft scheme for the route from Mettur to Kallakurchi via Omalur and Salem was published on June 4, 1976, and it formed a sector of the Salem-Krishnagiri route. The validity of aforesaid Rule 155-A was finally upheld by the High Court on June 29, 1976. It therefore dismissed the writ petition and directed the Regional Transport Authority to dispose of the pending application for renewal within a month. The Regional Transport Authority rejected that application on October 30 , 1976, and granted a permit to the present appellant. The State Transport Appellate Tribunal confirmed that order. The matter was taken to the High Court in revision and that led to the passing of the impugned judgment.5. The facts are, therefore , quite simple. There is no controversy about them, and they are sufficient for the disposal of the present appeals by special leave.6. It is not disputed before us that the section applicable to the controversy is section 68F of the A ct. The High Court, in fact, not only decided the revision petitions with reference to that section but rightly took the view that the controversy before it fell within the purview of sub-section (1D) thereof. It, however, held on a reading of this Courts decision in Cheran Transport Co. Ltd. v. Kanan Lorry Service &Anr., (1) that the case fell within the purview of the so-called "rider" to proposition No. 2 set out in that judgment with reference to the proviso to sub- section (1D) of section 68F of the Act. The sub-section reads as follows, -(1D) Save as otherwise provided in sub-section (1A) or subsection (1C) no permit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof covered by such scheme:Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under section 68C expires after such publication, such permit m ay be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub-section (3) of section 68D.7. It is not in controversy that sub-section (1A) or sub-section (1C) of section 68F are not applicable to the controversy. The rest of sub-section (1D) provides that no permit shall be granted or "renewed" during the period intervening between the date of publication under section 68C of any scheme and the date of publication of any approved or modified scheme, in favour of any person in relation to an area or route or portion thereof covered by that scheme.8. As has been stated, a draft scheme of road transport service of the appellant Corporation was published on June 4, 1976, under section 68C of the Act and, as has been mentioned, that scheme overlapped a section of the Salem- Krishnagiri route. It follows, therefore, that by virtue of the clear provision of sub-section (1D ) of section 68F of the Act, no permit could be granted or renewed during the period intervening between the date of publication of the aforesaid scheme under section 68C, that is, after June 4, 1976, and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service. The High Court therefore clearly went wrong in thinking that the case fell within the purview of the proviso to sub-section (1D) and it consequently erred in taking into consideration the so-called rider to proposition No. 2 mentioned in this Courts judgment in Cherans case (supra). The proviso would have been applicable only if the period of operation of the permit of the respondents had expired after the publication of the scheme prepared under section 68C; but that was not so in this case. It has also to be remembered that in this case it was the respondent (private operator) who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order.

1[ds]It is not in controversy that sub-section (1A) or sub-section (1C) of section 68F are not applicable to the controversy. The rest of sub-section (1D) provides that no permit shall be granted or "renewed" during the period intervening between the date of publication under section 68C of any scheme and the date of publication of any approved or modified scheme, in favour of any person in relation to an area or route or portion thereof covered by thathas been stated, a draft scheme of road transport service of the appellant Corporation was published on June 4, 1976, under section 68C of the Act and, as has been mentioned, that scheme overlapped a section of the Salem- Krishnagiri route. It follows, therefore, that by virtue of the clear provision of sub-section (1D ) of section 68F of the Act, no permit could be granted or renewed during the period intervening between the date of publication of the aforesaid scheme under section 68C, that is, after June 4, 1976, and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service. The High Court therefore clearly went wrong in thinking that the case fell within the purview of the proviso to sub-section (1D) and it consequently erred in taking into consideration the so-called rider to proposition No. 2 mentioned in this Courts judgment in Cherans case (supra). The proviso would have been applicable only if the period of operation of the permit of the respondents had expired after the publication of the scheme prepared under section 68C; but that was not so in this case. It has also to be remembered that in this case it was the respondent (private operator) who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order.

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: directed further that the revision petitioners before it as well as the present appellant Corporation would continue to provide transport facilities on the route in question until the disposal of the renewal applications of the revision petitioners.2. The facts of the three appeals are quite simple and are not in controversy. They have been heard together at the instance of the learned Counsel for the parties and will be disposed of by this common judgment.3. The controversy relates to the plying of vehicles on the Salem-Krishnagiri route. The facts of one of the three cases have been placed for our consideration by the learned Counsel for the parties and they have informed us that they are sufficient for the adequate disposal of all the appeals.4. Balakrishna Bus Service and Company, respondent No. 2, was a private operator on the aforesaid route. Its permit was due to expire on October 9, 1974, and it applied for its renewal within the time prescribed by law. Its application was notified on June 5, 1974, under section 57(3) of the Motor Vehicles Act, hereinafter referred to as the Act. Objections to the renewal application were filed by the Anna Transport Corporation Limited, which is the present appellant, on June 25, 1974. The Corporation, at the same time, also applied for the grant of a permit to it. A controversy therefore arose in the matter and the Regional Transport Authority fixed December 21, 1974, for its hearing. The case was, however, adjourned. Balakrishna Bus Service and Co., in the meantime, filed a writ petition and challenged the validity of rule 155-A of the Motor Vehicle Rules of the State and obtained a stay of the hearing of the matter which was pending before the Regional Trans port Authority. A draft scheme for the route from Mettur to Kallakurchi via Omalur and Salem was published on June 4, 1976, and it formed a sector of the Salem-Krishnagiri route. The validity of aforesaid Rule 155-A was finally upheld by the High Court on June 29, 1976. It therefore dismissed the writ petition and directed the Regional Transport Authority to dispose of the pending application for renewal within a month. The Regional Transport Authority rejected that application on October 30 , 1976, and granted a permit to the present appellant. The State Transport Appellate Tribunal confirmed that order. The matter was taken to the High Court in revision and that led to the passing of the impugned judgment.5. The facts are, therefore , quite simple. There is no controversy about them, and they are sufficient for the disposal of the present appeals by special leave.6. It is not disputed before us that the section applicable to the controversy is section 68F of the A ct. The High Court, in fact, not only decided the revision petitions with reference to that section but rightly took the view that the controversy before it fell within the purview of sub-section (1D) thereof. It, however, held on a reading of this Courts decision in Cheran Transport Co. Ltd. v. Kanan Lorry Service &Anr., (1) that the case fell within the purview of the so-called "rider" to proposition No. 2 set out in that judgment with reference to the proviso to sub- section (1D) of section 68F of the Act. The sub-section reads as follows, -(1D) Save as otherwise provided in sub-section (1A) or subsection (1C) no permit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof covered by such scheme:Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under section 68C expires after such publication, such permit m ay be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub-section (3) of section 68D.7. It is not in controversy that sub-section (1A) or sub-section (1C) of section 68F are not applicable to the controversy. The rest of sub-section (1D) provides that no permit shall be granted or "renewed" during the period intervening between the date of publication under section 68C of any scheme and the date of publication of any approved or modified scheme, in favour of any person in relation to an area or route or portion thereof covered by that scheme.8. As has been stated, a draft scheme of road transport service of the appellant Corporation was published on June 4, 1976, under section 68C of the Act and, as has been mentioned, that scheme overlapped a section of the Salem- Krishnagiri route. It follows, therefore, that by virtue of the clear provision of sub-section (1D ) of section 68F of the Act, no permit could be granted or renewed during the period intervening between the date of publication of the aforesaid scheme under section 68C, that is, after June 4, 1976, and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service. The High Court therefore clearly went wrong in thinking that the case fell within the purview of the proviso to sub-section (1D) and it consequently erred in taking into consideration the so-called rider to proposition No. 2 mentioned in this Courts judgment in Cherans case (supra). The proviso would have been applicable only if the period of operation of the permit of the respondents had expired after the publication of the scheme prepared under section 68C; but that was not so in this case. It has also to be remembered that in this case it was the respondent (private operator) who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order. ### Response: 1

Prakash Chand Maheshwari & Anr Vs. Zila Parishad, Muzaffarnagar & Ors

of the notification under Section 120 (3) of the Act of 1922.23. The last point raised by the petitioners relates to the appointment of the Kar Adhikari on the ground that it was not done in consultation with either the Public Service Commission of the State or any other Commission or body appointed in that behalf by the State Government under Section 43 of the U. P. Kshettra Samithis and Zila Parishads Adhiniyam 1961 i.e. U. P. Act XXXIII of 1961. The appointment of respondent No. 2 in this case took place on 8th August 1965: the impugned assessment was made on 8th March 1968 i. e. more than two years after the date of appointment. Under Section 43 the appointment of this officer to the post which carried an initial salary of more than Rs. 200 p. m. could be made by the Parishad in consultation with the Public Service Commission or other Commission or selection Body as might be constituted by the State Government and if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Counsel for the respondents on the materials before this Court was only in a position to inform us that the State Public Service Commission had been notified of the appointment and they had not expressed my disapproval of the same. We do not think that this was sufficient compliance with Section 43.24. In Chandramouleshwar Prasad v. Patna High Court, 1970-2 SCR 666 = (AIR 1970 SC 370 ) this Court had to consider the question of "appointment of persons to be and the posting and promotion of District Judges" in the State of Bihar which under Article 233 (1) of the Constitution were to be made by the Governor of the State in consultation with the High Court. It appeared that there was some difference of opinion between the High Court and the Government of Bihar with regard to certain appointments and promotions of District Judges in the State of Bihar and the Government issued a notification on 17th October 1968 appointing the petitioner as temporary District and Sessions Judge Singhbhum until the appointment of a permanent officer in the vacancy caused by the retirement of an incumbent to that office. This Court found that before issuing the said notification the Government power attempted to ascertain the views of the High Court with regard to the petitioners claim or gave the High Court any indication of its views with regard thereto. It was observed that (page 674) (of SCR) - (at page 375 of AIR) :"The Governor cannot discharge his functions under Article 233 if he makes an appointment of person without ascertaining the High Courts views in regard thereto ... ... ... ... Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views."Appointing respondent No. 2 as Kar Adhikari and merely sending the papers relating to such appointment to the Public Service Commission would not therefore be in compliance with Section 43 of the Act. Even if it be regarded as a temporary appointment, it could only be effective for two years and as the assessment in this case was made beyond that date it must be held that the assessment was by a person not competent to make it.25. After the conclusion of the arguments of both parties, the respondents had an affidavit affirmed by one K. D. Banerjee, an Assistant in Panchayat Raj II Department, Government of U. P. to the effect that the State Government had created a Central transferable cadre of the class of officers, acting under Section 44 of Act XXXIII of 1961 and that the Government had also framed rules known as U. P. Zila Parishad Central Transferable Cadre Rules, 1966 which came into force with effect from December 20, 1966. According to paragraph 8 of the rules, appointment for the first time to the cadre were to be made from amongst the officers who on the 26th April 1966 were holding the posts, inter alia, Kar Adhikari. Further, according to paragraph 9 (4) of the rules, a list known as List C was to be prepared containing the names of officers who as on 26th April 1966 are holding the posts of Secretary or Kar Adhikari etc, in a temporary or officiating capacity and the list was to be arranged in order of seniority. According to the affidavit the respondent No. 2 having been appointed in a temporary officiating capacity continued to be on that post under sub-rule (4) of Rule 9 and his name was included in list C and was being considered by the Government for permanent appointment in consultation with the State Public Service Commission.26. In our view the matters relied on it the affidavit do not alter the situation or improve the position of respondent No. 2 in any way. The nonobstante clause in Section 44 of Act XXXIII of 1961 only relates to Sections 41, 42 and 43 and not to Section 47 which deals with officiating and temporary appointments to certain posts. It would therefore appear that by the inclusion of the name of respondent No. 2 in list C he still continued to be in his officiating and temporary capacity. In terms of Section 47 therefore the appointment ceased to be valid after two years, the period having expired long before the hearing of this matter.27. No argument was advanced to us on the question of the validity of Section 131 of the U. P. Zila Parishad Act and we do not express any opinion thereon.28. Although the major points raised by the petitioners are of no substance, we find ourselves unable to uphold the validity of the levy as it has not been shown to us that Kar Adhikaris appointment was valid in law.

1[ds]Clearly, that case is distinguishable from the facts of the case before us. In this case the impost remained the same between the passing of the Government of India Act, 1935 and the commencement of the Constitution. The amendment of Section 108 of the U. P. District Boards Act of 1922 in 1948 only allowed the continuance of the tax already imposed on persons assessed according to their circumstances and property. We cannot accept the argument that validation of the imposition of a tax by the Professions Tax Limitation (Validation and Amendment) Act 1949 with retrospective effect was notour view this argument has no force. The assessment was to be done by the assessing officer appointed by the District Board. Even if there was a circle but the members of the circle refused to co-operate with him, the assessment would not be invalid. After all the help which they could render would only be limited to giving information about the assessees. It was quite competent for the assessing officer to proceed with the assessment even if the members refused to help him. The situation was not altered by reason of the fact that the circle and the members hadrules laying down certain dates by which the work was directed to be taken in hand and completed were merely directory and not mandatory. There was nothing in these rules to suggest that if the dates were not strictly observed any prejudice would be caused to the assessee. We find ourselves unable to accept the observations to the contrary in a judgment of the Allahabad High Court D/- 8-1-1963 rendered in Civil Misc. Writ Petn. No. 3160 of 1962 to which reference was made in thisour view, even if there was any such irregularity in the framing of the rules, the same were cured by the publication of the notification under Section 120 (3) of the Act ofappointment of respondent No. 2 in this case took place on 8th August 1965: the impugned assessment was made on 8th March 1968 i. e. more than two years after the date of appointment. Under Section 43 the appointment of this officer to the post which carried an initial salary of more than Rs. 200 p. m. could be made by the Parishad in consultation with the Public Service Commission or other Commission or selection Body as might be constituted by the State Government and if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Counsel for the respondents on the materials before this Court was only in a position to inform us that the State Public Service Commission had been notified of the appointment and they had not expressed my disapproval of the same. We do not think that this was sufficient compliance with Section 43.In our view the matters relied on it the affidavit do not alter the situation or improve the position of respondent No. 2 in any way. The nonobstante clause in Section 44 of Act XXXIII of 1961 only relates to Sections 41, 42 and 43 and not to Section 47 which deals with officiating and temporary appointments to certain posts. It would therefore appear that by the inclusion of the name of respondent No. 2 in list C he still continued to be in his officiating and temporary capacity. In terms of Section 47 therefore the appointment ceased to be valid after two years, the period having expired long before the hearing of this matter.No argument was advanced to us on the question of the validity of Section 131 of the U. P. Zila Parishad Act and we do not express any opinion thereon.Although the major points raised by the petitioners are of no substance, we find ourselves unable to uphold the validity of the levy as it has not been shown to us that Kar Adhikaris appointment was valid in law.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: of the notification under Section 120 (3) of the Act of 1922.23. The last point raised by the petitioners relates to the appointment of the Kar Adhikari on the ground that it was not done in consultation with either the Public Service Commission of the State or any other Commission or body appointed in that behalf by the State Government under Section 43 of the U. P. Kshettra Samithis and Zila Parishads Adhiniyam 1961 i.e. U. P. Act XXXIII of 1961. The appointment of respondent No. 2 in this case took place on 8th August 1965: the impugned assessment was made on 8th March 1968 i. e. more than two years after the date of appointment. Under Section 43 the appointment of this officer to the post which carried an initial salary of more than Rs. 200 p. m. could be made by the Parishad in consultation with the Public Service Commission or other Commission or selection Body as might be constituted by the State Government and if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Counsel for the respondents on the materials before this Court was only in a position to inform us that the State Public Service Commission had been notified of the appointment and they had not expressed my disapproval of the same. We do not think that this was sufficient compliance with Section 43.24. In Chandramouleshwar Prasad v. Patna High Court, 1970-2 SCR 666 = (AIR 1970 SC 370 ) this Court had to consider the question of "appointment of persons to be and the posting and promotion of District Judges" in the State of Bihar which under Article 233 (1) of the Constitution were to be made by the Governor of the State in consultation with the High Court. It appeared that there was some difference of opinion between the High Court and the Government of Bihar with regard to certain appointments and promotions of District Judges in the State of Bihar and the Government issued a notification on 17th October 1968 appointing the petitioner as temporary District and Sessions Judge Singhbhum until the appointment of a permanent officer in the vacancy caused by the retirement of an incumbent to that office. This Court found that before issuing the said notification the Government power attempted to ascertain the views of the High Court with regard to the petitioners claim or gave the High Court any indication of its views with regard thereto. It was observed that (page 674) (of SCR) - (at page 375 of AIR) :"The Governor cannot discharge his functions under Article 233 if he makes an appointment of person without ascertaining the High Courts views in regard thereto ... ... ... ... Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views."Appointing respondent No. 2 as Kar Adhikari and merely sending the papers relating to such appointment to the Public Service Commission would not therefore be in compliance with Section 43 of the Act. Even if it be regarded as a temporary appointment, it could only be effective for two years and as the assessment in this case was made beyond that date it must be held that the assessment was by a person not competent to make it.25. After the conclusion of the arguments of both parties, the respondents had an affidavit affirmed by one K. D. Banerjee, an Assistant in Panchayat Raj II Department, Government of U. P. to the effect that the State Government had created a Central transferable cadre of the class of officers, acting under Section 44 of Act XXXIII of 1961 and that the Government had also framed rules known as U. P. Zila Parishad Central Transferable Cadre Rules, 1966 which came into force with effect from December 20, 1966. According to paragraph 8 of the rules, appointment for the first time to the cadre were to be made from amongst the officers who on the 26th April 1966 were holding the posts, inter alia, Kar Adhikari. Further, according to paragraph 9 (4) of the rules, a list known as List C was to be prepared containing the names of officers who as on 26th April 1966 are holding the posts of Secretary or Kar Adhikari etc, in a temporary or officiating capacity and the list was to be arranged in order of seniority. According to the affidavit the respondent No. 2 having been appointed in a temporary officiating capacity continued to be on that post under sub-rule (4) of Rule 9 and his name was included in list C and was being considered by the Government for permanent appointment in consultation with the State Public Service Commission.26. In our view the matters relied on it the affidavit do not alter the situation or improve the position of respondent No. 2 in any way. The nonobstante clause in Section 44 of Act XXXIII of 1961 only relates to Sections 41, 42 and 43 and not to Section 47 which deals with officiating and temporary appointments to certain posts. It would therefore appear that by the inclusion of the name of respondent No. 2 in list C he still continued to be in his officiating and temporary capacity. In terms of Section 47 therefore the appointment ceased to be valid after two years, the period having expired long before the hearing of this matter.27. No argument was advanced to us on the question of the validity of Section 131 of the U. P. Zila Parishad Act and we do not express any opinion thereon.28. Although the major points raised by the petitioners are of no substance, we find ourselves unable to uphold the validity of the levy as it has not been shown to us that Kar Adhikaris appointment was valid in law. ### Response: 1

The Hukam Chand Mills Ltd., Indore Vs. Commissioner of Income Tax, Bombay

said to accrue or arise in British India ? (3) Whether on the facts and in the circumstances of the applicants case, the Tribunal was right in holding that a proportionate part of the profits determined on sales grouped under items 3, 4, 5 and 9 in the assessment order by the application of rule 33 was assessable to income-tax? 3. The High Court answered question No. (3) in favour of the assessee. In view of its finding on question No. (3), the High Court did not answer question No. (2). The Commissioner of Income-tax then came up in appeal to this Court, and the decision of this Court is reported in 67 I.T.R. 79 = [1968] (1) S.C.R. 47. This Court held that the answer to question No. (3) should be in the negative as the property in goods passed to the purchaser in British India and proportionate part of the profits of these sales accrued in British India and as such was assessable to Indian income-tax. The case was remitted to the High Court to answer question No. (2) in accordance with law. On remand the High Court held that the profits were correctly determined by the application of rule 33 and one-third of the profits so determined could be said to arise or accrue in British India. When the matter came up in appeal before this Court, it was found that the High Court had not taken into account the relevant circumstances for answering question No. (2). It was also stated by counsel for both the parties that rule 33 was not applicable to the facts of the case. This Court accordingly directed the Appellate Tribunal to submit a supplementary statement of the case to this Court. Supplementary statement of the case has now been received.The Tribunal found that in respect of the sales in categories (a) and (b) amounting to Rs. 9, 37, 919, it was just and equitable to apportion 15 per cent of the profits said to have arisen and accrued in British India. Regarding sales in categories (c) and (d) for a total amount of Rs. 5, 42, 140, the Tribunal held that 7 1/2 per cent of the profits could be said to have accrued and arisen in British India. As the profits were found to represent 31.12 per cent of the turnover, the profits in respect of the turnover of Rs. 9, 37, 919 comprised in categories (a) and (b) were calculated at the rate of 4 1/2 per cent (i.e. 15 per cent of 31.12 per cent). The profits in British India were thus found to be Rs. 42, 200. Profits accuring and arising in British India in respect of sales turnover of Rs. 5, 42, 140 comprised in categories (c) and (d) at the rate of 2 1/4 per cent (7 1/2 per cent of 31.12 per cent) were found to be Rs. 12, 200. The total profits accruing or arising in British India to the assessee company in the assessment year 1942-43 were thus worked out to be Rs. 54, 400. The above finding of the Tribunal has been arrived at on consideration of the facts of the case. The modus operandi in respect of the sales of various categories was found by the Tribunal to be as under: (a) Sales of Rs. 6, 46, 028 (i) The assessees paid representatives at Bombay canvassed the sales, on behalf of the assessee, to merchants in British India. (ii) The orders were sent by British Indian merchants to the assessee at Indore. (iii)The assessee accepted the orders at Indore, prepared the contracts and signed them at Indore and forwarded the same to customers in British India. (iv) The customers signed the contract s in British India. (v) The contracts were signed on companys forms.(vi) The contracts bore British Indian stamps. (b) Sales of Rs. 2, 91, 891 (i) The brokers in British India, described as freelance brokers, transmitted the offers to the company at Indore. (ii) The offers were made to the company on the brokers own forms. (iii)The brokers were not engaged by the assessee company and such orders were placed by the brokers in the normal course of their business. (iv) The customers signed the contracts in British India. (c) Sales of Rs. 2, 86, 224 (i) These sales were made to British Indian merchants who went to Indore to negotiate and place orders. (ii) The orders were accepted at Indore. (iii)The contracts bore British Indian stamps. (iv) The customers signed the contracts in British India. (d) Sales of Rs. 2, 55, 916 (i) These sales were made to British Indian merchants on their or their brokers personal visit s to Indore. (ii) The offers were taken direct at Indore. (iii)Contracts for such sales were made in the same manner as stated hereinbefore. The Tribunal also gave a finding that the assessee maintained an organisation in British India, that that organisation was interested in bringing to the notice of the British Indian merchants, brokers and consuming public the goods manufactured by the assessee-company and that the ground-work for sales effected in these groups was done in British India. 4. Nothing has been urged before us either on behalf of the assessee appellant or on behalf of the revenue- respondent to assail the finding of the Tribunal in the supplementary statement of case. The question as to what proportion of the profits of the sales in categories (a), (b), (c) and (d) arose or accrued in British India is essentially one of fact depending upon the circumstances of the case. In the absence of some statutory or other fixed formula, any finding on the question of proportion involves some element of guess work. The endeavour can only be to be approximate and there cannot in the very nature of things be great precision and exactness in the matte r. As long as the proportion fixed by the Tribunal is based upon the relevant material, it should not be disturbed.

1[ds]The Tribunal also gave a finding that the assessee maintained an organisation in British India, that that organisation was interested in bringing to the notice of the British Indian merchants, brokers and consuming public the goods manufactured by the assessee-company and that the ground-work for sales effected in these groups was done in British IndiaNothing has been urged before us either on behalf of the assessee appellant or on behalf of the revenue- respondent to assail the finding of the Tribunal in the supplementary statement of case. The question as to what proportion of the profits of the sales in categories (a), (b), (c) and (d) arose or accrued in British India is essentially one of fact depending upon the circumstances of the case. In the absence of some statutory or other fixed formula, any finding on the question of proportion involves some element of guess work. The endeavour can only be to be approximate and there cannot in the very nature of things be great precision and exactness in the matte r. As long as the proportion fixed by the Tribunal is based upon the relevant material, it should not be disturbed.

### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: said to accrue or arise in British India ? (3) Whether on the facts and in the circumstances of the applicants case, the Tribunal was right in holding that a proportionate part of the profits determined on sales grouped under items 3, 4, 5 and 9 in the assessment order by the application of rule 33 was assessable to income-tax? 3. The High Court answered question No. (3) in favour of the assessee. In view of its finding on question No. (3), the High Court did not answer question No. (2). The Commissioner of Income-tax then came up in appeal to this Court, and the decision of this Court is reported in 67 I.T.R. 79 = [1968] (1) S.C.R. 47. This Court held that the answer to question No. (3) should be in the negative as the property in goods passed to the purchaser in British India and proportionate part of the profits of these sales accrued in British India and as such was assessable to Indian income-tax. The case was remitted to the High Court to answer question No. (2) in accordance with law. On remand the High Court held that the profits were correctly determined by the application of rule 33 and one-third of the profits so determined could be said to arise or accrue in British India. When the matter came up in appeal before this Court, it was found that the High Court had not taken into account the relevant circumstances for answering question No. (2). It was also stated by counsel for both the parties that rule 33 was not applicable to the facts of the case. This Court accordingly directed the Appellate Tribunal to submit a supplementary statement of the case to this Court. Supplementary statement of the case has now been received.The Tribunal found that in respect of the sales in categories (a) and (b) amounting to Rs. 9, 37, 919, it was just and equitable to apportion 15 per cent of the profits said to have arisen and accrued in British India. Regarding sales in categories (c) and (d) for a total amount of Rs. 5, 42, 140, the Tribunal held that 7 1/2 per cent of the profits could be said to have accrued and arisen in British India. As the profits were found to represent 31.12 per cent of the turnover, the profits in respect of the turnover of Rs. 9, 37, 919 comprised in categories (a) and (b) were calculated at the rate of 4 1/2 per cent (i.e. 15 per cent of 31.12 per cent). The profits in British India were thus found to be Rs. 42, 200. Profits accuring and arising in British India in respect of sales turnover of Rs. 5, 42, 140 comprised in categories (c) and (d) at the rate of 2 1/4 per cent (7 1/2 per cent of 31.12 per cent) were found to be Rs. 12, 200. The total profits accruing or arising in British India to the assessee company in the assessment year 1942-43 were thus worked out to be Rs. 54, 400. The above finding of the Tribunal has been arrived at on consideration of the facts of the case. The modus operandi in respect of the sales of various categories was found by the Tribunal to be as under: (a) Sales of Rs. 6, 46, 028 (i) The assessees paid representatives at Bombay canvassed the sales, on behalf of the assessee, to merchants in British India. (ii) The orders were sent by British Indian merchants to the assessee at Indore. (iii)The assessee accepted the orders at Indore, prepared the contracts and signed them at Indore and forwarded the same to customers in British India. (iv) The customers signed the contract s in British India. (v) The contracts were signed on companys forms.(vi) The contracts bore British Indian stamps. (b) Sales of Rs. 2, 91, 891 (i) The brokers in British India, described as freelance brokers, transmitted the offers to the company at Indore. (ii) The offers were made to the company on the brokers own forms. (iii)The brokers were not engaged by the assessee company and such orders were placed by the brokers in the normal course of their business. (iv) The customers signed the contracts in British India. (c) Sales of Rs. 2, 86, 224 (i) These sales were made to British Indian merchants who went to Indore to negotiate and place orders. (ii) The orders were accepted at Indore. (iii)The contracts bore British Indian stamps. (iv) The customers signed the contracts in British India. (d) Sales of Rs. 2, 55, 916 (i) These sales were made to British Indian merchants on their or their brokers personal visit s to Indore. (ii) The offers were taken direct at Indore. (iii)Contracts for such sales were made in the same manner as stated hereinbefore. The Tribunal also gave a finding that the assessee maintained an organisation in British India, that that organisation was interested in bringing to the notice of the British Indian merchants, brokers and consuming public the goods manufactured by the assessee-company and that the ground-work for sales effected in these groups was done in British India. 4. Nothing has been urged before us either on behalf of the assessee appellant or on behalf of the revenue- respondent to assail the finding of the Tribunal in the supplementary statement of case. The question as to what proportion of the profits of the sales in categories (a), (b), (c) and (d) arose or accrued in British India is essentially one of fact depending upon the circumstances of the case. In the absence of some statutory or other fixed formula, any finding on the question of proportion involves some element of guess work. The endeavour can only be to be approximate and there cannot in the very nature of things be great precision and exactness in the matte r. As long as the proportion fixed by the Tribunal is based upon the relevant material, it should not be disturbed. ### Response: 1

Ramesh Harijan Vs. State of U.P

Singh v. State by Public Prosecutor, (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718 ; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 ) 20. Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses, particularly, that of Kunwar Dhruv Narain Singh (PW.1), Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8). However, it is the duty of the court to unravel the truth under all circumstances. 21. IN BALKA SINGH & ORS. V. STATE OF PUNJAB, AIR 1975 SC 1962 , THIS COURT CONSIDERED A SIMILAR ISSUE, PLACING RELIANCE UPON ITS EARLIER JUDGMENT IN ZWINGLEE ARIEL V. STATE OF MADHYA PRADESH, AIR 1954 SC 15 AND HELD AS UNDER: “The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the true is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.” 22. In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC 3678 , this Court held as under: “It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account.” 23. A similar view has been re-iterated in Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696 , wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not dis-believe the evidence of such witnesses altogether if they are otherwise trustworthy. 24. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617 , this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. 25. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622 , this Court held : “…Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant…” (See also: Bhagwan Singh & Ors. v. State of M.P., AIR 2002 SC 1621 ; Gangadhar Behera & Ors. v. State of Orissa, AIR 2002 SC 3633 ; Sucha Singh (supra); and S. Ganesan v. Rama Raghuraman & Ors., (2011) 2 SCC 83 ). 26. Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.27. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal. 28.

0[ds]In the aforesaid fact-situation, we have to weigh as to whether the High Court is justified in reversing the judgment and order of acquittal recorded by the trialhave been taken through the entire evidence on record and after re-appreciating the same we can unhesitatingly record that:(i) Undoubtedly, the trial court has not made any reference to the depositions of Batasi Devi (PW.2) and also of Kunwar Dhruv Narain Singh (PW.1) in respect to the fact that the thatched house of roof of Smt. Phulpatta Devi, maternal grandmother of Renu, deceased had fallen and she as well as Renu used to sleep in the house of Ramesh, appellant which was in very close vicinity of Smt.house. Ganga Ram (DW.1) has stated that on the day of occurrence, Smt. Phulpatta Devi and Renu did not sleep in the house of Ramesh, however, as he was living permanently in the city and did not say that he was present on that day in the village, his evidence cannot be taken into consideration so far as this issue is concerned. The defence did not cross-examine Kunwar Dhruv Narain Singh (PW.1) and Batasi Devi (PW.2) on this issue. Thus, the trial court committed an error recording such finding of fact.(ii) It has come on record that Smt. Phulpatta Devi was an old, infirm and totally blind woman and it was for this reason that Renu, deceased was left for her assistance. The trial court ought not to have drawn adverse inference for not examining Smt. Phulpatta Devi by the prosecution. Thus, the adverse inference drawn by the trial court on this count is unwarranted and uncalled for.(iii) The trial court has held that Kunwar Dhruv Narain Singh (PW.1) had been inimical to Ramesh and his family for the reason thatfather had been working in the agricultural field at the said witness and after joining the servicefather had rendered financial help to other poor persons of the village and thus those poor persons were not available for work to the said witness. In this regard, the defence has examined Ganga Ram (DW.1) who had deposed that thefather had been looking after the agricultural work of that witness, however, joined the service in court 14 years prior to the date of incident and Gangafamily was also looking after the agricultural work of the said witness but 8 years prior to the date of incident. He had also left the village and opened a beetle shop in the city after getting financial aid fromfather. Such an evidence is required to be examined in the light of attending circumstances and particularly taking into consideration the proximity of time. Time is the greatest heeler. In case thefather had left working in the field of the witness 14 years prior to the date of incident and Ganga(DW.1) family has left 8 years prior to the said date, the time gap itself falsifies the testimony for the reason that the time gap is a factor of paramount importance in this regard. More so, it is not the defence case that any other family or labour was available in the village to look after the agricultural work of the said witness.(iv) The recovery of part of the sheet and white clothes having blood and semen as per the FSL report has been dis-believed by the trial court in view of the fact that Ram Prasad alias Parsadi (PW.5) and Bhikari (PW.10) did not support the prosecution case like other witnesses who did not support the last seen theory. The trial court failed to appreciate that both the said witnesses, Ram Prasad alias Parsadi (PW.5) and Bhikari (PW.10) had admitted their signature/thumb impression on the recovery.The factum of taking the material exhibits and preparing of the recovery memo with regard to the same and sending the cut out portions to the Serologist who found the blood and semen on them vide report dated 21.3.1996 (Ext. Ka 21) is not disputed. The serological report also revealed that the vaginal swab which was taken by the doctor was also human blood and semen stained.18. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 ; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ).Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.27. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: Singh v. State by Public Prosecutor, (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718 ; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 ) 20. Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses, particularly, that of Kunwar Dhruv Narain Singh (PW.1), Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8). However, it is the duty of the court to unravel the truth under all circumstances. 21. IN BALKA SINGH & ORS. V. STATE OF PUNJAB, AIR 1975 SC 1962 , THIS COURT CONSIDERED A SIMILAR ISSUE, PLACING RELIANCE UPON ITS EARLIER JUDGMENT IN ZWINGLEE ARIEL V. STATE OF MADHYA PRADESH, AIR 1954 SC 15 AND HELD AS UNDER: “The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the true is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.” 22. In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC 3678 , this Court held as under: “It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account.” 23. A similar view has been re-iterated in Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696 , wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not dis-believe the evidence of such witnesses altogether if they are otherwise trustworthy. 24. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617 , this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. 25. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622 , this Court held : “…Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant…” (See also: Bhagwan Singh & Ors. v. State of M.P., AIR 2002 SC 1621 ; Gangadhar Behera & Ors. v. State of Orissa, AIR 2002 SC 3633 ; Sucha Singh (supra); and S. Ganesan v. Rama Raghuraman & Ors., (2011) 2 SCC 83 ). 26. Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.27. In view of the above, we are of the considered opinion that the acquittal in the instant case by the trial court was totally illegal, unwarranted and based on mis-appreciation of evidence for the reason that the court had given undue weightage to unimportant discrepancies and inconsistencies which resulted in miscarriage of justice. Thus, the High Court was fully justified in reversing the order of acquittal. 28. ### Response: 0

K.C. Builders & Another Vs. The Assistant Commissioner of Income Tax

addition was deleted by the Tribunal:Held, that it was evident from the material on record that the penalty had been imposed solely on the basis of the additional of Rs. 4 lakhs to the assessee’s income. If the addition was deleted, the charge of concealment of income could not be sustained. Imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961, was, therefore, not valid.” 4. Commissioner of Income-Tax v. Madanlal Sohanlal , 1989 (176) I.T.R. 189. “Penalty cannot stand on its own independently of the assessment.Where, in an appeal against the assessment reopened under Section 147 of the Income-tax Act, 1961, the Appellate Tribunal deleted the addition on account of deemed dividend under Section 12(1B) read with section 2(6A)(e) of the Indian Income-tax Act, 1922, the deemed dividend which had been deleted could not from the subject-matter of imposition of penalty under Section 271(1)(c) of the Income-tax Act, 1961, because, the basis for imposition of penalty had ceased to exist. Therefore, the Tribunal was co rrect in cancelling the penalty imposed on account of the addition.” 5. Commissioner of Income-Tax v. Bedi and Co. (P) Ltd. , 1990 (183) I.T.R. 59. “Held, that in view, of the conclusion reached by the High Court that the amount in question was not assessable, there was no basis for the imposition of penalty. The cancellation of penalty was valid.(The Supreme Court has dismissed the special petition filed by the Department against this judgment of the High Court in relation to penalty under section 271(1)(c) arising out of an assessment, wherein the addition of a loan has been cancelled by the High Court as reported in 1983 (144) ITR 352 : See 1990 (181) ITR (St.) 19-Ed.)" 6. Commissioner of Income-Tax v. Agarwalla Brothers , 1991 (189) I.T.R. 786. “Held, (i) that the fact a particular construction had not been shown in the accounts of the assessee was not relevant since this circumstance had not been recorded as one of the reasons for initiating the proceedings under section 147(a);(ii) that the Tribunal had found, after examining the entire record, that there had been no failure to disclose primary facts on the part of the assessee. The reassessment was, therefore, not valid;(iii) that penalty had been imposed consequential to the re-assessment Since the reassessment had been set aside, the order of the Tribunal cancelling the penalty levied under Section 271(1)(c) of the Act was also legal.” 7. Additional Commissioner of Income-Tax v. Badri Prasad Kashi Prasad , 1993 (200) I.T.R. 206. “Held, that the levy of penalty was based on the addition to income made by the Income-tax Officer. The addition was deleted by the Tribunal. Hence, the Tribunal was justified in cancelling the penalty.” 8. Commissioner of Income-Tax v. Roy Durlabhji , 1995 (211) ITR. 470. “Held, dismissing the application for reference, that the Tribunal had set aside the penalty on the ground that the additions to income had already been deleted. Since there was no liability to tax, no penalty could be levied. The Tribunal was justified in cancelling the penalty and no question of law arose from its order.” 32. The very recent judgment in the case of Hira Lal Hari Lal Bhagwati v. C.B.I. New Delhi , JT 2003 (4) SC 381 , in which one of us (Dr. AR. Lakshmanan, J.) was a member, this Court while considering the scope of the immunity granted under the Kar Vivad Scheme - Whether criminal proceedings could be initiated in respect of declaration filed under the Scheme and accepted by the Excise Department can proceed further with the prosecution and criminal conspiracy and cheating against the appellants therein. Allowing the appeals, this Court held that since the alleged criminal liability stood compound on settlement with respect of the civil issues, the FIR was erroneous and unwarranted and, therefore, the continuation of the proceedings would tantamount to double jeopardy. This Court further held that the Collector of Customs had exonerated the appellants there was no warrant for any fresh investigation and prosecution on a matter which stood settled. Further since no prima facie case of cheating and criminal conspiracy was made out the process issued is liable to be quashed. It is to be noticed that as per the Kar Vivad Samadhan Scheme, 1998 whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act, 1962 including the offence of evasion of duty. In the circumstances, the complaint filed against the appellants is unsustainable. This Court further held that under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit. In that case, the appellants have been wholly discharged under the Customs Act, 1962 and the GCS granted immunity from prosecution. 33. In this instant case, the charge of conspiracy has not been proved to bring home the charge of conspiracy within the ambit of Section 120-B of I.P.C. It is also settled law that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or or dishonest intention at the time of making promise or misrepresentation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the I.P.C. does not arise.34. The High Court without adverting to the above important questions of law involved in this case and examined them in the proper perspective disposed of the revisions in a summary manner and hence the impugned orders passed by the High Court and the learned Magistrate warrant interference.35. It is a well-established principle that the matter which has been adjudicated and settled by the Tribunal need not be dragged into the criminal Courts unless and until the act of the appellants could have described as culpable.

1[ds]27. The above judgment squarely applies to the facts and circumstances of the case on hand. In this case also, similarly, the application was moved by the assessee before the Magistrate to drop the criminal proceedings which were dismissed by the Magistrate and the High Court also on a petition filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 to revise the order of the Additional Chief Metropolitan Magistrate has also dismissed the same and refused to refer to the order passed by th e competent Tribunal. As held by this Court, the High Court is not justified in dismissing the criminal revision vide its judgment ignoring the settled law as laid down by this Court that the finding of the appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been cancelled by the complainant following the appellateorder, no offence survives under the Income Tax Act and thus quashing of prosecution is automatic.28. In the instant case, the penalties levied under Section 271(1)(c) were cancelled by the respondent by giving effect to the order of the Income Tax Appellate Tribunal in I.T.A. Nos.It is settled law that levy of penalties and prosecution under Sectionare simultaneous. Hence, once the penalties are cancelled on the ground that there is no concealment, the quashing of prosecution under Sectionis automatic.29. In our opinion, the appellants cannot be made to suffer and face the rigorous criminal trial when the same cannot be sustained in the eyes of law because the entire prosecution in view of a conclusive finding of the Income Tax Tribunal that there is no concealment of income becomes devoid of jurisdiction and under Section 254 of the Act, a finding of the Appellate Tribunal supercedes the order of the Assessing Officer under Section 143(3) more so when the Assessing Officer cancelled the penalty levied.30. In our view, once the finding of concealment and subsequent levy of penalties under Section 271(1)(c) of the Act has been struck down by the Tribunal, the Assessing Officer has no other alternative except to correct his order under Section 154 of the Act as per the directions of the Tribunal. As already noticed, the subject matter of the complaint before this Court is concealment of income arrived at on the basis of the finding of the Assessing Officer. If the Tribunal has set aside the order of concealment and penalties, there is no concealment in the eyes of law and, therefore, the prosecution cannot be proceeded with by the complainant and further proceedings will be illegal and without jurisdiction. The Assistant Commissioner of Income Tax cannot proceed with the prosecution even after the order of concealment has been set aside by the Tribunal. When the Tribunal has set aside the levy of penalty, the criminal proceedings against the appellants cannot survive for further consideration. In our view, the High Court has taken the view that the charges have been framed and the matter is in the stage of furtherand, therefore, the prosecution may proceed with the trial. In our opinion, the view taken by the learned Magistrate and the High Court is fallacious. In our view, if the trial is allowed to proceed further after the order of the Tribunal and the consequent cancellation of penalty, it will be an idle and empty formality to require the appellants to have the order of Tribunal exhibited as a defence document inasmuch as the passing of the order as aforementioned is unsustainable and unquestionable.In this instant case, the charge of conspiracy has not been proved to bring home the charge of conspiracy within the ambit of Sectionof I.P.C. It is also settled law that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or or dishonest intention at the time of making promise or misrepresentation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the I.P.C. does not arise.34. The High Court without adverting to the above important questions of law involved in this case and examined them in the proper perspective disposed of the revisions in a summary manner and hence the impugned orders passed by the High Court and the learned Magistrate warrant interference.35. It is aprinciple that the matter which has been adjudicated and settled by the Tribunal need not be dragged into the criminal Courts unless and until the act of the appellants could have described as culpable.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: addition was deleted by the Tribunal:Held, that it was evident from the material on record that the penalty had been imposed solely on the basis of the additional of Rs. 4 lakhs to the assessee’s income. If the addition was deleted, the charge of concealment of income could not be sustained. Imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961, was, therefore, not valid.” 4. Commissioner of Income-Tax v. Madanlal Sohanlal , 1989 (176) I.T.R. 189. “Penalty cannot stand on its own independently of the assessment.Where, in an appeal against the assessment reopened under Section 147 of the Income-tax Act, 1961, the Appellate Tribunal deleted the addition on account of deemed dividend under Section 12(1B) read with section 2(6A)(e) of the Indian Income-tax Act, 1922, the deemed dividend which had been deleted could not from the subject-matter of imposition of penalty under Section 271(1)(c) of the Income-tax Act, 1961, because, the basis for imposition of penalty had ceased to exist. Therefore, the Tribunal was co rrect in cancelling the penalty imposed on account of the addition.” 5. Commissioner of Income-Tax v. Bedi and Co. (P) Ltd. , 1990 (183) I.T.R. 59. “Held, that in view, of the conclusion reached by the High Court that the amount in question was not assessable, there was no basis for the imposition of penalty. The cancellation of penalty was valid.(The Supreme Court has dismissed the special petition filed by the Department against this judgment of the High Court in relation to penalty under section 271(1)(c) arising out of an assessment, wherein the addition of a loan has been cancelled by the High Court as reported in 1983 (144) ITR 352 : See 1990 (181) ITR (St.) 19-Ed.)" 6. Commissioner of Income-Tax v. Agarwalla Brothers , 1991 (189) I.T.R. 786. “Held, (i) that the fact a particular construction had not been shown in the accounts of the assessee was not relevant since this circumstance had not been recorded as one of the reasons for initiating the proceedings under section 147(a);(ii) that the Tribunal had found, after examining the entire record, that there had been no failure to disclose primary facts on the part of the assessee. The reassessment was, therefore, not valid;(iii) that penalty had been imposed consequential to the re-assessment Since the reassessment had been set aside, the order of the Tribunal cancelling the penalty levied under Section 271(1)(c) of the Act was also legal.” 7. Additional Commissioner of Income-Tax v. Badri Prasad Kashi Prasad , 1993 (200) I.T.R. 206. “Held, that the levy of penalty was based on the addition to income made by the Income-tax Officer. The addition was deleted by the Tribunal. Hence, the Tribunal was justified in cancelling the penalty.” 8. Commissioner of Income-Tax v. Roy Durlabhji , 1995 (211) ITR. 470. “Held, dismissing the application for reference, that the Tribunal had set aside the penalty on the ground that the additions to income had already been deleted. Since there was no liability to tax, no penalty could be levied. The Tribunal was justified in cancelling the penalty and no question of law arose from its order.” 32. The very recent judgment in the case of Hira Lal Hari Lal Bhagwati v. C.B.I. New Delhi , JT 2003 (4) SC 381 , in which one of us (Dr. AR. Lakshmanan, J.) was a member, this Court while considering the scope of the immunity granted under the Kar Vivad Scheme - Whether criminal proceedings could be initiated in respect of declaration filed under the Scheme and accepted by the Excise Department can proceed further with the prosecution and criminal conspiracy and cheating against the appellants therein. Allowing the appeals, this Court held that since the alleged criminal liability stood compound on settlement with respect of the civil issues, the FIR was erroneous and unwarranted and, therefore, the continuation of the proceedings would tantamount to double jeopardy. This Court further held that the Collector of Customs had exonerated the appellants there was no warrant for any fresh investigation and prosecution on a matter which stood settled. Further since no prima facie case of cheating and criminal conspiracy was made out the process issued is liable to be quashed. It is to be noticed that as per the Kar Vivad Samadhan Scheme, 1998 whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act, 1962 including the offence of evasion of duty. In the circumstances, the complaint filed against the appellants is unsustainable. This Court further held that under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit. In that case, the appellants have been wholly discharged under the Customs Act, 1962 and the GCS granted immunity from prosecution. 33. In this instant case, the charge of conspiracy has not been proved to bring home the charge of conspiracy within the ambit of Section 120-B of I.P.C. It is also settled law that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or or dishonest intention at the time of making promise or misrepresentation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the I.P.C. does not arise.34. The High Court without adverting to the above important questions of law involved in this case and examined them in the proper perspective disposed of the revisions in a summary manner and hence the impugned orders passed by the High Court and the learned Magistrate warrant interference.35. It is a well-established principle that the matter which has been adjudicated and settled by the Tribunal need not be dragged into the criminal Courts unless and until the act of the appellants could have described as culpable. ### Response: 1

Mahindra & Mahindra Ltd Vs. Union Of India & Anr

constitute a restrictive trade practice.There is also another infirmity invalidating the order dated 14th May, 1976. We have already pointed out and that is clear from the decision of this court in the Telcos case [1977] 47 Comp Cas 520 (SC) that in an inquiry under s. 37 the Commission has first to be satisfied that the trade practice complained of in the application is a restrictive trade practice within the meaning of that expression as defined in s. 2(o) and it is only after the Commission is so satisfied, that it can proceed to consider whether any of the " gateways " provided in s. 38(1) exists so that the trade practice, though found restrictive, is deemed not to be prejudicial to the public interest and if no such " gateways " are established, then only it can proceed to make an order directing that the trade practice complained of shall be discontinued or shall not be repeated. There are thus two conditions precedent which must be satisfied before a cease and desist order can be made by the Commission in regard to any trade practice complained of before it. One is that the Commission must find that the trade practice complained of is a restrictive trade practice and the other is that where such finding is reached, the Commission must further be satisfied that none of the gateways pleaded in answer to the complaint exists. Here, in the present case, the appellant did not appear at the hearing of the inquiry and no " gateways " were pleaded by it in the manner provided in the Regulations, and, hence, the question of the Commission arriving at a satisfaction in regard to the " gateways " did not arise. But the Commission was certainly required to be satisfied that the trade practices complained of by the Registrar were restrictive trade practices before it could validly make a cease and desist order. The order dated 14th May, 1976, did not contain any discussion or recital showing that the Commission had reached the requisite satisfaction in regard to the offending trade practices. But we can legitimately presume that the Commission must have applied its mind to the offending clauses of the distributorship agreement and come to the conclusion that the trade practices referred to in those clauses were restrictive trade practices before it made the order dated 14th May, 1976. There is in fact inherent evidence to show that the Commission did apply its mind to the clauses impugned in the application of the Registrar, because it struck down only a few out of those clauses and did not invalidate the rest. This circumstance clearly shows that the Commission considered with reference to each impugned clause whether it related to restrictive trade practice and made the order dated 14th May, 1976, only in respect of those clauses where it was satisfied that the trade practices were restrictive. The charge that the order dated 14th May, 1976, suffered from non-application of mind on the part of the Commission cannot, therefore, be sustained. But the order dated 14th May, 1976, was clearly bad inasmuch as it did not disclose the reasons which weighed with the Commission in directing the appellant to cease and desist from the trade practices set out in the order. The order dated 14th May, 1976, was a non-speaking order. It consisted merely of bald directions given by the Commission and did not set out any reasons whatsoever why the Commission had decided to issue those directions. It had a sphinx-like face, which goes ill with the judicial process. It is true that the order dated 14th May, 1976, was an ex parte order, but the ex parte character of the order did not absolve the Commission from the obligation to give reasons in support of the order. Even though the order dated 14th May, 1976, was ex parte, the appellant would have been entitled to prefer an appeal against it under s. 55 and it is difficult to see how the appellant could have possibly attacked the order in the appeal, when the order did not disclose the reasons on which it was based. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That is the minimal requirement of law laid down by a long line of decisions of this court ending with N. M. Desai v. Testiles Ltd. (C.A. 245 of 1970, decided on 17th Dec., 1975) and Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India [1976] Supp. SCR 489 ; AIR 1976 SC 1785 . The order dated 14th May, 1976, was, therefore, clearly vitiated by an error of law apparent on the face of the record inasmuch as it contained only the final and operative order made by the Commission and did not record any reasons whatsoever in support of it and the appellant was, in the circumstances, entitled to claim that the order should be revoked by the Commission.This view taken by us renders it unnecessary to consider whether there was any material change in the relevant circumstances justifying invocation of the power under s. 13(2) and, hence, we do not propose to deal with the same. The Commission has devoted a part of the order impugned in the present appeal to a consideration of this question and taken the view that there was no material change in the relevant circumstances subsequent to the making of the order dated 14th May, 1976. We no not wish to express any opinion on the correctness of this view taken by the Commission, since we are setting aside the impugned order made by the Commission and also revoking the order dated 14th May, 1976, and sending the matter back so that the application of the Registrar under s. 10(a)(iii) may be disposed of afresh. 9.

1[ds]It is true that a clause in an agreement may embody a trade practice and such trade practice may have the actual or probable effect of restricting, lessening or destroying competition and hence it may constitute a restrictive trade practice and the clause may be voided, but it is difficult to see how the introduction of such a clause in the agreement, as distinguished from the trade practice embodied in the clause itself, can be a restrictive trade practice. It is not the introduction of such a clause, but the trade practice embodied in the clause, which has or is reasonably likely to have the prescribede effect. Therefore, whenever a question of restrictive trade practice arises in relation to a clause in an agreement, it is the trade practice embodied in the clause that has to be examined for the purpose of determining its actual or probable effect on competition. Now, a clause in an agreement may proprio vigore on its own terms, impose a restraint such as allocating a territory, area or market to a dealer or prohibiting a dealer from using machinery or selling goods of any other manufacturer, supplier or requiring the dealer to purchase whatever machinery or goods in the particular line of business are needed by him from the manufacturer or supplier entering into the agreement. Where such restraint produces or is reasonably likely to produce the prohibited statutory effectand that would depend on the various considerations referred to by us earlierit would clearly constitute a restrictive trade practice and the clause would be bad. In such a case, it would be no answer to say that the clause is not being enforced by the manufacturer or supplier. The very presence of the clause would have a restraining influence on the dealer, for the dealer would be expected to carry out his obligations under the clause and he would not know that the clause is not going to be enforced against him. This is precisely what was pointed out by Mr. Justice Day in United Shoe Machinery Corporation v. United States (258 US 708 ; 66 L Ed 451), where the question was whether thee andy clauses in certain lease agreements ofy were struck by the provisions of s. 3 of the Clayton Act : " The power to enforce them ", that is, the impugned clauses " is omnipresent and their restraining influence constantly operates upon competitors and lessees. The fact that the lessor, in many instances, forbore to enforce these provisions, does not make them any less agreements within the condemnation of the Clayton Act. " There could be no difficulty in such a case in applying the definition of restrictive trade practice in accordance with the law laid down in the Telcos case [1977] 47 Comp Cas 520 (SC) as explained by us in this judgment.Then there may be a clause which may be perfectly innocent and innocuous such as a clause providing that the dealer will carry out all directions given by the manufacturer or supplier from time to time. Such a broad and general clause cannot be faulted as restrictive of competition for it cannot be assumed that the manufacturer or supplier will abuse the power conferred by the clause by giving directions unduly restricting trade. So much indeed was conceded by the learned Additionall appearing on behalf of the respondents. But a genuine difficulty may arise where a clause in an agreement does not by itself impose any restraint but empowers the manufacturer or supplier to take some action which may be restrictive of competition. Ordinarily, in such a case, it may not be possible to say that the mere presence of such a clause, apart from any action which may be taken under it, has or may have the prohibitede effect. The manufacturer or supplier may take action under the clause or he may not, and even if he takes action, it may be in conformity with the provisions of the Act and may not be restrictive of competition. The mere possibility of action being taken which may be restrictive of competition would not in all cases affect the legality of the clause. In fact, a consistent course of conduct adopted by the manufacturer or supplier in acting under the clause in a lawful manner may tend to show that the clause is not reasonably likely to produce the prohibited statutory effect. What is required to be considered for determining the legality of the clause is not mere theoretical possibility that the clause may be utilised for taking action which is restrictive of competition, for it does not necessarily follow from the existence of such possibility that the actual or probable effect of the clause would be. The material question to consider is whether there is a real probability that the presence of the clause itself would be likely to restrict competition. This is basically a question of market effect and it cannot be determined by adopting a doctrinaire approach. There can be no hard and fastruleandeach case would have to be examined on its own facts from a businessandcommonsense point of view for the purpose of determining whether the clause has the actual or probable effect of unduly restricting competition. We cannot accept the proposition that in every case where the clause is theoretically capable of being so utilised as to unjustifiably restrict competition, it would constitute a restrictive trade practice.There is also another infirmity invalidating the order dated 14th May, 1976. We have already pointed outandthat is clear from the decision of this court in the Telcos case [1977] 47 Comp Cas 520 (SC) that in an inquiry under s. 37 the Commission has first to be satisfied that the trade practice complained of in the application is a restrictive trade practice within the meaning of that expression as defined in s. 2(o)andit is only after the Commission is so satisfied, that it can proceed to consider whether any of the " gateways " provided in s. 38(1) exists so that the trade practice, though found restrictive, is deemed not to be prejudicial to the public interestandif no such " gateways " are established, then only it can proceed to make an order directing that the trade practice complained of shall be discontinued or shall not be repeated. There are thus two conditions precedent which must be satisfied before aceaseanddesist order can be made by the Commission in regard to any trade practice complained of before it. One is that the Commission must find that the trade practice complained of is a restrictive tradepracticeandthe other is that where such finding is reached, the Commission must further be satisfied that none of the gateways pleaded in answer to the complaint exists. Here, in the present case, the appellant did not appear at the hearing of the inquiryandno " gateways " were pleaded by it in the manner provided in the Regulations,, hence, the question of the Commission arriving at a satisfaction in regard to the " gateways " did not arise. But the Commission was certainly required to be satisfied that the trades complained of by the Registrar were restrictive trades before it could validly make aceaseanddesist order. The order dated 14th May, 1976, did not contain any discussion or recital showing that the Commission had reached the requisite satisfaction in regard to the offending trade. But we can legitimately presume that the Commission must have applied its mind to the offending clauses of the distributorship agreementandcome to the conclusion that the trades referred to in those clauses were restrictive trades before it made the order dated 14th May, 1976. There is in fact inherent evidence to show that the Commission did apply its mind to the clauses impugned in the application of the Registrar, because it struck down only a few out of those clausesanddid not invalidate the rest. This circumstance clearly shows that the Commission considered with reference to each impugned clause whether it related to restrictive tradepracticeandmade the order dated 14th May, 1976, only in respect of those clauses where it was satisfied that the trades were restrictive. The charge that the order dated 14th May, 1976, suffered fromn of mind on the part of the Commission cannot, therefore, be sustained. But the order dated 14th May, 1976, was clearly bad inasmuch as it did not disclose the reasons which weighed with the Commission in directing the appellant toceaseanddesist from the trades set out in the order. The order dated 14th May, 1976, was ag order. It consisted merely of bald directions given by the Commissionanddid not set out any reasons whatsoever why the Commission had decided to issue those directions. It had ae face, which goes ill with the judicial process. It is true that the order dated 14th May, 1976, was an ex parte order, but the ex parte character of the order did not absolve the Commission from the obligation to give reasons in support of the order. Even though the order dated 14th May, 1976, was ex parte, the appellant would have been entitled to prefer an appeal against it under s. 55andit is difficult to see how the appellant could have possibly attacked the order in the appeal, when the order did not disclose the reasons on which it was based. It is now settled law that where an authority makes an order in exercise of al function, it must record its reasons in support of the order it makes. Everyl order must be supported by reasons. That is the minimal requirement of law laid down by a long line of decisions of this court ending with N. M. Desai v. Testiles Ltd. (C.A. 245 of 1970, decided on 17th Dec., 1975)andSiemens Engg. & Mfg. Co. of India Ltd. v. Union of India [1976] Supp. SCR 489 ; AIR 1976 SC 1785 . The order dated 14th May, 1976, was, therefore, clearly vitiated by an error of law apparent on the face of the record inasmuch as it contained only the finalandoperative order made by the Commissionanddid not record any reasons whatsoever in support of itandthe appellant was, in the circumstances, entitled to claim that the order should be revoked by the Commission.This view taken by us renders it unnecessary to consider whether there was any material change in the relevant circumstances justifying invocation of the power under s. 13(2), hence, we do not propose to deal with the same. The Commission has devoted a part of the order impugned in the present appeal to a consideration of this questionandtaken the view that there was no material change in the relevant circumstances subsequent to the making of the order dated 14th May, 1976. We no not wish to express any opinion on the correctness of this view taken by the Commission, since we are setting aside the impugned order made by the Commissionandalso revoking the order dated 14th May, 1976,andsending the matter back so that the application of the Registrar under s. 10(a)(iii) may be disposed of afresh.

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: constitute a restrictive trade practice.There is also another infirmity invalidating the order dated 14th May, 1976. We have already pointed out and that is clear from the decision of this court in the Telcos case [1977] 47 Comp Cas 520 (SC) that in an inquiry under s. 37 the Commission has first to be satisfied that the trade practice complained of in the application is a restrictive trade practice within the meaning of that expression as defined in s. 2(o) and it is only after the Commission is so satisfied, that it can proceed to consider whether any of the " gateways " provided in s. 38(1) exists so that the trade practice, though found restrictive, is deemed not to be prejudicial to the public interest and if no such " gateways " are established, then only it can proceed to make an order directing that the trade practice complained of shall be discontinued or shall not be repeated. There are thus two conditions precedent which must be satisfied before a cease and desist order can be made by the Commission in regard to any trade practice complained of before it. One is that the Commission must find that the trade practice complained of is a restrictive trade practice and the other is that where such finding is reached, the Commission must further be satisfied that none of the gateways pleaded in answer to the complaint exists. Here, in the present case, the appellant did not appear at the hearing of the inquiry and no " gateways " were pleaded by it in the manner provided in the Regulations, and, hence, the question of the Commission arriving at a satisfaction in regard to the " gateways " did not arise. But the Commission was certainly required to be satisfied that the trade practices complained of by the Registrar were restrictive trade practices before it could validly make a cease and desist order. The order dated 14th May, 1976, did not contain any discussion or recital showing that the Commission had reached the requisite satisfaction in regard to the offending trade practices. But we can legitimately presume that the Commission must have applied its mind to the offending clauses of the distributorship agreement and come to the conclusion that the trade practices referred to in those clauses were restrictive trade practices before it made the order dated 14th May, 1976. There is in fact inherent evidence to show that the Commission did apply its mind to the clauses impugned in the application of the Registrar, because it struck down only a few out of those clauses and did not invalidate the rest. This circumstance clearly shows that the Commission considered with reference to each impugned clause whether it related to restrictive trade practice and made the order dated 14th May, 1976, only in respect of those clauses where it was satisfied that the trade practices were restrictive. The charge that the order dated 14th May, 1976, suffered from non-application of mind on the part of the Commission cannot, therefore, be sustained. But the order dated 14th May, 1976, was clearly bad inasmuch as it did not disclose the reasons which weighed with the Commission in directing the appellant to cease and desist from the trade practices set out in the order. The order dated 14th May, 1976, was a non-speaking order. It consisted merely of bald directions given by the Commission and did not set out any reasons whatsoever why the Commission had decided to issue those directions. It had a sphinx-like face, which goes ill with the judicial process. It is true that the order dated 14th May, 1976, was an ex parte order, but the ex parte character of the order did not absolve the Commission from the obligation to give reasons in support of the order. Even though the order dated 14th May, 1976, was ex parte, the appellant would have been entitled to prefer an appeal against it under s. 55 and it is difficult to see how the appellant could have possibly attacked the order in the appeal, when the order did not disclose the reasons on which it was based. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That is the minimal requirement of law laid down by a long line of decisions of this court ending with N. M. Desai v. Testiles Ltd. (C.A. 245 of 1970, decided on 17th Dec., 1975) and Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India [1976] Supp. SCR 489 ; AIR 1976 SC 1785 . The order dated 14th May, 1976, was, therefore, clearly vitiated by an error of law apparent on the face of the record inasmuch as it contained only the final and operative order made by the Commission and did not record any reasons whatsoever in support of it and the appellant was, in the circumstances, entitled to claim that the order should be revoked by the Commission.This view taken by us renders it unnecessary to consider whether there was any material change in the relevant circumstances justifying invocation of the power under s. 13(2) and, hence, we do not propose to deal with the same. The Commission has devoted a part of the order impugned in the present appeal to a consideration of this question and taken the view that there was no material change in the relevant circumstances subsequent to the making of the order dated 14th May, 1976. We no not wish to express any opinion on the correctness of this view taken by the Commission, since we are setting aside the impugned order made by the Commission and also revoking the order dated 14th May, 1976, and sending the matter back so that the application of the Registrar under s. 10(a)(iii) may be disposed of afresh. 9. ### Response: 1

C. JAYACHANDRAN Vs. STATE OF KERALA & ORS. ETC

delay in deciding the representation by the High Court cannot defeat the rights of the appellant to claim seniority from the date the other candidates selected in pursuance of the same selection process. 42. Still further, the Division Bench of the High Court has completely erred in law in holding that the appellant has delayed the challenge of his appointment vide order dated 22 nd December, 2010. The appellant was appointed pursuant to a direction issued earlier by the Division Bench. The Division Bench has directed to re-cast the select list and in such select list, the name of the appellant appears at Sl. No. 3 and that of Badharudeen at Sl. No. 4. The appellant has submitted the representation on 11 th April, 2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18 th September, 2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30 th March, 2009. The appellant having been factually appointed vide communication dated 22 nd December, 2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process. 43. As per Mr. P .N. Ravindran, learned Senior Counsel appearing for the High Court, the appellant was assigned seniority at Sl. No. 18 pursuant to the order of the Administrative Committee but consequent to the order of the Division Bench, seniority list was revised and the appellant has been placed in seniority below the Officers appointed by transfer in excess of quota and even below Badharudeen who never disputed grant of seniority to him at Sl. No. 42. We also find merit in the argument raised by the learned counsel that in the year 2007, the cadre strength was 96 and out of which 24 posts fall to the quota of direct recruitment. Though, there is no clause that the reminder falls to the quota of in-service candidates, but 1/3 rd has to be of a specific number. Since specific cadre strength is 96, therefore, 24 falls to the quota of direct recruits and 72 falls to the quota of appellant by in-service candidates. We are unable to agree with the findings recorded by the Division Bench of the High Court that there is no quota for the promotee candidates. The findings of the Administrative Committee or the assertion of the High Court in the counter affidavit has not been controverted by any Officer. Merely because the rule does not specifically say that 2/3 rd is the quota for in- service candidates, it will not mean that the promotions can be made irrespective of the cadre strength. The promotions may not be annulled, modified or reversed but a candidate will get seniority only if there is a quota meant for appointment of in-service candidates. As per the High Court, as against cadre strength of 96, 126 officers were working i.e. much more than the cadre strength, therefore in the absence of any assertion or finding the respondent Nos. 9 and 10 or respondents Nos. 11 and 12 were within their quota. The finding of the Division Bench of the High Court that there is no quota for in-service candidates is clearly erroneous. The Full Bench in Haneefas case has rightly held that the quota for direct recruitment is 1/3 rd of the total cadre strength and as a consequence 2/3 rd is the quota for in-service candidates. It may be a case of reversion of candidates appointed in excess of quota of in-service candidates but the fact remains that the quota is 1/3 rd for direct recruits and consequently, the 2/3 rd has to be for in-service candidates which quota has undergone change with amendment of Rules on 9 th June, 2008. As per the amended Rules, 25% is the quota for direct recruits and 50% is for by-transfer from category I of Sub-Judges, Chief Judicial Magistrates in the Kerala State Judicial Services on the basis of merit and ability and 25% of the posts are contemplated to be filled up by transfer based upon limited competitive examination and viva voce. Therefore, the finding of the Division Bench of the High Court is clearly erroneous and contrary to the Full Bench judgment and, thus, not sustainable in law. 44. The argument that grant of selection grade to respondent Nos. 11 and 12 was earlier in point of time than the appellant will not confer any better, legal or equitable right. There was specific condition in the letter of appointment by transfer of respondent Nos. 9-10 that their appointment is without prejudice to the recruitment of direct recruits. Since the rights of the direct recruits were specifically mentioned, such respondents cannot claim any protection of their transfer in the cadre only for the reason that they were granted selection cadre earlier. The finding recorded by the High Court administratively and by the learned Single Judge is that the appointment of such candidates was beyond their quota meant for appointment by transfer. Therefore, they cannot claim any legal or equitable right. Similarly, respondent Nos. 11 -12 were appointed by transfer to the cadre subject to the condition of rights of the candidates in the writ petitions pending at that time. The said writ petitions were decided in the light of the order passed in the earlier writ petition filed by the appellant on 13.09.2010. The rights of the appellant to claim notional seniority thus cannot be said to be unjust which was wrongly interfered with by the Division Bench in an intra-Court appeal.

1[ds]36. The earlier writ petition filed by the appellant was allowed on 13 th September, 2010. The Division Bench of the High Court has directed to re-cast the seniority amongst the seven shortlisted candidates. The appellant was one of them. The challenge to the said order by three affected candidates remained unsuccessful when SLP was dismissed by this Court on 8 th October, 2010. The SLP was filed by the candidates who were granted benefit of moderation of marks. Once the direction of the Division Bench has attained finality, the appellant was entitled to seniority as per the select list to be revised as per merit of the candidates. In terms of Rule 6(2), the seniority is to be determined by the serial order in which the name appeared in the appointment order. The argument of learned counsel appearing for respondent No. 5 that the appellant was not appointed by the same appointment order, therefore, the appellant cannot claim seniority is not tenable. The appellant was entitled to be appointed along with other three candidates but because of the action of the High Court in adopting moderation of marks, the appellant was excluded from appointment. The exclusion of appellant from appointment was on account of an illegal act by the High Court which has been so found by the judgment dated 13 th September, 2010. Since the select list has to be revised, the appellant would be deemed to be the part of the appointment along with other candidates in the same select list. As the actual date of appointment was on 24 th February, 2011, the appellant cannot actually be treated to be appointed on 30 th March, 2009 but is entitled to notional appointment from that date and consequential seniority39. In view of the above, the appellant having been participated in the same selection process and in view of the direction of the Division Bench of the High Court, was rightly placed by the High Court by giving him revised select list placing him at Sl. No. 41 by pushing Badharudeen from general category candidate to OBC category candidate at Sl. No. 4240. The appellant was wrongfully excluded from the process of appointment on account of an illegal and arbitrary grant of moderation of marks. The Government in its Order dated 22 nd December, 2010 cancelled the appointment of three District and Sessions Judges who were granted benefit of moderation. Badharudeen was earlier assigned general category seat but since the appellant was higher in merit, Badharudeen was pushed down and adjusted against OBC category seat at Sl. No. 42. Badharudeen has not challenged his pushing down at Sl. No. 42 either before the learned Single Bench of the High Court or before the Division Bench of the High Court or even before this Court. Therefore, as respondent, he cannot be permitted to dispute the grant of seniority to the appellant at Sl. No. 41. The judgment referred to by learned counsel is not helpful to the arguments raised as the appellant therein sought seniority as direct recruit from the time when the vacancies. T o raise such an argument, reliance was placed upon judgment of this Court reported in Union of India & Ors. v. N.R. Parmar & Ors. (2012) 13 SCC 340 , wherein this Court held that a person is disentitled to claim seniority from the date he was not borne in the service.The said finding is in the context of the claim of the appellant to claim seniority from the date of availability of the vacancies; whereas in the present case, the appellant is claiming seniority from the date the other candidates in the same selection process were appointed but the appellant is excluded on account of an illegal act of the High Court of the moderation of marks. Therefore, the said judgment is not of any help to the arguments raised41. The Office Memorandum of Government of Kerala dated 22 nd December, 2010 and later notification of the State Government appointing the appellant is that of setting aside of selection of three candidates and appointing the appellant by assigning Sl. No. 41 and Sl. No. 42 to Badharudeen. It is in tune with the merit whilepreparing the select list. Therefore, such merit could not be disturbed only for the reason that the appellant has not disputed it for 1 year and 2 months after his appointment. Admittedly, a seniority list was circulated in the year 2009 before the appointment of the appellant, thereafter, no seniority list was circulated. The appellant has already submitted representation claiming seniority which representation was accepted on 19 th October, 2017. An employee has no control over the employer to decide the representation or to finalise the seniority as per his wish. The High Court has taken long time to decide the seniority claim. That fact will not disentitle the appellant to claim seniority from the date the other candidates in the same selection process were appointed. The fact that some of the officers have been given selection grade will not debar the appellant to claim notional date of appointment as the appellant has asserted his right successfully before the Division Bench in an earlier round and reiterated such right by way of a representation. The delay in deciding the representation by the High Court cannot defeat the rights of the appellant to claim seniority from the date the other candidates selected in pursuance of the same selection process42. Still further, the Division Bench of the High Court has completely erred in law in holding that the appellant has delayed the challenge of his appointment vide order dated 22 nd December, 2010. The appellant was appointed pursuant to a direction issued earlier by the Division Bench. The Division Bench has directed to re-cast the select list and in such select list, the name of the appellant appears at Sl. No. 3 and that of Badharudeen at Sl. No. 4. The appellant has submitted the representation on 11 th April, 2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18 th September, 2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30 th March, 2009. The appellant having been factually appointed vide communication dated 22 nd December, 2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment processWe also find merit in the argument raised by the learned counsel that in the year 2007, the cadre strength was 96 and out of which 24 posts fall to the quota of direct recruitment. Though, there is no clause that the reminder falls to the quota of in-service candidates, but 1/3 rd has to be of a specific number. Since specific cadre strength is 96, therefore, 24 falls to the quota of direct recruits and 72 falls to the quota of appellant by in-service candidates. We are unable to agree with the findings recorded by the Division Bench of the High Court that there is no quota for the promotee candidates. The findings of the Administrative Committee or the assertion of the High Court in the counter affidavit has not been controverted by any Officer. Merely because the rule does not specifically say that 2/3 rd is the quota for in- service candidates, it will not mean that the promotions can be made irrespective of the cadre strength. The promotions may not be annulled, modified or reversed but a candidate will get seniority only if there is a quota meant for appointment of in-service candidates. As per the High Court, as against cadre strength of 96, 126 officers were working i.e. much more than the cadre strength, therefore in the absence of any assertion or finding the respondent Nos. 9 and 10 or respondents Nos. 11 and 12 were within their quota. The finding of the Division Bench of the High Court that there is no quota for in-service candidates is clearly erroneous. The Full Bench in Haneefas case has rightly held that the quota for direct recruitment is 1/3 rd of the total cadre strength and as a consequence 2/3 rd is the quota for in-service candidates. It may be a case of reversion of candidates appointed in excess of quota of in-service candidates but the fact remains that the quota is 1/3 rd for direct recruits and consequently, the 2/3 rd has to be for in-service candidates which quota has undergone change with amendment of Rules on 9 th June, 2008. As per the amended Rules, 25% is the quota for direct recruits and 50% is for by-transfer from category I of Sub-Judges, Chief Judicial Magistrates in the Kerala State Judicial Services on the basis of merit and ability and 25% of the posts are contemplated to be filled up by transfer based upon limited competitive examination and viva voce. Therefore, the finding of the Division Bench of the High Court is clearly erroneous and contrary to the Full Bench judgment and, thus, not sustainable in law44. The argument that grant of selection grade to respondent Nos. 11 and 12 was earlier in point of time than the appellant will not confer any better, legal or equitable right. There was specific condition in the letter of appointment by transfer of respondent Nos. 9-10 that their appointment is without prejudice to the recruitment of direct recruits. Since the rights of the direct recruits were specifically mentioned, such respondents cannot claim any protection of their transfer in the cadre only for the reason that they were granted selection cadre earlier. The finding recorded by the High Court administratively and by the learned Single Judge is that the appointment of such candidates was beyond their quota meant for appointment by transfer. Therefore, they cannot claim any legal or equitable right. Similarly, respondent Nos. 11 -12 were appointed by transfer to the cadre subject to the condition of rights of the candidates in the writ petitions pending at that time. The said writ petitions were decided in the light of the order passed in the earlier writ petition filed by the appellant on 13.09.2010. The rights of the appellant to claim notional seniority thus cannot be said to be unjust which was wrongly interfered with by the Division Bench in an intra-Court appeal.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: delay in deciding the representation by the High Court cannot defeat the rights of the appellant to claim seniority from the date the other candidates selected in pursuance of the same selection process. 42. Still further, the Division Bench of the High Court has completely erred in law in holding that the appellant has delayed the challenge of his appointment vide order dated 22 nd December, 2010. The appellant was appointed pursuant to a direction issued earlier by the Division Bench. The Division Bench has directed to re-cast the select list and in such select list, the name of the appellant appears at Sl. No. 3 and that of Badharudeen at Sl. No. 4. The appellant has submitted the representation on 11 th April, 2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18 th September, 2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30 th March, 2009. The appellant having been factually appointed vide communication dated 22 nd December, 2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process. 43. As per Mr. P .N. Ravindran, learned Senior Counsel appearing for the High Court, the appellant was assigned seniority at Sl. No. 18 pursuant to the order of the Administrative Committee but consequent to the order of the Division Bench, seniority list was revised and the appellant has been placed in seniority below the Officers appointed by transfer in excess of quota and even below Badharudeen who never disputed grant of seniority to him at Sl. No. 42. We also find merit in the argument raised by the learned counsel that in the year 2007, the cadre strength was 96 and out of which 24 posts fall to the quota of direct recruitment. Though, there is no clause that the reminder falls to the quota of in-service candidates, but 1/3 rd has to be of a specific number. Since specific cadre strength is 96, therefore, 24 falls to the quota of direct recruits and 72 falls to the quota of appellant by in-service candidates. We are unable to agree with the findings recorded by the Division Bench of the High Court that there is no quota for the promotee candidates. The findings of the Administrative Committee or the assertion of the High Court in the counter affidavit has not been controverted by any Officer. Merely because the rule does not specifically say that 2/3 rd is the quota for in- service candidates, it will not mean that the promotions can be made irrespective of the cadre strength. The promotions may not be annulled, modified or reversed but a candidate will get seniority only if there is a quota meant for appointment of in-service candidates. As per the High Court, as against cadre strength of 96, 126 officers were working i.e. much more than the cadre strength, therefore in the absence of any assertion or finding the respondent Nos. 9 and 10 or respondents Nos. 11 and 12 were within their quota. The finding of the Division Bench of the High Court that there is no quota for in-service candidates is clearly erroneous. The Full Bench in Haneefas case has rightly held that the quota for direct recruitment is 1/3 rd of the total cadre strength and as a consequence 2/3 rd is the quota for in-service candidates. It may be a case of reversion of candidates appointed in excess of quota of in-service candidates but the fact remains that the quota is 1/3 rd for direct recruits and consequently, the 2/3 rd has to be for in-service candidates which quota has undergone change with amendment of Rules on 9 th June, 2008. As per the amended Rules, 25% is the quota for direct recruits and 50% is for by-transfer from category I of Sub-Judges, Chief Judicial Magistrates in the Kerala State Judicial Services on the basis of merit and ability and 25% of the posts are contemplated to be filled up by transfer based upon limited competitive examination and viva voce. Therefore, the finding of the Division Bench of the High Court is clearly erroneous and contrary to the Full Bench judgment and, thus, not sustainable in law. 44. The argument that grant of selection grade to respondent Nos. 11 and 12 was earlier in point of time than the appellant will not confer any better, legal or equitable right. There was specific condition in the letter of appointment by transfer of respondent Nos. 9-10 that their appointment is without prejudice to the recruitment of direct recruits. Since the rights of the direct recruits were specifically mentioned, such respondents cannot claim any protection of their transfer in the cadre only for the reason that they were granted selection cadre earlier. The finding recorded by the High Court administratively and by the learned Single Judge is that the appointment of such candidates was beyond their quota meant for appointment by transfer. Therefore, they cannot claim any legal or equitable right. Similarly, respondent Nos. 11 -12 were appointed by transfer to the cadre subject to the condition of rights of the candidates in the writ petitions pending at that time. The said writ petitions were decided in the light of the order passed in the earlier writ petition filed by the appellant on 13.09.2010. The rights of the appellant to claim notional seniority thus cannot be said to be unjust which was wrongly interfered with by the Division Bench in an intra-Court appeal. ### Response: 1

Karam Singh Sobti & Anr Vs. Shri Pratap Chand & Anr

the substantive provision contained in sub-s. (2) and the only way of harmonising the two is to accept the view which the Punjab High Court has accepted, namely, that the words "shall have regard to the provisions of this Act merely mean that "where the new Act has slightly modified or clarified the previous provisions, these modifications and clarifications should be applied. We see no other way of harmonising sub-s. (2) with the first proviso thereto.11. A similar expression occurring in S. 49 of the Electricity (Supply) Act (LIV of 1948) was considered by this court in the Mysore State Electricity Board v. Bangalore Wollen, Cotton and Silk Mills Ltd., C. A. Nos. 629 to 632 of 1961 D/- 15-11-1962 unreported: (now reported in AIR 1963 SC 1128 ). This court referred to the decision of the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, 70 Ind App 129: (AIR 1943 PC 164) and expressed agreement with the view of the Privy Council that the expression "have regard to or "having regard to has no more definite or technical meaning than that of ordinary usage, and only required that the provisions to which regard must be had should be taken into consideration. If the expression "have regard to in the first proviso to sub-s. (2) means that the provisions of the Control Act of 1958 shall apply to all such suits or proceedings as are referred to in sub-s. (2) except in the matter of jurisdiction of the civil court, then in reality the substantive provision of sub-s. (2) will be denuded of its full effect for all practical purposes. We do not think that it would be right to read the first proviso of sub-s. (2) in that way. It was argued before us that the first proviso related only to two matters, (a) fixation of standard rent and (b) eviction of a tenant, and the intention was that in these two matters only the provisions of the Control Act of 1958 would apply and not in others. If that was the intention, nothing would have been easier than to say in sub-s. (2) - "Notwithstanding such repeal, all suits and other proceedings under the said Act except those for fixation of standard rent and eviction of a tenant etc. Sub-s. (2) does not, however, say so, and if the first proviso is to be interpreted in the manner suggested by the appellant, the provisions as to jurisdiction in the new Act would affect the power of the civil court to pass a decree for eviction.12. We now turn to the decisions of the Punjab High Court. In Shri Krishna Aggarwal v. Satya Dev, 61 Pun LR 574 : (AIR 1959 Punj 501) it was held that the first proviso to sub-s. (2) of S. 57 was directory in character and not mandatory; therefore, the courts and authorities concerned had a discretion conferred on them to take into consideration the provisions of the new Act when it was considered necessary in a proper case and in the interest of justice. We do not wish, however, to base our decision on these grounds. We think that the proper way of reading sub-s. (2) and the first proviso thereto is to harmonise both in the best way possible. In Bulaqi Das Madan Mohan v. Ram Sarup, 62 Pun LR 231 the view expressed was that the proviso must have some meaning and force and the proviso intended that where the old provisions had been repeated with modifications, the old Act should be interpreted in the light of the modifications so long as they did not involve creating any rights and liabilities. A similar view was expressed by the same Judge in Shri Bimal Parshad Jain v. Shri Niadaramal, 62 Pun LR 664. The question was considered by a Division Bench in Shri Jhabar Mal Chokhani v. Shri Jinendra Pershad, 65 Pun LR 469. At pages 474 and 475 of the report Dulat, J. who spoke for the Bench said :"It would thus appear that apart from Gosain, J. the other learned Judges of this court have generally agreed that the proviso to s. 57, sub-section (2), does not demand that a suit for the eviction of a tenant filed under the previous Act of 1952 must be governed entirely by the provisions of the new Act but that, on the other hand, the provisions applicable continue to be the provisions of the old Act with this addition that, where the new Act has slightly modified or clarified the previous provisions, those modifications and clarifications should be applied, but, where entirely new rights and new liabilities have been created, the new provisions must not be allowed to override the provisions of the previous Act, and nearly all the cases have been decided on that basis.We agree with the view expressed by Dulat J. We also agree with the High Court that if the first proviso to sub-s. (2) of S. 57 is interpreted in the way contended for by the appellant here, it would really be giving effect to the provisions of the Control Act of 1958 retrospectively, though sub-s. (2) of S. 57 states in clear terms that all suits and proceedings pending at the commencement of the new Act will be dealt in accordance with the provisions of the old Act. This is really putting the same argument that the proviso must be read harmoniously with the substantive provision in another way.13. For the reasons given above we have come to the conclusion that in the present case the respondent-landlord is entitled to the benefit of cl. (c), sub-cl. (i), of the proviso to S. 13(1) of the Control Act of 1952 and the first proviso to sub-s. (2) of S. 57 of the Control Act of 1958 does not stand in his way. He is therefore, entitled to succeed, as the appellant has failed to make out any acquiescence by the landlord to the sub-letting in question.

1[ds]Two questions arise out of S. 57 . It is clear beyond dispute that had(2) of S.57 stood by itself, then the present case would be governed by the provisions of the Control Act of 1952, assuming that an application in revision is a proceeding within the meaning of theThere are however two provisos to(2) of S.57. It is the interpretation of these two provisos which had caused much difficulty in the present case.however, we decide against the appellant on the first question and hold that the application in revision, assuming it to be a proceeding within the meaning of(2), must be disposed of in accordance with the provisions of the Control Act of 1952, then the second question need not be decided by us in the present case.With the details of these provisions we are not concerned in the present case except to point out that the Control Act of 1958 made radical changes in the matter of eviction of tenants on the ground ofIn the matter ofthe relevant date was taken as June 9, 1952 the date on which the Control Act of 1952 came into force, and a distinction was made betweenbefore that date andafter that date. Abefore June 9, 1952 was treated as lawfulant was in occupation of the premises at the commencement of the Control Act of 1958; but aafter June 9, 1952 without the previous consent in writing of the landlord was treated as unlawful for the purposes of the Control Act, of 1958.10. Let us now consider S. 57, of the Control Act of 1958 against the background of the scheme of the two Control Acts, as stated above.The first sub-section of S. 57 repeals the Control Act of 1952 in so far as it is applicable to the Union territory of Delhi. If the repeal stood by itself the provisions of the General Clauses Act (X of 1897) would have applied with regard to the effect of the repeal and the repeal would not affect the previous operation of any enactment repealed or anything duly done or suffered thereunder or affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. The provisions of the General Clauses Act will not, however, apply where a different intention appears from the repealing enactment. Such an intention is clear from sub-s. (2) of S. 57 which contains the saving clause. It states in express terms that notwithstanding the repeal of the Control Act of 1952; all suits and proceedings under the Control Act of 1952 pending before any court or other authority at the commencement of the Control Act of 1958, shall be continued and disposed of in accordance with the provisions of the Control Act of 1952, as if the Control Act of 1952 had continued in force and the Control Act of 1958 had not been passed. Nothing can be more emphatic in the matter of a saving clause than what is contained in sub-s. (2) of S. 57. We had said earlier that had sub-s. (2) of S. 57 stood by itself without the provisos, then the incontestable position would have been that the present case would be governed by the provisions of the Control Act offirst proviso states inter alia that in the matter of eviction of a tenant from any premises to which S. 54 does not apply, the court or other authority shall have regard to the provisions of the Control Act of 1958. Section 54 need not be considered by us as it merely saves the operation of certain enactments which do not apply to the premises under ourare unable to agree that such is the meaning of the first proviso. We think that the first proviso must be read harmoniously with the substantive provision contained in sub-s. (2) and the only way of harmonising the two is to accept the view which the Punjab High Court has accepted, namely, that the words "shall have regard to the provisions of this Act merely mean that "where the new Act has slightly modified or clarified the previous provisions, these modifications and clarifications should be applied. We see no other way of harmonising sub-s. (2) with the first proviso thereto.We do not think that it would be right to read the first proviso of sub-s. (2) in that way. It was argued before us that the first proviso related only to two matters, (a) fixation of standard rent and (b) eviction of a tenant, and the intention was that in these two matters only the provisions of the Control Act of 1958 would apply and not in others. If that was the intention, nothing would have been easier than to say in sub-s. (2) - "Notwithstanding such repeal, all suits and other proceedings under the said Act except those for fixation of standard rent and eviction of a tenant etc. Sub-s. (2) does not, however, say so, and if the first proviso is to be interpreted in the manner suggested by the appellant, the provisions as to jurisdiction in the new Act would affect the power of the civil court to pass a decree for eviction.We do not wish, however, to base our decision on these grounds. We think that the proper way of reading sub-s. (2) and the first proviso thereto is to harmonise both in the best way possible. In Bulaqi Das Madan Mohan v. Ram Sarup, 62 Pun LR 231 the view expressed was that the proviso must have some meaning and force and the proviso intended that where the old provisions had been repeated with modifications, the old Act should be interpreted in the light of the modifications so long as they did not involve creating any rights and liabilities. A similar view was expressed by the same Judge in Shri Bimal Parshad Jain v. Shri Niadaramal, 62 Pun LR 664. The question was considered by a Division Bench in Shri Jhabar Mal Chokhani v. Shri Jinendra Pershad, 65 Pun LRagree with the view expressed by Dulat J. We also agree with the High Court that if the first proviso to sub-s. (2) of S. 57 is interpreted in the way contended for by the appellant here, it would really be giving effect to the provisions of the Control Act of 1958 retrospectively, though sub-s. (2) of S. 57 states in clear terms that all suits and proceedings pending at the commencement of the new Act will be dealt in accordance with the provisions of the old Act. This is really putting the same argument that the proviso must be read harmoniously with the substantive provision in another way.13. For the reasons given above we have come to the conclusion that in the present case the respondent-landlord is entitled to the benefit of cl. (c), sub-cl. (i), of the proviso to S. 13(1) of the Control Act of 1952 and the first proviso to sub-s. (2) of S. 57 of the Control Act of 1958 does not stand in his way. He is therefore, entitled to succeed, as the appellant has failed to make out any acquiescence by the landlord to the sub-letting in question.

### Instruction: Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal? ### Input: the substantive provision contained in sub-s. (2) and the only way of harmonising the two is to accept the view which the Punjab High Court has accepted, namely, that the words "shall have regard to the provisions of this Act merely mean that "where the new Act has slightly modified or clarified the previous provisions, these modifications and clarifications should be applied. We see no other way of harmonising sub-s. (2) with the first proviso thereto.11. A similar expression occurring in S. 49 of the Electricity (Supply) Act (LIV of 1948) was considered by this court in the Mysore State Electricity Board v. Bangalore Wollen, Cotton and Silk Mills Ltd., C. A. Nos. 629 to 632 of 1961 D/- 15-11-1962 unreported: (now reported in AIR 1963 SC 1128 ). This court referred to the decision of the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi, 70 Ind App 129: (AIR 1943 PC 164) and expressed agreement with the view of the Privy Council that the expression "have regard to or "having regard to has no more definite or technical meaning than that of ordinary usage, and only required that the provisions to which regard must be had should be taken into consideration. If the expression "have regard to in the first proviso to sub-s. (2) means that the provisions of the Control Act of 1958 shall apply to all such suits or proceedings as are referred to in sub-s. (2) except in the matter of jurisdiction of the civil court, then in reality the substantive provision of sub-s. (2) will be denuded of its full effect for all practical purposes. We do not think that it would be right to read the first proviso of sub-s. (2) in that way. It was argued before us that the first proviso related only to two matters, (a) fixation of standard rent and (b) eviction of a tenant, and the intention was that in these two matters only the provisions of the Control Act of 1958 would apply and not in others. If that was the intention, nothing would have been easier than to say in sub-s. (2) - "Notwithstanding such repeal, all suits and other proceedings under the said Act except those for fixation of standard rent and eviction of a tenant etc. Sub-s. (2) does not, however, say so, and if the first proviso is to be interpreted in the manner suggested by the appellant, the provisions as to jurisdiction in the new Act would affect the power of the civil court to pass a decree for eviction.12. We now turn to the decisions of the Punjab High Court. In Shri Krishna Aggarwal v. Satya Dev, 61 Pun LR 574 : (AIR 1959 Punj 501) it was held that the first proviso to sub-s. (2) of S. 57 was directory in character and not mandatory; therefore, the courts and authorities concerned had a discretion conferred on them to take into consideration the provisions of the new Act when it was considered necessary in a proper case and in the interest of justice. We do not wish, however, to base our decision on these grounds. We think that the proper way of reading sub-s. (2) and the first proviso thereto is to harmonise both in the best way possible. In Bulaqi Das Madan Mohan v. Ram Sarup, 62 Pun LR 231 the view expressed was that the proviso must have some meaning and force and the proviso intended that where the old provisions had been repeated with modifications, the old Act should be interpreted in the light of the modifications so long as they did not involve creating any rights and liabilities. A similar view was expressed by the same Judge in Shri Bimal Parshad Jain v. Shri Niadaramal, 62 Pun LR 664. The question was considered by a Division Bench in Shri Jhabar Mal Chokhani v. Shri Jinendra Pershad, 65 Pun LR 469. At pages 474 and 475 of the report Dulat, J. who spoke for the Bench said :"It would thus appear that apart from Gosain, J. the other learned Judges of this court have generally agreed that the proviso to s. 57, sub-section (2), does not demand that a suit for the eviction of a tenant filed under the previous Act of 1952 must be governed entirely by the provisions of the new Act but that, on the other hand, the provisions applicable continue to be the provisions of the old Act with this addition that, where the new Act has slightly modified or clarified the previous provisions, those modifications and clarifications should be applied, but, where entirely new rights and new liabilities have been created, the new provisions must not be allowed to override the provisions of the previous Act, and nearly all the cases have been decided on that basis.We agree with the view expressed by Dulat J. We also agree with the High Court that if the first proviso to sub-s. (2) of S. 57 is interpreted in the way contended for by the appellant here, it would really be giving effect to the provisions of the Control Act of 1958 retrospectively, though sub-s. (2) of S. 57 states in clear terms that all suits and proceedings pending at the commencement of the new Act will be dealt in accordance with the provisions of the old Act. This is really putting the same argument that the proviso must be read harmoniously with the substantive provision in another way.13. For the reasons given above we have come to the conclusion that in the present case the respondent-landlord is entitled to the benefit of cl. (c), sub-cl. (i), of the proviso to S. 13(1) of the Control Act of 1952 and the first proviso to sub-s. (2) of S. 57 of the Control Act of 1958 does not stand in his way. He is therefore, entitled to succeed, as the appellant has failed to make out any acquiescence by the landlord to the sub-letting in question. ### Response: 1

Sangat Singh Vs. Ch. Perma Nand Bahl & Others

Rent Control Act, 1958 the suit was not maintainable in the Civil Court and that in any event the notice served upon the appellant did not operate to terminate the tenancy. These contentions were rejected by the Trial Court and a decree in ejectment was passed. The decree was confirmed in appeal to the District Court and in Second Appeal to the High Court, By special leave the appellant has appealed to this Court.3. The principal question which falls to be determined in this appeal is whether the Civil Court had jurisdiction to entertain the suit. The facts may be recalled. The appellant was originally a tenant of the Government; the property was put up for sale by an auction on December 7, 1955 and the bid of the respondents was accepted; till the institution of the suit no certificate of sale or any deed conveying title to the property was executed in favour of the respondents by the Government. Under the Delhi Rent control Act jurisdiction to entertain a proceeding in ejectment on the ground of termination of tenancy is maintainable not in the Civil Court but before the Rent Controller. But by Section 3 of the Act it is provided."Nothing in this Act shall apply-(a) to any premises belonging to the Government; or(b) to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned by the Government;Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any Court or other authority, the provisions of this Act shall apply to such tenancy."4. The respondents contended that the Civil Court had jurisdiction because the premises belonged to the Government. The appellant contended that the premises at the date of the institution of the suit did not belong to the Government and that in any event they were let to him by the respondents "by virtue of an agreement with the Government or otherwise" within the meaning of the proviso. This Court has held that where evacuee property is put up for sale at an auction and the bid is accepted by the Government and price is received by the Government even in the absence of a sale deed executed or a certificate, the purchaser would be deemed to be an owner and not the Government. See the judgment of this Court in Bishan Paul v. Mothu Ram, AIR 1965 SC1994 and Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, Shiv Nath v. Shri Mela Ram, D/-25-4-1969 (SC). But Mr. Misra contended that those cases have no application here for there is no evidence on the record that the price stipulated to be paid was in fact paid by the respondents before the suit was instituted. The question whether the consideration has been paid by the respondents to the Government is one of fact within the special knowledge of the respondents. They have not stated in the plaint nor have they attempted to prove that they have not paid the consideration which was agreed to be paid by them. Our attention was invited to some documents which were not before the trial Court nor before the District Court nor the High Court but were sought to be produced in this Court in support of the plea that the price could not have been paid by the respondents before the suit. We have declined to consider those documents as part of the record. If it was the case of the respondents that the property did belong to the Government and the title was not conveyed to them, it was for them to allege and prove that case.The case therefore does not fall under the terms of Section 3 (a) of the Delhi Rent Control Act.5. In any event the case is clearly governed by the proviso to Section 3.This Court has in interpreting the proviso to Section 3 observed in Civil Appeal No. 546 of 1966 (SC) and the companion appeals."Even if it were assumed that the premises belonged to Government it would have to be held in the circumstances of the case, that it was lawfully let by the respondent to the appellants inasmuch as the Managing Officers giving "provisional possession of the property to the respondent" would really mean delivering symbolical possession of the property to him with the result that a direction on the appellants to pay rent to him would in effect amount to a direction to attorn to him. We are not impressed by the argument that letting within the meaning of the proviso can only apply to a voluntary act on the part of the landlord allowing the former tenant to continue in possession. Acting in pursuance of the direction of the managing officer after the property had been auctioned to the respondent would in law amount to a letting by the respondent to the persons who were tenants under the custodian before."The facts which gave rise to Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D/- 25-4-1969 (SC) appear to be identical with the facts of the present case. The provisional possession had been given by the Managing Officer authorising the respondents to recover the rent and the tenants were directed to attorn to them. There is no dispute that the appellant did attorn to the respondents and according to the decision of this Court in Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D/- 25-1-1969 (SC), a direction of the Managing Officer after an auction sale, to the tenant to attorn to the purchaser and receipt of the rent by the purchaser constitute letting within the meaning of the proviso to Section 3. In either view of the case the suit was not maintainable in the Civil Court.

1[ds]4. The respondents contended that the Civil Court had jurisdiction because the premises belonged to theThe appellant contended that the premises at the date of the institution of the suit did not belong to the Government and that in any event they were let to him by the respondents "by virtue of an agreement with the Government or otherwise" within the meaning of the proviso.This Court has held that where evacuee property is put up for sale at an auction and the bid is accepted by the Government and price is received by the Government even in the absence of a sale deed executed or a certificate, the purchaser would be deemed to be an owner and not the Government. See the judgment of this Court in Bishan Paul v. Mothu Ram, AIR 1965 SC1994 and Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, Shiv Nath v. Shri Mela Ram,Mr. Misra contended that those cases have no application here for there is no evidence on the record that the price stipulated to be paid was in fact paid by the respondents before the suit wasinstituted. The question whether the consideration has been paid by the respondents to the Government is one of fact within the special knowledge of the respondents. They have not stated in the plaint nor have they attempted to prove that they have not paid the consideration which was agreed to be paid by them. Ourattention was invited to some documents which were not before the trial Court nor before the District Court nor the High Court but were sought to be produced in this Court in support of the plea that the price could not have been paid by the respondents before the suit.We have declined to consider those documents as part of the record. If it was the case of the respondents that the property did belong to the Government and the title was not conveyed to them, it was for them to allege and prove that case.The case therefore does not fall under the terms of Section 3 (a) of the Delhi Rent Controlfacts which gave rise to Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D/(SC) appear to be identical with the facts of the present case. The provisional possession had been given by the Managing Officer authorising the respondents to recover the rent and the tenants were directed to attorn to them. There is no dispute that the appellant did attorn to the respondents and according to the decision of this Court in Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D/(SC), a direction of the Managing Officer after an auction sale, to the tenant to attorn to the purchaser and receipt of the rent by the purchaser constitute letting within the meaning of the proviso to Section 3. In either view of the case the suit was not maintainable in the Civil Court.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: Rent Control Act, 1958 the suit was not maintainable in the Civil Court and that in any event the notice served upon the appellant did not operate to terminate the tenancy. These contentions were rejected by the Trial Court and a decree in ejectment was passed. The decree was confirmed in appeal to the District Court and in Second Appeal to the High Court, By special leave the appellant has appealed to this Court.3. The principal question which falls to be determined in this appeal is whether the Civil Court had jurisdiction to entertain the suit. The facts may be recalled. The appellant was originally a tenant of the Government; the property was put up for sale by an auction on December 7, 1955 and the bid of the respondents was accepted; till the institution of the suit no certificate of sale or any deed conveying title to the property was executed in favour of the respondents by the Government. Under the Delhi Rent control Act jurisdiction to entertain a proceeding in ejectment on the ground of termination of tenancy is maintainable not in the Civil Court but before the Rent Controller. But by Section 3 of the Act it is provided."Nothing in this Act shall apply-(a) to any premises belonging to the Government; or(b) to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned by the Government;Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, notwithstanding any judgment, decree or order of any Court or other authority, the provisions of this Act shall apply to such tenancy."4. The respondents contended that the Civil Court had jurisdiction because the premises belonged to the Government. The appellant contended that the premises at the date of the institution of the suit did not belong to the Government and that in any event they were let to him by the respondents "by virtue of an agreement with the Government or otherwise" within the meaning of the proviso. This Court has held that where evacuee property is put up for sale at an auction and the bid is accepted by the Government and price is received by the Government even in the absence of a sale deed executed or a certificate, the purchaser would be deemed to be an owner and not the Government. See the judgment of this Court in Bishan Paul v. Mothu Ram, AIR 1965 SC1994 and Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, Shiv Nath v. Shri Mela Ram, D/-25-4-1969 (SC). But Mr. Misra contended that those cases have no application here for there is no evidence on the record that the price stipulated to be paid was in fact paid by the respondents before the suit was instituted. The question whether the consideration has been paid by the respondents to the Government is one of fact within the special knowledge of the respondents. They have not stated in the plaint nor have they attempted to prove that they have not paid the consideration which was agreed to be paid by them. Our attention was invited to some documents which were not before the trial Court nor before the District Court nor the High Court but were sought to be produced in this Court in support of the plea that the price could not have been paid by the respondents before the suit. We have declined to consider those documents as part of the record. If it was the case of the respondents that the property did belong to the Government and the title was not conveyed to them, it was for them to allege and prove that case.The case therefore does not fall under the terms of Section 3 (a) of the Delhi Rent Control Act.5. In any event the case is clearly governed by the proviso to Section 3.This Court has in interpreting the proviso to Section 3 observed in Civil Appeal No. 546 of 1966 (SC) and the companion appeals."Even if it were assumed that the premises belonged to Government it would have to be held in the circumstances of the case, that it was lawfully let by the respondent to the appellants inasmuch as the Managing Officers giving "provisional possession of the property to the respondent" would really mean delivering symbolical possession of the property to him with the result that a direction on the appellants to pay rent to him would in effect amount to a direction to attorn to him. We are not impressed by the argument that letting within the meaning of the proviso can only apply to a voluntary act on the part of the landlord allowing the former tenant to continue in possession. Acting in pursuance of the direction of the managing officer after the property had been auctioned to the respondent would in law amount to a letting by the respondent to the persons who were tenants under the custodian before."The facts which gave rise to Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D/- 25-4-1969 (SC) appear to be identical with the facts of the present case. The provisional possession had been given by the Managing Officer authorising the respondents to recover the rent and the tenants were directed to attorn to them. There is no dispute that the appellant did attorn to the respondents and according to the decision of this Court in Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D/- 25-1-1969 (SC), a direction of the Managing Officer after an auction sale, to the tenant to attorn to the purchaser and receipt of the rent by the purchaser constitute letting within the meaning of the proviso to Section 3. In either view of the case the suit was not maintainable in the Civil Court. ### Response: 1

CHIEF REGIONAL MANAGER UNITED INDIA INSURANCE COMPANY LIMITED Vs. SIRAJ UDDIN KHAN

1986 which had directed that the respondent be paid 50% of the back wages for the period from 17-10-1985 to 10-11-1995 should be complied with.9. The learned counsel for the appellant has pointed out that as the respondent had not attended to his duties for almost 15 years despite having been called upon to do so repeatedly, the direction of the Division Bench to grant him back wages from 17-10-1985 to 10-11-1995 was clearly not justified on the principle of ?no work no pay?. She has pointed out that the appellant Authority would have been fully justified even if it had dismissed the respondent from service, but on the contrary, a huge benefit had already been given to him as he had been taken back in service despite having remained absent for almost fifteen years.10. The learned counsel for the respondent has, however, supported the judgment of the Division Bench. We are of the opinion that in the light of the fact that the respondent did not report for duty for 15 years, there was no justification whatsoever to grant him any back wages on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. We also find that the judgment dated 13-8-1999 which had attained finality had directed as under:?(a) Insofar as the salary of the writ petitioner is concerned during the period he stayed away from the work, the respondent Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits.? 11. This claim was considered by the competent authority and rejected for valid reasons. We are, thus, unable to endorse the High Court?s order for payment of 50% back wages for the period from 17-10-1985 to 10-11-1995 which are far in excess of the directions in the order dated 13-8- 1999. We accordingly allow this appeal, set aside the order of the Division Bench and restore the order of the learned Single Judge dated 15-4-2004.? 19. This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. 20. We may further notice the judgment of this Court, which has also been relied on by the respondent in his counter affidavit, i.e., judgment of this Court in Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and Others (2016) 16 SCC 663). In the above case, the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of retirement, which was allowed by learned Single Judge. Learned Single Judge has denied the back wages to the appellant on the principle of ?no work no pay?. The order of learned Single Judge was assailed by the appellant by filing a Letters Patent Appeal, which too was dismissed. This Court allowed the appeal of the appellant and made following observations in paragraph Nos. 3 and 4:- "3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1-1-2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1- 1-2003 to 31-12-2005, the respondent cannot be allowed to press the self-serving plea of denying him wages for the period in question, on the plea of the principle of ?no work no pay?.4. For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extent of denying wages to the appellant, for the period from 1-1-2003 to 31-12-2005 deserves to be set aside. The same is accordingly hereby set aside.? 21. This Court held in the above case that; having restrained the appellant from rendering his services with effect from 1-1-2003 to 31-12-2005, the respondent cannot be allowed to press the plea of the principle of ?no work no pay? for denying the wages. In the above case, the appellant was restrained from working due to order of retirement dated 31.12.2002, due to which he could not work till his normal retirement. When the order dated 31.12.2002 was set aside, automatically, he became entitled for back wages and the principle of ?no work no pay? was not attracted. 22. In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon.

1[ds]A perusal of the judgment of learned Single Judge dated 29.05.2015 indicates that although learned Single Judge has set aside the order dated 26.06.2012, but there was no order for payment of back wages or consequential benefits. Learned Single Judge has set aside the order dated 26.06.2012 and has left the matter there.There is clear difference between the direction of the High Court insofar as setting aside the order dated 14.05.2009 is concerned and insofar as setting aside the order dated 26.06.2012 is concerned, whereas there is a clear direction for payment of consequential reliefs while setting aside the order dated 14.05.2009 there is no direction with regard to payment of salary while setting aside the order dated 26.06.2012, hence the question was required to be gone into by learned Single Judge while deciding the Writ Petition No.61102 of 2017. We may also notice the consideration of learned Single Judge while noticing the claim of the respondent for quashing and setting aside the order dated 26.06.2012.There is no adjudication regarding claim of salary or back wages to the respondent in the impugned judgment of learned Single Judge for the period 15.05.2009 to 20.06.2012. Learned Single Judge was of the opinion that in view of the setting aside of the order dated 26.06.2012, payment of salary is automatic, which view of the Single Judge is not correct. The present is not a case where the respondent was dismissed from the service and consequent to dismissal, he could not work and when dismissal was set aside, he will be automatically entitled for back wages.We may hasten to add that present is not a case where respondent was kept away from the work on account of dismissal. Admittedly, the respondent attained the age of retirement on 20.06.2012 and order terminating his services was passed only on 26.06.2012, which was rightly held to be ineffective.18. We may notice another judgment of this Court in Airports Authority of India and Others Vs. Shambhu Nath Das alias S.N. Das, (2008) 11 SCC 498. In the above case, the respondent did not join after expiry of the leave. The respondent was issued a warning that unless he joins on or before 30.10.1985, failing which it would be presumed that he had voluntarily abandoned his service with the consequence that his name would be struck off the rolls with effect from 01.11.1985. The said order was challenged by the respondent and learned Sigle Judge on 10.11.1995 directed the Airports Authority of India to allow the respondent to join duty but it was held that he shall not be entitled for the arrears of pay for the period he was absent. The order of learned Single Judge was again challenged by the respondent without joining. The Division Bench set aside the order of the learned Single Judge and remanded the matter back to the learned Single Judge. Learned Single Judge directed the appellant to reinstate the respondent and further directed that insofar as the salary of the writ petitioner is concerned, during the period he stayed away from the work, Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits during the period from 17.10.1985 till 10.11.1995. The Airports Authority of India accepted the judgment and allowed him to join w.e.f. 01.11.1999 and passed an order on 14.05.2002 holding that the period of unauthorised absence was to be treated as dies-non and the claim for back wages was accordingly disallowed on the principle of "no work no pay". The order dated 14.05.2002 was once again challenged by the respondent claiming back wages, which was allowed by the learned Single Judge. On further denial of claim, matter was taken by respondent to learned Single Judge to issue certain directions. Against the learned Single Judge?s Order, matter was taken in appeal before Division Bench, where direction to pay 50% of back wages was issued.This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: 1986 which had directed that the respondent be paid 50% of the back wages for the period from 17-10-1985 to 10-11-1995 should be complied with.9. The learned counsel for the appellant has pointed out that as the respondent had not attended to his duties for almost 15 years despite having been called upon to do so repeatedly, the direction of the Division Bench to grant him back wages from 17-10-1985 to 10-11-1995 was clearly not justified on the principle of ?no work no pay?. She has pointed out that the appellant Authority would have been fully justified even if it had dismissed the respondent from service, but on the contrary, a huge benefit had already been given to him as he had been taken back in service despite having remained absent for almost fifteen years.10. The learned counsel for the respondent has, however, supported the judgment of the Division Bench. We are of the opinion that in the light of the fact that the respondent did not report for duty for 15 years, there was no justification whatsoever to grant him any back wages on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. We also find that the judgment dated 13-8-1999 which had attained finality had directed as under:?(a) Insofar as the salary of the writ petitioner is concerned during the period he stayed away from the work, the respondent Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits.? 11. This claim was considered by the competent authority and rejected for valid reasons. We are, thus, unable to endorse the High Court?s order for payment of 50% back wages for the period from 17-10-1985 to 10-11-1995 which are far in excess of the directions in the order dated 13-8- 1999. We accordingly allow this appeal, set aside the order of the Division Bench and restore the order of the learned Single Judge dated 15-4-2004.? 19. This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. 20. We may further notice the judgment of this Court, which has also been relied on by the respondent in his counter affidavit, i.e., judgment of this Court in Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and Others (2016) 16 SCC 663). In the above case, the appellant was retired from service on 31.12.2002, even though he would have, in the ordinary course, attained his date of retirement on superannuation, only on 31.12.2005. The appellant assailed the order of retirement, which was allowed by learned Single Judge. Learned Single Judge has denied the back wages to the appellant on the principle of ?no work no pay?. The order of learned Single Judge was assailed by the appellant by filing a Letters Patent Appeal, which too was dismissed. This Court allowed the appeal of the appellant and made following observations in paragraph Nos. 3 and 4:- "3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1-1-2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1- 1-2003 to 31-12-2005, the respondent cannot be allowed to press the self-serving plea of denying him wages for the period in question, on the plea of the principle of ?no work no pay?.4. For the reasons recorded hereinabove, we are satisfied, that the impugned order passed by the High Court, to the limited extent of denying wages to the appellant, for the period from 1-1-2003 to 31-12-2005 deserves to be set aside. The same is accordingly hereby set aside.? 21. This Court held in the above case that; having restrained the appellant from rendering his services with effect from 1-1-2003 to 31-12-2005, the respondent cannot be allowed to press the plea of the principle of ?no work no pay? for denying the wages. In the above case, the appellant was restrained from working due to order of retirement dated 31.12.2002, due to which he could not work till his normal retirement. When the order dated 31.12.2002 was set aside, automatically, he became entitled for back wages and the principle of ?no work no pay? was not attracted. 22. In the present case, as noted above, the respondent was not kept away from work by any order of the appellant. The order of termination of his services/dismissal was passed on 26.06.2012, after his retirement on 20.06.2012, which in no manner prohibited the respondent from working. The respondent during submission has submitted that he was illegally transferred to Branch Office, Jaunpur from Allahabad. He was suffering from a disability of more than 40% and he could not have been transferred to another place. There is nothing on record to indicate that transfer of respondent from Branch Office, Allahabad to Branch Office, Jaunpur was at any time set aside or withdrawn. The salary upto 14.05.2009 was allowed to the respondent on account of setting aside of the order dated 14.05.2009, which was with all consequential benefits but with regard to entitlement of salary after 14.05.2009 to 20.06.2012, there has been no adjudication by the High Court, which is apparent from judgment of the High Court dated 03.07.2018, as extracted above.23. Learned Single Judge having itself not determined the entitlement of respondent to receive salary after 14.05.2009 to 20.06.2012, it ought to have directed the appellant to consider the entitlement and take a decision thereon. ### Response: 1

NATIONAL PETROLEUM CONSTRUCTION COMPANY Vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(2), INTERNATIONAL TAXATION, NEW DELHI & ANR

obligation to deduct TDS is limited to appropriate proportion of income chargeable to tax under the IT Act that forms part of the gross sum of money payable to the non-resident. A person paying any sum to a non-resident is not liable to deduct any tax at source if such sum is not chargeable to tax under the IT Act, as held by this Court in G E India Technology Centre Pvt. Ltd. v. Commissioner of Income Tax and Another (2010) 327 ITR 456 (SC) . 37. The High Court rightly held that the question of whether the Appellant had PE, could not possibly be undertaken in an enquiry for issuance of Certificate under Section 197 of the IT Act, having regard to the time-frame permissible in law for deciding an application, more so, when regular assessment had been completed in respect of the immediate preceding year and the Appellant found to be taxable under the IT Act at 10% of the contractual receipts. The Assessing Authority found that the Appellant had PE in India in the concerned Assessment Years. The appeal of the Appellant is possibly pending disposal. 38. As held by the High Court, it is well settled that the principle that res judicata is not applicable to income tax proceedings because assessment for each year is final only for that year and does not cover later years. 39. Whether the Appellant had PE or not, during the Assessment Year in question, is a disputed factual issue, which has to be determined on the basis of the scope, extent, nature and duration of activities in India. Whether project activity in India continued for a period of more than nine months, for taxability in India in terms of the AADT, is a question of fact, that has to be determined separately for each Assessment Year. 40. It may be true, that for a non-resident entity to be taxed in India, it should carry on business through a Permanent Establishment in India, as held by this Court in Ishikawajima-Harima Heavy Industries Ltd. v. Director of Income Tax, Mumbai (2007) 288 ITR 408 (SC) and Commissioner of Income Tax and Anr. v. Hyundai Heavy Industries Co. Ltd. (2007) 291 ITR 482 (SC) . However, the judgments would only be attracted if there were a definite finding that the Appellant did not have any PE in India during the Assessment Year in question, which as stated above, would also depend on the duration and scope of the activities in India. The nature, extent and the duration of work done in India, could vary from year to year. 41. It is reiterated that in the immediately preceding Assessment Year, the Assessing Authority proceeded to assess the Appellant on the basis that it did have a Permanent Establishment (PE) in India. Moreover, as rightly held by the High Court, Ishikawajima-Harima Heavy Industries (supra) and Hyundai Heavy Industries (supra) related to assessment proceedings whereas this case pertains to issuance of certificate under Section 197 of the IT Act. The scope of enquiry and investigation in proceedings for grant of Certificate under Section 197 of the IT Act is different from the scope of assessment proceedings. The High Court rightly declined to direct the Revenue to hold that the Appellant did not have PE in India. 42. By its letter dated 22nd June 2019, referred to above, the Appellant made a request to the Revenue for issuance of Certificate under Section 197(1) of the IT Act permitting deduction of TDS at the rate of 4% plus applicable surcharge and cess, for all contractual receipts, in line with assessment proceedings for the Assessment Year 2016-2017 without prejudice to its legal position, since the Appellant had been facing financial hardship and urgently required funds. On 26th June 2019, the Respondent No.1 issued the impugned Certificate directing ONGC to deduct TDS at the rate of 4% for all sums receivable in respect of activities both outside and inside India. 43. The impugned Certificate being as per the request of the Appellant, it is not open to the Appellant to make a volte-face and challenge the impugned Certificate. 44. It may be true that the letter of request dated 22nd June 2019, of the Appellant, referred to above, for issuance of a Certificate under Section 197 of the IT Act, for TDS at the rate of 4% on all receipts was without prejudice to the rights in law and contentions of the Appellant. Such a request without prejudice to the rights and contentions of the Appellant would not operate as estoppel against the Appellant in any Assessment Proceedings, Appellate proceedings or any other proceedings. However, the impugned Certificate having been issued as per the Appellants own request, the Appellant is estopped from questioning the impugned Certificate by initiation of proceedings under Article 226 of the Constitution of India. The Appellant itself made a request for Certificate for TDS at the rate of 4% on all receipts. 45. There is no such infirmity in the reasoning of the High Court which calls for interference of this Court under Article 136 of the Constitution of India. As rightly held by the High Court, since the Appellant requested issuance of Certificate for deduction of TDS at 4% of taxable value it is not for the Appellant to challenge the certificate. Moreover, it appears that in the final assessment for one or two preceding Assessment Years it was found that the Appellant did have PE in India. Appeals are pending. In any event, Tax deducted at source is adjustable against the tax, if any, ultimately assessed as payable by the Assessee and any excess tax deducted is refundable with interest. Interference is not warranted at this stage. 46. Moreover, in course of hearing, Counsel for the Revenue handed us a Draft Assessment Order, issued in respect of the Assessment Year in question, that is 2020-21, holding that the Appellant had PE in India and was liable to tax in India under the IT Act.

0[ds]36. It is well settled that the obligation to deduct TDS is limited to appropriate proportion of income chargeable to tax under the IT Act that forms part of the gross sum of money payable to the non-resident. A person paying any sum to a non-resident is not liable to deduct any tax at source if such sum is not chargeable to tax under the IT Act, as held by this Court in G E India Technology Centre Pvt. Ltd. v. Commissioner of Income Tax and Another (2010) 327 ITR 456 (SC) .37. The High Court rightly held that the question of whether the Appellant had PE, could not possibly be undertaken in an enquiry for issuance of Certificate under Section 197 of the IT Act, having regard to the time-frame permissible in law for deciding an application, more so, when regular assessment had been completed in respect of the immediate preceding year and the Appellant found to be taxable under the IT Act at 10% of the contractual receipts. The Assessing Authority found that the Appellant had PE in India in the concerned Assessment Years. The appeal of the Appellant is possibly pending disposal.38. As held by the High Court, it is well settled that the principle that res judicata is not applicable to income tax proceedings because assessment for each year is final only for that year and does not cover later years.39. Whether the Appellant had PE or not, during the Assessment Year in question, is a disputed factual issue, which has to be determined on the basis of the scope, extent, nature and duration of activities in India. Whether project activity in India continued for a period of more than nine months, for taxability in India in terms of the AADT, is a question of fact, that has to be determined separately for each Assessment Year.40. It may be true, that for a non-resident entity to be taxed in India, it should carry on business through a Permanent Establishment in India, as held by this Court in Ishikawajima-Harima Heavy Industries Ltd. v. Director of Income Tax, Mumbai (2007) 288 ITR 408 (SC) and Commissioner of Income Tax and Anr. v. Hyundai Heavy Industries Co. Ltd. (2007) 291 ITR 482 (SC) . However, the judgments would only be attracted if there were a definite finding that the Appellant did not have any PE in India during the Assessment Year in question, which as stated above, would also depend on the duration and scope of the activities in India. The nature, extent and the duration of work done in India, could vary from year to year.41. It is reiterated that in the immediately preceding Assessment Year, the Assessing Authority proceeded to assess the Appellant on the basis that it did have a Permanent Establishment (PE) in India. Moreover, as rightly held by the High Court, Ishikawajima-Harima Heavy Industries (supra) and Hyundai Heavy Industries (supra) related to assessment proceedings whereas this case pertains to issuance of certificate under Section 197 of the IT Act. The scope of enquiry and investigation in proceedings for grant of Certificate under Section 197 of the IT Act is different from the scope of assessment proceedings. The High Court rightly declined to direct the Revenue to hold that the Appellant did not have PE in India.42. By its letter dated 22nd June 2019, referred to above, the Appellant made a request to the Revenue for issuance of Certificate under Section 197(1) of the IT Act permitting deduction of TDS at the rate of 4% plus applicable surcharge and cess, for all contractual receipts, in line with assessment proceedings for the Assessment Year 2016-2017 without prejudice to its legal position, since the Appellant had been facing financial hardship and urgently required funds. On 26th June 2019, the Respondent No.1 issued the impugned Certificate directing ONGC to deduct TDS at the rate of 4% for all sums receivable in respect of activities both outside and inside India.43. The impugned Certificate being as per the request of the Appellant, it is not open to the Appellant to make a volte-face and challenge the impugned Certificate.44. It may be true that the letter of request dated 22nd June 2019, of the Appellant, referred to above, for issuance of a Certificate under Section 197 of the IT Act, for TDS at the rate of 4% on all receipts was without prejudice to the rights in law and contentions of the Appellant. Such a request without prejudice to the rights and contentions of the Appellant would not operate as estoppel against the Appellant in any Assessment Proceedings, Appellate proceedings or any other proceedings. However, the impugned Certificate having been issued as per the Appellants own request, the Appellant is estopped from questioning the impugned Certificate by initiation of proceedings under Article 226 of the Constitution of India. The Appellant itself made a request for Certificate for TDS at the rate of 4% on all receipts.45. There is no such infirmity in the reasoning of the High Court which calls for interference of this Court under Article 136 of the Constitution of India. As rightly held by the High Court, since the Appellant requested issuance of Certificate for deduction of TDS at 4% of taxable value it is not for the Appellant to challenge the certificate. Moreover, it appears that in the final assessment for one or two preceding Assessment Years it was found that the Appellant did have PE in India. Appeals are pending. In any event, Tax deducted at source is adjustable against the tax, if any, ultimately assessed as payable by the Assessee and any excess tax deducted is refundable with interest. Interference is not warranted at this stage.46. Moreover, in course of hearing, Counsel for the Revenue handed us a Draft Assessment Order, issued in respect of the Assessment Year in question, that is 2020-21, holding that the Appellant had PE in India and was liable to tax in India under the IT Act.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: obligation to deduct TDS is limited to appropriate proportion of income chargeable to tax under the IT Act that forms part of the gross sum of money payable to the non-resident. A person paying any sum to a non-resident is not liable to deduct any tax at source if such sum is not chargeable to tax under the IT Act, as held by this Court in G E India Technology Centre Pvt. Ltd. v. Commissioner of Income Tax and Another (2010) 327 ITR 456 (SC) . 37. The High Court rightly held that the question of whether the Appellant had PE, could not possibly be undertaken in an enquiry for issuance of Certificate under Section 197 of the IT Act, having regard to the time-frame permissible in law for deciding an application, more so, when regular assessment had been completed in respect of the immediate preceding year and the Appellant found to be taxable under the IT Act at 10% of the contractual receipts. The Assessing Authority found that the Appellant had PE in India in the concerned Assessment Years. The appeal of the Appellant is possibly pending disposal. 38. As held by the High Court, it is well settled that the principle that res judicata is not applicable to income tax proceedings because assessment for each year is final only for that year and does not cover later years. 39. Whether the Appellant had PE or not, during the Assessment Year in question, is a disputed factual issue, which has to be determined on the basis of the scope, extent, nature and duration of activities in India. Whether project activity in India continued for a period of more than nine months, for taxability in India in terms of the AADT, is a question of fact, that has to be determined separately for each Assessment Year. 40. It may be true, that for a non-resident entity to be taxed in India, it should carry on business through a Permanent Establishment in India, as held by this Court in Ishikawajima-Harima Heavy Industries Ltd. v. Director of Income Tax, Mumbai (2007) 288 ITR 408 (SC) and Commissioner of Income Tax and Anr. v. Hyundai Heavy Industries Co. Ltd. (2007) 291 ITR 482 (SC) . However, the judgments would only be attracted if there were a definite finding that the Appellant did not have any PE in India during the Assessment Year in question, which as stated above, would also depend on the duration and scope of the activities in India. The nature, extent and the duration of work done in India, could vary from year to year. 41. It is reiterated that in the immediately preceding Assessment Year, the Assessing Authority proceeded to assess the Appellant on the basis that it did have a Permanent Establishment (PE) in India. Moreover, as rightly held by the High Court, Ishikawajima-Harima Heavy Industries (supra) and Hyundai Heavy Industries (supra) related to assessment proceedings whereas this case pertains to issuance of certificate under Section 197 of the IT Act. The scope of enquiry and investigation in proceedings for grant of Certificate under Section 197 of the IT Act is different from the scope of assessment proceedings. The High Court rightly declined to direct the Revenue to hold that the Appellant did not have PE in India. 42. By its letter dated 22nd June 2019, referred to above, the Appellant made a request to the Revenue for issuance of Certificate under Section 197(1) of the IT Act permitting deduction of TDS at the rate of 4% plus applicable surcharge and cess, for all contractual receipts, in line with assessment proceedings for the Assessment Year 2016-2017 without prejudice to its legal position, since the Appellant had been facing financial hardship and urgently required funds. On 26th June 2019, the Respondent No.1 issued the impugned Certificate directing ONGC to deduct TDS at the rate of 4% for all sums receivable in respect of activities both outside and inside India. 43. The impugned Certificate being as per the request of the Appellant, it is not open to the Appellant to make a volte-face and challenge the impugned Certificate. 44. It may be true that the letter of request dated 22nd June 2019, of the Appellant, referred to above, for issuance of a Certificate under Section 197 of the IT Act, for TDS at the rate of 4% on all receipts was without prejudice to the rights in law and contentions of the Appellant. Such a request without prejudice to the rights and contentions of the Appellant would not operate as estoppel against the Appellant in any Assessment Proceedings, Appellate proceedings or any other proceedings. However, the impugned Certificate having been issued as per the Appellants own request, the Appellant is estopped from questioning the impugned Certificate by initiation of proceedings under Article 226 of the Constitution of India. The Appellant itself made a request for Certificate for TDS at the rate of 4% on all receipts. 45. There is no such infirmity in the reasoning of the High Court which calls for interference of this Court under Article 136 of the Constitution of India. As rightly held by the High Court, since the Appellant requested issuance of Certificate for deduction of TDS at 4% of taxable value it is not for the Appellant to challenge the certificate. Moreover, it appears that in the final assessment for one or two preceding Assessment Years it was found that the Appellant did have PE in India. Appeals are pending. In any event, Tax deducted at source is adjustable against the tax, if any, ultimately assessed as payable by the Assessee and any excess tax deducted is refundable with interest. Interference is not warranted at this stage. 46. Moreover, in course of hearing, Counsel for the Revenue handed us a Draft Assessment Order, issued in respect of the Assessment Year in question, that is 2020-21, holding that the Appellant had PE in India and was liable to tax in India under the IT Act. ### Response: 0

The New Maneck Chowk Spinning And Weaving Co., Ltd Vs. The Textile Labour Association,Ahmedabad

so-called goodwill bonus, for that bonus depends upon the goodwill of the parties and on their free consent. In the absence of such free consent, there can be no question of any goodwill bonus. 14. Before we part with these appeals, however, we must briefly advert to the general considerations which have been pressed before us very strongly by Mr. Vasavada for the respondents and Mr. Ambekar for the intervening parties. It has been urged before us that we should be reluctant to interfere with the agreement because it has worked satisfactorily in Ahmedabad, and the reversal of the award under appeal may lead to discontent in a very important centre of textile industry in this country. It has also been strenuously argued that the Agreement offers a very reasonable solution to the vexed problem of bonus and the pattern set by it has been copied in Bombay, Madhya Pradesh and Coimbatore. If the pattern thus set for determining the textile employees claim for bonus has been adopted by a substantial part of the textile industry in this country, the Court should desist from disturbing the smooth working of the said pattern unless it is compelled to do so. It may be conceded that some features of the Agreement are undoubtedly very reasonable and in the interest of the industry as a whole. The agreement has put a ceiling on bonus and that is a term very much in favour of the employer, because in some cases where the available surplus is very large, then under the working of the Full Bench formula the employees are tempted to claim, and industrial tribunals are justified in awarding, a proportionately substantial amount as bonus reaching or even exceeding in some cases the level of basic wages of even 8 or 9 months. This trend has been controlled by the Agreement. It is true that the Agreement requires the payment of the minimum bonus but this provision is intended to work as a part of the larger agreement spreading over some years and the employer has agreed to pay the minimum bonus even though in a particular year he may have no available surplus, because he and his employees expect or anticipate that the employer may have available surplus in the succeeding year. The working of the Agreement is really intended to spread over a number of year and the account between the employers and the employees in that behalf is conceived as a continuing and running account. These features of the Agreement may be regarded as commendable. 15. The problem of rehabilitation which has assumed a complex form has also been attempted to be solved by the Agreement in a practical way. the solution adopted by the Agreement in that behalf, it is claimed, is based on the historical and factual genesis of the original formula evolved by the Full Bench of the Labour Appellate Tribunal when it dealt with the problem of the textile industry in Bombay. The argument is that until 1962, the Agreement should be allowed to work when the position may be reviewed at length. Since this Court delivered its judgment in the case of Associated Cement Companies, 1959 SCR 925 : (AIR 1959 SC 967 ) it has come to our notice that in cases where the employer claims an exaggerated amount for rehabilitation, or where a reasonable claim made by the employer in that behalf is unreasonably challenged by the employees, the dispute is protracted. The trial of the issue tends to become complicated, and that leads to bitterness between the parties. It has been urged before us that time has now come when the industrial courts will have to face the problem of radically changing the formula. It is argued that modern economic thought does not encourage the theory that the whole of the rehabilitation amount must come from the current profits of the industry and it was stated before us that Government may have gradually to step in to assist the industry by advancing sufficient loans on reasonable terms to enable the industry to meet the demand of its rehabilitation. However, as we pointed out in our decision in the case of Associated Cement Companies, 1959 SCR 925 : (AIR 1959 SC 967 ) these matters can be properly and effectively decided by an industrial court if the major representative industries in the country and their employees are brought before it with a proper reference, or it can be tackled more appropriately by a high-power commission appointed in that behalf. We were told that the Government of India has taken a decision to appoint such a commission, and that it would soon resolve this problem on a more rational and scientific basis. During the course of the hearing of these appeals we suggested to the parties that in view of the pending appointment of the commission, parties may settle the present dispute amicably and that the appellant-mills may fall in line with the rest of the mills in Ahmedabad, but despite their best efforts the parties could not settle the dispute and wanted a decision from his court on the points of law raised in the present appeals; that is why we have had to decide the points of law, and in doing so inevitably general considerations to which we have just adverted cannot play a material part. 16. In the course of the argument reference was made by Mr. Ambekar to the concept of goodwill bonus that again is a matter which may be evolved by agreement between the parties or decided by a high power commission. If the matter has to be decided according to law as has been laid down by this Court then the conclusion would be inevitable that on essential points the Agreement departs from the Full Bench formula, and however commendable it may be on the whole it can continue only by agreement and cannot be enforced by industrial adjudication against the will of any of the parties;

1[ds]There is no doubt therefore that it is open to an industrial court in an appropriate case to impose new obligations on the parties before it or modify contracts in the interest of industrial peace or give awards which may have the effect of extending existing agreement or making a new one. This, however, does not mean that an industrial court can do anything and everything when dealing with an industrial dispute. This power is conditioned by the subject-matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to that matter as laid down by the legislature or by this CourtWe are in the present case dealing with bonus of the fourth kind, namely, profit bonus and what we say subsequently refers only to this kind of bonusIt would thus be clear that the essential concept of profit bonus is that there should be an available surplus determined according to the principles laid down in the cases mentioned above for distribution. If there is no such available surplus for distribution, there can be no case for payment of profit bonus. This is the industrial law as laid down by this Court Companies case, 1959 SCR 925 : (AIR 1959 SC 967 ). It would in our opinion be not open to an industrial court or tribunal to ignore this law as to bonus and to extend an agreement for payment of bonus, which is against the basic concept of bonus as laid down by the decisions of this Court on the ground that an industrial court has power generally to extend agreements or to create new obligations. As already pointed out, that power has to be exercised keeping in view the subject-matter before the tribunal and the law laid down by the legislature or by the decisions of this Court, with respect to that subject-matter. The industrial court in this case was not unaware of this position, viz., that it was departing from the law laid down in Associated Cement Companies case, 1959 SCR 925 : (AIR 1959 SC 967 ) and other bonus cases; but it held that this Court was dealing in those cases with individual units, and not with a case where there were numerous concerns in an industry at one centre, with its particular historical background, where previous awards had been on an industry-wise basis. It therefore held that the decisions of this Court could not apply in their entirety to the dispute before it and that this Court could not have intended that in a case where there was the additional circumstance that the parties had themselves voluntarily modified the bonus formula in some respects by a long term agreement, that could not be extended by an industrial court. It is the correctness of this view which has been strongly disputed before us by the appellantsNow if these differences were merely of detail and did not affect some of the vital aspects of the Full Bench formula it might be said that there was no ignoring of the law as laid down by this Court and therefore the tribunal was not unjustified in extending the Agreement for a year. But a comparison of the formula in the Agreement with the Full Bench formula shows differences in three vital aspects. In the first place, rehabilitation provided in the Agreement differs vitally from rehabilitation as explained in Associated Cement Companies case, 1959 SCR 925 : (AIR 1959 SC 967 ). In the second place, the formula in the Agreement provides for payment of a minimum bonus even though there may be no available surplus and even though the particular mill might have made actual loss. Thirdly, while the Full-Bench formula as approved by this Court treats a particular year as a self-sufficient unit, there is provision for set-off and set-on in the formula in the AgreementThe tribunal therefore when it extended the formula in the Agreement which departed from the Full Bench formula in certain vital aspects was undoubtedly ignoring the industrial law as laid down by this Court and going against it. It was its duty when dealing with the question of profit bonus to apply the Full Bench formula, as approved by this Court and then arrive at the quantum of bonus to be awarded in the case of each mill. In particular by extending the Agreement the tribunal made it possible for payment of a minimum bonus even when there was either insufficient available surplus to pay bonus or no available surplus at all or even actual loss; the tribunal was thus definitely going against the industrial law relating to bonus as laid down by this Court. It had in our opinion no power to do so and the reasons which it gave for departing from the law laid down by this Court are unsubstantial and do not commend themselves to us. In these circumstances the order of the tribunal extending the Agreement for a year cannot be upheldWhatever may be said about this provision on a long term basis, the tribunals jurisdiction was limited by its terms of reference. There was not one reference before the tribunal on industry-cum-region basis but sixty-six separate references, one relating to each mill. It was required to consider the question of bonus for each mill for the year 1958 only and thus had nothing to do with set-off and set-on or the profits of industry as a whole at Ahmedabad. The tribunal was only concerned with 1958 and no consideration as to what happened before that year or what may happened after 1958 could enter into its decision of the question of bonus for the year 1958. The principle of set-off and set-on therefore to be found in the Agreement could not convert payment of bonus for 1958, say, by a loss making mill into profit bonus as laid down by the decisions of this Court. The tribunals award in this case therefore would clearly be against the law as to bonus laid down by this Court, for its jurisdiction was confined only to the year 1958 and no moreIt is enough to say that so far as what is called goodwill bonus is concerned it pre-supposes that it is given by the employer out of his own free will without any conclusion by an industrial court. As its very name implies it is a bonus which is given by the employer out of his free consent in order that there may be goodwill between him and his workmen; but there can be no question of imposing a goodwill bonus by industrial courts, as imposition of such a bonus is a contradiction of its very concept. We have already referred to four kinds of bonus which prevail in the industrial law in India and which can in certain circumstances be imposed by industrial tribunals; but there can be no question of the imposition of the so-called goodwill bonus, for that bonus depends upon the goodwill of the parties and on their free consent. In the absence of such free consent, there can be no question of any goodwill bonusIf the pattern thus set for determining the textile employees claim for bonus has been adopted by a substantial part of the textile industry in this country, the Court should desist from disturbing the smooth working of the said pattern unless it is compelled to do so. It may be conceded that some features of the Agreement are undoubtedly very reasonable and in the interest of the industry as a whole. The agreement has put a ceiling on bonus and that is a term very much in favour of the employer, because in some cases where the available surplus is very large, then under the working of the Full Bench formula the employees are tempted to claim, and industrial tribunals are justified in awarding, a proportionately substantial amount as bonus reaching or even exceeding in some cases the level of basic wages of even 8 or 9 months. This trend has been controlled by the Agreement. It is true that the Agreement requires the payment of the minimum bonus but this provision is intended to work as a part of the larger agreement spreading over some years and the employer has agreed to pay the minimum bonus even though in a particular year he may have no available surplus, because he and his employees expect or anticipate that the employer may have available surplus in the succeeding year. The working of the Agreement is really intended to spread over a number of year and the account between the employers and the employees in that behalf is conceived as a continuing and running account. These features of the Agreement may be regarded as commendable15. The problem of rehabilitation which has assumed a complex form has also been attempted to be solved by the Agreement in a practical way. the solution adopted by the Agreement in that behalf, it is claimed, is based on the historical and factual genesis of the original formula evolved by the Full Bench of the Labour Appellate Tribunal when it dealt with the problem of the textile industry in BombayHowever, as we pointed out in our decision in the case of Associated Cement Companies, 1959 SCR 925 : (AIR 1959 SC 967 ) these matters can be properly and effectively decided by an industrial court if the major representative industries in the country and their employees are brought before it with a proper reference, or it can be tackled more appropriately by a high-power commission appointed in that behalf. We were told that the Government of India has taken a decision to appoint such a commission, and that it would soon resolve this problem on a more rational and scientific basis. During the course of the hearing of these appeals we suggested to the parties that in view of the pending appointment of the commission, parties may settle the present dispute amicably and that the appellant-mills may fall in line with the rest of the mills in Ahmedabad, but despite their best efforts the parties could not settle the dispute and wanted a decision from his court on the points of law raised in the present appeals; that is why we have had to decide the points of law, and in doing so inevitably general considerations to which we have just adverted cannot play a material part. Since this Court delivered its judgment in the case of Associated Cement Companies, 1959 SCR 925 : (AIR 1959 SC 967 ) it has come to our notice that in cases where the employer claims an exaggerated amount for rehabilitation, or where a reasonable claim made by the employer in that behalf is unreasonably challenged by the employees, the dispute is protracted. The trial of the issue tends to become complicated, and that leads to bitterness between the partiesIf the matter has to be decided according to law as has been laid down by this Court then the conclusion would be inevitable that on essential points the Agreement departs from the Full Bench formula, and however commendable it may be on the whole it can continue only by agreement and cannot be enforced by industrial adjudication against the will of any of the parties;Even though this Court was dealing with the case of one concern, namely, the Associated Cement Companies, it pointed out that the Full Bench formula had worked fairly satisfactorily all over the country and should continue to be applied without revision till such time as a high-powered commission went into the question. There is in our opinion no question of industry-cum-region approach in the matter of a bonus dispute of this kind. There is no doubt that in many matters, like wages, conditions of service, overtime allowance, dearness allowance, gratuity, nd so on, industry-cum-region approach has been made by industrial courts in this country and, rightly so. But there is, in our opinion, no scope for an approach of this kind in the case of bonus, the basic concept of which is that payment depends on surplus of profits available according to some formula in the case of each industrial concern. Nor can it be said that the Agreement in this case is dealing with bonus in what is known as industry-cum-region basisAs we have said already the basic concept of profit bonus, as it appears from the judgments of this Court, is that there should be an available surplus of profits in a particular concern in a particular year, to which the bonus relates and on this basic concept there is no scope for an approach on the basis of industry-cum-region in the matter of bonus in the sense that every mill in a region should pay the same bonus. There is therefore no question of industry-cum-region approach in the present case, and even the formula in the Agreement is not on a real industry-cum-region approach and has to be worked out from mill to mill, which is like the Full Bench formula. The reasons therefore which led the industrial court in this case to distinguish and depart from the decision of this Court in Associated Cement Companies case, 1959 SCR 925 : (AIR 1959 SC 967 ) do not appear to us to be substantial and there was therefore no ground for departing from that decision for those reasonsAs we read these decisions, we do not find real industry-cum-region approach which would result in uniform bonus for all the mills dealt with by these two awards. What we find is that a different formula was worked out for awarding profit bonus linked with production on the basis that there were profits; but when the formula is worked for each mill the bonus would differ from mill to mill according to its productionIts salient terms as set out above will show that it deals with bonus according to available surplus of each mill, so that bonus paid by each mill depends on its own available surplus and the sixty-six mills situate in Ahmedabad may pay different amounts of bonus varying from a minimum of 4.8 percent, of the basic wages to 25 per cent, of the basic wages. Similar differences will arise if the Full Bench formula is applied to the sixty-six mills in Ahmedabad. Thus the Agreement which has been extended, is not based on industry-cum-region approach, as it is understood. That approach, say, with respect to wages means that wages of all concerns situate in a particular area engaged in a particular industry should be the same. On that approach the bonus of all these sixty-six mills should also be the same percentage for each mill in that area; but that is not the basis on which the Agreement was arrived at. The basis of the Agreement is that each individual mill is treated as a separate unit and its available surplus worked out according to the formula in the Agreement itself. This is also the basis of the Full Bench formula and the available surplus of each unit is worked out according to that formula, though the result of the application of the two formula in each case may not be the same.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: so-called goodwill bonus, for that bonus depends upon the goodwill of the parties and on their free consent. In the absence of such free consent, there can be no question of any goodwill bonus. 14. Before we part with these appeals, however, we must briefly advert to the general considerations which have been pressed before us very strongly by Mr. Vasavada for the respondents and Mr. Ambekar for the intervening parties. It has been urged before us that we should be reluctant to interfere with the agreement because it has worked satisfactorily in Ahmedabad, and the reversal of the award under appeal may lead to discontent in a very important centre of textile industry in this country. It has also been strenuously argued that the Agreement offers a very reasonable solution to the vexed problem of bonus and the pattern set by it has been copied in Bombay, Madhya Pradesh and Coimbatore. If the pattern thus set for determining the textile employees claim for bonus has been adopted by a substantial part of the textile industry in this country, the Court should desist from disturbing the smooth working of the said pattern unless it is compelled to do so. It may be conceded that some features of the Agreement are undoubtedly very reasonable and in the interest of the industry as a whole. The agreement has put a ceiling on bonus and that is a term very much in favour of the employer, because in some cases where the available surplus is very large, then under the working of the Full Bench formula the employees are tempted to claim, and industrial tribunals are justified in awarding, a proportionately substantial amount as bonus reaching or even exceeding in some cases the level of basic wages of even 8 or 9 months. This trend has been controlled by the Agreement. It is true that the Agreement requires the payment of the minimum bonus but this provision is intended to work as a part of the larger agreement spreading over some years and the employer has agreed to pay the minimum bonus even though in a particular year he may have no available surplus, because he and his employees expect or anticipate that the employer may have available surplus in the succeeding year. The working of the Agreement is really intended to spread over a number of year and the account between the employers and the employees in that behalf is conceived as a continuing and running account. These features of the Agreement may be regarded as commendable. 15. The problem of rehabilitation which has assumed a complex form has also been attempted to be solved by the Agreement in a practical way. the solution adopted by the Agreement in that behalf, it is claimed, is based on the historical and factual genesis of the original formula evolved by the Full Bench of the Labour Appellate Tribunal when it dealt with the problem of the textile industry in Bombay. The argument is that until 1962, the Agreement should be allowed to work when the position may be reviewed at length. Since this Court delivered its judgment in the case of Associated Cement Companies, 1959 SCR 925 : (AIR 1959 SC 967 ) it has come to our notice that in cases where the employer claims an exaggerated amount for rehabilitation, or where a reasonable claim made by the employer in that behalf is unreasonably challenged by the employees, the dispute is protracted. The trial of the issue tends to become complicated, and that leads to bitterness between the parties. It has been urged before us that time has now come when the industrial courts will have to face the problem of radically changing the formula. It is argued that modern economic thought does not encourage the theory that the whole of the rehabilitation amount must come from the current profits of the industry and it was stated before us that Government may have gradually to step in to assist the industry by advancing sufficient loans on reasonable terms to enable the industry to meet the demand of its rehabilitation. However, as we pointed out in our decision in the case of Associated Cement Companies, 1959 SCR 925 : (AIR 1959 SC 967 ) these matters can be properly and effectively decided by an industrial court if the major representative industries in the country and their employees are brought before it with a proper reference, or it can be tackled more appropriately by a high-power commission appointed in that behalf. We were told that the Government of India has taken a decision to appoint such a commission, and that it would soon resolve this problem on a more rational and scientific basis. During the course of the hearing of these appeals we suggested to the parties that in view of the pending appointment of the commission, parties may settle the present dispute amicably and that the appellant-mills may fall in line with the rest of the mills in Ahmedabad, but despite their best efforts the parties could not settle the dispute and wanted a decision from his court on the points of law raised in the present appeals; that is why we have had to decide the points of law, and in doing so inevitably general considerations to which we have just adverted cannot play a material part. 16. In the course of the argument reference was made by Mr. Ambekar to the concept of goodwill bonus that again is a matter which may be evolved by agreement between the parties or decided by a high power commission. If the matter has to be decided according to law as has been laid down by this Court then the conclusion would be inevitable that on essential points the Agreement departs from the Full Bench formula, and however commendable it may be on the whole it can continue only by agreement and cannot be enforced by industrial adjudication against the will of any of the parties; ### Response: 1

Dewaji Vs. Ganpatlal

1951-52.8. The appeal was then heard by Badkas, J. It was argued before him that Vyas, J., should not have referred the issue to the Revenue Officer for decision under Section 16 of the 1951 Act, but Badkas, J., held that it would not be appropriate or him to sit in judgment over the decision given by Vyas, J., and that the reference made by Vyas, J., under Section 16 of the 1951 Act had to be accepted. Accepting the finding of the Revenue Courts, Badkas, J., held that the respondent was not entitled to eject the appellant. He further held that it was not necessary to decide whether the 1951 Act was retrospective or not as the 1951Act came into force during the year in which the defendant held survey numbers in question as lessee. He accordingly allowed the appeal.9. Having obtained leave, the respondent appealed under the Letters Patent. It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge. The Bench found no substance in this contention as the point had been raised before the learned Single Judges. The Bench further held that there was no bar to the question of application of the 1953 Act being allowed to be raised.10. Dealing with the merits, the Bench held that:"taking the scheme of the Act into account and the fact that there is no Section in the Act which makes the Act applicable to pending proceedings, it is at once clear that it was not intended to affect pending proceedings. Pending proceedings must continue unaffected by the provision of the Act and whatever questions arose in those proceedings must be decided by the Civil Courts."11. The Bench then accepting the finding of the Civil Courts, held that there was no defence to the suit and the suit must succeed. The Bench also repelled the argument that it was not open to it to consider the entire merits of the Second Appeal as the leave had been given by Badkas, J., and not by Vyas, J. The Bench observed that there was no substance in the contention since the judgment of Vyas, J., was never open to the appeal it being an interlocutory judgment.12. The learned Counsel for the appellant contends that Sections 16, 16A and 16B, as substituted by the 1953 Act, had clearly ousted the jurisdiction of the Civil Courts and Vyas, J., was right in sending the case to Revenue Courts for decision on the question whether the appellant was a tenant in the year 195l-52 or not. He stresses the word "whenever appearing in Section 16 and says that this is a wide word and no limitation can be placed on it. In our view there is no substance in this contention. The first point to be noticed in this connection is that the 1953 Act came into force after the Trial Court had decreed the suit and an appeal was pending before the District Judge.It cannot be disputed that if the Legislature intends to oust the jurisdiction of Civil Courts, it must say so expressly or by necessary implication. We cannot find any words in Secs, 16, 16A and 16B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force. It is true that the word "whenever" is wide but Section 16A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings. Further, Section 16B uses the word "entertain" and not the words "entertain or try any suit" as contained in Section 15 (2) of the 1951 Act. If the intention was to affect pending proceedings, the word "try" along with the word "entertain" would have been used in Section 168 of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals.Sections 16, 16A and 16B do not bar the jurisdiction of the Civil Courts in this case, the Letters Patent Bench was right in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951-52.13. The learned Counsel then contends that it was not open to the Letters Patent Bench to decide this question of the applicability of Sections 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order.It seems to us that the order of Vyas, J., was interlocutory and it was not necessary for the respondent to obtain separate leave to appeal aginst this order. It was open to the Letters Patent Bench to decide all points decided by Vyas, J., in the interlocutory order dated August 21, 1957. At any rate the same point was raised before Badkas, J. Further, as held by this Court in Satyadhyan Ghosal v. Smt. Deorajin Devi, 1960-3 SCR 590 = (AIR 1960 SC 941 ),"an interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order:"Section 105 (2), C. P. C., does not apply in this case, and, therefore, the Letters Patent Bench was entitled to go into the validity of the order passed by Vyas, J.14. The learned Counsel then urged that this was a new point and the Letters Patent Bench should not have allowed it to be taken. But we agree with the Bench that the point had been raised before the learned Single Judges. In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not.

0[ds]9. Having obtained leave, the respondent appealed under the Letters Patent. It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge. The Bench found no substance in this contention as the point had been raised before the learned Single Judges. The Bench further held that there was no bar to the question of application of the 1953 Act being allowed to beis true that the word "whenever" is wide but Section 16A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings. Further, Section 16B uses the word "entertain" and not the words "entertain or try any suit" as contained in Section 15 (2) of the 1951 Act. If the intention was to affect pending proceedings, the word "try" along with the word "entertain" would have been used in Section 168 of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals.Sections 16, 16A and 16B do not bar the jurisdiction of the Civil Courts in this case, the Letters Patent Bench was right in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951-52.13. The learned Counsel then contends that it was not open to the Letters Patent Bench to decide this question of the applicability of Sections 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order.It seems to us that the order of Vyas, J., was interlocutory and it was not necessary for the respondent to obtain separate leave to appeal aginst this order. It was open to the Letters Patent Bench to decide all points decided by Vyas, J., in the interlocutory order dated August 21, 1957.The learned Counsel then urged that this was a new point and the Letters Patent Bench should not have allowed it to be taken. But we agree with the Bench that the point had been raised before the learned Single Judges. In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not.

### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: 1951-52.8. The appeal was then heard by Badkas, J. It was argued before him that Vyas, J., should not have referred the issue to the Revenue Officer for decision under Section 16 of the 1951 Act, but Badkas, J., held that it would not be appropriate or him to sit in judgment over the decision given by Vyas, J., and that the reference made by Vyas, J., under Section 16 of the 1951 Act had to be accepted. Accepting the finding of the Revenue Courts, Badkas, J., held that the respondent was not entitled to eject the appellant. He further held that it was not necessary to decide whether the 1951 Act was retrospective or not as the 1951Act came into force during the year in which the defendant held survey numbers in question as lessee. He accordingly allowed the appeal.9. Having obtained leave, the respondent appealed under the Letters Patent. It was urged before the Letters Patent Bench on behalf of the appellant that the Bench could not deal with the question whether the 1953 Act applied to pending proceedings on the ground that this point had not been argued before the learned Single Judge. The Bench found no substance in this contention as the point had been raised before the learned Single Judges. The Bench further held that there was no bar to the question of application of the 1953 Act being allowed to be raised.10. Dealing with the merits, the Bench held that:"taking the scheme of the Act into account and the fact that there is no Section in the Act which makes the Act applicable to pending proceedings, it is at once clear that it was not intended to affect pending proceedings. Pending proceedings must continue unaffected by the provision of the Act and whatever questions arose in those proceedings must be decided by the Civil Courts."11. The Bench then accepting the finding of the Civil Courts, held that there was no defence to the suit and the suit must succeed. The Bench also repelled the argument that it was not open to it to consider the entire merits of the Second Appeal as the leave had been given by Badkas, J., and not by Vyas, J. The Bench observed that there was no substance in the contention since the judgment of Vyas, J., was never open to the appeal it being an interlocutory judgment.12. The learned Counsel for the appellant contends that Sections 16, 16A and 16B, as substituted by the 1953 Act, had clearly ousted the jurisdiction of the Civil Courts and Vyas, J., was right in sending the case to Revenue Courts for decision on the question whether the appellant was a tenant in the year 195l-52 or not. He stresses the word "whenever appearing in Section 16 and says that this is a wide word and no limitation can be placed on it. In our view there is no substance in this contention. The first point to be noticed in this connection is that the 1953 Act came into force after the Trial Court had decreed the suit and an appeal was pending before the District Judge.It cannot be disputed that if the Legislature intends to oust the jurisdiction of Civil Courts, it must say so expressly or by necessary implication. We cannot find any words in Secs, 16, 16A and 16B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force. It is true that the word "whenever" is wide but Section 16A uses the words "suit or proceeding" and these words do not ordinarily indicate appellate proceedings. Further, Section 16B uses the word "entertain" and not the words "entertain or try any suit" as contained in Section 15 (2) of the 1951 Act. If the intention was to affect pending proceedings, the word "try" along with the word "entertain" would have been used in Section 168 of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals.Sections 16, 16A and 16B do not bar the jurisdiction of the Civil Courts in this case, the Letters Patent Bench was right in accepting the findings given by the Trial Court and the District Court in holding that the appellant was not a tenant for the year 1951-52.13. The learned Counsel then contends that it was not open to the Letters Patent Bench to decide this question of the applicability of Sections 16, 16A and 16B because Vyas, J., had decided to the contrary and had not given leave to appeal against his order.It seems to us that the order of Vyas, J., was interlocutory and it was not necessary for the respondent to obtain separate leave to appeal aginst this order. It was open to the Letters Patent Bench to decide all points decided by Vyas, J., in the interlocutory order dated August 21, 1957. At any rate the same point was raised before Badkas, J. Further, as held by this Court in Satyadhyan Ghosal v. Smt. Deorajin Devi, 1960-3 SCR 590 = (AIR 1960 SC 941 ),"an interlocutory order which did not terminate the proceedings and which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order:"Section 105 (2), C. P. C., does not apply in this case, and, therefore, the Letters Patent Bench was entitled to go into the validity of the order passed by Vyas, J.14. The learned Counsel then urged that this was a new point and the Letters Patent Bench should not have allowed it to be taken. But we agree with the Bench that the point had been raised before the learned Single Judges. In view of this it is not necessary to decide whether a new point can be taken up in a Letters Patent appeal or not. ### Response: 0

N. S. Shethna Vs. Vinubhai Harilal Panchal

being one year only. In the first place we do not see how such a consequence must follow. The procedure for an action under R. 131 is not an elaborate one which would make an inquiry thereunder a prolonged one. In the second place, unless the Rules are found to be ambiguous we do not see how a particular consequence can affect the construction of the Rules. On the other handif we were to treat renewal as continuation of the licence previously granted in a case where a licence is renewed from year to year as it would be in a large number of cases, if a licensee has committed breach of one of the conditions of the licence in any particular year, action against him can be taken in any subsequent year and his licence would be liable to be cancelled or suspended during any such subsequent year for a breach committed by him several years ago. That in some cases penalty by way of suspension might be nullified by reason of expiry of the period of the licence cannot be allowed to affect the interpretation of plain and unambiguous words in a statute or a rule.8. In support of his contention that a renewal is no more than a continuation of the licence previously granted, Mr. Bindra heavily leaned on the decision in V. C. K. Bus Service Ltd v. The Regional Transport Authority, 1957 SCR 663 : (AIR 1957 SC 489): In that case a permit for stage carriage was granted to the appellant under the Motor Vehicles Act, 1939. The appellate authority at the instance of the unsuccessful applicant set aside that order and the government in revision approved the order of the appellate authority and dismissed the revision. The appellant then moved the High Court by a writ petition and during the pendency of that petition the High Court stayed the order, with the result that the appellant could run his buses notwithstanding the cancellation of the order granting him the permit. In the meantime the period fixed under that permit expired and the appellant applied for and got a renewal of the permit under S. 58(2) of the Act. The High Court ultimately dismissed the writ petition. The question arose as to whether the renewal was a continuation of the permit previously granted and whether such renewal went away along with the original permit on its cancellation. This Court held that the renewal was a continuation of the previously granted permit and not a fresh grant and the cancellation of the original permit resulted in the cancellation of the renewal also. The argument urged on behalf of the appellant was that under the Act an application for renewal had to be dealt with exactly in the same manner as an application for a new permit, that when renewal was granted it was on an independent consideration of the merits and further that the granting of renewal was not a matter of right for the authorities would be acting within their power if they were to refuse an application for renewal. It was also contended that though in the case of a lease renewal might mean continuation of the lease for a further period on the same terms and conditions contained in the lease and therefore a renewed lease would be treated as extension of the original lease that consideration was not available in the case of renewal of a licence as it was open to the Licensing Authority to impose new conditions, to alter the period during which it was to operate and generally to modify its terms. Therefore, the use of the word renewal would not lead to an inference that it was the original permit which was being continued. It is noteworthy that Venkatarama Ayyar J. who spoke for the Court said that there was force in these contentions. But he did not sustain them because in the context of S. 58 and the Rules made under the Act and in particular R. 185 the conclusion that renewal in that case was continuation of the original permit was inevitable. In dealing with the reasoning in Anjaiah v. R. T. O. Guntur 1956 Andh LT 347: (AIR 1957 Andh Pra 470) which was relied on and in which a contrary view was taken, the learned Judge again observed at p. 673 of SCR: (at p. 492 of AIR) thatthese considerations though not without force cannot, in our opinion, outweigh the inference to be drawn from the other provisions to which we have made reference ......."It is thus clear that the decision did not lay down a general rule that renewal in all cases must mean continuation of the grant previously made but was rested on the language of the provisions of the Motor Vehicles Act and the Rules made thereunder. As already observed there are no such Rules in the Bombay Cinema Rules 1954 which led this Court to the conclusion in that case that the renewed permit for stage carriage was continuation of the permit previously granted and therefore this decision would not assist the appellant.9. In our view the fact that renewal is not a matter of course, the fact that the Licensing Authority can in proper circumstances refuse an application for renewal and is not precluded from imposing different conditions and can grant it for a different period coupled with the absence of any Rules for renewal are all indications leading, to the result that renewal is a fresh grant and is not merely continuation of the licence previously issued. The High Court was therefore correct in allowing the writ petition on a conclusion that the show cause notice relating to the licence for the year 1960 could not be regarded as a show cause notice in respect of the renewal for the next year and if the renewed licence was sought to be affected in the inquiry a fresh show cause notice relaing to the renewed licence was necessary.10.

0[ds]The Rules relating to the licence for sale of tickets provide as aforesaid that the maximum period for which such a licence can be issued is one year. Renewal of a licence is provided for but only indirectly and in a sort of an off-hand manner by cl. 4 of Form F. It appears therefrom that a licensee has to produce his licence, pay the renewal fee and get entries made on its reverse as to the date of renewal the period upto which it would be valid on such renewal and the fees having been paid therefor. Since the rules do not provide as to how much are the fees for renewal it must be presumed that the fees are the same as for the licence itself. It is clear from the Rules that they do not contain anything to show that the renewed licence is a continuation of the licence previously issued except the fact that the Authority has to make the said entries on the reverse of the licence. The fact that the Rules do not make any provision for the power to renew, the procedure for renewal and for its fees as is done in Chapter VII in the case of a cinema licence is an indication that the draftsman equated renewal of a licence with the issuance of a licence. It may also be observed that it is not as if renewal is automatic nor is it to be granted as a matter of course. If the Licensing Authority desires to impose any fresh conditions there is nothing in the Rules to prevent him from doing so. That being so, a renewal cannot, unless the context requires otherwise, be regarded as a continuation of the licence previously issued. There is also nothing in Chapter VIII or in Form F indicating that the renewal is such athe first place we do not see how such a consequence must follow. The procedure for an action under R. 131 is not an elaborate one which would make an inquiry thereunder a prolonged one. In the second place, unless the Rules are found to be ambiguous we do not see how a particular consequence can affect the construction of the Rules. On the other handif we were to treat renewal as continuation of the licence previously granted in a case where a licence is renewed from year to year as it would be in a large number of cases, if a licensee has committed breach of one of the conditions of the licence in any particular year, action against him can be taken in any subsequent year and his licence would be liable to be cancelled or suspended during any such subsequent year for a breach committed by him several years ago. That in some cases penalty by way of suspension might be nullified by reason of expiry of the period of the licence cannot be allowed to affect the interpretation of plain and unambiguous words in a statute or ais thus clear that the decision did not lay down a general rule that renewal in all cases must mean continuation of the grant previously made but was rested on the language of the provisions of the Motor Vehicles Act and the Rules made thereunder. As already observed there are no such Rules in the Bombay Cinema Rules 1954 which led this Court to the conclusion in that case that the renewed permit for stage carriage was continuation of the permit previously granted and therefore this decision would not assist the appellant.In our view the fact that renewal is not a matter of course, the fact that the Licensing Authority can in proper circumstances refuse an application for renewal and is not precluded from imposing different conditions and can grant it for a different period coupled with the absence of any Rules for renewal are all indications leading, to the result that renewal is a fresh grant and is not merely continuation of the licence previously issued. The High Court was therefore correct in allowing the writ petition on a conclusion that the show cause notice relating to the licence for the year 1960 could not be regarded as a show cause notice in respect of the renewal for the next year and if the renewed licence was sought to be affected in the inquiry a fresh show cause notice relaing to the renewed licence was necessary.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: being one year only. In the first place we do not see how such a consequence must follow. The procedure for an action under R. 131 is not an elaborate one which would make an inquiry thereunder a prolonged one. In the second place, unless the Rules are found to be ambiguous we do not see how a particular consequence can affect the construction of the Rules. On the other handif we were to treat renewal as continuation of the licence previously granted in a case where a licence is renewed from year to year as it would be in a large number of cases, if a licensee has committed breach of one of the conditions of the licence in any particular year, action against him can be taken in any subsequent year and his licence would be liable to be cancelled or suspended during any such subsequent year for a breach committed by him several years ago. That in some cases penalty by way of suspension might be nullified by reason of expiry of the period of the licence cannot be allowed to affect the interpretation of plain and unambiguous words in a statute or a rule.8. In support of his contention that a renewal is no more than a continuation of the licence previously granted, Mr. Bindra heavily leaned on the decision in V. C. K. Bus Service Ltd v. The Regional Transport Authority, 1957 SCR 663 : (AIR 1957 SC 489): In that case a permit for stage carriage was granted to the appellant under the Motor Vehicles Act, 1939. The appellate authority at the instance of the unsuccessful applicant set aside that order and the government in revision approved the order of the appellate authority and dismissed the revision. The appellant then moved the High Court by a writ petition and during the pendency of that petition the High Court stayed the order, with the result that the appellant could run his buses notwithstanding the cancellation of the order granting him the permit. In the meantime the period fixed under that permit expired and the appellant applied for and got a renewal of the permit under S. 58(2) of the Act. The High Court ultimately dismissed the writ petition. The question arose as to whether the renewal was a continuation of the permit previously granted and whether such renewal went away along with the original permit on its cancellation. This Court held that the renewal was a continuation of the previously granted permit and not a fresh grant and the cancellation of the original permit resulted in the cancellation of the renewal also. The argument urged on behalf of the appellant was that under the Act an application for renewal had to be dealt with exactly in the same manner as an application for a new permit, that when renewal was granted it was on an independent consideration of the merits and further that the granting of renewal was not a matter of right for the authorities would be acting within their power if they were to refuse an application for renewal. It was also contended that though in the case of a lease renewal might mean continuation of the lease for a further period on the same terms and conditions contained in the lease and therefore a renewed lease would be treated as extension of the original lease that consideration was not available in the case of renewal of a licence as it was open to the Licensing Authority to impose new conditions, to alter the period during which it was to operate and generally to modify its terms. Therefore, the use of the word renewal would not lead to an inference that it was the original permit which was being continued. It is noteworthy that Venkatarama Ayyar J. who spoke for the Court said that there was force in these contentions. But he did not sustain them because in the context of S. 58 and the Rules made under the Act and in particular R. 185 the conclusion that renewal in that case was continuation of the original permit was inevitable. In dealing with the reasoning in Anjaiah v. R. T. O. Guntur 1956 Andh LT 347: (AIR 1957 Andh Pra 470) which was relied on and in which a contrary view was taken, the learned Judge again observed at p. 673 of SCR: (at p. 492 of AIR) thatthese considerations though not without force cannot, in our opinion, outweigh the inference to be drawn from the other provisions to which we have made reference ......."It is thus clear that the decision did not lay down a general rule that renewal in all cases must mean continuation of the grant previously made but was rested on the language of the provisions of the Motor Vehicles Act and the Rules made thereunder. As already observed there are no such Rules in the Bombay Cinema Rules 1954 which led this Court to the conclusion in that case that the renewed permit for stage carriage was continuation of the permit previously granted and therefore this decision would not assist the appellant.9. In our view the fact that renewal is not a matter of course, the fact that the Licensing Authority can in proper circumstances refuse an application for renewal and is not precluded from imposing different conditions and can grant it for a different period coupled with the absence of any Rules for renewal are all indications leading, to the result that renewal is a fresh grant and is not merely continuation of the licence previously issued. The High Court was therefore correct in allowing the writ petition on a conclusion that the show cause notice relating to the licence for the year 1960 could not be regarded as a show cause notice in respect of the renewal for the next year and if the renewed licence was sought to be affected in the inquiry a fresh show cause notice relaing to the renewed licence was necessary.10. ### Response: 0

The Greater Bombay Co-operative Bank Limited Vs. Nagraj Ganeshmal Jain & Others

of the counsel for the respondent No.1.11. The forensic expert sent his report dated 21.07.2010 in which he found that the signature on the photocopy did not appear to be of Shri Dhillon P. Shah. On 09.10.2010, the objection petition filed by the respondent No.1 was dismissed and it was held that he had no right title or interest in the suit flat.12. Thereafter respondent No.1 filed Revision Petition, which was allowed on 28.10.2013. The Bank thereafter filed writ petition No.195 of 2014, which was dismissed giving rise to these appeals.13. As far as the issue of transfer of the suit flat is concerned, the Bombay High Court has dismissed the petition of the Bank only on the ground that since the attachment order was passed in the year 2001 and the agreement of sale was executed prior thereto, therefore, the attachment order is not valid. The High Court did not go into the questions raised by the Bank that no right, title or interest in the flat could have been transferred by the said agreement.14. Here, it would be pertinent to mention that admittedly the respondent No.1 was a close friend of Shri Dhillon P.Shah and he also states that he had a lot of business dealings with him. According to the respondent No.1 an amount of Rs. 20 lakhs were advanced by M/s. Hitesh Corporation a proprietary firm of the respondent No.1 to Shri Dhillon P. Shah on 05.12.2004. Admittedly, this advance was made not in connection with the flat but either as a loan or part of some business transactions. According to the respondent No.1, since Shri Dhillon P. Shah could not repay the amount of Rs. 20 lakh on 04.10.1994 he executed the alleged agreement to sell in his favour. Pursuant thereto respondent No.1 took possession of the said flat on 12.04.1996 and thereafter had been paying the electricity bills etc.15. Immoveable property can be transferred only by a Registered document. There can be no transfer of any right, title or interest in any immoveable property except by way of a registered document. In this behalf we may make reference to the judgment of this Court in Suraj Lamp & Industries (P) Ltd. Vs. State of Haryana (2012) 1 SCC 656 , wherein it was held as follows.“18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.xxx xxx xxx24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales or `SA/GPA/will transfers do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales.”16. This Court clearly held that an agreement to sell which is not a registered deed of conveyance would not meet the requirements of Section 54 and 55 of the Transfer of Property Act. With respect to Section 53A of the Transfer of Property Act, it is well settled that the same can only be used as a defence in proceedings initiated by the transferor or by any person claiming under him.17. As far as the present case is concerned, the very foundation of the case of the respondent No.1 i.e. agreement to sell is doubtful. The original has not seen the light of day and only photocopy thereof was filed. There are doubts with regard to the signature of Shri Dhillon P. Shah. As pointed out earlier, the Bank attached the property in question in the year 2001. Shri Dhillon P. Shah died in the year 2004 and during these three years though Shri Shah and his wife filed various legal proceedings, they never disclosed that this flat had been sold by them. The respondent No.1, during the life time of Shri Dhillon P. Shah never claimed ownership of the flat.18. Shri Dhillon P. Shah and his wife never disclosed the fact of the alleged sale of the suit property to anybody including any member of the Society. It is more than obvious that with a view to wriggle out of the recovery proceedings, after the death of Shri Dhillon P. Shah this document has been fabricated. This document does not transfer any right, title or interest of the property and, therefore, the Revisional Court and the High Court erred in allowing the claim of the respondent No.1

1[ds]14. Here, it would be pertinent to mention that admittedly the respondent No.1 was a close friend of Shri Dhillon P.Shah and he also states that he had a lot of business dealings with him. According to the respondent No.1 an amount of Rs. 20 lakhs were advanced by M/s. Hitesh Corporation a proprietary firm of the respondent No.1 to Shri Dhillon P. Shah on 05.12.2004. Admittedly, this advance was made not in connection with the flat but either as a loan or part of some business transactions. According to the respondent No.1, since Shri Dhillon P. Shah could not repay the amount of Rs. 20 lakh on 04.10.1994 he executed the alleged agreement to sell in his favour. Pursuant thereto respondent No.1 took possession of the said flat on 12.04.1996 and thereafter had been paying the electricity bills etc.15. Immoveable property can be transferred only by a Registered document. There can be no transfer of any right, title or interest in any immoveable property except by way of a registered document.As far as the present case is concerned, the very foundation of the case of the respondent No.1 i.e. agreement to sell is doubtful. The original has not seen the light of day and only photocopy thereof was filed. There are doubts with regard to the signature of Shri Dhillon P. Shah. As pointed out earlier, the Bank attached the property in question in the year 2001. Shri Dhillon P. Shah died in the year 2004 and during these three years though Shri Shah and his wife filed various legal proceedings, they never disclosed that this flat had been sold by them. The respondent No.1, during the life time of Shri Dhillon P. Shah never claimed ownership of the flat.18. Shri Dhillon P. Shah and his wife never disclosed the fact of the alleged sale of the suit property to anybody including any member of the Society. It is more than obvious that with a view to wriggle out of the recovery proceedings, after the death of Shri Dhillon P. Shah this document has been fabricated. This document does not transfer any right, title or interest of the property and, therefore, the Revisional Court and the High Court erred in allowing the claim of the respondent No.1

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: of the counsel for the respondent No.1.11. The forensic expert sent his report dated 21.07.2010 in which he found that the signature on the photocopy did not appear to be of Shri Dhillon P. Shah. On 09.10.2010, the objection petition filed by the respondent No.1 was dismissed and it was held that he had no right title or interest in the suit flat.12. Thereafter respondent No.1 filed Revision Petition, which was allowed on 28.10.2013. The Bank thereafter filed writ petition No.195 of 2014, which was dismissed giving rise to these appeals.13. As far as the issue of transfer of the suit flat is concerned, the Bombay High Court has dismissed the petition of the Bank only on the ground that since the attachment order was passed in the year 2001 and the agreement of sale was executed prior thereto, therefore, the attachment order is not valid. The High Court did not go into the questions raised by the Bank that no right, title or interest in the flat could have been transferred by the said agreement.14. Here, it would be pertinent to mention that admittedly the respondent No.1 was a close friend of Shri Dhillon P.Shah and he also states that he had a lot of business dealings with him. According to the respondent No.1 an amount of Rs. 20 lakhs were advanced by M/s. Hitesh Corporation a proprietary firm of the respondent No.1 to Shri Dhillon P. Shah on 05.12.2004. Admittedly, this advance was made not in connection with the flat but either as a loan or part of some business transactions. According to the respondent No.1, since Shri Dhillon P. Shah could not repay the amount of Rs. 20 lakh on 04.10.1994 he executed the alleged agreement to sell in his favour. Pursuant thereto respondent No.1 took possession of the said flat on 12.04.1996 and thereafter had been paying the electricity bills etc.15. Immoveable property can be transferred only by a Registered document. There can be no transfer of any right, title or interest in any immoveable property except by way of a registered document. In this behalf we may make reference to the judgment of this Court in Suraj Lamp & Industries (P) Ltd. Vs. State of Haryana (2012) 1 SCC 656 , wherein it was held as follows.“18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.xxx xxx xxx24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales or `SA/GPA/will transfers do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales.”16. This Court clearly held that an agreement to sell which is not a registered deed of conveyance would not meet the requirements of Section 54 and 55 of the Transfer of Property Act. With respect to Section 53A of the Transfer of Property Act, it is well settled that the same can only be used as a defence in proceedings initiated by the transferor or by any person claiming under him.17. As far as the present case is concerned, the very foundation of the case of the respondent No.1 i.e. agreement to sell is doubtful. The original has not seen the light of day and only photocopy thereof was filed. There are doubts with regard to the signature of Shri Dhillon P. Shah. As pointed out earlier, the Bank attached the property in question in the year 2001. Shri Dhillon P. Shah died in the year 2004 and during these three years though Shri Shah and his wife filed various legal proceedings, they never disclosed that this flat had been sold by them. The respondent No.1, during the life time of Shri Dhillon P. Shah never claimed ownership of the flat.18. Shri Dhillon P. Shah and his wife never disclosed the fact of the alleged sale of the suit property to anybody including any member of the Society. It is more than obvious that with a view to wriggle out of the recovery proceedings, after the death of Shri Dhillon P. Shah this document has been fabricated. This document does not transfer any right, title or interest of the property and, therefore, the Revisional Court and the High Court erred in allowing the claim of the respondent No.1 ### Response: 1

A.B. Bhaskara Rao Vs. Inspector of Police, CBI Visakhapatnam

parties in any cause or matter pending before it. The very nature of the power must lead the court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by ironing out the creases in a cause or matter before it. Indeed this Court is not a court of restricted jurisdiction of only dispute settling. It is well recognised and established that this Court has always been a law maker and its role travels beyond merely dispute settling. It is a problem solver in the nebulous areas. (See. K. Veeraswami v. Union of India : 1991 (3) SCC 655 , but the substantive statutory provisions dealing with the subject matter of a given case, cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers can not, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject. In Kalyan Chandra Sarkar v. Rajesh Ranjan : 2005 (3) SCC 284 , this Court after reiterating that this Court in exercise of its jurisdiction under Article 142 of the Constitution would not pass any order which would amount to supplanting substantive law applicable to the case or ignoring express statutory provisions dealing with the subject, observed as follows: It may therefore be understood that the plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes . These powers also exist independent of the statutes with a view to do complete justice between the parties...and are in the nature of supplementary powers...[and] may be put on a different and perhaps even wider footing than ordinary inherent powers of a court to prevent injustice. The advantage that is derived from a constitutional provision couched in such a wide compass is that it prevents clogging or obstruction of the stream of justice. See: Supreme Court Bar Association (supra) 17) Though the jurisdiction of this Court, under Article 142 of the Constitution of India is not in dispute, we make it clear that exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction, under Section 482 of the Criminal Procedure Code and this Court, under Article 142 of the Constitution, would not ordinarily direct quashing of a case involving crime against the society particularly, when both the trial Court as also the High Court have found that the charge leveled against the appellant under the Act has been made out and proved by the prosecution by placing acceptable evidence. 18) Finally, learned senior counsel for the appellant has cited certain orders of this Court wherein this Court has reduced the period of sentence already undergone while upholding the conviction. We have perused those orders. The orders do not disclose any factual details and the relevant provisions under which the accused was charged/convicted and minimum sentence, if any, as available in the Act as well as the period already undergone. In the absence of such details, we are unable to rely on those orders. 19) From the analysis of the above decisions and the concerned provisions with which we are concerned, the following principles emerge: a) When the Court issues notice confining to particular aspect/sentence, arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the Court for arguing the matter on all aspects. b) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. In other cases where no such minimum sentence is prescribed, it is open to the Court to consider the delay and its effect and the ultimate decision. c) In a case of corruption by public servant, quantum of amount is immaterial. Ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution. d) Merely because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentence. e) Though Article 142 of the Constitution gives wider power to this Court, waiver of certain period as prescribed in the Statute imposing lesser sentence than the minimum prescribed is not permissible. f) An order, which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but also it cannot even be inconsistent with the substantive provisions of the relevant Statute. In other words, this Court cannot altogether ignore the substantive provisions of a Statute. g) In exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy. h) The power under Article 142 of the Constitution is a constitutional power and not restricted by statutory enactments. However, this Court would not pass any order under Article 142 which would amount to supplant the substantive law applicable or ignoring statutory provisions dealing with the subject. In other words, acting under Article 142, this Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. i) The powers under Article 142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject.

1[ds]It is clear that the Bench itself has clarified that they are not laying down the law that in spite of issuing notice confining to a particular aspect (in the case on hand -) the parties are entitled to urge all points and re-open the case as if they are free to do the same without any restriction. As a matter of fact, the last sentence in para 15 makes it clear that in the facts and circumstances of that case, they permitted the appellants to urge all points on merits5) In the case on hand, it is to be noted that on appreciation of oral and documentary evidence led in by the prosecution and the defence and on appreciation of entire materials, the court of first instance i.e. the trial Court convicted the appellant and sentenced him as mentioned above. The High Court, as an appellate Court, once again analysed all the material, discussed the oral and documentary evidence and finding that the prosecution had proved the guilt of the accused beyond reasonable doubt concurred with the conclusion arrived at by the trial Court and dismissed the appeal of the appellant. Inasmuch as both the courts have thoroughly discussed the oral and documentary evidence with reference to the charges leveled against the appellant and in view of the limited order dated 28.01.2008 by this Court issuing notice confining to quantum of sentence only and even applying the analogy enunciated in Yomeshbhai (supra), we feel that it is not a case of such nature that the appellant should be heard on all points, consequently, we reject the request of the learned senior counsel appearing for the appellant.7) It is not in dispute that the provisions of the Prevention of Corruption Act, 1988 alone are applicable since the incident occurred on 14.11.1997 i.e. subsequent to the Act. Section 7 of the Act relates to public servant taking gratification other than legal remuneration in respect of an official act. If the said offence/charge is proved, the court has no other option but to impose sentence of imprisonment which shall be not less than six months but which may extend to five years and also liable to fine.We have gone through the facts in that case. It is true that even in the cited decision, the appellant accused demanded only Rs. 250/- and it was paid and accepted. Finally, the Special Judge framed charges for offence punishable under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Act. The appellant therein was convicted for offence under Section 7(2) of the Act and appeal before the High Court was also dismissed. Thereafter, the same was challenged before this Court. This Court, after holding that the conclusion of the trial Court and High Court does not suffer from any infirmity considered the alternative submission which related to harshness of sentence. In that case, taking note of the fact that the occurrence took place nearly seven years back and also of the fact that the appellant had suffered custody for more than six months, considering all these aspects, while maintaining the conviction, this Court reduced the sentence to the period already undergone. Since the appellant therein was convicted only under Section 7 and Section 161 Cr.PC., the minimum sentence being six months and of the fact that he had suffered custody for more than six months, the course adopted by this Court is perfectly in order and the same cannot be applied to the case on hand, wherein the appellant had undergone only 52 days when the minimum sentence was six months under Section 7 and one year under Section 13.There is no dispute as regards the date of occurrence and the date of conviction passed by the trial court and affirmed by the High Court. Inasmuch as the conviction on both counts have been confirmed by this Court and we are confined to sentence part alone and in view of the minimum sentence prescribed under Sections 7 and 13 of the Act, we are of the view that though long delay may be a ground for reduction of sentence in other cases, the same may not be applicable to the case on hand when the statute prescribes minimum sentence. Accordingly, we reject the said contention.Though, these grounds may be attractive in respect of other offences where minimum sentence is not prescribed, in view of our reasonings in the earlier paras, the same cannot be applied to the case on hand.17) Though the jurisdiction of this Court, under Article 142 of the Constitution of India is not in dispute, we make it clear that exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction, under Section 482 of the Criminal Procedure Code and this Court, under Article 142 of the Constitution, would not ordinarily direct quashing of a case involving crime against the society particularly, when both the trial Court as also the High Court have found that the charge leveled against the appellant under the Act has been made out and proved by the prosecution by placing acceptable evidence.We have perused those orders. The orders do not disclose any factual details and the relevant provisions under which the accused was charged/convicted and minimum sentence, if any, as available in the Act as well as the period already undergone. In the absence of such details, we are unable to rely on those orders19) From the analysis of the above decisions and the concerned provisions with which we are concerned, the following principles emerge:a) When the Court issues notice confining to particular aspect/sentence, arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the Court for arguing the matter on all aspectsb) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. In other cases where no such minimum sentence is prescribed, it is open to the Court to consider the delay and its effect and the ultimate decisionc) In a case of corruption by public servant, quantum of amount is immaterial. Ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecutiond) Merely because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentencee) Though Article 142 of the Constitution gives wider power to this Court, waiver of certain period as prescribed in the Statute imposing lesser sentence than the minimum prescribed is not permissiblef) An order, which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but also it cannot even be inconsistent with the substantive provisions of the relevant Statute. In other words, this Court cannot altogether ignore the substantive provisions of a Statuteg) In exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathyh) The power under Article 142 of the Constitution is a constitutional power and not restricted by statutory enactments. However, this Court would not pass any order under Article 142 which would amount to supplant the substantive law applicable or ignoring statutory provisions dealing with the subject. In other words, acting under Article 142, this Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the casei) The powers under Article 142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: parties in any cause or matter pending before it. The very nature of the power must lead the court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by ironing out the creases in a cause or matter before it. Indeed this Court is not a court of restricted jurisdiction of only dispute settling. It is well recognised and established that this Court has always been a law maker and its role travels beyond merely dispute settling. It is a problem solver in the nebulous areas. (See. K. Veeraswami v. Union of India : 1991 (3) SCC 655 , but the substantive statutory provisions dealing with the subject matter of a given case, cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers can not, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject. In Kalyan Chandra Sarkar v. Rajesh Ranjan : 2005 (3) SCC 284 , this Court after reiterating that this Court in exercise of its jurisdiction under Article 142 of the Constitution would not pass any order which would amount to supplanting substantive law applicable to the case or ignoring express statutory provisions dealing with the subject, observed as follows: It may therefore be understood that the plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes . These powers also exist independent of the statutes with a view to do complete justice between the parties...and are in the nature of supplementary powers...[and] may be put on a different and perhaps even wider footing than ordinary inherent powers of a court to prevent injustice. The advantage that is derived from a constitutional provision couched in such a wide compass is that it prevents clogging or obstruction of the stream of justice. See: Supreme Court Bar Association (supra) 17) Though the jurisdiction of this Court, under Article 142 of the Constitution of India is not in dispute, we make it clear that exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction, under Section 482 of the Criminal Procedure Code and this Court, under Article 142 of the Constitution, would not ordinarily direct quashing of a case involving crime against the society particularly, when both the trial Court as also the High Court have found that the charge leveled against the appellant under the Act has been made out and proved by the prosecution by placing acceptable evidence. 18) Finally, learned senior counsel for the appellant has cited certain orders of this Court wherein this Court has reduced the period of sentence already undergone while upholding the conviction. We have perused those orders. The orders do not disclose any factual details and the relevant provisions under which the accused was charged/convicted and minimum sentence, if any, as available in the Act as well as the period already undergone. In the absence of such details, we are unable to rely on those orders. 19) From the analysis of the above decisions and the concerned provisions with which we are concerned, the following principles emerge: a) When the Court issues notice confining to particular aspect/sentence, arguments will be heard only to that extent unless some extraordinary circumstance/material is shown to the Court for arguing the matter on all aspects. b) Long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence, particularly, when the statute prescribes minimum sentence. In other cases where no such minimum sentence is prescribed, it is open to the Court to consider the delay and its effect and the ultimate decision. c) In a case of corruption by public servant, quantum of amount is immaterial. Ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution. d) Merely because the delinquent lost his job due to conviction under the Act may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentence. e) Though Article 142 of the Constitution gives wider power to this Court, waiver of certain period as prescribed in the Statute imposing lesser sentence than the minimum prescribed is not permissible. f) An order, which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but also it cannot even be inconsistent with the substantive provisions of the relevant Statute. In other words, this Court cannot altogether ignore the substantive provisions of a Statute. g) In exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy. h) The power under Article 142 of the Constitution is a constitutional power and not restricted by statutory enactments. However, this Court would not pass any order under Article 142 which would amount to supplant the substantive law applicable or ignoring statutory provisions dealing with the subject. In other words, acting under Article 142, this Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. i) The powers under Article 142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject. ### Response: 1

Manjit Singh Sodhi Vs. The Custodian & Ors

not expressly excluded by the special Law. The three-Judge Bench in L S Synthetics Ltd (supra) observed that Section 29(2) of the Limitation Act is not applicable to the Act of 1992 since in terms of the provisions of the Act, no period of limitation is prescribed. 16. In Fairgrowth Investments Ltd (supra), the issue before this Court was whether the Special Court constituted under the Act of 1992 has the power to condone the delay in filing a petition under Section 4(2) of the Act. In that case, on 23 November 2001, the appellant was notified under Section 3(2) of the Act of 1992. On 8 October 2002, the appellant filed a petition of objection to the notification under Section 4(2) of the Act of 1992. The Special Court rejected the application on the ground that it was filed beyond the period of limitation prescribed by Section 4(2). Section 4(2) provides that any person aggrieved by a notification issued under Section 3(2), may file an objection within thirty days of such notification. This Court rejected the contention of the appellant that the limitation prescribed under Section 4(2) is directory and not mandatory and held that Section 4(2) is unequivocal and unqualified and there is no scope to read in a power of the Court to dispense with the time limit. Consequently, in Fairgrowth Investments Ltd (supra), this Court concurred with the final conclusion in L S Synthetics Ltd (supra) to the extent that the provisions of the Act of 1963 have no application in relation to a petition under Section 4(2) of the Act of 1992. It was observed that the decision of this Court in LS Synthetics (supra), was limited to a consideration of Section 11 of the Act of 1992: 23. The decision by a larger bench in L.S Synthetics Ltd. holding that the provisions of the Limitation Act, 1963 do not apply to the Act may not have, by itself, concluded the question formulated by us at the outset. That case was, as has been rightly contended by learned counsel appearing on behalf of the appellant, limited to a consideration of Section11 of the Act and the proceedings by the Special Court thereunder. It was in that context that the Court had said that the Act had not provided for any period of limitation. But for the reasons already stated by us we concur in the final conclusion reached by the Court in L.S Synthetics to the extent that the provisions of the Limitation Act 1963 have not application in relation to a petition under Section 4(2) of the Act. 24. Finally, Section 29(2) of the Limitation Act speaks of application of the provisions contained in Sections 4 to 24 only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. This language, together with our earlier reasoning, particularly with regard to L.S. Synthetics [(2004) 11 SCC 456 : (2004) 7 Scale 427] would answer the further question raised by the appellant, namely, whether the question of exclusion of the provisions of the Limitation Act must be separately considered with reference to different provisions of a special/local Act or in connection with the provisions of the special/local Act, as a whole, by affirmation of the first alternative. We are therefore not called upon to decide whether claims either preferred for the first time before the Special Court or transferred to the Special Court under Section 9-A(2) would attract the provisions of Sections 4 to 24 of the Limitation Act. It is enough for the purpose of this appeal to hold that Section 29(2) of the Limitation Act, 1963 does not apply to proceedings under Section 4(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. Since the appellants petition of objection had been filed much beyond the period prescribed under that section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs. 17. At this juncture, Section 18 of the Act of 1963 also needs to be noted. Section 18 of the Act of 1963 stipulates that if an acknowledgment of liability in writing is made before the expiration of the prescribed period for a suit or application in respect of any right, a fresh period of limitation shall be computed from the time when the acknowledgment was signed. Explanation (c) to Section 18 states that an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 18. In the present case, the Special Court has proceeded on the basis that there was an acknowledgement of liability by the letter of the appellant dated 22 February 2018. That finding is sought to be assailed by the appellant by urging that the acknowledgement of liability under Section 18 of the Act of 1963 has to be within the period of limitation and in the present case this test is not satisfied. On the other hand, as we have already noted, it has been urged on behalf of the first respondent that the premise of the judgment of the Special Court that the Act of 1963 would stand attracted would run contrary to the decision of this Court in L S Synthetics Ltd (supra). 19. Based on the decision of this Court in L S Synthetics Ltd (supra), the ultimate directions which have been issued by the Special Court cannot be interfered with. The observations contained in the impugned order were for the purpose of issuing the directions for a disclosure of assets and would not preclude the Custodian from urging that the Act of 1963 had no application to the Execution Application which was filed for enforcement of the decree dated 28 February 2003. The directions for the disclosure of assets and other consequential directions which have been issued are not interfered with in this appeal.

1[ds]12. A Constitution bench of this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat AIR 1968 SC 733 differentiated between a final order and interlocutory order as follows:4. The question as to whether a judgment or an order is final or not has been the subject-matter of a number of decisions; yet no single general test for finality has so far been laid down. The reason probably is that a judgment or order may be final for one purpose and interlocutory for another or final as to part and interlocutory as to part. The meaning of the two words final and interlocutory has, therefore, to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply [Halsburys Laws of England (3rd Edn.) Vol. 22, 742-43] . In some of the English decisions where this question arose, one or the other of the following four tests was applied.1. Was the order made upon an application such that a decision in favour of either party would determine the main dispute?2. Was it made upon an application upon which the main dispute could have been decided?3. Does the order as made determine the dispute?4. If the order in question is reversed, would the action have to go on?13. An interlocutory order denotes an interim or temporary order which does not decide the important rights or liabilities of the parties Amar Nath v. State of Haryana, (1977) 4 SCC 137 . The Special Court in its order dated 6 March 2020 has conclusively held that the execution petition is not barred by limitation. The determination of the issue of limitation affects the rights and liabilities of the parties. Thus, the argument of the first appellant that the appeal is not maintainable in view of Section 10 of the Act of 1992 is rejected.14. The Special Judge has specifically held against the appellant on the ground that there was an acknowledgement of liability within the meaning of Section 18 of the Act of 1963. The finding that there was an acknowledgement of liability within the meaning of Section 18 is premised on the hypothesis that the Act of 1963 would stand attracted. However, it has also been held in the judgment of the Special Court that in any event the Custodian is entitled and liable to recover the amount under the Act of 1992 in view of the decision of this Court in L S Synthetics Ltd (supra).15. In L S Synthetics Ltd (supra), the appellant had obtained short term loans from a notified party. The Custodian had called upon the appellant to furnish details of the loan. The notified party initiated proceedings before the Special Court seeking a direction to the appellant to pay the Custodian on his behalf. The contention of the appellant was that the claim was barred by limitation since he had furnished the full details of the amount in question to the Custodian in 1993. On the question of whether the claim of the notified party is barred by limitation, the three-Judge Bench of this Court held that provisions of the Limitation Act have no application, in so far as directions required to be issued by the Special Court relating to the disposal of the attached property are concerned. The relevant extract of the judgment reads as follows:37. We may, however, add that the attachment of the properties of the notified party being for specific purposes, i.e., for the purpose of discharging his liabilities, the Special Court is bound to pass appropriate orders in relation thereto. A property once attached shall remain under attachment till an appropriate order is passed. It is, therefore, idle to contend that even in respect thereof the provisions of the Limitation Act would apply. The Court while issuing directions to the Custodian in relation to the attached property for the purpose of discharge of the liability of the notified person must pass an appropriate order. So long the claims or other proceedings initiated before the Special Court as regard discharge of liability of the notified person continue, the attachment remains in force. A proceeding before the Special Court is not a suit for recovery of an amount. The proceedings before the Special Court are extraordinary in nature. Distribution of the assets of a notified person may take a long time but it would bear repetition to state because all the claims filed before the Special Court are disposed of, the property of the notified person stands attached. In other words, the provisions of the Limitation Act would inter alia apply only when a suit is filed or a proceeding is initiated for recovery of an amount and not where a property is required to be applied towards the claims pending before the tribunal for the purpose of discharge of the liabilities of the notified person in terms of Section 11 of the said Act.41 […] We are, therefore, of the opinion that the provisions of the Limitation Act have no application, so far as directions required to be issued by the Special Court relating to the disposal of the attached property, are concerned.Section 29(2) of the Limitation Act stipulates that where a special law prescribes a period of limitation for an application different from the period prescribed in the Schedule of Act of 1963, then Section 3 of the Act of 1963 shall apply as if such period was prescribed by the schedule, and the provisions of Sections 4 to 24 shall apply to the extent that it is not expressly excluded by the special Law. The three-Judge Bench in L S Synthetics Ltd (supra) observed that Section 29(2) of the Limitation Act is not applicable to the Act of 1992 since in terms of the provisions of the Act, no period of limitation is prescribed.16. In Fairgrowth Investments Ltd (supra), the issue before this Court was whether the Special Court constituted under the Act of 1992 has the power to condone the delay in filing a petition under Section 4(2) of the Act. In that case, on 23 November 2001, the appellant was notified under Section 3(2) of the Act of 1992. On 8 October 2002, the appellant filed a petition of objection to the notification under Section 4(2) of the Act of 1992. The Special Court rejected the application on the ground that it was filed beyond the period of limitation prescribed by Section 4(2). Section 4(2) provides that any person aggrieved by a notification issued under Section 3(2), may file an objection within thirty days of such notification. This Court rejected the contention of the appellant that the limitation prescribed under Section 4(2) is directory and not mandatory and held that Section 4(2) is unequivocal and unqualified and there is no scope to read in a power of the Court to dispense with the time limit. Consequently, in Fairgrowth Investments Ltd (supra), this Court concurred with the final conclusion in L S Synthetics Ltd (supra) to the extent that the provisions of the Act of 1963 have no application in relation to a petition under Section 4(2) of the Act of 1992. It was observed that the decision of this Court in LS Synthetics (supra), was limited to a consideration of Section 11 of the Act of 1992:23. The decision by a larger bench in L.S Synthetics Ltd. holding that the provisions of the Limitation Act, 1963 do not apply to the Act may not have, by itself, concluded the question formulated by us at the outset. That case was, as has been rightly contended by learned counsel appearing on behalf of the appellant, limited to a consideration of Section11 of the Act and the proceedings by the Special Court thereunder. It was in that context that the Court had said that the Act had not provided for any period of limitation. But for the reasons already stated by us we concur in the final conclusion reached by the Court in L.S Synthetics to the extent that the provisions of the Limitation Act 1963 have not application in relation to a petition under Section 4(2) of the Act.24. Finally, Section 29(2) of the Limitation Act speaks of application of the provisions contained in Sections 4 to 24 only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. This language, together with our earlier reasoning, particularly with regard to L.S. Synthetics [(2004) 11 SCC 456 : (2004) 7 Scale 427] would answer the further question raised by the appellant, namely, whether the question of exclusion of the provisions of the Limitation Act must be separately considered with reference to different provisions of a special/local Act or in connection with the provisions of the special/local Act, as a whole, by affirmation of the first alternative. We are therefore not called upon to decide whether claims either preferred for the first time before the Special Court or transferred to the Special Court under Section 9-A(2) would attract the provisions of Sections 4 to 24 of the Limitation Act. It is enough for the purpose of this appeal to hold that Section 29(2) of the Limitation Act, 1963 does not apply to proceedings under Section 4(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. Since the appellants petition of objection had been filed much beyond the period prescribed under that section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs.18. In the present case, the Special Court has proceeded on the basis that there was an acknowledgement of liability by the letter of the appellant dated 22 February 2018. That finding is sought to be assailed by the appellant by urging that the acknowledgement of liability under Section 18 of the Act of 1963 has to be within the period of limitation and in the present case this test is not satisfied. On the other hand, as we have already noted, it has been urged on behalf of the first respondent that the premise of the judgment of the Special Court that the Act of 1963 would stand attracted would run contrary to the decision of this Court in L S Synthetics Ltd (supra).19. Based on the decision of this Court in L S Synthetics Ltd (supra), the ultimate directions which have been issued by the Special Court cannot be interfered with. The observations contained in the impugned order were for the purpose of issuing the directions for a disclosure of assets and would not preclude the Custodian from urging that the Act of 1963 had no application to the Execution Application which was filed for enforcement of the decree dated 28 February 2003. The directions for the disclosure of assets and other consequential directions which have been issued are not interfered with in this appeal.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: not expressly excluded by the special Law. The three-Judge Bench in L S Synthetics Ltd (supra) observed that Section 29(2) of the Limitation Act is not applicable to the Act of 1992 since in terms of the provisions of the Act, no period of limitation is prescribed. 16. In Fairgrowth Investments Ltd (supra), the issue before this Court was whether the Special Court constituted under the Act of 1992 has the power to condone the delay in filing a petition under Section 4(2) of the Act. In that case, on 23 November 2001, the appellant was notified under Section 3(2) of the Act of 1992. On 8 October 2002, the appellant filed a petition of objection to the notification under Section 4(2) of the Act of 1992. The Special Court rejected the application on the ground that it was filed beyond the period of limitation prescribed by Section 4(2). Section 4(2) provides that any person aggrieved by a notification issued under Section 3(2), may file an objection within thirty days of such notification. This Court rejected the contention of the appellant that the limitation prescribed under Section 4(2) is directory and not mandatory and held that Section 4(2) is unequivocal and unqualified and there is no scope to read in a power of the Court to dispense with the time limit. Consequently, in Fairgrowth Investments Ltd (supra), this Court concurred with the final conclusion in L S Synthetics Ltd (supra) to the extent that the provisions of the Act of 1963 have no application in relation to a petition under Section 4(2) of the Act of 1992. It was observed that the decision of this Court in LS Synthetics (supra), was limited to a consideration of Section 11 of the Act of 1992: 23. The decision by a larger bench in L.S Synthetics Ltd. holding that the provisions of the Limitation Act, 1963 do not apply to the Act may not have, by itself, concluded the question formulated by us at the outset. That case was, as has been rightly contended by learned counsel appearing on behalf of the appellant, limited to a consideration of Section11 of the Act and the proceedings by the Special Court thereunder. It was in that context that the Court had said that the Act had not provided for any period of limitation. But for the reasons already stated by us we concur in the final conclusion reached by the Court in L.S Synthetics to the extent that the provisions of the Limitation Act 1963 have not application in relation to a petition under Section 4(2) of the Act. 24. Finally, Section 29(2) of the Limitation Act speaks of application of the provisions contained in Sections 4 to 24 only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. This language, together with our earlier reasoning, particularly with regard to L.S. Synthetics [(2004) 11 SCC 456 : (2004) 7 Scale 427] would answer the further question raised by the appellant, namely, whether the question of exclusion of the provisions of the Limitation Act must be separately considered with reference to different provisions of a special/local Act or in connection with the provisions of the special/local Act, as a whole, by affirmation of the first alternative. We are therefore not called upon to decide whether claims either preferred for the first time before the Special Court or transferred to the Special Court under Section 9-A(2) would attract the provisions of Sections 4 to 24 of the Limitation Act. It is enough for the purpose of this appeal to hold that Section 29(2) of the Limitation Act, 1963 does not apply to proceedings under Section 4(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. Since the appellants petition of objection had been filed much beyond the period prescribed under that section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs. 17. At this juncture, Section 18 of the Act of 1963 also needs to be noted. Section 18 of the Act of 1963 stipulates that if an acknowledgment of liability in writing is made before the expiration of the prescribed period for a suit or application in respect of any right, a fresh period of limitation shall be computed from the time when the acknowledgment was signed. Explanation (c) to Section 18 states that an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 18. In the present case, the Special Court has proceeded on the basis that there was an acknowledgement of liability by the letter of the appellant dated 22 February 2018. That finding is sought to be assailed by the appellant by urging that the acknowledgement of liability under Section 18 of the Act of 1963 has to be within the period of limitation and in the present case this test is not satisfied. On the other hand, as we have already noted, it has been urged on behalf of the first respondent that the premise of the judgment of the Special Court that the Act of 1963 would stand attracted would run contrary to the decision of this Court in L S Synthetics Ltd (supra). 19. Based on the decision of this Court in L S Synthetics Ltd (supra), the ultimate directions which have been issued by the Special Court cannot be interfered with. The observations contained in the impugned order were for the purpose of issuing the directions for a disclosure of assets and would not preclude the Custodian from urging that the Act of 1963 had no application to the Execution Application which was filed for enforcement of the decree dated 28 February 2003. The directions for the disclosure of assets and other consequential directions which have been issued are not interfered with in this appeal. ### Response: 1

K.K. Saksena Vs. International Commission on Irrigation and Drainage

measure to play. The activities undertaken by the respondent-society, a nongovernmental organization, do not actually partake the nature of public duty or state actions. There is absence of public element as has been stated in V.R. Rudani and others (supra) and Sri Venkateswara Hindu College of Engineering and another (supra). It also does not discharge duties having a positive application of public nature. It carries on voluntary activities which many a non-governmental organizations perform. The said activities cannot be stated to be remotely connected with the activities of the State. On a scrutiny of the constitution and by-laws, it is difficult to hold that the respondent-society has obligation to discharge certain activities which are statutory or of public character. The concept of public duty cannot be construed in a vacuum. A private society, in certain cases, may be amenable to the writ jurisdiction if the writ court is satisfied that it is necessary to compel such society or association to enforce any statutory obligation or such obligations of public nature casting positive public obligation upon it. 35. As we perceive, the only object of the ICID is for promoting the development and application of certain aspects, which have been voluntarily undertaken but the said activities cannot be said that ICID carries on public duties to make itself amenable to the writ jurisdiction under Article 226 of the Constitution. 42) We are in agreement with the aforesaid analysis by the High Court and it answers all the arguments raised by the learned senior counsel appearing for the appellant. The learned counsel argued that once the society is registered in India it cannot be treated as international body. This argument is hardly of any relevance in determining the character of ICID. The focus has to be on the function discharged by ICID, namely, whether it is discharging any public duties. Though much mileage was sought to be drawn from the function incorporated in the MOA of ICID, namely, to encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals etc., that by itself would not make it a public duty cast on ICID. We cannot lose sight of the fact that ICID is a private body which has no State funding. Further, no liability under any statute is cast upon ICID to discharge the aforesaid function. The High Court is right in its observation that even when object of ICID is to promote the development and application of certain aspects, the same are voluntarily undertaken and there is no obligation to discharge certain activities which are statutory or of public character. 43) There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In The Praga Tools Corporation v. Shri C.A. Imanual & Ors. (1969) 1 SCC 585 ), already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the concerned employee was seeking reinstatement to an office. 44) We have also pointed out above that in Sata Venkata Subba Rao (supra) this Court had observed that administrative law in India has been shaped on the lines of English law. There are catena of judgments in English courts taking same view, namely, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. In Queen (on the application of Hopley) v . Liverpool Health Authority & Ors. (unreported) (30 July 2002), Justice Pithford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are: (i) whether the defendant was a public body exercising statutory powers; (ii) whether the function being performed in the exercise of those powers was a public or a private one; and (iii) whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration. 45) Even in Anadi Mukta Sadguru (supra), which took a revolutionary turn and departure from the earlier views, this Court held that any other authority mentioned in Article 226 is not confined to statutory authorities or instrumentalities of the State defined under Article 12 of the Constitution, it also emphasized that if the rights are purely of a private character, no mandamus could issue. 46) It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/ body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and status to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegal. 47) In the present case, though we have held that ICID is not discharging any public duty, even otherwise, it is clear that the impugned action does not involve public law element and no public law rights have accrued in favour of the appellant which are infringed. The service conditions of the appellant are not governed in the same manner as was the position in Anadi Mukta Sadguru (supra). 48)

0[ds]In the present case, since ICID is not funded by the Government nor it is discharging any function under any statute, the only question is as to whether it is discharging public duty or positive obligation of public nature. It is clear from the reading of the impugned judgment, the High Court was fully conscious of the principles laid down in the aforesaid judgments, cognizance whereof is duly taken by the High Court. Applying the test in the case at hand, namely that of ICID, the High Court opined that it was not discharging any public function or public duty, which would make it amenable to the writ jurisdiction of the High Court under Article 226It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/ body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and status to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegalIn the present case, though we have held that ICID is not discharging any public duty, even otherwise, it is clear that the impugned action does not involve public law element and no public law rights have accrued in favour of the appellant which are infringed. The service conditions of the appellant are not governed in the same manner as was the position in Anadi Mukta Sadguru (supra)

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: measure to play. The activities undertaken by the respondent-society, a nongovernmental organization, do not actually partake the nature of public duty or state actions. There is absence of public element as has been stated in V.R. Rudani and others (supra) and Sri Venkateswara Hindu College of Engineering and another (supra). It also does not discharge duties having a positive application of public nature. It carries on voluntary activities which many a non-governmental organizations perform. The said activities cannot be stated to be remotely connected with the activities of the State. On a scrutiny of the constitution and by-laws, it is difficult to hold that the respondent-society has obligation to discharge certain activities which are statutory or of public character. The concept of public duty cannot be construed in a vacuum. A private society, in certain cases, may be amenable to the writ jurisdiction if the writ court is satisfied that it is necessary to compel such society or association to enforce any statutory obligation or such obligations of public nature casting positive public obligation upon it. 35. As we perceive, the only object of the ICID is for promoting the development and application of certain aspects, which have been voluntarily undertaken but the said activities cannot be said that ICID carries on public duties to make itself amenable to the writ jurisdiction under Article 226 of the Constitution. 42) We are in agreement with the aforesaid analysis by the High Court and it answers all the arguments raised by the learned senior counsel appearing for the appellant. The learned counsel argued that once the society is registered in India it cannot be treated as international body. This argument is hardly of any relevance in determining the character of ICID. The focus has to be on the function discharged by ICID, namely, whether it is discharging any public duties. Though much mileage was sought to be drawn from the function incorporated in the MOA of ICID, namely, to encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals etc., that by itself would not make it a public duty cast on ICID. We cannot lose sight of the fact that ICID is a private body which has no State funding. Further, no liability under any statute is cast upon ICID to discharge the aforesaid function. The High Court is right in its observation that even when object of ICID is to promote the development and application of certain aspects, the same are voluntarily undertaken and there is no obligation to discharge certain activities which are statutory or of public character. 43) There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In The Praga Tools Corporation v. Shri C.A. Imanual & Ors. (1969) 1 SCC 585 ), already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the concerned employee was seeking reinstatement to an office. 44) We have also pointed out above that in Sata Venkata Subba Rao (supra) this Court had observed that administrative law in India has been shaped on the lines of English law. There are catena of judgments in English courts taking same view, namely, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. In Queen (on the application of Hopley) v . Liverpool Health Authority & Ors. (unreported) (30 July 2002), Justice Pithford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are: (i) whether the defendant was a public body exercising statutory powers; (ii) whether the function being performed in the exercise of those powers was a public or a private one; and (iii) whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration. 45) Even in Anadi Mukta Sadguru (supra), which took a revolutionary turn and departure from the earlier views, this Court held that any other authority mentioned in Article 226 is not confined to statutory authorities or instrumentalities of the State defined under Article 12 of the Constitution, it also emphasized that if the rights are purely of a private character, no mandamus could issue. 46) It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/ body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and status to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegal. 47) In the present case, though we have held that ICID is not discharging any public duty, even otherwise, it is clear that the impugned action does not involve public law element and no public law rights have accrued in favour of the appellant which are infringed. The service conditions of the appellant are not governed in the same manner as was the position in Anadi Mukta Sadguru (supra). 48) ### Response: 0

The Punjabi University & Others Vs. Acharya Swami Ganesh & Another

provisions of the Land Acquisition Act. The acquired lands were valued by the Land Acquisition Officer at Rs. 76, 029.15 P. At the instance of the respondent the matter was referred to the District Judge under Section 18 of the Land Acquisition Act. The learned District Judge enhanced the compensation payable to Rs. 2, 97, 019.15 P. The Punjab Government and the Punjabi University wanted to file an appeal against that order. The Judgment of the District Judge was delivered on October 31, 1970. The Punjabi University applied for a copy of the decree and the Judgment on November 18, 1970. The copies were made available on November 27, 1970. The last day for filing the appeal was February 8, 1971. The appeal was actually filed on February 10, 1971. Hence, there was a delay of two days. Along with the appeal an application was filed under Section 5 of the Limitation Act praying for the condonation of the delay in filing the appeal. The appeal is said to have been filed jointly by the Punjab Government and the Punjabi University.3. The reasons given in support of the application under Section 5 of the Limitation Act are as follows : One Atma Ram was the counsel for the Punjabi University. He had been instructed by the Punjabi University, to file the appeal. A sum of Rs. 5, 000/- had been paid to the Stamp vender on February 1, 1971, itself for purchasing the necessary Court-fee stamps. Necessary court-fee stamps had been purchased on February 2, 1971. According to Mr. Atma Ram, by some miscalculation he had noted in his brief that the last day for filing the appeal was February 11, 1971. He had sent a telegram to the Registrar of the Punjabi University on February 9, 1971, informing him that he should come down immediately to Chandigarh as the appeal had to be filed by February 11, 1971. He had also informed him by telegram that the Governments sanction must be obtained by that date. The Registrar of the University went over to Chandigarh on February 10, 1971 and the appeal was filed on the same date. According to the appellants the delay in filing the appeal was due to the mistaken mis-calculation made by Mr. Atma Ram. Mr. Atma Ram has filed an affidavit wherein he has stated that the appeal was filed two day after the period of limitation entirely because of his mistake. The learned Judges of the High Court have not disbelieved the version given by Mr. Atma Ram. On the other hand, they have opined that the right to file the appeal was primarily that of the Punjab Government and the Punjab Government has not given sufficient reason for their delay in filing the appeal. It may be noted that the party which was essentially interested in filing the appeal was the Punjabi University. It had to pay the compensation for the lands acquired. Therefore, there was nothing surprising if the Government had left the matters in the hands of the Punjabi University. The Punjab Government was only fighting the case for the benefit of Punjabi University. The facts stated by Mr. Atma Ram in his affidavit are highly probable and we see no reason to disbelieve the version given by him. If the version is believed, as we do, then it affords a good ground for condoning the delay in filing the appeal. It is true that Mr. Atma Ram committed a mistake in his calculation. But that is not the same thing as negligence. In matters of calculation it is common knowledge that people do commit mistakes. They are bona fide mistakes and those mistakes have got to be taken note of by the Courts in considering whether the delay in filing the appeal should be condoned or not. It has been repeatedly held by Courts that a mistake by a lawyer is a good ground for condoning the delay in filing the mistake by a lawyer is a good ground for condoning the delay in filing the appeal. Quite recently this very question came up for consideration by this Court in Civil Appeals Nos. 821-823 of 1968. ([1972] 1 SCC 366 ). Dealing with that question this Court observed :"It may be, that the State was not properly advised regarding the remedy to be adopted to challenge the judgment in the Land Acquisition Reference Cases. But, as pointed out by the Judicial Committee in Kunwar Rajendra Singh v. Rai Rajeshwar Bali and Others, (AIR 1937 PC 276 ) if a party had acted in a particular manner on a wrong advice given by his Legal Adviser, he cannot be held guilty of negligence so as to disentitle the part to plead sufficient cause under Section 5 of the Limitation Act. In fact the Judicial Committee observes as follows :Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice.The advice given by the lawyer to file applications under Article 227, in our opinion, is also a circumstances to be taken into account in considering whether the appellant has shown sufficient cause."4. From the facts found above it is clear that the appeal came to be filed two days after the period of limitation solely because of the wrong calculation made by Mr. Atma Ram.5. It was urged on behalf of the respondent that the Punjab Government cannot take advantage of the mistake committed by Mr. Atma Ram. It has not given any explanation of its own for not filing the appeal within time. This contention does not appeal to us. As mentioned earlier, Punjab Government had evidently left the matters in the hands of the Punjabi University which was the party really interested. It depended entirely on the Punjabi University. We see no reason why that course should be found to be improper.

1[ds]It may be noted that the party which was essentially interested in filing the appeal was the Punjabi University. It had to pay the compensation for the lands acquired. Therefore, there was nothing surprising if the Government had left the matters in the hands of the Punjabi University. The Punjab Government was only fighting the case for the benefit of Punjabi University. The facts stated by Mr. Atma Ram in his affidavit are highly probable and we see no reason to disbelieve the version given by him. If the version is believed, as we do, then it affords a good ground for condoning the delay in filing the appeal. It is true that Mr. Atma Ram committed a mistake in his calculation. But that is not the same thing as negligence. In matters of calculation it is common knowledge that people do commit mistakes. They are bona fide mistakes and those mistakes have got to be taken note of by the Courts in considering whether the delay in filing the appeal should be condoned or not. It has been repeatedly held by Courts that a mistake by a lawyer is a good ground for condoning the delay in filing the mistake by a lawyer is a good ground for condoning the delay in filing the appeal.From the facts found above it is clear that the appeal came to be filed two days after the period of limitation solely because of the wrong calculation made by Mr. Atma Ram.It was urged on behalf of the respondent that the Punjab Government cannot take advantage of the mistake committed by Mr. Atma Ram.It has not given any explanation of its own for not filing the appeal within time. This contention does not appeal to us. As mentioned earlier, Punjab Government had evidently left the matters in the hands of the Punjabi University which was the party really interested. It depended entirely on the Punjabi University. We see no reason why that course should be found to be improper.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: provisions of the Land Acquisition Act. The acquired lands were valued by the Land Acquisition Officer at Rs. 76, 029.15 P. At the instance of the respondent the matter was referred to the District Judge under Section 18 of the Land Acquisition Act. The learned District Judge enhanced the compensation payable to Rs. 2, 97, 019.15 P. The Punjab Government and the Punjabi University wanted to file an appeal against that order. The Judgment of the District Judge was delivered on October 31, 1970. The Punjabi University applied for a copy of the decree and the Judgment on November 18, 1970. The copies were made available on November 27, 1970. The last day for filing the appeal was February 8, 1971. The appeal was actually filed on February 10, 1971. Hence, there was a delay of two days. Along with the appeal an application was filed under Section 5 of the Limitation Act praying for the condonation of the delay in filing the appeal. The appeal is said to have been filed jointly by the Punjab Government and the Punjabi University.3. The reasons given in support of the application under Section 5 of the Limitation Act are as follows : One Atma Ram was the counsel for the Punjabi University. He had been instructed by the Punjabi University, to file the appeal. A sum of Rs. 5, 000/- had been paid to the Stamp vender on February 1, 1971, itself for purchasing the necessary Court-fee stamps. Necessary court-fee stamps had been purchased on February 2, 1971. According to Mr. Atma Ram, by some miscalculation he had noted in his brief that the last day for filing the appeal was February 11, 1971. He had sent a telegram to the Registrar of the Punjabi University on February 9, 1971, informing him that he should come down immediately to Chandigarh as the appeal had to be filed by February 11, 1971. He had also informed him by telegram that the Governments sanction must be obtained by that date. The Registrar of the University went over to Chandigarh on February 10, 1971 and the appeal was filed on the same date. According to the appellants the delay in filing the appeal was due to the mistaken mis-calculation made by Mr. Atma Ram. Mr. Atma Ram has filed an affidavit wherein he has stated that the appeal was filed two day after the period of limitation entirely because of his mistake. The learned Judges of the High Court have not disbelieved the version given by Mr. Atma Ram. On the other hand, they have opined that the right to file the appeal was primarily that of the Punjab Government and the Punjab Government has not given sufficient reason for their delay in filing the appeal. It may be noted that the party which was essentially interested in filing the appeal was the Punjabi University. It had to pay the compensation for the lands acquired. Therefore, there was nothing surprising if the Government had left the matters in the hands of the Punjabi University. The Punjab Government was only fighting the case for the benefit of Punjabi University. The facts stated by Mr. Atma Ram in his affidavit are highly probable and we see no reason to disbelieve the version given by him. If the version is believed, as we do, then it affords a good ground for condoning the delay in filing the appeal. It is true that Mr. Atma Ram committed a mistake in his calculation. But that is not the same thing as negligence. In matters of calculation it is common knowledge that people do commit mistakes. They are bona fide mistakes and those mistakes have got to be taken note of by the Courts in considering whether the delay in filing the appeal should be condoned or not. It has been repeatedly held by Courts that a mistake by a lawyer is a good ground for condoning the delay in filing the mistake by a lawyer is a good ground for condoning the delay in filing the appeal. Quite recently this very question came up for consideration by this Court in Civil Appeals Nos. 821-823 of 1968. ([1972] 1 SCC 366 ). Dealing with that question this Court observed :"It may be, that the State was not properly advised regarding the remedy to be adopted to challenge the judgment in the Land Acquisition Reference Cases. But, as pointed out by the Judicial Committee in Kunwar Rajendra Singh v. Rai Rajeshwar Bali and Others, (AIR 1937 PC 276 ) if a party had acted in a particular manner on a wrong advice given by his Legal Adviser, he cannot be held guilty of negligence so as to disentitle the part to plead sufficient cause under Section 5 of the Limitation Act. In fact the Judicial Committee observes as follows :Mistaken advice given by a legal practitioner may in the circumstances of a particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice.The advice given by the lawyer to file applications under Article 227, in our opinion, is also a circumstances to be taken into account in considering whether the appellant has shown sufficient cause."4. From the facts found above it is clear that the appeal came to be filed two days after the period of limitation solely because of the wrong calculation made by Mr. Atma Ram.5. It was urged on behalf of the respondent that the Punjab Government cannot take advantage of the mistake committed by Mr. Atma Ram. It has not given any explanation of its own for not filing the appeal within time. This contention does not appeal to us. As mentioned earlier, Punjab Government had evidently left the matters in the hands of the Punjabi University which was the party really interested. It depended entirely on the Punjabi University. We see no reason why that course should be found to be improper. ### Response: 1

Shaik Madar Saheb And Ors. Etc Vs. State Of Andhra Pradesh & Ors

not give a completely accurate picture which is relevant to the present discussion. 17. The High Court concluded that the petitioners had not been able to give any statistical data or adduce any sound reasons to persuade it to reject the data furnished by the budgetary estimate and the analysis thereof given on behalf of the State and accordingly held that the proposed enhancement of tax was not designed to augment the general revenues of the State but was intended to meet the expanding requirements of maintenance of old roads and development of the road system as a whole. On these facts the High Court concluded that there was no warrant for the charge that the increased levy ceased to be a compensatory measure. 18. In the second group of petitions, the High Court also negatived the contention raised on behalf of the petitioners that the increase in taxation would virtually throw them out of the transport business. It was argued before the High Court that the increase in the tax being of the order of 50% over the preexisting levy there was bound to be an enormous addition to the total revenues of the State and this addition could not be said to be for the purpose of providing additional amenities to motor operators in particular but was one for adding to the general revenues of the State. 19. As against this it was submitted on behalf of the State before the High Court that to meet the increase in the operational cost of the operators Government had permitted an increase in fares to be charged by the operators by another order bearing the same date as that of the impugned order. Reliance was also placed on the fact that on previous occasions the operators had not been slow in utilising similar permission to raise the fare structure. It was further submitted on behalf of the State before the High Court that the Motor Vehicles Taxation had undergone changes to make it conform to and subserve the development of improved means of communication, by the development of roads and control of transport etc. The Court also noted the submission on behalf of the State that the general condition of roads in the State was poor and if the State were to provide facilities for trade and commerce equal to or comparable with the facilities for easy communication available in other States, a large outlay for construction of new roads as also the improvement of the existing road system was inevitable. The High Court thus found justification for the additional levy in the conditions obtaining in the State. 20. It was submitted before us, as was done before the High Court that taxation by reference to mileage specially in regard to bus operators who had to ply their vehicles in other States where the rate of taxation was much lower was an anchronism and an unreasonable restriction. Our attention was drawn to Annexure 2 to the writ Petition No. 1792 of 1968 where the total mileage covered by various bus operators including the break-up thereof showing the mileage in Andhra area, in Madras and Mysore were given and it was said: While the buses used by the petitioners are taxed on the basis of the total mileage covered by them, the actual user in the State of Andhra Pradesh is much less and in some cases it constitutes so low a fraction as one third of the total mileage; 21. It was therefore contended that the levy in respect of the entire mileage was incompatible with the compensatory nature of the tax. The High Court accepted the explanation on behalf of the State that there were reciprocal arrangements between the States and consequently the provisions made by the other States in regard to the free movement on their roads, constituted a compensatory measure for the tax even though it is wholly levied by the State of Andhra Pradesh. We see no reason to take a view different from the above. 22. The facts and figures disclosed do not justify us in coming to the conclusion that the levy was a general one for augmenting the revenues of the State. On the other hand the figures disclosed show that the total receipts from the tax even now fall short of the expenditure on roads and allied purposes. We are also not satisfied on the material before us that the impost has resulted in bus operators running their business at a loss. 23. The only question left is whether there was justification for levy of an impost at the rate of Rs. 30/- per quarter per seat on spare buses. While it is true that the spare buses are not allowed to be run regularly we see no reason to hold that because of this the levy is unjustified, or ceases to be a compensatory tax. As was pointed out by the High Court under Section 3 of the Act the State Government was empowered by notification to direct that a tax shall be levied on every motor vehicle used or kept for use in a public place in the State and a vehicle kept for use as a standby was therefore subject to levy under the taxing provisions. It was absolutely imperative for the owner of a fleet of buses to maintain some spare vehicles to be available for substitution in the case of a break-down. Every owner having five buses is required to maintain one spare bus and operators having more than ten buses are to keep two such buses available. Although they cannot be allowed to run regularly it is essential for the proper regulation of the transport business that some spare buses should be available to avoid inconvenience or hardship to passengers. Accordingly the levy of a tax on such buses which can at any time be put on the road is justified in like manner as in the case of regular buses as a compensatory levy. 24.

0[ds]The facts and figures disclosed do not justify us in coming to the conclusion that the levy was a general one for augmenting the revenues of the State. On the other hand the figures disclosed show that the total receipts from the tax even now fall short of the expenditure on roads and allied purposes. We are also not satisfied on the material before us that the impost has resulted in bus operators running their business at a lossWhile it is true that the spare buses are not allowed to be run regularly we see no reason to hold that because of this the levy is unjustified, or ceases to be a compensatory tax. As was pointed out by the High Court under Section 3 of the Act the State Government was empowered by notification to direct that a tax shall be levied on every motor vehicle used or kept for use in a public place in the State and a vehicle kept for use as a standby was therefore subject to levy under the taxing provisions. It was absolutely imperative for the owner of a fleet of buses to maintain some spare vehicles to be available for substitution in the case of a break-down. Every owner having five buses is required to maintain one spare bus and operators having more than ten buses are to keep two such buses available. Although they cannot be allowed to run regularly it is essential for the proper regulation of the transport business that some spare buses should be available to avoid inconvenience or hardship to passengers. Accordingly the levy of a tax on such buses which can at any time be put on the road is justified in like manner as in the case of regular buses as a compensatory levy.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: not give a completely accurate picture which is relevant to the present discussion. 17. The High Court concluded that the petitioners had not been able to give any statistical data or adduce any sound reasons to persuade it to reject the data furnished by the budgetary estimate and the analysis thereof given on behalf of the State and accordingly held that the proposed enhancement of tax was not designed to augment the general revenues of the State but was intended to meet the expanding requirements of maintenance of old roads and development of the road system as a whole. On these facts the High Court concluded that there was no warrant for the charge that the increased levy ceased to be a compensatory measure. 18. In the second group of petitions, the High Court also negatived the contention raised on behalf of the petitioners that the increase in taxation would virtually throw them out of the transport business. It was argued before the High Court that the increase in the tax being of the order of 50% over the preexisting levy there was bound to be an enormous addition to the total revenues of the State and this addition could not be said to be for the purpose of providing additional amenities to motor operators in particular but was one for adding to the general revenues of the State. 19. As against this it was submitted on behalf of the State before the High Court that to meet the increase in the operational cost of the operators Government had permitted an increase in fares to be charged by the operators by another order bearing the same date as that of the impugned order. Reliance was also placed on the fact that on previous occasions the operators had not been slow in utilising similar permission to raise the fare structure. It was further submitted on behalf of the State before the High Court that the Motor Vehicles Taxation had undergone changes to make it conform to and subserve the development of improved means of communication, by the development of roads and control of transport etc. The Court also noted the submission on behalf of the State that the general condition of roads in the State was poor and if the State were to provide facilities for trade and commerce equal to or comparable with the facilities for easy communication available in other States, a large outlay for construction of new roads as also the improvement of the existing road system was inevitable. The High Court thus found justification for the additional levy in the conditions obtaining in the State. 20. It was submitted before us, as was done before the High Court that taxation by reference to mileage specially in regard to bus operators who had to ply their vehicles in other States where the rate of taxation was much lower was an anchronism and an unreasonable restriction. Our attention was drawn to Annexure 2 to the writ Petition No. 1792 of 1968 where the total mileage covered by various bus operators including the break-up thereof showing the mileage in Andhra area, in Madras and Mysore were given and it was said: While the buses used by the petitioners are taxed on the basis of the total mileage covered by them, the actual user in the State of Andhra Pradesh is much less and in some cases it constitutes so low a fraction as one third of the total mileage; 21. It was therefore contended that the levy in respect of the entire mileage was incompatible with the compensatory nature of the tax. The High Court accepted the explanation on behalf of the State that there were reciprocal arrangements between the States and consequently the provisions made by the other States in regard to the free movement on their roads, constituted a compensatory measure for the tax even though it is wholly levied by the State of Andhra Pradesh. We see no reason to take a view different from the above. 22. The facts and figures disclosed do not justify us in coming to the conclusion that the levy was a general one for augmenting the revenues of the State. On the other hand the figures disclosed show that the total receipts from the tax even now fall short of the expenditure on roads and allied purposes. We are also not satisfied on the material before us that the impost has resulted in bus operators running their business at a loss. 23. The only question left is whether there was justification for levy of an impost at the rate of Rs. 30/- per quarter per seat on spare buses. While it is true that the spare buses are not allowed to be run regularly we see no reason to hold that because of this the levy is unjustified, or ceases to be a compensatory tax. As was pointed out by the High Court under Section 3 of the Act the State Government was empowered by notification to direct that a tax shall be levied on every motor vehicle used or kept for use in a public place in the State and a vehicle kept for use as a standby was therefore subject to levy under the taxing provisions. It was absolutely imperative for the owner of a fleet of buses to maintain some spare vehicles to be available for substitution in the case of a break-down. Every owner having five buses is required to maintain one spare bus and operators having more than ten buses are to keep two such buses available. Although they cannot be allowed to run regularly it is essential for the proper regulation of the transport business that some spare buses should be available to avoid inconvenience or hardship to passengers. Accordingly the levy of a tax on such buses which can at any time be put on the road is justified in like manner as in the case of regular buses as a compensatory levy. 24. ### Response: 0

Daulatrao Jairamji (Since Dead) L.Rs Vs. Harishchandra & Others

as regards the execution of the deed is extremely artificial. It may be noted that at about the time, the plaintiff executed the adoption deed, he had also executed gift deeds in favour of his two wives, his mistress and his daughter. He himself presented all those documents for registration. Apart from averring in the plaint that those documents were fictitiously got up by the 1st defendant, the plaintiff has not even challenged the validity of those documents. Apparently he stood by those documents. The 1st defendant could not have had any interest in getting gift deeds in favour of the plaintiffs wives, his mistress and the daughter. The execution of these deeds undoubtedly go to strengthen the case of the third defendant that the plaintiff voluntarily executed the adoption deed.10. Now coming to the factum of adoption, firstly there is an admission of that fact in the adoption deed executed by the plaintiff. Then we have the evidence of the photographer who speaks to the fact that a photograph of the persons who participated in the adoption was taken by him very soon after the adoption. Added to this we have the evidence of the priest who officiated at the adoption. As many as six witnesses had attested the adoption deed. Out of them, two have been examined. They speak to the adoption ceremony. They speak to the giving and taking of the boy. The High Court has accepted their testimony. We see no reason to differ from the conclusions reached by the High Court.11. Some comment was made on the facts that the adoption is said to have taken place in the compound of Dr. Mudaliars hospital and that too very near a latrine; no invitations had been issued for the adoption, there was no music and that there was no reception. In addition, it was also alleged that the ladies of the house who were alleged to have been present at the time of the adoption do not appear in the photo and that circumstance indicates that there was no adoption. These circumstances undoubtedly show that the adoption in question was not done with the concurrence of the wives of the plaintiff. It may be that the plaintiff had adopted the third defendant without the knowledge of his wives and with a view to avoid any obstruction by them he had gone to Amravati and adopted the third defendant. Possibly under the influence of his wives, he had later tried to resile from the adoption made.12. This Court ordinarily attaches great deal of importance to the findings of fact reached by the High Courts. The findings reached by the High Court are probabilised by the circumstances appearing in the case and are supported by oral and documentary evidence. Under these circumstances, we are not called upon to reassess the evidence minutely. In the result we agree with the High Court that the plaintiff had adopted the third defendant on January 5, 1955. We do not agree with the trial court that there is no satisfactory evidence as regards giving and taking of the boy.13. This takes us to the alternative relief asked for in the plaint. Obviously parties to the suit as well as the trial court as well as the High Court had exclusively focussed their attention on the question of adoption. The trial Judge having decided the main question in favour of the plaintiff probably thought it unnecessary to examine the alternative relief claimed. It must also be said that the issues framed did not directly touch the said relief. The High Court in its judgment after dealing with the question of adoption clearly says that "no other issue was canvassed in the appeal." But all the same, the plaintiff had clearly declared his intention to be separated from the third defendant in paragraph 7 of the plaint. He had also claimed that a partition be effected by metes and bounds through court. In his written statement, the third defendant has admitted the plaintiffs right to get a share. The plaintiffs right to get a share is not open to any dispute. The plaintiff stood separated from the third defendant by the time the suit was filed. His share had to be determined as on the date he got separated from the third defendant. The plaintiff died in 1969 during the pendency of the litigation. His share devolved on his heirs according to law. It was contended on behalf of the contesting respondents that the plaintiff having not pressed the alternative relief claimed before the High Court, we should not go into that question at this stage and the parties should be allowed to work out their rights in a separate suit. We see no justification for that course. The deceased plaintiff was entitled to have his share worked out in the present suit itself. He having died during the pendency of the litigation his share devolved on his heirs. It is but appropriate that the rights inter se between his heirs should be worked out in this very litigation. We were told at the bar that the plaintiff died in 1969 after the Hindu Succession Act came into force. It is not possible for us to work out the rights of the parties in this Court. We think that under the circumstances of the case, it is appropriate to remand this case to the trial court to ascertain as to what was the share of the deceased plaintiff on the date he got separated from the third defendant, who are all his heirs and to what share each one of them is entitled to. The trial court will also divide by metes and bounds not merely the shares inter se between the deceased plaintiff and the third defendant but also between the heirs of the deceased plaintiff. Unless there was any disposition made by the deceased plaintiff of his share, the third defendant is also admittedly one of the heirs of the deceased plaintiff.

1[ds]e was a controversy between the parties as to whether the plaintiff and his brother Champatrao, defendant No. 1 were members of an undivided family or whether they weredivided. Both the trial court as well as the High Court came to the conclusion that there was partition between the plaintiff and his brother in the year 1948. That conclusion was not even challenged before the High Court. Hence there is no need to go into it.The burden of establishing that there was a valid adoption which deflected the ordinary course of succession is undoubtedly on the party who pleads the case of adoption. In the instant case, there is almost conclusive evidence to show that the plaintiff had adopted the third defendant on January 5, 1955. Immediately after the adoption, as is usual in Maharashtra, a photograph of the adoptive father, the adopted boy as well as of other relations had been taken. The photographer has been examined. he has also produced the negative. There is no reason to disbelieve the testimony of the photographer. The photograph in question completely falsifies the story of the plaintiff that at about the time of the adoption, he was unconscious. It is seen from the photograph that the plaintiff waswhen the photograph was taken. He was sitting erect and alert. Though he looks old and weak in the photograph, he looks quite cheerful. As regards the state of his health at about the time of adoption, the plaintiff has given various versions each contradicting the other. At one stage of his evidence he stated that he was only mentally feeble at that time because of the illness; at another place he deposed that he was unconscious for four or five days but he later asserted that he was unconscious for one full month. Hardly any reliance can be placed on the testimony of the plaintiff. The best witness who could have spoken to the physical and mental condition of the plaintiff was Dr. Mudaliar. Dr. Mudaliar has not been examined. No reason is forthcoming for hisCuriously enough instead of examining Dr. Mudaliar, the plaintiff has chosen to examine his compounder, whose evidence clearly discloses that he knew very little about the nature of the plaintiffs ailment. Some records said to have been maintained in Dr. Mudaliars dispensary had been produced. Naturally the High Court was not able to attach any importance to those documents. Nor do we attach any importance to them.We next come to the question of the adoption deed. The plaintiff admits that the signatures found therein are his. His explanation is that the said signatures were obtained by practising fraud on him and that he did not know the contents of the document when he signed the same. This is clearly falsified by the testimony of thewho registered the document. Thedeposed that the adoption deed was presented before him by the plaintiff on January 7, 1955 and that the plaintiff admitted before him the correctness of its contents. There is no reason to disbelieve the testimony of thewho appears to be an independent witness. In addition to the evidence of thethe third defendant has examined two of the attestors to the adoption deed. One of the attesters to the adoption deed is a common relation of the plaintiff as well as of the first defendant.9. The story put forward by the plaintiff as regards the execution of the deed is extremely artificial. It may be noted that at about the time, the plaintiff executed the adoption deed, he had also executed gift deeds in favour of his two wives, his mistress and his daughter. He himself presented all those documents for registration. Apart from averring in the plaint that those documents were fictitiously got up by the 1st defendant, the plaintiff has not even challenged the validity of those documents. Apparently he stood by those documents. The 1st defendant could not have had any interest in getting gift deeds in favour of the plaintiffs wives, his mistress and the daughter. The execution of these deeds undoubtedly go to strengthen the case of the third defendant that the plaintiff voluntarily executed the adoption deed.10. Now coming to the factum of adoption, firstly there is an admission of that fact in the adoption deed executed by the plaintiff. Then we have the evidence of the photographer who speaks to the fact that a photograph of the persons who participated in the adoption was taken by him very soon after the adoption. Added to this we have the evidence of the priest who officiated at the adoption. As many as six witnesses had attested the adoption deed. Out of them, two have been examined. They speak to the adoption ceremony. They speak to the giving and taking of the boy. The High Court has accepted their testimony. We see no reason to differ from the conclusions reached by the High Court.11. Some comment was made on the facts that the adoption is said to have taken place in the compound of Dr. Mudaliars hospital and that too very near a latrine; no invitations had been issued for the adoption, there was no music and that there was no reception. In addition, it was also alleged that the ladies of the house who were alleged to have been present at the time of the adoption do not appear in the photo and that circumstance indicates that there was no adoption. These circumstances undoubtedly show that the adoption in question was not done with the concurrence of the wives of the plaintiff. It may be that the plaintiff had adopted the third defendant without the knowledge of his wives and with a view to avoid any obstruction by them he had gone to Amravati and adopted the third defendant. Possibly under the influence of his wives, he had later tried to resile from the adoption made.12. This Court ordinarily attaches great deal of importance to the findings of fact reached by the High Courts. The findings reached by the High Court are probabilised by the circumstances appearing in the case and are supported by oral and documentary evidence. Under these circumstances, we are not called upon to reassess the evidence minutely. In the result we agree with the High Court that the plaintiff had adopted the third defendant on January 5, 1955. We do not agree with the trial court that there is no satisfactory evidence as regards giving and taking of the boy.13. This takes us to the alternative relief asked for in the plaint. Obviously parties to the suit as well as the trial court as well as the High Court had exclusively focussed their attention on the question of adoption. The trial Judge having decided the main question in favour of the plaintiff probably thought it unnecessary to examine the alternative relief claimed. It must also be said that the issues framed did not directly touch the said relief. The High Court in its judgment after dealing with the question of adoption clearly says that "no other issue was canvassed in the appeal." But all the same, the plaintiff had clearly declared his intention to be separated from the third defendant in paragraph 7 of the plaint. He had also claimed that a partition be effected by metes and bounds through court. In his written statement, the third defendant has admitted the plaintiffs right to get a share. The plaintiffs right to get a share is not open to any dispute. The plaintiff stood separated from the third defendant by the time the suit was filed. His share had to be determined as on the date he got separated from the third defendant. The plaintiff died in 1969 during the pendency of the litigation. His share devolved on his heirs according to law. It was contended on behalf of the contesting respondents that the plaintiff having not pressed the alternative relief claimed before the High Court, we should not go into that question at this stage and the parties should be allowed to work out their rights in a separate suit. We see no justification for that course. The deceased plaintiff was entitled to have his share worked out in the present suit itself. He having died during the pendency of the litigation his share devolved on his heirs. It is but appropriate that the rights inter se between his heirs should be worked out in this very litigation. We were told at the bar that the plaintiff died in 1969 after the Hindu Succession Act came into force. It is not possible for us to work out the rights of the parties in this Court. We think that under the circumstances of the case, it is appropriate to remand this case to the trial court to ascertain as to what was the share of the deceased plaintiff on the date he got separated from the third defendant, who are all his heirs and to what share each one of them is entitled to. The trial court will also divide by metes and bounds not merely the shares inter se between the deceased plaintiff and the third defendant but also between the heirs of the deceased plaintiff. Unless there was any disposition made by the deceased plaintiff of his share, the third defendant is also admittedly one of the heirs of the deceased plaintiff.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: as regards the execution of the deed is extremely artificial. It may be noted that at about the time, the plaintiff executed the adoption deed, he had also executed gift deeds in favour of his two wives, his mistress and his daughter. He himself presented all those documents for registration. Apart from averring in the plaint that those documents were fictitiously got up by the 1st defendant, the plaintiff has not even challenged the validity of those documents. Apparently he stood by those documents. The 1st defendant could not have had any interest in getting gift deeds in favour of the plaintiffs wives, his mistress and the daughter. The execution of these deeds undoubtedly go to strengthen the case of the third defendant that the plaintiff voluntarily executed the adoption deed.10. Now coming to the factum of adoption, firstly there is an admission of that fact in the adoption deed executed by the plaintiff. Then we have the evidence of the photographer who speaks to the fact that a photograph of the persons who participated in the adoption was taken by him very soon after the adoption. Added to this we have the evidence of the priest who officiated at the adoption. As many as six witnesses had attested the adoption deed. Out of them, two have been examined. They speak to the adoption ceremony. They speak to the giving and taking of the boy. The High Court has accepted their testimony. We see no reason to differ from the conclusions reached by the High Court.11. Some comment was made on the facts that the adoption is said to have taken place in the compound of Dr. Mudaliars hospital and that too very near a latrine; no invitations had been issued for the adoption, there was no music and that there was no reception. In addition, it was also alleged that the ladies of the house who were alleged to have been present at the time of the adoption do not appear in the photo and that circumstance indicates that there was no adoption. These circumstances undoubtedly show that the adoption in question was not done with the concurrence of the wives of the plaintiff. It may be that the plaintiff had adopted the third defendant without the knowledge of his wives and with a view to avoid any obstruction by them he had gone to Amravati and adopted the third defendant. Possibly under the influence of his wives, he had later tried to resile from the adoption made.12. This Court ordinarily attaches great deal of importance to the findings of fact reached by the High Courts. The findings reached by the High Court are probabilised by the circumstances appearing in the case and are supported by oral and documentary evidence. Under these circumstances, we are not called upon to reassess the evidence minutely. In the result we agree with the High Court that the plaintiff had adopted the third defendant on January 5, 1955. We do not agree with the trial court that there is no satisfactory evidence as regards giving and taking of the boy.13. This takes us to the alternative relief asked for in the plaint. Obviously parties to the suit as well as the trial court as well as the High Court had exclusively focussed their attention on the question of adoption. The trial Judge having decided the main question in favour of the plaintiff probably thought it unnecessary to examine the alternative relief claimed. It must also be said that the issues framed did not directly touch the said relief. The High Court in its judgment after dealing with the question of adoption clearly says that "no other issue was canvassed in the appeal." But all the same, the plaintiff had clearly declared his intention to be separated from the third defendant in paragraph 7 of the plaint. He had also claimed that a partition be effected by metes and bounds through court. In his written statement, the third defendant has admitted the plaintiffs right to get a share. The plaintiffs right to get a share is not open to any dispute. The plaintiff stood separated from the third defendant by the time the suit was filed. His share had to be determined as on the date he got separated from the third defendant. The plaintiff died in 1969 during the pendency of the litigation. His share devolved on his heirs according to law. It was contended on behalf of the contesting respondents that the plaintiff having not pressed the alternative relief claimed before the High Court, we should not go into that question at this stage and the parties should be allowed to work out their rights in a separate suit. We see no justification for that course. The deceased plaintiff was entitled to have his share worked out in the present suit itself. He having died during the pendency of the litigation his share devolved on his heirs. It is but appropriate that the rights inter se between his heirs should be worked out in this very litigation. We were told at the bar that the plaintiff died in 1969 after the Hindu Succession Act came into force. It is not possible for us to work out the rights of the parties in this Court. We think that under the circumstances of the case, it is appropriate to remand this case to the trial court to ascertain as to what was the share of the deceased plaintiff on the date he got separated from the third defendant, who are all his heirs and to what share each one of them is entitled to. The trial court will also divide by metes and bounds not merely the shares inter se between the deceased plaintiff and the third defendant but also between the heirs of the deceased plaintiff. Unless there was any disposition made by the deceased plaintiff of his share, the third defendant is also admittedly one of the heirs of the deceased plaintiff. ### Response: 1

Shew Bux Mohato & Ors Vs. Ajit Nath Dutta

plaintiffs.4. On July 30, 1901 one Upendra Nath Addey obtained from Sukheswari a Mourashi Mokrari lease of 6 bighas out of the aforesaid 31 bighas of garden land on payment of Rs. 1,300 by way of salami or premium. The leased property is comprised in C. S. Dags Nos. 144-150. The lease was executed by Sukheswari in pursuance of a decree passed against her on September 2, 1899 in a suit for specific performance of an agreement executed by her in or about 1891. The leasehold interest of Upendra Nath became subsequently vested in the third defendant.5. On September 15, 1945, the plaintiffs instituted the present suit claiming a declaration of their title and recovery of khas possession of the garden lands and for other reliefs. The trial Court decreed the suit. The decree passed against the defendants other than the third defendant was confirmed by the High Court, and has now become final. In the appeal filed by the third defendant, the High Court confirmed the decree of the trial Court declaring the plaintiffs title to 6 bighas of land comprised in C. S. Dags Nos. 144-150, but it set aside the decree for recovery of khas possession and mesne profits, and instead passed a decree for 3 years rent in respect of the property. The correctness of this decree is challenged by the plaintiffs.6. If Sukheswari had power to lease C. S. Dags No. 144 to 150 to Upendra Nath Addy, it is not disputed that the plaintiffs cannot recover khas possession of the property, from the third defendant in this suit. Counsel for the plaintiffs, however, submitted that Sukheswari had no power to grant the lease. This contention was accepted by the trial Court, but it was rejected by the High Court. Under S. 90 of the Probate and Administration Act, 1881 (Act No. 5 of 1881), Sukeswari had power was restricted by Nursingdass will. Counsel submitted that Cl. 4 of the will imposed such a restriction. The operative part of the will consisted of five clauses, which were in these terms :"1. I appoint my wife Sm. Sukheswari alias Begam as the Executrix.2. After my death my aforesaid wife being vested with my title will enjoy and possess all the moveable and immoveable properties etc., which will be left by me as long as she will be alive and after her death my son Sree Nilakantha Seal will come to be vested with the same title.3. My wife will make payment in the same manner in which I have been paying the maintenance (Khoraki) to my revered mother and stepmother, and will make the house-hold expenses, etc., in the same manner in which I have been making.4. My second daughter and the aforesaid son, Nilkantha Seal have not been married as yet. My wife will spend a reasonable sum from my Estate on account of their marriage. If for that purpose a portion of my Estate has to be sold out, then my said wife will sell any portion of my estate whatever and will perform the said marriages. I give her absolute power in that behalf.5. My Executor will repay my debts on my death and realise my dues.".7. It is to be noticed that Cl. 4 of the will authorised Sukheswari to sell a portion of the estate for meeting the expenses of the marriages of Nilkantha and his sister. Counsel for the appellants submitted that the specific authority in Cl. 4 to deal with the estate in a particular way negatived any authority to deal with it in other ways. We are unable to accept this contention. Clause 5 directed the executrix to pay the testators debts. Clause 3 directed her to pay maintenance to the mother and stepmother of the testator. The testator could not have intended to impose any restriction on the power of the executrix to dispose of the estate for the payment of the debts and the maintenance. Clause 4 cannot be regarded as a general restriction on the power of Sukheswari to dispose of the properties in due course of administration.8. Counsel submitted that the lease was executed by Sukheswari for the purpose of raising money to meet the expenses of the marriage of her daughter. He argued that in view of C1. 4 of the will, Sukheswari could raise money for this purpose by selling a portion of the estate and in no other manner. The materials on the record do not clearly indicate why Sukheswari granted the lease. But we shall assume that the purpose of the lease was to raise moneys for meeting the marriage expenses. In our opinion, Cl. 4 did not fetter the power of the executrix to grant this lease. Clear language was required for restricting the power of the executrix to deal with the property under S. 90 (1) of the Probate and Administration Act, 1881. The will contained no such language. There was no provision in the will with regard to the power of the executrix to lease the property and the principle expressum facit cessare tacitum has no application.9. In Purna Chandra Bakshi v. Nobin Chandra Gangopadhya, (1903) 8 Cal WN 362, the Calcutta High Court held that a provision in a will authorising the executor to sell the testators property to pay off his debts could not be regarded as an implied prohibition against mortgaging the property. The executor had power under S. 90 of the Probate and Administration Act, 1881 to mortgage the property for paying the debts. The express power to sell the property did not imply a restriction on her to dispose of it in any other way under S. 90. We agree with this decision. In our opinion, Cl. 4 of the will of Nursingdas did not impose any restriction on the power of the executrix to lease the property in due course of administration. The lease is binding on the plaintiffs, and they cannot recover khas possession of the property in this suit.

0[ds]Clause 5 directed the executrix to pay the testators debts. Clause 3 directed her to pay maintenance to the mother and stepmother of the testator. The testator could not have intended to impose any restriction on the power of the executrix to dispose of the estate for the payment of the debts and the maintenance. Clause 4 cannot be regarded as a general restriction on the power of Sukheswari to dispose of the properties in due course ofmaterials on the record do not clearly indicate why Sukheswari granted the lease. But we shall assume that the purpose of the lease was to raise moneys for meeting the marriage expenses. In our opinion, Cl. 4 did not fetter the power of the executrix to grant this lease. Clear language was required for restricting the power of the executrix to deal with the property under S. 90 (1) of the Probate and Administration Act, 1881. The will contained no such language. There was no provision in the will with regard to the power of the executrix to lease the property and the principle expressum facit cessare tacitum has no application.9. In Purna Chandra Bakshi v. Nobin Chandra Gangopadhya, (1903) 8 Cal WN 362, the Calcutta High Court held that a provision in a will authorising the executor to sell the testators property to pay off his debts could not be regarded as an implied prohibition against mortgaging the property. The executor had power under S. 90 of the Probate and Administration Act, 1881 to mortgage the property for paying the debts. The express power to sell the property did not imply a restriction on her to dispose of it in any other way under S. 90. We agree with this decision. In our opinion, Cl. 4 of the will of Nursingdas did not impose any restriction on the power of the executrix to lease the property in due course of administration. The lease is binding on the plaintiffs, and they cannot recover khas possession of the property in this suit.

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: plaintiffs.4. On July 30, 1901 one Upendra Nath Addey obtained from Sukheswari a Mourashi Mokrari lease of 6 bighas out of the aforesaid 31 bighas of garden land on payment of Rs. 1,300 by way of salami or premium. The leased property is comprised in C. S. Dags Nos. 144-150. The lease was executed by Sukheswari in pursuance of a decree passed against her on September 2, 1899 in a suit for specific performance of an agreement executed by her in or about 1891. The leasehold interest of Upendra Nath became subsequently vested in the third defendant.5. On September 15, 1945, the plaintiffs instituted the present suit claiming a declaration of their title and recovery of khas possession of the garden lands and for other reliefs. The trial Court decreed the suit. The decree passed against the defendants other than the third defendant was confirmed by the High Court, and has now become final. In the appeal filed by the third defendant, the High Court confirmed the decree of the trial Court declaring the plaintiffs title to 6 bighas of land comprised in C. S. Dags Nos. 144-150, but it set aside the decree for recovery of khas possession and mesne profits, and instead passed a decree for 3 years rent in respect of the property. The correctness of this decree is challenged by the plaintiffs.6. If Sukheswari had power to lease C. S. Dags No. 144 to 150 to Upendra Nath Addy, it is not disputed that the plaintiffs cannot recover khas possession of the property, from the third defendant in this suit. Counsel for the plaintiffs, however, submitted that Sukheswari had no power to grant the lease. This contention was accepted by the trial Court, but it was rejected by the High Court. Under S. 90 of the Probate and Administration Act, 1881 (Act No. 5 of 1881), Sukeswari had power was restricted by Nursingdass will. Counsel submitted that Cl. 4 of the will imposed such a restriction. The operative part of the will consisted of five clauses, which were in these terms :"1. I appoint my wife Sm. Sukheswari alias Begam as the Executrix.2. After my death my aforesaid wife being vested with my title will enjoy and possess all the moveable and immoveable properties etc., which will be left by me as long as she will be alive and after her death my son Sree Nilakantha Seal will come to be vested with the same title.3. My wife will make payment in the same manner in which I have been paying the maintenance (Khoraki) to my revered mother and stepmother, and will make the house-hold expenses, etc., in the same manner in which I have been making.4. My second daughter and the aforesaid son, Nilkantha Seal have not been married as yet. My wife will spend a reasonable sum from my Estate on account of their marriage. If for that purpose a portion of my Estate has to be sold out, then my said wife will sell any portion of my estate whatever and will perform the said marriages. I give her absolute power in that behalf.5. My Executor will repay my debts on my death and realise my dues.".7. It is to be noticed that Cl. 4 of the will authorised Sukheswari to sell a portion of the estate for meeting the expenses of the marriages of Nilkantha and his sister. Counsel for the appellants submitted that the specific authority in Cl. 4 to deal with the estate in a particular way negatived any authority to deal with it in other ways. We are unable to accept this contention. Clause 5 directed the executrix to pay the testators debts. Clause 3 directed her to pay maintenance to the mother and stepmother of the testator. The testator could not have intended to impose any restriction on the power of the executrix to dispose of the estate for the payment of the debts and the maintenance. Clause 4 cannot be regarded as a general restriction on the power of Sukheswari to dispose of the properties in due course of administration.8. Counsel submitted that the lease was executed by Sukheswari for the purpose of raising money to meet the expenses of the marriage of her daughter. He argued that in view of C1. 4 of the will, Sukheswari could raise money for this purpose by selling a portion of the estate and in no other manner. The materials on the record do not clearly indicate why Sukheswari granted the lease. But we shall assume that the purpose of the lease was to raise moneys for meeting the marriage expenses. In our opinion, Cl. 4 did not fetter the power of the executrix to grant this lease. Clear language was required for restricting the power of the executrix to deal with the property under S. 90 (1) of the Probate and Administration Act, 1881. The will contained no such language. There was no provision in the will with regard to the power of the executrix to lease the property and the principle expressum facit cessare tacitum has no application.9. In Purna Chandra Bakshi v. Nobin Chandra Gangopadhya, (1903) 8 Cal WN 362, the Calcutta High Court held that a provision in a will authorising the executor to sell the testators property to pay off his debts could not be regarded as an implied prohibition against mortgaging the property. The executor had power under S. 90 of the Probate and Administration Act, 1881 to mortgage the property for paying the debts. The express power to sell the property did not imply a restriction on her to dispose of it in any other way under S. 90. We agree with this decision. In our opinion, Cl. 4 of the will of Nursingdas did not impose any restriction on the power of the executrix to lease the property in due course of administration. The lease is binding on the plaintiffs, and they cannot recover khas possession of the property in this suit. ### Response: 0

Commissioner of Agricultural Income Tax, Kerala Vs. Kailas Rubber and Company Limited

SATYANARAYANA RAJU J.1. This is an appeal, by special leave, against the order of the High Court of Kerala dated August 2, 1963, in Income-tax Reference Case No. 48/62 (Agricultural) The facts leading to this appeal may be briefly stated. The respondent is a company which owned a rubber estate purchased by it along with the plantation thereon. The estate included rubber trees which, at the time of purchase, were in a condition of producing latex. The rubber trees were sold by the company after they ceased to yield latex any further. In computing its agricultural income for the accounting year ending February 28, 1959, relevant to the assessment year 1959-60, for the purposes of the Kerala Agricultural Income-tax Act, 1950 (XXII of 1950), the Assistant Commissioner of Agricultural Income-tax, by his order dated February 2, 1962, included the sum of Rs. 8, 532.50 representing the sale proceeds of rubber trees which were cut down and sold after they became useless. The respondent appealed to the Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon, objecting, inter alia, to the inclusion of the amount in computing its agricultural income2. By order dated November 30, 1960, the Deputy Commissioner rejected the contention of the respondent. The respondent thereupon preferred a second appeal to the Agricultural Income-tax Appellate Tribunal, Trivandrum. By its order dated August 18, 1962, the Tribunal accepted the contention of the respondent and held that the sum of Rs. 8, 532.50 representing the sale proceeds of rubber trees cut down and sold after they had become useless was not taxable as income, but was merely a capital receipt3. On the application of the appellant, the Tribunal stated a case to the Kerala High Court and referred the following two questions of law for its opinion"(i) Whether the sale proceeds of old and unyielding rubber trees grown and used for obtaining income as latex therefrom are capital receipts ?(ii) Whether the sale proceeds of unyielding trees purchased many years back as yielding trees are capital receipts ?"4. The learned judges of the Division Bench of the High Court by their judgment dated August 2, 1963, answered the two questions in the affirmative and in favour of the respondent. The appellant thereupon obtained special leave to appeal to this court5. The appellants contention mainly is that the sum of Rs. 8, 532.50 was in the nature of a revenue receipt and had to be included in computing the agricultural income. The contention of the respondent is that the sale proceeds of the rubber trees which have been planted for the purpose of yielding latex, but were cut down and sold after they had ceased to yield any further, could not be in the nature of revenue receiptsNow, section 2(a) of the Kerala Agricultural Income-tax Act, 1950, (XXII of 1950), hereinafter called the Act, defines " agricultural income Agricultural income " means--(1) any rent or revenue derived from land which is used for agricultural purposes ;(2) any income derived from such land in the State by--(i) agriculture, or(ii) the performance by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market, or(iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in sub-clause (ii)6. The definition of " agricultural income " in section 2 does not include proceeds from the sale of rubber trees in an estate which were utilised for the purpose of deriving income in the shape of latex. There was enough evidence in the record justifying the High Courts conclusion that the rubber trees formed part of the capital assets of the respondent. Admittedly, the respondent did not grow the rubber trees for the purpose of selling them. It was getting income from these rubber frees in the shape of latex. In course of time the rubber trees became old and unyielding. When the trees were no longer productive of latex, the respondent felled them and sold them. The Appellate Tribunal and the High Court were, therefore, right in holding that the sale proceeds of these trees should be treated as capital receipt and not taxable as agricultural incomeIn this view of the matter, the appeal fails and is dismissed with costs

0[ds]6. The definition of " agricultural income " in section 2 does not include proceeds from the sale of rubber trees in an estate which were utilised for the purpose of deriving income in the shape of latex. There was enough evidence in the record justifying the High Courts conclusion that the rubber trees formed part of the capital assets of the respondent. Admittedly, the respondent did not grow the rubber trees for the purpose of selling them. It was getting income from these rubber frees in the shape of latex. In course of time the rubber trees became old and unyielding. When the trees were no longer productive of latex, the respondent felled them and sold them. The Appellate Tribunal and the High Court were, therefore, right in holding that the sale proceeds of these trees should be treated as capital receipt and not taxable as agricultural incomeIn this view of the matter, the appeal fails and is dismissed with costs

### Instruction: Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal? ### Input: SATYANARAYANA RAJU J.1. This is an appeal, by special leave, against the order of the High Court of Kerala dated August 2, 1963, in Income-tax Reference Case No. 48/62 (Agricultural) The facts leading to this appeal may be briefly stated. The respondent is a company which owned a rubber estate purchased by it along with the plantation thereon. The estate included rubber trees which, at the time of purchase, were in a condition of producing latex. The rubber trees were sold by the company after they ceased to yield latex any further. In computing its agricultural income for the accounting year ending February 28, 1959, relevant to the assessment year 1959-60, for the purposes of the Kerala Agricultural Income-tax Act, 1950 (XXII of 1950), the Assistant Commissioner of Agricultural Income-tax, by his order dated February 2, 1962, included the sum of Rs. 8, 532.50 representing the sale proceeds of rubber trees which were cut down and sold after they became useless. The respondent appealed to the Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon, objecting, inter alia, to the inclusion of the amount in computing its agricultural income2. By order dated November 30, 1960, the Deputy Commissioner rejected the contention of the respondent. The respondent thereupon preferred a second appeal to the Agricultural Income-tax Appellate Tribunal, Trivandrum. By its order dated August 18, 1962, the Tribunal accepted the contention of the respondent and held that the sum of Rs. 8, 532.50 representing the sale proceeds of rubber trees cut down and sold after they had become useless was not taxable as income, but was merely a capital receipt3. On the application of the appellant, the Tribunal stated a case to the Kerala High Court and referred the following two questions of law for its opinion"(i) Whether the sale proceeds of old and unyielding rubber trees grown and used for obtaining income as latex therefrom are capital receipts ?(ii) Whether the sale proceeds of unyielding trees purchased many years back as yielding trees are capital receipts ?"4. The learned judges of the Division Bench of the High Court by their judgment dated August 2, 1963, answered the two questions in the affirmative and in favour of the respondent. The appellant thereupon obtained special leave to appeal to this court5. The appellants contention mainly is that the sum of Rs. 8, 532.50 was in the nature of a revenue receipt and had to be included in computing the agricultural income. The contention of the respondent is that the sale proceeds of the rubber trees which have been planted for the purpose of yielding latex, but were cut down and sold after they had ceased to yield any further, could not be in the nature of revenue receiptsNow, section 2(a) of the Kerala Agricultural Income-tax Act, 1950, (XXII of 1950), hereinafter called the Act, defines " agricultural income Agricultural income " means--(1) any rent or revenue derived from land which is used for agricultural purposes ;(2) any income derived from such land in the State by--(i) agriculture, or(ii) the performance by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be taken to market, or(iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in sub-clause (ii)6. The definition of " agricultural income " in section 2 does not include proceeds from the sale of rubber trees in an estate which were utilised for the purpose of deriving income in the shape of latex. There was enough evidence in the record justifying the High Courts conclusion that the rubber trees formed part of the capital assets of the respondent. Admittedly, the respondent did not grow the rubber trees for the purpose of selling them. It was getting income from these rubber frees in the shape of latex. In course of time the rubber trees became old and unyielding. When the trees were no longer productive of latex, the respondent felled them and sold them. The Appellate Tribunal and the High Court were, therefore, right in holding that the sale proceeds of these trees should be treated as capital receipt and not taxable as agricultural incomeIn this view of the matter, the appeal fails and is dismissed with costs ### Response: 0

Ram Dahin Singh and Others Vs. State of Bihar

cartridges found there. According to the evidence of Bande Hasan (D.W. 1), for Ram Dahin Singh it was 10 to 15 days after the 4th of November, 1963, that Ram Dahin Singh went to him, Bande Hasan, it may be pointed out, is stated to be the counsel in the case in which Ram Dahin Singh is said to have appeared as a witness on November 4, 1963 in the court of the Railway Magistrate at Varanasi. Ram Dahin Singh, according to this witness, told him when he met him after 10 to 15 days that a murder case had been started against him alleging the occurrence to have taken place on the date on which he had appeared as a witness. Bande Hassan advised Ram Dahin Singh to obtain certified copies of the relevant papers and to produce them in court in his defence. Ram Dahin Singh again went to Bande Hassan and thereafter Bande Hasan saw the accused only in court at his trial. When questioned whether Bande Hasan had made any statement to the police after November 4, 1963 and before Ram Dahin Singh met him 10 or 15 days thereafter he replied that he could not remember. The evidence of Bande Hasan seems to us to be unimpressive. There is evidence on the record that the gun belonging to Ram Dahin Singh was also damaged when recovered. It was not found in the house when it was searched on November 6, 1963. The fact that Ram Dahin Singh absconded soon after the occurrence and took the gun with him is relevant and can properly be taken into account by the four in appraising the evidence against him and also in appraising the evidence in regard to his plea of alibi. In this case, as generally in most cases, the prosecution evidence and the evidence of alibi is not to be considered in compartments. The evidence on one part will have impact on the other and the court has to consider the entire material on the record as constituting one complete picture. This is precisely what the courts below did. In view of the conclusions of the courts below we have no hesitation in disagreeing with the appellants contention and we repel Ram Dahin Singhs plea of alibi.10. Turning to the plea of alibi on behalf of Satyanarain Singh, appellant, the courts below have again concurrently held that this evidence is consistent with Satyanarain Singhs participation in the occurrence. The prosecution evidence that Satyanarain Singh instigated Ram Dahin Singh to use his gun has been believed by both the courts below and we are unable to hold that any doubt has been introduced in the prosecution evidence by the evidence produced in support of Satyanarain Singhs alibi. Indeed, all that is brought on the record is that on that day he had attested a mortgage deed at a place about 22 miles away from Kakar Kundi. The story deposed by the defence witness in support of Satyanarain Singhs alibi was considered by the Trial Court to be highly improbable and it was added that in so far as the attestation of the document was concerned he could have been present at the place of occurrence and could also have attested the document. The High Court agreed that the attestation of the document as not inconsistent with Satyanarain Singhs presence at the time and plea of the occurrence. We do not find any defect or error in this conclusion which would justify interference by this Court under Article 136 of the Constitution. Indeed, we find ourselves in agreement with that view.11. The appellants learned counsel lastly contended that in any event the offence of which Ram Dahin Singh has been charged and convicted does not fall under Section 302, I.P.C., because the gun was fired when there was a grave danger of grievous injury to the persons composing of his group. The counsel emphasised that Ram Dahin Singh had no personal concern with the land purchased in 1962 and, therefore, he must be deemed to have acted the purely with the object of defending his partymen against aggression at the hands of Ghurfekan and his companions. It is not possible to accept this submission. Once it is held that the party of the accused were the aggressors then merely because the gun is used after some of their partymen had received some injuries at the hands of those who were protecting their paddy crop and resisting the aggression on the part of the accused, can be no ground for taking the case out of Section 302, I.P.C. If otherwise the injuries caused bring the case within the definition of murder. As a matter of fact this argument is only another fact of the plea of self-defence which we have already rejected. While developing this argument Mr. Nuruddin submitted that the appellants should be considered only to have exceeded their right of private defence and, therefore, they cannot be held guilty of murder This submission is equally unacceptable. Exception 2 to 300, I.P.C., on which the submission seems to be founded postulates the exercise of the right of private defence in good faith and also without premeditation and intention to do more harm than is necessary for the purpose of self-defence. The number of members of Ram Dahin Singhs party and the fact that Ram Dahin Singh was aired with a loaded gun negatives absence of premeditation; similarly the number of shots fired by him and the casualties resulting therefrom militates against the suggestion that there was no intention or doing more harm than necessary for the purposes of self-defence. In this case there seems to be both premeditation and intention to do more harm than was necessary when the gun was fired more than once. The right of private defence, it may be remembered, is purely preventive and not punitive or retributive. No separate arguments were addressed on behalf of the appellants in regard to the other offences.

0[ds]6. In so far as the right of private defence is concerned in face of the concurrent findings of the two courts below that the actual possession of the land was with Ghurfekan and others and that there is no reliable evidence in regard to actual possession by the purchasers from Tarkeshwar Estate, this plea is difficult to sustain.7.Mr. Nuruddin learned counsel for the appellant did not question the assessment of evidence by the two courtsbelow which, he, in our opinion, rightly conceded, could not be questioned on appeal under Article 136 of the Constitution.8. The point on which he laid stress was that the documentary evidence conclusively established that the actual possession of plot No. 103 was not with Ghurfekan but was with some of the accused persons. Of course, as contended on behalf of the appellants, Ram Dahin Singh had nothing to do with this plot or with the land purchased from the Tarkeshwar Estate in 1962, but it is in evidence that he is a distant agate of Loku who had as apurchased a portion of the land sold on November 20, 1962. We are unable to agree with the appellants learned counsel that the documentary evidence establishes the possession of the accused persons of the entire plot No. 103 and that Ghurfekan was not in possession of any portion of this plot. The documentary evidence, in our opinion, does not establish anything more than passing of mere proprietary or paper in possession of considerable land including a portion of plot No. 103. The Trial Court and the High Court have both taken the same view and have come to a positive conclusion that Ghurfekan was in possession of portion of plot No. 103 on which he had grown paddy crop and which was harvested by him and the harvested crop was being carried in bundles from the field to the Khalihan on the date of occurrence. This conclusion is based on a consideration of the entire evidence, including oral evidence which is, in our opinion, more important than the documentary evidence on the question of actual physical possession in this case. It may be pointed out that no attempt was made in this Court to show that appreciation of oral and other evidence by the Courts below was in any way infirm exposing it to legitimate criticism and laid it open toby this Court. Once this conclusion is upheld the plea of the right of private defence by the appellants must lose it importance. But even otherwise this plea seems to beattention was not drawn to any material on the record which would bring the appellants case within this section. In regard to the right of private defence of body according to Section 100, I.P.C., so far as relevant for the present case, it extends under the restrictions mentioned in Section 99 to the voluntary causing of death or of any her harm to the assailant, if the offence which occasions the exercise of the right be such as assault as may reasonably which occasions the exercise of the right be such as assault as may reasonably cause the apprehension that death or grievous hurt will otherwise be the cause the apprehensive that death or grievous hurt will otherwise be the consequence of such assault. We are in this case not concerned with the other offences which may give rise to those right. Now, if Ram Dahin Singhs party consisted of 30 or 40 persons, one of them undoubtedly being armed with athis circumstance cannot be lightly brushedthe party of Ghurfekan being only a few persons carrying their harvested crops, it is difficult to appreciate how the plea ofcan reasonably be urged by the appellants with any show of plausibility. Our attention was not invited to any evidence on the record on which this plea can be sustained. On the conclusion of the two courts below arrived at on evaluation of evidence, which is not shown to be erroneous or otherwise unsupportable it is futile to attempt to sustain the plea of private defence. It may in this connection be pointed out that the onus of establishing the plea of the right of private defence is on the accused though as observed in the case of Gottipulla Subbaramanyams case (supra) he is entitled to show that this right is established or can be sustained on the prosecution evidence itself. In the present case no right of private defence is sustainable on the material on thesame criticism was leveled before its against the conclusions of the High Court. We do not find any cogent ground for not accepting the concurrent conclusions of the two courts below. It is a pure question of appreciation of evidence which does not seem of suffer from any infirmity and is certainly not unreasonable or improper. As against the plea of alibi the prosecution in the occurrence were considered by both the courts below to be reliable, whose testimony was worthy of acceptance. No attempt was made in this Court below. Once the concurrent conclusion on this point is accepted the plea of alibi seems to us to be difficult to sustain. In the Consideration of this plea the conduct of Ram Dahin Singh in absconding soon after the occurrence would also have some relevance. He disappeared soon after the occurrence. His house was searched in his absence on November 6, 1963, by Paramanand Prasad Karan (P.W. 22), who wasof Chainpur police station in those days and who had taken charge of this case and theon November 5, 1963, from A.S.I. police, Baban Singh. Ram Dahin Singhs gun was not found in the house when it was searched nor we cartridges found there. According to the evidence of Bande Hasan (D.W. 1), for Ram Dahin Singh it was 10 to 15 days after the 4th of November, 1963, that Ram Dahin Singh went to him, Bande Hasan, it may be pointed out, is stated to be the counsel in the case in which Ram Dahin Singh is said to have appeared as a witness on November 4, 1963 in the court of the Railway Magistrate at Varanasi. Ram Dahin Singh, according to this witness, told him when he met him after 10 to 15 days that a murder case had been started against him alleging the occurrence to have taken place on the date on which he had appeared as a witness. Bande Hassan advised Ram Dahin Singh to obtain certified copies of the relevant papers and to produce them in court in his defence. Ram Dahin Singh again went to Bande Hassan and thereafter Bande Hasan saw the accused only in court at his trial. When questioned whether Bande Hasan had made any statement to the police after November 4, 1963 and before Ram Dahin Singh met him 10 or 15 days thereafter he replied that he could not remember. The evidence of Bande Hasan seems to us to be unimpressive. There is evidence on the record that the gun belonging to Ram Dahin Singh was also damaged when recovered. It was not found in the house when it was searched on November 6, 1963. The fact that Ram Dahin Singh absconded soon after the occurrence and took the gun with him is relevant and can properly be taken into account by the four in appraising the evidence against him and also in appraising the evidence in regard to his plea of alibi. In this case, as generally in most cases, the prosecution evidence and the evidence of alibi is not to be considered in compartments. The evidence on one part will have impact on the other and the court has to consider the entire material on the record as constituting one complete picture. This is precisely what the courts below did. In view of the conclusions of the courts below we have no hesitation in disagreeing with the appellants contention and we repel Ram Dahin Singhs plea of alibi.10. Turning to the plea of alibi on behalf of Satyanarain Singh, appellant, the courts below have again concurrently held that this evidence is consistent with Satyanarain Singhs participation in the occurrence. The prosecution evidence that Satyanarain Singh instigated Ram Dahin Singh to use his gun has been believed by both the courts below and we are unable to hold that any doubt has been introduced in the prosecution evidence by the evidence produced in support of Satyanarain Singhs alibi. Indeed, all that is brought on the record is that on that day he had attested a mortgage deed at a place about 22 miles away from Kakar Kundi. The story deposed by the defence witness in support of Satyanarain Singhs alibi was considered by the Trial Court to be highly improbable and it was added that in so far as the attestation of the document was concerned he could have been present at the place of occurrence and could also have attested the document. The High Court agreed that the attestation of the document as not inconsistent with Satyanarain Singhs presence at the time and plea of the occurrence. We do not find any defect or error in this conclusion which would justify interference by this Court under Article 136 of the Constitution. Indeed, we find ourselves in agreement with that view.It is not possible to accept this submission. Once it is held that the party of the accused were the aggressors then merely because the gun is used after some of their partymen had received some injuries at the hands of those who were protecting their paddy crop and resisting the aggression on the part of the accused, can be no ground for taking the case out of Section 302, I.P.C. If otherwise the injuries caused bring the case within the definition of murder. As a matter of fact this argument is only another fact of the plea ofwhich we have already rejected. While developing this argument Mr. Nuruddin submitted that the appellants should be considered only to have exceeded their right of private defence and, therefore, they cannot be held guilty of murder This submission is equally unacceptable. Exception 2 to 300, I.P.C., on which the submission seems to be founded postulates the exercise of the right of private defence in good faith and also without premeditation and intention to do more harm than is necessary for the purpose ofThe number of members of Ram Dahin Singhs party and the fact that Ram Dahin Singh was aired with a loaded gun negatives absence of premeditation; similarly the number of shots fired by him and the casualties resulting therefrom militates against the suggestion that there was no intention or doing more harm than necessary for the purposes ofIn this case there seems to be both premeditation and intention to do more harm than was necessary when the gun was fired more than once. The right of private defence, it may be remembered, is purely preventive and not punitive or retributive. No separate arguments were addressed on behalf of the appellants in regard to the other offences.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: cartridges found there. According to the evidence of Bande Hasan (D.W. 1), for Ram Dahin Singh it was 10 to 15 days after the 4th of November, 1963, that Ram Dahin Singh went to him, Bande Hasan, it may be pointed out, is stated to be the counsel in the case in which Ram Dahin Singh is said to have appeared as a witness on November 4, 1963 in the court of the Railway Magistrate at Varanasi. Ram Dahin Singh, according to this witness, told him when he met him after 10 to 15 days that a murder case had been started against him alleging the occurrence to have taken place on the date on which he had appeared as a witness. Bande Hassan advised Ram Dahin Singh to obtain certified copies of the relevant papers and to produce them in court in his defence. Ram Dahin Singh again went to Bande Hassan and thereafter Bande Hasan saw the accused only in court at his trial. When questioned whether Bande Hasan had made any statement to the police after November 4, 1963 and before Ram Dahin Singh met him 10 or 15 days thereafter he replied that he could not remember. The evidence of Bande Hasan seems to us to be unimpressive. There is evidence on the record that the gun belonging to Ram Dahin Singh was also damaged when recovered. It was not found in the house when it was searched on November 6, 1963. The fact that Ram Dahin Singh absconded soon after the occurrence and took the gun with him is relevant and can properly be taken into account by the four in appraising the evidence against him and also in appraising the evidence in regard to his plea of alibi. In this case, as generally in most cases, the prosecution evidence and the evidence of alibi is not to be considered in compartments. The evidence on one part will have impact on the other and the court has to consider the entire material on the record as constituting one complete picture. This is precisely what the courts below did. In view of the conclusions of the courts below we have no hesitation in disagreeing with the appellants contention and we repel Ram Dahin Singhs plea of alibi.10. Turning to the plea of alibi on behalf of Satyanarain Singh, appellant, the courts below have again concurrently held that this evidence is consistent with Satyanarain Singhs participation in the occurrence. The prosecution evidence that Satyanarain Singh instigated Ram Dahin Singh to use his gun has been believed by both the courts below and we are unable to hold that any doubt has been introduced in the prosecution evidence by the evidence produced in support of Satyanarain Singhs alibi. Indeed, all that is brought on the record is that on that day he had attested a mortgage deed at a place about 22 miles away from Kakar Kundi. The story deposed by the defence witness in support of Satyanarain Singhs alibi was considered by the Trial Court to be highly improbable and it was added that in so far as the attestation of the document was concerned he could have been present at the place of occurrence and could also have attested the document. The High Court agreed that the attestation of the document as not inconsistent with Satyanarain Singhs presence at the time and plea of the occurrence. We do not find any defect or error in this conclusion which would justify interference by this Court under Article 136 of the Constitution. Indeed, we find ourselves in agreement with that view.11. The appellants learned counsel lastly contended that in any event the offence of which Ram Dahin Singh has been charged and convicted does not fall under Section 302, I.P.C., because the gun was fired when there was a grave danger of grievous injury to the persons composing of his group. The counsel emphasised that Ram Dahin Singh had no personal concern with the land purchased in 1962 and, therefore, he must be deemed to have acted the purely with the object of defending his partymen against aggression at the hands of Ghurfekan and his companions. It is not possible to accept this submission. Once it is held that the party of the accused were the aggressors then merely because the gun is used after some of their partymen had received some injuries at the hands of those who were protecting their paddy crop and resisting the aggression on the part of the accused, can be no ground for taking the case out of Section 302, I.P.C. If otherwise the injuries caused bring the case within the definition of murder. As a matter of fact this argument is only another fact of the plea of self-defence which we have already rejected. While developing this argument Mr. Nuruddin submitted that the appellants should be considered only to have exceeded their right of private defence and, therefore, they cannot be held guilty of murder This submission is equally unacceptable. Exception 2 to 300, I.P.C., on which the submission seems to be founded postulates the exercise of the right of private defence in good faith and also without premeditation and intention to do more harm than is necessary for the purpose of self-defence. The number of members of Ram Dahin Singhs party and the fact that Ram Dahin Singh was aired with a loaded gun negatives absence of premeditation; similarly the number of shots fired by him and the casualties resulting therefrom militates against the suggestion that there was no intention or doing more harm than necessary for the purposes of self-defence. In this case there seems to be both premeditation and intention to do more harm than was necessary when the gun was fired more than once. The right of private defence, it may be remembered, is purely preventive and not punitive or retributive. No separate arguments were addressed on behalf of the appellants in regard to the other offences. ### Response: 0

PREM SINGH Vs. THE STATE OF UTTAR PRADESH SECRETARY

he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation. 30. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment. 31. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies. 32. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification. 33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment. 34. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook. 35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Courts order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. 36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension.

1[ds]18. In Punjab State Electricity Board v. Narata Singh (2010) 4 SCC 317 , this Court once again considered the similar question of determination of qualifying service for grant of pensionary benefits, in particular, the benefit of the previous service in work-charged capacity with the State Government and whether it can be included as pensionable service. The Punjab State Electricity Board by Circular dated 25.5.1985 adopted policy decision of State Government contained in the letter dated 20.5.1982. The effect of the adoption of the policy decision was that temporary employees who had been retrenched from the services of Central/State Government and have succeeded in obtaining employment in Punjab State Electricity Board are entitled to count prior service rendered under Central/State Government, to the extent, such service was qualified for grant of pension under the rule of Central/ State Government. Relying upon Kesar Chand v. the State of Punjab (supra) it has been held that employee holding substantively a permanent post on the date of retirement is entitled to count in full as qualifying service the period of service rendered in the work-charged establishment. Thus, the department could not have excluded the same on the ground that it was rendered on the non-pensionable establishment.In view of the observations made by this Court in Jaswant Singh case (supra), it cannot be disputed that work-charged employees are appointed for a particular project and it was observed that their status was better than temporary employees. Though they cannot claim quasi-permanent status. At the same time, work-charged employees could claim their benefits under the provisions of the Industrial Disputes Act. This Court at the same time had observed that the time has come that Government should frame specific rules concerning service conditions of work-charged employees to dispel all doubts and confusion. The work-charged employees in the Jaswant Singh (supra) were appointed for a particular project and thereafter on completion of the same they were removed. The question involved in the present matters is different, whether after regularization employees are entitled to count their service. The question involved in Jaswant Singh (supra) was different and no such rule like Rule 3(8) of Rules of 1961 was involved.In the State of Rajasthan, the Public Works Department is maintaining two separate establishments: (1) Regular and (2) Work-charged. The employees working in the regular establish- ment are governed by the RSR and the work-charged employees are governed by the Work-charged Employees Service Rules. The RSR are made inapplicable, inter alia, to the work-charged employees. The work-charged employees fall under two catego- ries: (1) those who are working on a project and (2) those who are not working on a project. It appears that for the workmen en- gaged in the work-charged establishment of Mahi Bajaj Sagar Project the Government has framed separate standing orders un- der the Industrial Employment (Standing Orders) Act, 1946 and they apply to all persons engaged in work-charged establishment of the said Project whose terms of service are not regulated by the RSR, Rajasthan Civil Service (Classification, Control, and Appeal) Rules and any other Rules framed under Article 309 of the Constitution by the Government of Rajasthan. The standing orders provide not only for classification, recruitment, and ter- mination of service but also for wages and allowances and other service conditions of the persons engaged in the Mahi Project. Whereas the employees who are not working on a project get work-charged pay scale those who are working on a project get a special pay scale and they are also entitled to other benefits and allowances as are applicable to all the employees covered under the Industrial Disputes Act, 1947, Factories Act, 1948 and Indus- trial Employment (Standing Orders) Act, 1946. The petitioner and other employees represented by him are undisputably gov- erned by the said certified standing orders. They are not treated as full-time government employees and, therefore, are free to uti- lise their free time in the manner they wish. They are also enti- tled to grant of overtime wages. A sub-division is regarded as a unit for the purpose of establishment of the work-charged em- ployees. A separate seniority list of each category is maintained in each unit for the purpose of promotion as well as retrench- ment. The service of a work-charged employee is ordinarily not transferable from one work-charged establishment to another work-charged establishment.We are not impressed by the aforesaid submissions. The appointment of the work-charged employee in question had been made on monthly salary and they were required to cross the efficiency bar also. How their services are qualitatively different from regular employees? No material indicating qualitative difference has been pointed out except making bald statement. The appointment was not made for a particular project which is the basic concept of the work charged employees. Rather, the very concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The work-charged employees had been subjected to transfer from one place to another like regular employees as apparent from documents placed on record. In Narain Dutt Sharma & Ors. v. State of Uttar Pradesh & Ors. (CA No.______2019 @ SLP (C) No.5775 of 2018) the appellants were allowed to cross efficiency bar, after ‘8? years of continuous service, even during the period of work-charged services. Narain Dutt Sharma, the appellant, was appointed as a work-charged employee as Gej Mapak w.e.f 15.9.1978. Payment used to be made monthly but the appointment was made in the pay scale of Rs.200-320. Initially, he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation.In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment.In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaidfind that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification.As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment.In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Courts order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension.It is apparent from the aforesaid discussion that it would depend upon the service rules or schemes whether the period of work-charged service has to be counted for ACP, in case provision has been made under a particular statute, rule or scheme, service rendered as work- charged employees can be counted. It would depend upon the relevant provision of which benefit is claimed. Again, this Court has emphasized that by its very nature of employment work-charged employees have not to continue for long, employment comes to an end with the project.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: he was appointed in the year 1978 on a fixed monthly salary of Rs.205 per month. They were allowed to cross efficiency bar also as the benefit of pay scale was granted to them during the period they served as work-charged employees they served for three to four decades and later on services have been regularized time to time by different orders. However, the services of some of the appellants in few petitions/ appeals have not been regularized even though they had served for several decades and ultimately reached the age of superannuation. 30. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work- charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularized. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work- charged establishment. 31. In view of the note appended to Rule 3(8) of the 1961 Rules, there is a provision to count service spent on work charged, contingencies or non pensionable service, in case, a person has rendered such service in a given between period of two temporary appointments in the pensionable establishment or has rendered such service in the interregnum two periods of temporary and permanent employment. The work-charged service can be counted as qualifying service for pension in the aforesaid exigencies. 32. The question arises whether the imposition of rider that such service to be counted has to be rendered in-between two spells of temporary or temporary and permanent service is legal and proper. We find that once regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, considering the nature of appointment, though it was not a regular appointment it was made on monthly salary and thereafter in the pay scale of work-charged establishment the efficiency bar was permitted to be crossed. It would be highly discriminatory and irrational because of the rider contained in Note to Rule 3(8) of 1961 Rules, not to count such service particularly, when it can be counted, in case such service is sandwiched between two temporary or in-between temporary and permanent services. There is no rhyme or reason not to count the service of work-charged period in case it has been rendered before regularisation. In our opinion, an impermissible classification has been made under Rule 3(8). It would be highly unjust, impermissible and irrational to deprive such employees benefit of the qualifying service. Service of work-charged period remains the same for all the employees, once it is to be counted for one class, it has to be counted for all to prevent discrimination. The classification cannot be done on the irrational basis and when respondents are themselves counting period spent in such service, it would be highly discriminatory not to count the service on the basis of flimsy classification. The rider put on that work-charged service should have preceded by temporary capacity is discriminatory and irrational and creates an impermissible classification. 33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in a pensionable establishment. 34. In view of the note appended to Rule 3(8), which we have read down, the provision contained in Regulation 370 of the Civil Services Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook. 35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Courts order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. 36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. ### Response: 1

Union of India Vs. District Judge, Udhampur

so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. In our opinion, this view accords with the principles of equity, justice and good conscience. How can it be said that a person for whose benefit the land is acquired and who is to pay the compensation is not a person interested even though its stake may be extremely vital ? For instance, the land acquisition proceedings may be held to be invalid and this a person concerned is completely deprived of the benefit which is proposed to be given to him. Similarly, if such a person is not heard by the Collector or a Court, he may have to pay a very heavy compensation which, in case he is allowed to appear before a Court, he could have satisfied is that the compensation was far too heavy having regard to the nature and extent of the land. We are, therefore, unable to agree with the view taken by the Orissa High Court or even by the Calcutta High Court that a company, local authority or a person or whose benefit the land is acquired is not an interested person. We are satisfied that such a person is vitally interested both in the title to the property as also in the compensation to be paid therefore because both these factors concern its future course of action and if decided against him seriously prejudice his rights. Moreover, in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a person interested as contemplated by section 18(1) of the Act. The High Court, therefore, committed an error in throwing out the appeal of the appellant on the ground that it had no locus standi to file an appeal before the Bench." 8. This view was reiterated in Neelagangabhai v. State of Karnataka, 1990(2) RRR 37 (SC) : 1990(3) SCC 617; Krishi Upaj Mandi Samiti v. Ashok Sighal and Ors., 1991 Suppl. 2 SCC 419 ; Union of India v. Sher Singh and Ors., 1993(1) RRR 630 (SC) : 1993(1) SCC 609 : and Bihar State Electricity Board v. State of Bihar and Ors., Civil Appeal Nos. 1577-1600/94 dated February 21, 1994. Thus it is settled law that the requisitioning authority is a person interested since it is interested in the fixation of the proper and just market value or compensation of the land acquired on its behalf as well as to see that the true extent of the land is acquired and is free from encumbrances. The participation in the proceedings by the local officers is to enable not only the determination of the proper and just market value or compensation in their presence after laying necessary and relevant evidence but also to secure valid title to the land acquired so that Land Acquisition Officer and the court determines just and proper market value of the lands. It is, therefore, clear that the appellant is a proper and necessary party under Order 1 Rule 10 CPC. It is also the person interested under S. 2(d) of the Act. Accordingly the view of the High Court that the appellants are not interested person is clearly illegal. It is accordingly set aside. 9. The question then is what is the procedure to be adopted in this case. In view of the fact that there is no agreement between the parties as contemplated under S. 8(1)(a) read with Rule 9 of the Rules, as seen earlier, the only course open to the authorities is to appoint an arbitrator under S. 8(1)(b) of the Act and the arbitrator is enjoined to determine the market value as contemplated under sub-section (3) of S. 8 of the Act. In that view, necessarily, the matter has to be remitted for the decision by the arbitrator to be appointed by the State Govt. under S. 8(1)(b) fresh. But on the facts in this case since 23 years have elapsed, we find no jurisdiction to remit the matter. The competent authority had fixed the market value at the rate specified earlier and admittedly local offices had associated themselves with the competent officer at that time of fixation of the market value. This court had held in Union of India v. Harikrishna Khosla, 1993 Suppl. 2 SCC 149 that the property acquired under the acquisition and requisition of the Immovable Property Act, 1952 (for short `Central Act), the arbitrator has no power to award solatium and interest. The same principle would apply proprio vigore to the principle laid down under S. 8(3) of the Act. Accordingly we conclude that the determination of the solatium at 15% and interest at 4% by the competent authority under S. 8(3) of the Act is illegal. Therefore, to that extent it is set aside. However, fixation to market value at the rates specified above are upheld in the peculiar circumstances of the case. This court has given interim directions from time to time and directed the appellant to deposit half of the amount determined together with the solatium and interest etc. In the light of the decision now given, the competent authority is directed towork out the total compensation payable to the lands, acquired at the rate specified by it as now upheld, deduct the amount already paid to the respondents in pursuance of the directions issued by this court from time to time. If any balance amount is found due and payable by the appellant, it should be so determined, and would communicate the same to the local officer of the appellant. The competent authority is directed to decide the matters as above within a period of two months from the date of receipt of this order and the appellant is directed to deposit the balance amount, if any, within a further period of three months from the date of the receipt of the notice by the local officer.

1[ds]4. In this case, the compensation was fixed with the association of the local officers of the appellant. The contention that the appellants have no locus standi is equally no longer res integra. In addition he also contends that for the second limb of Rule 9(1) i.e. the approval of the Govt. in the administrative department, it is only of the State Govt. of Jammu and Kashmir or an officer authorised by the State Govt. in that behalf. Since the competent authority having been authorised in the notification, there is no need of further authorisation or the approval needed in this behalf and that, therefore, the award made by the competent authority is only an offer as held by the High Court in the previous litigation. It binds the appellants and that, therefore, they cannot question the offer made by the competent authority. We find no force in the contention. The language of Rule 9(1), namely, the delegated authority shall "as far as may be associated with itself the local officer of the Govt. concerned with the property in fixing compensation" would necessarily mean that the local officer of the Govt. of India that is apparent when we read the language closely with the language used in S. 21 of the Act. Section 21 expressly postulates that when the requisition is sought on behalf of the Union of India, the Govt. of Jammu and Kashmir acts under S. 21 requisitioning the land for the public purposes of the Union of India. Admittedly when the notification under S. 21 was issued requisitioning the land for defence purpose and the land was acquired under S. 7, association with the competent authority, is only of the local officer of the govt. of India and not of the State Govt. The reason is obvious that the officers of the appellant are interested to collect the best evidence of the prevailing market value and would place that evidence before the competent authority to fix true and correctlocal officer had admittedly stated that though he was agreeable to the amount determined, unless the approval of the Govt. of India is obtained, he cannot give his concurrence. Thereafter no concurrence of the Govt. of India had been obtained nor was any offer communicated to the respondents for their acceptance. No records has been placed even in the earlier proceedings before the High Court of such a communication by the officer and acceptance. It is seen that under Rule 9(5) it is mandatory that every person interested in the offer shall "within 15 days of the receipt of the offer communicate in writing to the competent authority his acceptance or otherwise of the offer". It is thereby clear that the communication of the offer to the person concerned and his acceptance within 15 days thereafter from the date of the receipt of the offer are mandatory requirements and should be complied with. It is seen that the procedure has been prescribed in a mandatory language to ensure that the offer must be made after the approval by the Government concerned or with the approval of its officer specifically authorised in that behalf. The acceptance also should be in writing and must be made within the time prescribed. Otherwise the offer does not bind the Requisitioning Department for which acquisition was done or the Union of India or the owner whose land had been acquired for the public purpose. The High Court, therefore, was not right in its conclusion that there must be deemed acceptance by the respondents since they had so stated in their objection petitions the enquiry proceedings held for the determination of the compensation by the arbitrator appointed under S. 8(1)(b) of theit is settled law that the requisitioning authority is a person interested since it is interested in the fixation of the proper and just market value or compensation of the land acquired on its behalf as well as to see that the true extent of the land is acquired and is free from encumbrances. The participation in the proceedings by the local officers is to enable not only the determination of the proper and just market value or compensation in their presence after laying necessary and relevant evidence but also to secure valid title to the land acquired so that Land Acquisition Officer and the court determines just and proper market value of the lands. It is, therefore, clear that the appellant is a proper and necessary party under Order 1 Rule 10 CPC. It is also the person interested under S. 2(d) of the Act. Accordingly the view of the High Court that the appellants are not interested person is clearly illegal. It is accordingly setview of the fact that there is no agreement between the parties as contemplated under S. 8(1)(a) read with Rule 9 of the Rules, as seen earlier, the only course open to the authorities is to appoint an arbitrator under S. 8(1)(b) of the Act and the arbitrator is enjoined to determine the market value as contemplated under(3) of S. 8 of the Act. In that view, necessarily, the matter has to be remitted for the decision by the arbitrator to be appointed by the State Govt. under S. 8(1)(b) fresh. But on the facts in this case since 23 years have elapsed, we find no jurisdiction to remit the matter. The competent authority had fixed the market value at the rate specified earlier and admittedly local offices had associated themselves with the competent officer at that time of fixation of the marketwe conclude that the determination of the solatium at 15% and interest at 4% by the competent authority under S. 8(3) of the Act is illegal. Therefore, to that extent it is set aside. However, fixation to market value at the rates specified above are upheld in the peculiar circumstances of the case. This court has given interim directions from time to time and directed the appellant to deposit half of the amount determined together with the solatium and interest etc. In the light of the decision now given, the competent authority is directed towork out the total compensation payable to the lands, acquired at the rate specified by it as now upheld, deduct the amount already paid to the respondents in pursuance of the directions issued by this court from time to time. If any balance amount is found due and payable by the appellant, it should be so determined, and would communicate the same to the local officer of the appellant. The competent authority is directed to decide the matters as above within a period of two months from the date of receipt of this order and the appellant is directed to deposit the balance amount, if any, within a further period of three months from the date of the receipt of the notice by the local officer.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. In our opinion, this view accords with the principles of equity, justice and good conscience. How can it be said that a person for whose benefit the land is acquired and who is to pay the compensation is not a person interested even though its stake may be extremely vital ? For instance, the land acquisition proceedings may be held to be invalid and this a person concerned is completely deprived of the benefit which is proposed to be given to him. Similarly, if such a person is not heard by the Collector or a Court, he may have to pay a very heavy compensation which, in case he is allowed to appear before a Court, he could have satisfied is that the compensation was far too heavy having regard to the nature and extent of the land. We are, therefore, unable to agree with the view taken by the Orissa High Court or even by the Calcutta High Court that a company, local authority or a person or whose benefit the land is acquired is not an interested person. We are satisfied that such a person is vitally interested both in the title to the property as also in the compensation to be paid therefore because both these factors concern its future course of action and if decided against him seriously prejudice his rights. Moreover, in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a person interested as contemplated by section 18(1) of the Act. The High Court, therefore, committed an error in throwing out the appeal of the appellant on the ground that it had no locus standi to file an appeal before the Bench." 8. This view was reiterated in Neelagangabhai v. State of Karnataka, 1990(2) RRR 37 (SC) : 1990(3) SCC 617; Krishi Upaj Mandi Samiti v. Ashok Sighal and Ors., 1991 Suppl. 2 SCC 419 ; Union of India v. Sher Singh and Ors., 1993(1) RRR 630 (SC) : 1993(1) SCC 609 : and Bihar State Electricity Board v. State of Bihar and Ors., Civil Appeal Nos. 1577-1600/94 dated February 21, 1994. Thus it is settled law that the requisitioning authority is a person interested since it is interested in the fixation of the proper and just market value or compensation of the land acquired on its behalf as well as to see that the true extent of the land is acquired and is free from encumbrances. The participation in the proceedings by the local officers is to enable not only the determination of the proper and just market value or compensation in their presence after laying necessary and relevant evidence but also to secure valid title to the land acquired so that Land Acquisition Officer and the court determines just and proper market value of the lands. It is, therefore, clear that the appellant is a proper and necessary party under Order 1 Rule 10 CPC. It is also the person interested under S. 2(d) of the Act. Accordingly the view of the High Court that the appellants are not interested person is clearly illegal. It is accordingly set aside. 9. The question then is what is the procedure to be adopted in this case. In view of the fact that there is no agreement between the parties as contemplated under S. 8(1)(a) read with Rule 9 of the Rules, as seen earlier, the only course open to the authorities is to appoint an arbitrator under S. 8(1)(b) of the Act and the arbitrator is enjoined to determine the market value as contemplated under sub-section (3) of S. 8 of the Act. In that view, necessarily, the matter has to be remitted for the decision by the arbitrator to be appointed by the State Govt. under S. 8(1)(b) fresh. But on the facts in this case since 23 years have elapsed, we find no jurisdiction to remit the matter. The competent authority had fixed the market value at the rate specified earlier and admittedly local offices had associated themselves with the competent officer at that time of fixation of the market value. This court had held in Union of India v. Harikrishna Khosla, 1993 Suppl. 2 SCC 149 that the property acquired under the acquisition and requisition of the Immovable Property Act, 1952 (for short `Central Act), the arbitrator has no power to award solatium and interest. The same principle would apply proprio vigore to the principle laid down under S. 8(3) of the Act. Accordingly we conclude that the determination of the solatium at 15% and interest at 4% by the competent authority under S. 8(3) of the Act is illegal. Therefore, to that extent it is set aside. However, fixation to market value at the rates specified above are upheld in the peculiar circumstances of the case. This court has given interim directions from time to time and directed the appellant to deposit half of the amount determined together with the solatium and interest etc. In the light of the decision now given, the competent authority is directed towork out the total compensation payable to the lands, acquired at the rate specified by it as now upheld, deduct the amount already paid to the respondents in pursuance of the directions issued by this court from time to time. If any balance amount is found due and payable by the appellant, it should be so determined, and would communicate the same to the local officer of the appellant. The competent authority is directed to decide the matters as above within a period of two months from the date of receipt of this order and the appellant is directed to deposit the balance amount, if any, within a further period of three months from the date of the receipt of the notice by the local officer. ### Response: 1

Income Tax Officer, Special Investigation Circle 'A', Nagpur Vs. J. B. Mangharam and Company and Others

of the concern4. Within two years from the date of the Government order, the respondents would install and work an up-to-date biscuit factory in Gwalior of a capacity of 8 tons and a confectionary factory of 5 tons per day of 8 hours and invest a total capital on machinery and buildings of approximately Rs. 15 lakhs5. The respondents would start construction of the buildings and take all necessary steps in regard to the project expeditiously from the date of sanction and show reasonable progress in regard to construction within one year6. The concessions mentioned in clauses 1, 2 and 3 above would not be transferable to any other party without the sanction of Government2. This order was passed before the Constitution of India came into force. But as the Constitution was likely to be applied to the State of Madhya Bharat, the respondents wrote to the Government of Madhya Bharat that though there was no income-tax at the time in Madhya Bharat, it was likely that income-tax would be introduced after the Constitution came into force. The respondents, therefore, wanted to know if exemption from income-tax would be available to them for the whole period of seven years. In reply to this the respondents were told by the Government of Madhya Bharat that their concession would continue for the whole period. On the faith of this undertaking, the respondents said that they built their factory at Gwalior and that the factory started working in June, 1951. On January 26, 1950, the Constitution of India came into force and the former State of Madhya Bharat became the Part B State of Madhya Bharat thereunder. The Indian Income-tax Act was extended to the territory of the Part B State of Madhya Bharat from April 1, 1950, by the Finance Act (XXV of 1950). Further in view of section 60A of the Income-tax Act the Government of India promulgated the Part B States (Taxation Concession) Order, 1950 (hereinafter referred to as the Concessions Order) in December, 1950 and clause 16 thereof provided for concessions to industrial undertakings. The respondents thereupon applied under that clause for exemption as a matter of abundant caution, though they were entitled to exemption by virtue of the agreement with the former State of Madhya Bharat. They were, however, granted exemption only for five years from 1952-53 to 1956-57 and they were further informed that though the exemption was granted, their income from the factory in Madhya Bharat would be liable to inclusion in their total income. When the concession granted by the Government of India expired, the Income-tax Officer proceeded to assess the respondents to income-tax. Consequently, the respondents filed the writ petition in the High Court claiming the reliefs already set out. They based their claim on the agreement with the former State of Madhya Bharat and contended that in view of article 295(1)(b) the obligation arising out of that agreement devolved on the Government of India which was bound to fulfil that obligationThe petition was opposed on behalf of the Government of India by the Income-tax Officer, who was made party to it, and his case was that the respondents were not entitled to any further exemption beyond what had been granted to them by the Government of India under the Concessions Orders3. This petition was heard by the High Court along with another petition Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. v. Union of India, and in view of the decision of the High Court in that case, on the scope and effect of article 295(1)(b), it held that the concession granted to the respondents by the Madhya Bharat Government which became an obligation of the Government of India entitled them to exemption from income-tax for seven years and was binding on the Government of India in spite of the legislative provisions made in connection with income-tax from April 1, 1950. The High Court, therefore, granted a writ restraining the Income-tax Officer from taking any action against the respondents in pursuance of the Income-tax Act in regard to the profits of the business of the factory at Gwalior for the period ending on June 30, 1958. Thereupon, the Income-tax Officer applied for a certificate which was granted ; and that is how the appeal hascome up before us4. This appeal has been heard along with the appeals of Union of Indio v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., judgment in which has just been delivered. We have in that case considered the scope and effect of the provision contained in article 295(1)(b) of the Constitution and have held that in view of the position emerging on April 1, 1950, by the extension of the Income-tax Act to the territory of the Part B State of Madhya Bharat by the Finance Act of 1950 and in view of the Concessions Order, the concessions granted by the Government of the former State of Madhya Bharat, which became the obligation of the Government of India under article 295(1)(b), must be held to have been superseded by the legislative provisions made as from April 1, 1950, and that corporations or individuals who had any concessions before April 1, 1950, would thereafter, be entitled only to such concessions as would be permissible under the Concessions Order. In the circumstances the respondents cannot rely on the agreement with the former State of Madhya Bharat, which must be deemed to have been superseded by the legislative provisions which came into force from April 1, 950, and can only get such concessions as may be allowed to them under the Income-tax Act read with the Concessions Order. We have already pointed out that the Government of India allowed concessions for five years, which the respondents have already availed of. They are not entitled to any further concession by virtue of the agreement with the Government of Madhya Bharat. In conformity with what we have held in Union of India v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., this appeal must succeed.

1[ds]4. This appeal has been heard along with the appeals of Union of Indio v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., judgment in which has just been delivered. We have in that case considered the scope and effect of the provision contained in article 295(1)(b) of the Constitution and have held that in view of the position emerging on April 1, 1950, by the extension of theAct to the territory of the Part B State of Madhya Bharat by the Finance Act of 1950 and in view of the Concessions Order, the concessions granted by the Government of the former State of Madhya Bharat, which became the obligation of the Government of India under article 295(1)(b), must be held to have been superseded by the legislative provisions made as from April 1, 1950, and that corporations or individuals who had any concessions before April 1, 1950, would thereafter, be entitled only to such concessions as would be permissible under the Concessions Order. In the circumstances the respondents cannot rely on the agreement with the former State of Madhya Bharat, which must be deemed to have been superseded by the legislative provisions which came into force from April 1, 950, and can only get such concessions as may be allowed to them under theAct read with the Concessions Order. We have already pointed out that the Government of India allowed concessions for five years, which the respondents have already availed of. They are not entitled to any further concession by virtue of the agreement with the Government of Madhya Bharat. In conformity with what we have held in Union of India v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., this appeal must succeed.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: of the concern4. Within two years from the date of the Government order, the respondents would install and work an up-to-date biscuit factory in Gwalior of a capacity of 8 tons and a confectionary factory of 5 tons per day of 8 hours and invest a total capital on machinery and buildings of approximately Rs. 15 lakhs5. The respondents would start construction of the buildings and take all necessary steps in regard to the project expeditiously from the date of sanction and show reasonable progress in regard to construction within one year6. The concessions mentioned in clauses 1, 2 and 3 above would not be transferable to any other party without the sanction of Government2. This order was passed before the Constitution of India came into force. But as the Constitution was likely to be applied to the State of Madhya Bharat, the respondents wrote to the Government of Madhya Bharat that though there was no income-tax at the time in Madhya Bharat, it was likely that income-tax would be introduced after the Constitution came into force. The respondents, therefore, wanted to know if exemption from income-tax would be available to them for the whole period of seven years. In reply to this the respondents were told by the Government of Madhya Bharat that their concession would continue for the whole period. On the faith of this undertaking, the respondents said that they built their factory at Gwalior and that the factory started working in June, 1951. On January 26, 1950, the Constitution of India came into force and the former State of Madhya Bharat became the Part B State of Madhya Bharat thereunder. The Indian Income-tax Act was extended to the territory of the Part B State of Madhya Bharat from April 1, 1950, by the Finance Act (XXV of 1950). Further in view of section 60A of the Income-tax Act the Government of India promulgated the Part B States (Taxation Concession) Order, 1950 (hereinafter referred to as the Concessions Order) in December, 1950 and clause 16 thereof provided for concessions to industrial undertakings. The respondents thereupon applied under that clause for exemption as a matter of abundant caution, though they were entitled to exemption by virtue of the agreement with the former State of Madhya Bharat. They were, however, granted exemption only for five years from 1952-53 to 1956-57 and they were further informed that though the exemption was granted, their income from the factory in Madhya Bharat would be liable to inclusion in their total income. When the concession granted by the Government of India expired, the Income-tax Officer proceeded to assess the respondents to income-tax. Consequently, the respondents filed the writ petition in the High Court claiming the reliefs already set out. They based their claim on the agreement with the former State of Madhya Bharat and contended that in view of article 295(1)(b) the obligation arising out of that agreement devolved on the Government of India which was bound to fulfil that obligationThe petition was opposed on behalf of the Government of India by the Income-tax Officer, who was made party to it, and his case was that the respondents were not entitled to any further exemption beyond what had been granted to them by the Government of India under the Concessions Orders3. This petition was heard by the High Court along with another petition Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. v. Union of India, and in view of the decision of the High Court in that case, on the scope and effect of article 295(1)(b), it held that the concession granted to the respondents by the Madhya Bharat Government which became an obligation of the Government of India entitled them to exemption from income-tax for seven years and was binding on the Government of India in spite of the legislative provisions made in connection with income-tax from April 1, 1950. The High Court, therefore, granted a writ restraining the Income-tax Officer from taking any action against the respondents in pursuance of the Income-tax Act in regard to the profits of the business of the factory at Gwalior for the period ending on June 30, 1958. Thereupon, the Income-tax Officer applied for a certificate which was granted ; and that is how the appeal hascome up before us4. This appeal has been heard along with the appeals of Union of Indio v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., judgment in which has just been delivered. We have in that case considered the scope and effect of the provision contained in article 295(1)(b) of the Constitution and have held that in view of the position emerging on April 1, 1950, by the extension of the Income-tax Act to the territory of the Part B State of Madhya Bharat by the Finance Act of 1950 and in view of the Concessions Order, the concessions granted by the Government of the former State of Madhya Bharat, which became the obligation of the Government of India under article 295(1)(b), must be held to have been superseded by the legislative provisions made as from April 1, 1950, and that corporations or individuals who had any concessions before April 1, 1950, would thereafter, be entitled only to such concessions as would be permissible under the Concessions Order. In the circumstances the respondents cannot rely on the agreement with the former State of Madhya Bharat, which must be deemed to have been superseded by the legislative provisions which came into force from April 1, 950, and can only get such concessions as may be allowed to them under the Income-tax Act read with the Concessions Order. We have already pointed out that the Government of India allowed concessions for five years, which the respondents have already availed of. They are not entitled to any further concession by virtue of the agreement with the Government of Madhya Bharat. In conformity with what we have held in Union of India v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., this appeal must succeed. ### Response: 1

COMMON CAUSE Vs. UNION OF INDIA & ORS

I.A. NO. 186810 OF 2019:1. The applicant, M/s Sarda Mines Pvt. Ltd. (hereinafter, ?SMPL?), holds a mining lease for Thakurani (Block B) iron-ore mines at Keonjhar, Odisha. Since, 31.03.2014, its mining operations are lying closed, and it has accordingly approached this Court seeking appropriate directions for resumption of its mining operations.2. This Court through judgment dated 02.08.2017 in the lead matter, had inter alia held that those mining-lease holders who had extracted minerals either without or in excess of environment/forest clearance, would be liable to deposit the mineral so raised (or its value if disposed off) with the State Government. Owing to a dispute raised by some mining-lease holders, including SMPL, as to whether in fact they had excavated minerals without requisite clearances, this Court referred their cases to the Central Environment Committee (CEC) for quantification of compensatory dues. This CEC submitted a selfspeaking report dated 08.05.2019 finding that:?M/s SMPL during the period 2001-02 to 2010-11 has produced 135,34,703 tonnes of excess quantity/illegal production of iron ore in violation of the Environmental Clearance granted by MoEF&CC. Accordingly, M/s SMPL is liable to pay Rs. 933,60,79,689 (Rupees nine hundred thirty three crores sixty lakhs seventy nine thousand six hundred and eighty nine only) in terms of the Judgment dated 02.08.2017 in WP (C) No. 114 of 2014 and Judgment dated 12.11.2018 in IA No. 40 of 2015, IA No. 42 of 2015, IA No. 61 of 2015 in IA No. 40 of 2015, and IA No. 11989 of 2018 in WP (C) No. 114 of 2014 of this Hon?ble Court.? 3. During these proceedings, this Court on 22.11.2017 constituted a committee consisting of Hon?ble Mr. Justice G. S. Singhvi and Hon?ble Mr. Justice Anil R. Dave, retired judges of this Court with a specific mandate to ascertain whether there was any violation of Section 6 of the Mines and Minerals (Development and Regulation) Act, 1957 or of Rule 37 of the Mineral Concession Rules, 1960. The Committee in Volume VIII of its Report (which was taken on record by this Court on 24.10.2019) examined SMPL?s case and noted that there was no violation of either Section 6 of the Mines and Minerals (Development and Regulation) Act, 1957 or of Rule 37 of the Mineral Concession Rules, 1960.4. In light of these observations, SMPL contends that it is suffering irreparable injury and highlights how it has already lost more than 5 ½ years and how hardly half-a-year of its lease-period is left. Expressing willingness to furnish an undertaking or bank guarantee equivalent to its dues as assessed by the CEC, applicant seeks permission to resume mining operations. Upon notice, learned counsel for the State of Odisha and the CEC express no objection against granting SMPL?s prayer for resumption subject to it depositing the CEC-assessed dues and strictly complying with all other mandatory rules, regulations and conditions for conducting mining operations.

1[ds]10. Mideast also undertakes to apply the sale proceeds of its stacked iron ore towards the demand raised against it by the State in order to simultaneously augment the State?s revenue as well as reduce the applicant?s liabilities11. Learned counsel for the State of Odisha conveyed no objection to granting the applicant?s prayer subject to the iron ore being sold under the supervision of an authority appointed by the State Government, and the sale proceeds mandatorily being deposited with the Special Purpose Vehicle (OMBADC). Both these conditions are agreeable to Mideast, which undertakes to comply with them13. During the pendency of these proceedings, this Court on 22.11.2017 constituted a committee of Hon?ble Mr. Justice G. S. Singhvi and Hon?ble Mr. Justice Anil R. Dave, retired Judges of this Court with the specific mandate to ascertain violation of Section 6 of the Mines and Minerals (Development and Regulation) Act, 1957 or of Rule 37 of the Mineral Concession Rules, 1960. The Committee in volume-V of its report (which was taken on record by this Court on 24.10.2019) though has found that Mideast had sublet its lease rights in violation of Rule 37. However, the aforementioned finding of the Committee does not affect consideration of this present application, and instead might be relevant if and when the applicant requests renewal or extension of its lease period12. The Central Environment Committee (CEC) had also filed a report dated 06.11.2019 recommending that the iron ore already extracted by the applicant may be permitted to be sold subject to the following modalities as specified in paragraph 19 of the report?19. In view of the facts and discussion above relating to the sale of stock of iron ore lying within the mining lease in village Roida-1, Keonjhar District held by M/s. Mideast Integrated Steels Ltd. The following modalities for sale are recommended:(i) The lessee will make grade-wise stacks of minerals in lots of 4000 MT, and or its multiples following the IBM approved technical formula for conversion of volume to weight applicable to each type of ore like lumps, fines and ROM:(ii) the sale of the stock of mineral will be conducted by the Odisha Mining Corporation Limited, a Government of Odisha undertaking under the supervision of a Committee headed by the Deputy Director of Mining having jurisdiction over the mining lease and consisting of representatives of the DFO concerned and the Regional Controller of Mines, IBM, Bhubaneswar;(iii) the lessee is at liberty to suggest the reserve price at which the sale is to be held;(iv) M/s. OMC may be paid a fee of 0.5% of the sale value, excluding the statutory payments for undertaking the sale of iron ore;(v) the sale proceeds, after the payment of statutory dues including Royalty, DMF and NMET, shall be deposited in the account of the SPV (OMBADC) being the compensation u/s 21(5) of MMDR Act as ordered in Judgment dated 2.8.2017 of this Hon?ble Court;(vi) the lessee is responsible for making available the actual quantity of iron ore available to the OMC for sale. Any quantity of ore that is available in excess of the declared stock of 23,51,027.83T shall be the property of the Government and the lessee shall not have claim for such excess stock and if there is any shortfall in the actual available quantity as compared to the declared quantity of 2351,027.83T the lessee shall not be eligible to make good any such shortfall in the declared quantity; and(vii) the adjustment of the amounts being realized from the present sale towards the compensation amount to be paid by the Applicant/lessee in compliance of the judgment dated 2.8.2017 will be subject to the orders to be passed by this Hon?ble Court in respect of the proceedings under consideration of this Hon?ble Court relating to violation of Rule 37 of MCR.?13. Considering the concurring stand taken by the State of Odisha and the CEC, Mideast?s application for permission to sell the iron ore of different grades and sizes, lime extracted at its site, is allowed in accordance with the above reproduced CEC?s modalities. The sale shall be monitored and supervised by a authority of the State Government which is to be notified within one week, and the proceeds shall be deposited with the JPV and may partially be applied towards the demand raised on 02.09.2017 by the State of Odisha.?

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: I.A. NO. 186810 OF 2019:1. The applicant, M/s Sarda Mines Pvt. Ltd. (hereinafter, ?SMPL?), holds a mining lease for Thakurani (Block B) iron-ore mines at Keonjhar, Odisha. Since, 31.03.2014, its mining operations are lying closed, and it has accordingly approached this Court seeking appropriate directions for resumption of its mining operations.2. This Court through judgment dated 02.08.2017 in the lead matter, had inter alia held that those mining-lease holders who had extracted minerals either without or in excess of environment/forest clearance, would be liable to deposit the mineral so raised (or its value if disposed off) with the State Government. Owing to a dispute raised by some mining-lease holders, including SMPL, as to whether in fact they had excavated minerals without requisite clearances, this Court referred their cases to the Central Environment Committee (CEC) for quantification of compensatory dues. This CEC submitted a selfspeaking report dated 08.05.2019 finding that:?M/s SMPL during the period 2001-02 to 2010-11 has produced 135,34,703 tonnes of excess quantity/illegal production of iron ore in violation of the Environmental Clearance granted by MoEF&CC. Accordingly, M/s SMPL is liable to pay Rs. 933,60,79,689 (Rupees nine hundred thirty three crores sixty lakhs seventy nine thousand six hundred and eighty nine only) in terms of the Judgment dated 02.08.2017 in WP (C) No. 114 of 2014 and Judgment dated 12.11.2018 in IA No. 40 of 2015, IA No. 42 of 2015, IA No. 61 of 2015 in IA No. 40 of 2015, and IA No. 11989 of 2018 in WP (C) No. 114 of 2014 of this Hon?ble Court.? 3. During these proceedings, this Court on 22.11.2017 constituted a committee consisting of Hon?ble Mr. Justice G. S. Singhvi and Hon?ble Mr. Justice Anil R. Dave, retired judges of this Court with a specific mandate to ascertain whether there was any violation of Section 6 of the Mines and Minerals (Development and Regulation) Act, 1957 or of Rule 37 of the Mineral Concession Rules, 1960. The Committee in Volume VIII of its Report (which was taken on record by this Court on 24.10.2019) examined SMPL?s case and noted that there was no violation of either Section 6 of the Mines and Minerals (Development and Regulation) Act, 1957 or of Rule 37 of the Mineral Concession Rules, 1960.4. In light of these observations, SMPL contends that it is suffering irreparable injury and highlights how it has already lost more than 5 ½ years and how hardly half-a-year of its lease-period is left. Expressing willingness to furnish an undertaking or bank guarantee equivalent to its dues as assessed by the CEC, applicant seeks permission to resume mining operations. Upon notice, learned counsel for the State of Odisha and the CEC express no objection against granting SMPL?s prayer for resumption subject to it depositing the CEC-assessed dues and strictly complying with all other mandatory rules, regulations and conditions for conducting mining operations. ### Response: 1

MWP Ltd Vs. Commnr. of Income Tax Karnataka (Central)

was produced. Clause 8 of the Agreement which is relevant to the present controversy is being extracted hereunder: "It is hereby agreed by the buyer that in the event of the Government of Andhra Pradesh treating the excise duty paid by the buyer as part of turnover of the seller and demanding sales tax and other charges on the excise duty, the buyer hereby agreed with the seller to reimburse the sales tax and other charges payable by the seller to the Government of Andhra Pradesh on sufficient proof being furnished by the seller to the buyer in this regard". 4. The aforesaid view of the Appellate Commissioner was affirmed by the Tribunal in an appeal filed by the Revenue. Aggrieved, a reference was sought and obtained by the Revenue which having been answered in the manner indicated above, the assessee is before us in the present appeals. 5. The order of the High Court dated 5th April, 2005 would go to show that the sole basis on which the claim of the assessee was negatived is the authenticity of the agreement dated 18.12.1981. According to the High Court as the said agreement was for the first time produced before the Appellate Commissioner and there was no reference to the same in any of the relevant correspondence of the assessee, the Agreement dated 18.12.1981 was of doubtful credibility. The High Court, on an assumption that the agreement was bone fide, also took the view that as by the said agreement the discharge of liability was contemplated on the happening of certain events, the same would not be enforceable in law. 6. Shri Parasaran, learned senior counsel appearing on behalf of the appellant has contended that in the absence of a specific question with regard to the authenticity of the Agreement dated 18.12.1981, the High Court exercising its reference jurisdiction could not have proceeded to determine the issue and that too on an appreciation of the factual matrix of the case. In this regard, learned counsel has drawn the attention of the Court to the questions framed on which the High Court was required to provide an answer. Two decisions of this Court in - 2001 (1) SCC 135 K. Ravindranathan Nair v. Commissioner of Income Tax, Ernakulam and 2008 (XII) SCC 458 Sudarshan Silks & Sarees v. Commissioner of Income Tax, Karnataka were also placed before us in support of the contention advanced, namely, that in the absence of a specific question framed, it was not open for the High Court to go into the issue of authenticity of the Agreement dated 18.12.1981. Alternatively, it has been submitted by Shri Parasaran that even dehors the agreement, sales tax on excise duty being a part of the sale price, the liability of such tax has to be borne by the assessee. Therefore, the view taken by the High Court would justify interference. 7. Mr. Rupesh Kumar, learned counsel appearing on behalf of the Revenue has strenuously urged that the Agreement dated 18.12.1981 should not commend for acceptance of the Court in the light of the surrounding facts, particularly, as the agreement had surfaced from nowhere at an intermediate stage of the assessment proceedings. Learned counsel would urge that the document ex facie appears to be collusive and in view of the serious doubts that can be entertained with regard to its authenticity, the High Court was perfectly justified in coming to its impugned conclusions. Learned counsel for the Revenue has further urged that even if the claim of the assessee that it has/had followed a mercantile system of accounting is accepted, the same would not enure to the benefit of the assessee, inasmuch as in the return filed or the documents enclosed thereto, no such liability has not been shown or created. 8. Having considered the submissions advanced on behalf of the rival parties, we do not find that the issues that arise for consideration should detain the Court. Admittedly and evidently no question with regard to the authenticity of the Agreement dated 18.12.1981 was framed so as to require or justify an answer by the High Court. In the absence of a specific question to the above effect before the High Court, we decline to go into the merits of the issue though urged before us. Instead, we hold that the High Court had exceeded its jurisdiction in recording a finding with regard to the authenticity of the Agreement dated 18.12.1991. If the Agreement dated 18.12.1991 is to be treated as a part of the record of the assessment proceedings, undoubtedly, a liability had been cast upon the assessee insofar as the sales tax payable on the excise duty component is concerned. It is not in dispute that the mercantile system of accounting was in vogue in the assessee company. In the revised return filed by the assessee deduction of the amounts claimed by M/S. Mc Dowell & Co. Ltd. on sales tax was reflected. That the original return filed by the assessee did not reflect the aforesaid figures is not difficult to understand. At the time when the said return was filed (29.09.1982) the liability of M/S. Mc Dowell & Co. Ltd., disclaimed by the said Company, was yet to be determined. After the said claim of M/S. Mc Dowell & Co. Ltd. was negatived by the Andhra Pradesh High Court (06.12.1982) and during the pendency of the appeals before this Court M/S. Mc Dowell & Co. Ltd. had issued a letter dated 07.05.1983 to the assessee intimating that in the event the decision of the Supreme Court is adverse to M/S. Mc Dowell & Co. Ltd. the sales tax element will be collected by Mc Dowell from the assessee. It is thereafter that the revised return was filed on 27.08.1984. The liability of M/S. Mc Dowell & Co. Ltd. attained finality with the decision of the Constitution Bench dated 17th April, 1985 - 1985 (3) SCC 230 M/s Mc Dowell and Company Limited v. Commercial Tax Officer .

1[ds]8. Having considered the submissions advanced on behalf of the rival parties, we do not find that the issues that arise for consideration should detain the Court. Admittedly and evidently no question with regard to the authenticity of the Agreement dated 18.12.1981 was framed so as to require or justify an answer by the High Court. In the absence of a specific question to the above effect before the High Court, we decline to go into the merits of the issue though urged before us. Instead, we hold that the High Court had exceeded its jurisdiction in recording a finding with regard to the authenticity of the Agreement dated 18.12.1991. If the Agreement dated 18.12.1991 is to be treated as a part of the record of the assessment proceedings, undoubtedly, a liability had been cast upon the assessee insofar as the sales tax payable on the excise duty component is concerned. It is not in dispute that the mercantile system of accounting was in vogue in the assessee company. In the revised return filed by the assessee deduction of the amounts claimed byM/S. Mc Dowell & Co. Ltd.on sales tax was reflected. That the original return filed by the assessee did not reflect the aforesaid figures is not difficult to understand. At the time when the said return was filed (29.09.1982) the liability ofM/S. Mc Dowell & Co.disclaimed by the said Company, was yet to be determined. After the said claim ofM/S. Mc Dowell & Co.was negatived by the Andhra Pradesh High Court (06.12.1982) and during the pendency of the appeals before this CourtM/S. Mc Dowell & Co.had issued a letter dated 07.05.1983 to the assessee intimating that in the event the decision of the Supreme Court is adverse toM/S. Mc Dowell & Co.the sales tax element will be collected by Mc Dowell from the assessee. It is thereafter that the revised return was filed on 27.08.1984. The liability ofM/S. Mc Dowell & Co.attained finality with the decision of the Constitution Bench dated 17th April, 19851985 (3) SCC 230 M/s Mc Dowell and Company Limited v. Commercial Tax Officer .

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: was produced. Clause 8 of the Agreement which is relevant to the present controversy is being extracted hereunder: "It is hereby agreed by the buyer that in the event of the Government of Andhra Pradesh treating the excise duty paid by the buyer as part of turnover of the seller and demanding sales tax and other charges on the excise duty, the buyer hereby agreed with the seller to reimburse the sales tax and other charges payable by the seller to the Government of Andhra Pradesh on sufficient proof being furnished by the seller to the buyer in this regard". 4. The aforesaid view of the Appellate Commissioner was affirmed by the Tribunal in an appeal filed by the Revenue. Aggrieved, a reference was sought and obtained by the Revenue which having been answered in the manner indicated above, the assessee is before us in the present appeals. 5. The order of the High Court dated 5th April, 2005 would go to show that the sole basis on which the claim of the assessee was negatived is the authenticity of the agreement dated 18.12.1981. According to the High Court as the said agreement was for the first time produced before the Appellate Commissioner and there was no reference to the same in any of the relevant correspondence of the assessee, the Agreement dated 18.12.1981 was of doubtful credibility. The High Court, on an assumption that the agreement was bone fide, also took the view that as by the said agreement the discharge of liability was contemplated on the happening of certain events, the same would not be enforceable in law. 6. Shri Parasaran, learned senior counsel appearing on behalf of the appellant has contended that in the absence of a specific question with regard to the authenticity of the Agreement dated 18.12.1981, the High Court exercising its reference jurisdiction could not have proceeded to determine the issue and that too on an appreciation of the factual matrix of the case. In this regard, learned counsel has drawn the attention of the Court to the questions framed on which the High Court was required to provide an answer. Two decisions of this Court in - 2001 (1) SCC 135 K. Ravindranathan Nair v. Commissioner of Income Tax, Ernakulam and 2008 (XII) SCC 458 Sudarshan Silks & Sarees v. Commissioner of Income Tax, Karnataka were also placed before us in support of the contention advanced, namely, that in the absence of a specific question framed, it was not open for the High Court to go into the issue of authenticity of the Agreement dated 18.12.1981. Alternatively, it has been submitted by Shri Parasaran that even dehors the agreement, sales tax on excise duty being a part of the sale price, the liability of such tax has to be borne by the assessee. Therefore, the view taken by the High Court would justify interference. 7. Mr. Rupesh Kumar, learned counsel appearing on behalf of the Revenue has strenuously urged that the Agreement dated 18.12.1981 should not commend for acceptance of the Court in the light of the surrounding facts, particularly, as the agreement had surfaced from nowhere at an intermediate stage of the assessment proceedings. Learned counsel would urge that the document ex facie appears to be collusive and in view of the serious doubts that can be entertained with regard to its authenticity, the High Court was perfectly justified in coming to its impugned conclusions. Learned counsel for the Revenue has further urged that even if the claim of the assessee that it has/had followed a mercantile system of accounting is accepted, the same would not enure to the benefit of the assessee, inasmuch as in the return filed or the documents enclosed thereto, no such liability has not been shown or created. 8. Having considered the submissions advanced on behalf of the rival parties, we do not find that the issues that arise for consideration should detain the Court. Admittedly and evidently no question with regard to the authenticity of the Agreement dated 18.12.1981 was framed so as to require or justify an answer by the High Court. In the absence of a specific question to the above effect before the High Court, we decline to go into the merits of the issue though urged before us. Instead, we hold that the High Court had exceeded its jurisdiction in recording a finding with regard to the authenticity of the Agreement dated 18.12.1991. If the Agreement dated 18.12.1991 is to be treated as a part of the record of the assessment proceedings, undoubtedly, a liability had been cast upon the assessee insofar as the sales tax payable on the excise duty component is concerned. It is not in dispute that the mercantile system of accounting was in vogue in the assessee company. In the revised return filed by the assessee deduction of the amounts claimed by M/S. Mc Dowell & Co. Ltd. on sales tax was reflected. That the original return filed by the assessee did not reflect the aforesaid figures is not difficult to understand. At the time when the said return was filed (29.09.1982) the liability of M/S. Mc Dowell & Co. Ltd., disclaimed by the said Company, was yet to be determined. After the said claim of M/S. Mc Dowell & Co. Ltd. was negatived by the Andhra Pradesh High Court (06.12.1982) and during the pendency of the appeals before this Court M/S. Mc Dowell & Co. Ltd. had issued a letter dated 07.05.1983 to the assessee intimating that in the event the decision of the Supreme Court is adverse to M/S. Mc Dowell & Co. Ltd. the sales tax element will be collected by Mc Dowell from the assessee. It is thereafter that the revised return was filed on 27.08.1984. The liability of M/S. Mc Dowell & Co. Ltd. attained finality with the decision of the Constitution Bench dated 17th April, 1985 - 1985 (3) SCC 230 M/s Mc Dowell and Company Limited v. Commercial Tax Officer . ### Response: 1

HARBANS KAUR Vs. IQBAL SINGH AND ANR

ground under this clause shall he filed unless the landlord has given it notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the (late of service of notice.Explanation.­ For the purposes of this clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same;or having been deposited with the Rent Authority;or”22. Section 9(a) provides that eviction can be ordered only when the tenant has neither paid nor tendered the rent due from him for four months. He submits that admittedly after the receipt of the notice dated 27.03.2004 demanding arrears of rent of Rs.1,15,945/­, the tenant has paid an amount of Rs.95,200/­ which covered the payment of rent upto December, 2003 and part of rent of January, 2004. He submits that notice was issued demanding arrears of rent from August, 2003 to 29.02.2004 and the rent upto December, 2003 having been deposited there was no default for four month entitling the landlord to claim eviction.23. Section 9 second proviso of Act, 2001 contemplates a notice by landlord demanding arrears of rent and the tenant has not made payment of rent within 30 days from the service of the notice. The words“arrears of rent” mean the arrears as demanded by notice and the ground for eviction as contemplated under Section 9(a) is“the tenant has neither paid nor tendered the amount of rent due from him for four months” . The payment and tendering of rent thus relates to rent for four months. The tenant cannot be heard saying that since although his payment was done complying the arrears of rent as demanded but since he has made the payment upto December, 2003 and the part of January, 2004, he should be relieved from eviction. What Section 9 contemplates is payment or tendering the amount of rent due from him for four months, thus, tendering of payment of rent is rent due from him for four months. In the event rent due from him for four months is not paid the ground as contemplated under Section 9(a) is made out. We in this context notice a judgment of this Court inPrakash Mehra vs. K.L.Malhotra, (1989) 3 SCC 74. In the above case this Court has occasion to consider the provision of Section 14(1)(a) of Delhi Rent Control Act. The arrears demanded by the notice were the arrears which were required to be paid by the tenant. The High Court has held that Section 14(1)(a) of the Act made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent was served on him by the landlord. In the above case the contention of the landlord was that the rent which was due after the notice should also be treated to be as defaulted rent which argument was not accepted. In paragraph 7 of the judgment following was laid down:“7. It is urged before us by learned Counsel for the appellant that Section 14(1)(a) of the Act contemplates the payment or tender of the whole of the arrears of rent legally recoverable from the tenant on the date when the demand notice is sent including the rent which has accrued after service of the demand notice. When the notice was sent on 7 May 1976, rent for the months of April and May 1976 lad become due, and as two months was given for payment of the arrears, it would include also the rent which had accrued during the said period of two months. We are not satisfied that there issubstance in the contention. The arrears of rent envisaged by Section 14(1)(a) of the Act are the arrears demanded by the notice for payment of arrears of rent. The arrears due cannot be extended to rent which has fallen due after service of the notice of demand. In this case, the two bank drafts representing the arrears of rent covered by the notice of demand had been tendered within two months of the date of service of the notice of demand. The High Court is right in the view taken by it. We are not satisfied that the construction placed by B. C. Misra, J. in Jag Ram Nathu Ram v. Surinder Kumar [S.A.O. No. 52 of 1975 decided on 28 April, 1976 (Del)] and in S.L Kapur v. Dr. Mrs. P. D. Lal, [1975 Ren C.J. 322 (Del)] lays down the correct law on the point. ”24. This Court in the above case has held that arrears of rent as envisaged in provision of Section 14(1)(a) of the Delhi Rent Control Act are the arrears demanded by the notice for payment of arrears of rent. In the present case arrears demanded by the notice i.e. Rs.16,564/­ per month starting from December, 2003 to February, 2004 totalling Rs.1,15,945/­ were required to be paid by the tenant, the tenant having paid only Rs.95,200/­ as per his calculation of the rent at the rate of Rs.13,600/­ per month has committed default. According to the learned counsel for the tenant, the rent paid by the tenant was sufficient to cover the rent upto December, 2003 and part of January, 2004, admittedly, the arrears as demanded having not been paid and we having found that the landlord has demanded arrears of rent for seven months according to rate of rent Rs.16,564/­ per month which was being paid by the tenant even before the enforcement of the Act, 2001 and after the enforcement of the Act, 2001. The landlord having not added 10% increase in the rent demanded, there was no breach of Section 6 and the High Court has committed error in allowing the writ petition of the tenant.

1[ds]15. A comparison of scheme of Section 6 as it existed in Act, 1950 and Section 6 as it brought under Act, 2001 makes it clear that although the tenant under the old Act was entitled to apply for fixation of standard rent if the rent was excessive whereas under Section 6 of the Act, 2001 tenant has not been given any right to pray for reduction of the rent. It is true that Section 6(1) begins with theanything contained in anyuse (b) providesthe premises have been let out on or afterthe provision contemplates that the rent payable at the time of commencement of the tenancy shall be liable to be increased at the rate of 7.5% per annum.Section 14 of the Act contains procedure for revision of rent which provides that landlord may seek revision of rent under Section 6 and 7 by submitting a petition before the Rent Tribunal accompanied by affidavits and documents, if any. Section 14section (1) uses the wordsIt is not obligatory for every landlord to seek revision of rent in accordance with Section 6. Section 6 contains provision entitling landlord to seek revision of rent notwithstandinganything contained in anyagreement between landlord and tenant. Section 6 empowers the landlord to obtain revision of rent and to calculate the rent from date of initiation of tenancy. But in the event landlord does not choose to invoke the machinery of revision of the rent as provided in Section 6 and Section 14, the agreed rent between the parties shall not automatically be changed nor the tenant can unilaterally revise the rent. Section 6 is also beneficial to the tenant to the extent that any contrary agreement between the parties to increase the rent annually more than as provided under Section 6 cannot be enforced by a landlord after the enforcement of the Act. In the event landlord applies for revision of the rent, the revision of rent has to be in accordance with the formula as provided under Section 6(1) and 6(2) of the Act. The statutory scheme does not indicate that the tenant can unilaterally compute the rent as per formula under Section 6(1) from the inception of the tenancy and reduce the amount of rent which he was paying immediately before the enforcement of the Act. In the present case, the tenant has come up with the case in his written statement that he has recomputed the rent from inception of tenancy and has arrived at calculation that the rent payable with effect from the enforcement of Act, 2001 wasonly and relying on the said computation he deposited an amount ofinresponse to the notice. The High Court in its judgment has held that after the enforcement of the Act, 2001 no agreement can provide for higher revision of rent.The observation of the High Court that landlord was entitled to the rent as was payable on the date of commencement of the Act, 2001 without its revision is perfectly correct. The landlord cannot claim revision of rent as per agreement at the rate of 10% per annum after the enforcement of the Act. The present is not a case that the landlord is claiming rent after the enforcement of the Act by adding 10% increase in the rent. The landlords case throughout is that the rent at the rate ofper month was being paid by the tenant since before the commencement of the Act and even after the commencement of the Act, till the month of July, 2003 the tenant paid rent at the rate ofper month.20. Section 4 of the Act which deals with the agreed rent provides that rent payable for any premises shall subject to the provisions of this Act, be such as may be agreed between the landlord and the tenant. When the tenant was paying the rent ofper month before the enforcement of the Act as per the rent agreement, the said amount was agreed amount which was being paid before the enforcement of the Act. It is true that in the agreed amount which was being paid immediately before the commencement of the Act, the landlord cannot increase @ 10% of the rent as per agreement. The increase after the enforcement of the Act shall be in accordance with Section 6 and in the event the tenant does not agree for the said increase, the landlord is free to file application under Section 6 read with Section 14. In view of the foregoing discussion, we are of the view that the High Court has not appreciated the true import of Sections 6 and 7 of the Act, 2001 in observing that the tenant is not in default.Section 9 second proviso of Act, 2001 contemplates a notice by landlord demanding arrears of rent and the tenant has not made payment of rent within 30 days from the service of the notice. Themean the arrears as demanded by notice and the ground for eviction as contemplated under Section 9(a)tenant has neither paid nor tendered the amount of rent due from him for four. The payment and tendering of rent thus relates to rent for four months. The tenant cannot be heard saying that since although his payment was done complying the arrears of rent as demanded but since he has made the payment upto December, 2003 and the part of January, 2004, he should be relieved from eviction. What Section 9 contemplates is payment or tendering the amount of rent due from him for four months, thus, tendering of payment of rent is rent due from him for four months. In the event rent due from him for four months is not paid the ground as contemplated under Section 9(a) is made out. We in this context notice a judgment of this Court inPrakash Mehra vs. K.L.Malhotra, (1989) 3 SCC 74. In the above case this Court has occasion to consider the provision of Section 14(1)(a) of Delhi Rent Control Act. The arrears demanded by the notice were the arrears which were required to be paid by the tenant. The High Court has held that Section 14(1)(a) of the Act made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent was served on him by the landlord. In the above case the contention of the landlord was that the rent which was due after the notice should also be treated to be as defaulted rent which argument was not accepted.This Court in the above case has held that arrears of rent as envisaged in provision of Section 14(1)(a) of the Delhi Rent Control Act are the arrears demanded by the notice for payment of arrears of rent. In the present case arrears demanded by the notice i.e.per month starting from December, 2003 to February, 2004 totallingwere required to be paid by the tenant, the tenant having paid onlyas per his calculation of the rent at the rate ofper month has committed default. According to the learned counsel for the tenant, the rent paid by the tenant was sufficient to cover the rent upto December, 2003 and part of January, 2004, admittedly, the arrears as demanded having not been paid and we having found that the landlord has demanded arrears of rent for seven months according to rate of rentper month which was being paid by the tenant even before the enforcement of the Act, 2001 and after the enforcement of the Act, 2001. The landlord having not added 10% increase in the rent demanded, there was no breach of Section 6 and the High Court has committed error in allowing the writ petition of the tenant.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: ground under this clause shall he filed unless the landlord has given it notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the (late of service of notice.Explanation.­ For the purposes of this clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same;or having been deposited with the Rent Authority;or”22. Section 9(a) provides that eviction can be ordered only when the tenant has neither paid nor tendered the rent due from him for four months. He submits that admittedly after the receipt of the notice dated 27.03.2004 demanding arrears of rent of Rs.1,15,945/­, the tenant has paid an amount of Rs.95,200/­ which covered the payment of rent upto December, 2003 and part of rent of January, 2004. He submits that notice was issued demanding arrears of rent from August, 2003 to 29.02.2004 and the rent upto December, 2003 having been deposited there was no default for four month entitling the landlord to claim eviction.23. Section 9 second proviso of Act, 2001 contemplates a notice by landlord demanding arrears of rent and the tenant has not made payment of rent within 30 days from the service of the notice. The words“arrears of rent” mean the arrears as demanded by notice and the ground for eviction as contemplated under Section 9(a) is“the tenant has neither paid nor tendered the amount of rent due from him for four months” . The payment and tendering of rent thus relates to rent for four months. The tenant cannot be heard saying that since although his payment was done complying the arrears of rent as demanded but since he has made the payment upto December, 2003 and the part of January, 2004, he should be relieved from eviction. What Section 9 contemplates is payment or tendering the amount of rent due from him for four months, thus, tendering of payment of rent is rent due from him for four months. In the event rent due from him for four months is not paid the ground as contemplated under Section 9(a) is made out. We in this context notice a judgment of this Court inPrakash Mehra vs. K.L.Malhotra, (1989) 3 SCC 74. In the above case this Court has occasion to consider the provision of Section 14(1)(a) of Delhi Rent Control Act. The arrears demanded by the notice were the arrears which were required to be paid by the tenant. The High Court has held that Section 14(1)(a) of the Act made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent was served on him by the landlord. In the above case the contention of the landlord was that the rent which was due after the notice should also be treated to be as defaulted rent which argument was not accepted. In paragraph 7 of the judgment following was laid down:“7. It is urged before us by learned Counsel for the appellant that Section 14(1)(a) of the Act contemplates the payment or tender of the whole of the arrears of rent legally recoverable from the tenant on the date when the demand notice is sent including the rent which has accrued after service of the demand notice. When the notice was sent on 7 May 1976, rent for the months of April and May 1976 lad become due, and as two months was given for payment of the arrears, it would include also the rent which had accrued during the said period of two months. We are not satisfied that there issubstance in the contention. The arrears of rent envisaged by Section 14(1)(a) of the Act are the arrears demanded by the notice for payment of arrears of rent. The arrears due cannot be extended to rent which has fallen due after service of the notice of demand. In this case, the two bank drafts representing the arrears of rent covered by the notice of demand had been tendered within two months of the date of service of the notice of demand. The High Court is right in the view taken by it. We are not satisfied that the construction placed by B. C. Misra, J. in Jag Ram Nathu Ram v. Surinder Kumar [S.A.O. No. 52 of 1975 decided on 28 April, 1976 (Del)] and in S.L Kapur v. Dr. Mrs. P. D. Lal, [1975 Ren C.J. 322 (Del)] lays down the correct law on the point. ”24. This Court in the above case has held that arrears of rent as envisaged in provision of Section 14(1)(a) of the Delhi Rent Control Act are the arrears demanded by the notice for payment of arrears of rent. In the present case arrears demanded by the notice i.e. Rs.16,564/­ per month starting from December, 2003 to February, 2004 totalling Rs.1,15,945/­ were required to be paid by the tenant, the tenant having paid only Rs.95,200/­ as per his calculation of the rent at the rate of Rs.13,600/­ per month has committed default. According to the learned counsel for the tenant, the rent paid by the tenant was sufficient to cover the rent upto December, 2003 and part of January, 2004, admittedly, the arrears as demanded having not been paid and we having found that the landlord has demanded arrears of rent for seven months according to rate of rent Rs.16,564/­ per month which was being paid by the tenant even before the enforcement of the Act, 2001 and after the enforcement of the Act, 2001. The landlord having not added 10% increase in the rent demanded, there was no breach of Section 6 and the High Court has committed error in allowing the writ petition of the tenant. ### Response: 1

M.H. UMA MAHESHWARI & ORS Vs. UNITED INDIA INSURANCE CO.LTD. & ANR

copy of the Insurance Policy was marked as exhibit, with consent. 5. The Tribunal, by considering the oral and documentary evidence on record, has recorded a finding that the accident occurred due to negligent driving of the driver of the vehicle and proceeded to quantify the compensation. Having regard to the evidence on record, the Tribunal, by recording a finding that the deceased was earning Rs.50,463/- p.m. by way of salary, by applying the principles laid down in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 applied the multiplier of 13 and by giving 30% towards future prospects, arrived at a compensation of Rs.1,02,33,912. Out of the said sum, by deducting 1/3 rd towards the personal expenditure and 10% towards income tax, the Tribunal has held that the appellant-claimants were entitled to a compensation of Rs.61,40,347.20 towards loss of dependency. By further awarding an amount of Rs.1,00,000/- towards loss of consortium to the first appellant and Rs.3,00,000/- for all the appellants towards loss of love and affection and Rs.20,000/- towards funeral expenses against the claim of Rs.2,00,000/-, the Tribunal has awarded the total compensation of Rs.65,60,347.20. 6. Aggrieved by the award of the Tribunal, the first respondent – United India Insurance Co. Ltd. has preferred Misc. First Appeal No.4903 of 2016 before the High Court of Karnataka at Bengaluru. The award of the Tribunal was mainly assailed before the High Court on three grounds, namely, that as the deceased was over 50 years of age, the Tribunal committed error in computing the future prospects at 30%; secondly it was the case of the first respondent that as the first appellant was claiming family pension, deduction should have been made while computing the loss of dependency; and thirdly by awarding the compensation of Rs.1,00,000/- to the first appellant towards loss of consortium, the Tribunal again granted compensation of Rs.3,00,000/- to all the appellants under the head loss of love and affection. The High Court, on the ground that the deceased was aged 50 years 3 months on the date of accident, has come to the conclusion that the appellants are entitled to compensation on account of loss of dependency by computing future prospects of the deceased at 15% and not 30%. Further it was held that by awarding an amount of Rs.1,00,000/- towards loss of consortium to the first appellant, the Tribunal has committed error by awarding Rs.1,00,000/- to the first appellant towards the head loss of love and affection. With the aforesaid findings, the High Court has re- calculated the compensation payable to the appellants at Rs.57,78,480/-, i.e., Rs.54,33,480/- towards loss of dependency; Rs.1,00,000/- towards loss of consortium; Rs.2,00,000/- towards of love and affection to the children; Rs.25,000/- towards funeral expenses and Rs.20,000/- towards transportation of dead body. 7. We have heard Sri Shekhar Devasa, learned counsel appearing for the appellants and Ms. Neerja Sachdeva, learned counsel appearing for the 1 st respondent-Insurance Company and perused the material on record. Though notice is served on respondent no.2, he remains unrepresented. 8. The Tribunal, by recording a finding that the deceased was in the age group of 40 to 50 years, applied the multiplier of 13 while calculating the compensation. The High Court, curiously while maintaining the multiplier of 13 as per the judgment of this Court in the case of Sarla Verma (2009) 6 SCC 121, has reduced the compensation only on the ground that the deceased was aged 50 years 3 months on the date of the accident, as such the compensation is to be calculated on account of loss of dependency by granting future prospects at 15% but not 30%. So far as the application of multiplier of 13 by the Tribunal is concerned, the High Court has not interfered with the same. When the age of the deceased was considered in the group of 40 to 50 years, we are of the view that the High Court has committed error in granting only 15% towards future prospects instead of 30%. As per the judgments of this Court primarily the age group is to be considered. Considering the age group as 40 to 50 years, when the multiplier of 13 is maintained by the High Court, there is no reason or justification for reducing the compensation by granting 15% towards future prospects. Though the learned counsel appearing for respondent no.1-Insurance Company has submitted that the compensation towards future prospects was awarded as per the Constitution Bench judgment of this Court in the case of National Insurance Company Limited v. Pranay Sethi & Ors. (2017) 16 SCC 680 but at the same time it is to be noticed that in the very same judgment in paragraph 59.3 while considering the grant of future prospects, this Court has specifically said that the addition should be 30% if the age of the deceased was in the age group of 40 to 50 years. For application of multiplier, the High Court has also accepted the age group of the deceased between 40 and 50 years. In that view of the matter, there is no reason for reducing the compensation by granting future prospects at 15% only. In absence of any challenge to the findings recorded by the High Court confirming the application of multiplier of 13, we are of the view that the High Court has committed error in reducing the compensation on account of loss of dependency. For loss of love and affection, when the compensation of Rs.1,00,000/- on account of loss of consortium was awarded to the first appellant, she was not entitled for another Rs.1,00,000/- towards the same but, at the same time though the appellants have claimed Rs.2,00,000/- towards transportation of dead body and funeral expenses, only an amount of Rs.20,000/- and Rs.25,000/- was awarded towards the respective heads. Taking into account the facts and circumstances of the case, we are of the view that even such grant of Rs.1,00,000/- ought not have been reduced by the High Court.

1[ds]8. The Tribunal, by recording a finding that the deceased was in the age group of 40 to 50 years, applied the multiplier of 13 while calculating the compensation. The High Court, curiously while maintaining the multiplier of 13 as per the judgment of this Court in the case of Sarla Verma (2009) 6 SCC 121, has reduced the compensation only on the ground that the deceased was aged 50 years 3 months on the date of the accident, as such the compensation is to be calculated on account of loss of dependency by granting future prospects at 15% but not 30%. So far as the application of multiplier of 13 by the Tribunal is concerned, the High Court has not interfered with the same. When the age of the deceased was considered in the group of 40 to 50 years, we are of the view that the High Court has committed error in granting only 15% towards future prospects instead of 30%. As per the judgments of this Court primarily the age group is to be considered. Considering the age group as 40 to 50 years, when the multiplier of 13 is maintained by the High Court, there is no reason or justification for reducing the compensation by granting 15% towards future prospects. Though the learned counsel appearing for respondent no.1-Insurance Company has submitted that the compensation towards future prospects was awarded as per the Constitution Bench judgment of this Court in the case of National Insurance Company Limited v. Pranay Sethi & Ors. (2017) 16 SCC 680 but at the same time it is to be noticed that in the very same judgment in paragraph 59.3 while considering the grant of future prospects, this Court has specifically said that the addition should be 30% if the age of the deceased was in the age group of 40 to 50 years. For application of multiplier, the High Court has also accepted the age group of the deceased between 40 and 50 years. In that view of the matter, there is no reason for reducing the compensation by granting future prospects at 15% only. In absence of any challenge to the findings recorded by the High Court confirming the application of multiplier of 13, we are of the view that the High Court has committed error in reducing the compensation on account of loss of dependency. For loss of love and affection, when the compensation of Rs.1,00,000/- on account of loss of consortium was awarded to the first appellant, she was not entitled for another Rs.1,00,000/- towards the same but, at the same time though the appellants have claimed Rs.2,00,000/- towards transportation of dead body and funeral expenses, only an amount of Rs.20,000/- and Rs.25,000/- was awarded towards the respective heads. Taking into account the facts and circumstances of the case, we are of the view that even such grant of Rs.1,00,000/- ought not have been reduced by the High Court.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: copy of the Insurance Policy was marked as exhibit, with consent. 5. The Tribunal, by considering the oral and documentary evidence on record, has recorded a finding that the accident occurred due to negligent driving of the driver of the vehicle and proceeded to quantify the compensation. Having regard to the evidence on record, the Tribunal, by recording a finding that the deceased was earning Rs.50,463/- p.m. by way of salary, by applying the principles laid down in the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 applied the multiplier of 13 and by giving 30% towards future prospects, arrived at a compensation of Rs.1,02,33,912. Out of the said sum, by deducting 1/3 rd towards the personal expenditure and 10% towards income tax, the Tribunal has held that the appellant-claimants were entitled to a compensation of Rs.61,40,347.20 towards loss of dependency. By further awarding an amount of Rs.1,00,000/- towards loss of consortium to the first appellant and Rs.3,00,000/- for all the appellants towards loss of love and affection and Rs.20,000/- towards funeral expenses against the claim of Rs.2,00,000/-, the Tribunal has awarded the total compensation of Rs.65,60,347.20. 6. Aggrieved by the award of the Tribunal, the first respondent – United India Insurance Co. Ltd. has preferred Misc. First Appeal No.4903 of 2016 before the High Court of Karnataka at Bengaluru. The award of the Tribunal was mainly assailed before the High Court on three grounds, namely, that as the deceased was over 50 years of age, the Tribunal committed error in computing the future prospects at 30%; secondly it was the case of the first respondent that as the first appellant was claiming family pension, deduction should have been made while computing the loss of dependency; and thirdly by awarding the compensation of Rs.1,00,000/- to the first appellant towards loss of consortium, the Tribunal again granted compensation of Rs.3,00,000/- to all the appellants under the head loss of love and affection. The High Court, on the ground that the deceased was aged 50 years 3 months on the date of accident, has come to the conclusion that the appellants are entitled to compensation on account of loss of dependency by computing future prospects of the deceased at 15% and not 30%. Further it was held that by awarding an amount of Rs.1,00,000/- towards loss of consortium to the first appellant, the Tribunal has committed error by awarding Rs.1,00,000/- to the first appellant towards the head loss of love and affection. With the aforesaid findings, the High Court has re- calculated the compensation payable to the appellants at Rs.57,78,480/-, i.e., Rs.54,33,480/- towards loss of dependency; Rs.1,00,000/- towards loss of consortium; Rs.2,00,000/- towards of love and affection to the children; Rs.25,000/- towards funeral expenses and Rs.20,000/- towards transportation of dead body. 7. We have heard Sri Shekhar Devasa, learned counsel appearing for the appellants and Ms. Neerja Sachdeva, learned counsel appearing for the 1 st respondent-Insurance Company and perused the material on record. Though notice is served on respondent no.2, he remains unrepresented. 8. The Tribunal, by recording a finding that the deceased was in the age group of 40 to 50 years, applied the multiplier of 13 while calculating the compensation. The High Court, curiously while maintaining the multiplier of 13 as per the judgment of this Court in the case of Sarla Verma (2009) 6 SCC 121, has reduced the compensation only on the ground that the deceased was aged 50 years 3 months on the date of the accident, as such the compensation is to be calculated on account of loss of dependency by granting future prospects at 15% but not 30%. So far as the application of multiplier of 13 by the Tribunal is concerned, the High Court has not interfered with the same. When the age of the deceased was considered in the group of 40 to 50 years, we are of the view that the High Court has committed error in granting only 15% towards future prospects instead of 30%. As per the judgments of this Court primarily the age group is to be considered. Considering the age group as 40 to 50 years, when the multiplier of 13 is maintained by the High Court, there is no reason or justification for reducing the compensation by granting 15% towards future prospects. Though the learned counsel appearing for respondent no.1-Insurance Company has submitted that the compensation towards future prospects was awarded as per the Constitution Bench judgment of this Court in the case of National Insurance Company Limited v. Pranay Sethi & Ors. (2017) 16 SCC 680 but at the same time it is to be noticed that in the very same judgment in paragraph 59.3 while considering the grant of future prospects, this Court has specifically said that the addition should be 30% if the age of the deceased was in the age group of 40 to 50 years. For application of multiplier, the High Court has also accepted the age group of the deceased between 40 and 50 years. In that view of the matter, there is no reason for reducing the compensation by granting future prospects at 15% only. In absence of any challenge to the findings recorded by the High Court confirming the application of multiplier of 13, we are of the view that the High Court has committed error in reducing the compensation on account of loss of dependency. For loss of love and affection, when the compensation of Rs.1,00,000/- on account of loss of consortium was awarded to the first appellant, she was not entitled for another Rs.1,00,000/- towards the same but, at the same time though the appellants have claimed Rs.2,00,000/- towards transportation of dead body and funeral expenses, only an amount of Rs.20,000/- and Rs.25,000/- was awarded towards the respective heads. Taking into account the facts and circumstances of the case, we are of the view that even such grant of Rs.1,00,000/- ought not have been reduced by the High Court. ### Response: 1

Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth

from the date the landlord recovers possession or the premises are re-let within a period of one year of the said date of any person other than the original tenant, the Court may order the landlord, on the application of the original tenant, within the time prescribed, to place him in occupation of the premises on the original terms and conditions. This tends to ensure that a landlord does not eject a tenant unless he really requires the premises for occupation by himself.15. We are therefore of opinion that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from tenant in view of the provisions of sub-cl. (g) of Section 13 (1) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making the necessary alteration.16. The provisions of cl. (hh) cannot possibly apply to the case whether a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish premises and to erect a new building on them. The provisions of cl. (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants. This is clear from the provisions of sub-s. (3A) which provides that a landlord has to give certain undertaking before a decree for eviction can be passed on the ground specified in cl. (hh). He has to undertake that the new building will have not less than two times the number of residential tenements and not less than two times the floor area contained in the premises sought to be demolished, that the work of demolishing the premises shall be commenced by him not later than one month and shall be completed not later than three months from the date he recovers possession of the entire premises and that the work of erection of the new building shall be completed by him not later than fifteen months from the said date. These undertakings thus provide for a time schedule for the new building to come up into existence and ensure atleast the doubling of the residential tenements, i. e. rooms or groups of rooms rented or offered for rent as a unit void S. 5 (12) of the Act.17. Such undertakings would be unnecessary if the landlord seeks to eject the tenant from the premises in order to occupy the premises himself after making the necessary alterations to suit his convenience. Further, Section 17A provides for the ejected tenants reoccupying the premises in case the landlord does not start the work of demolition within the period specified in sub-s. (3A). Section 17B provides for the ejected tenant to notify to the landlord within six months from the date on which he delivered vacant possession of the premises of his intention to occupy a tenement in the new building on its completion on the conditions specified in the section. Section 17 C provides that the landlord would intimate to the tenant the date when the new building would be complete and that the tenant would be entitled to occupy the tenement on that date. These provisions clearly establish that the provisions of cl. (hh) apply when the landlord desires to demolish the premises for the purpose of ejecting a new building on the premises for being let to tenants.18. We may mention that the provisions of clauses similar to cls. (g) and (hh) of sub-sec. (1) of S. 13 of the Act have been construed in this way in Krishna Das v. Bidhan Chandra, AIR 1959 Cal 181 , McKenna v. Porter Motors Ltd., 1956 AC 688 and Bettys Cafes Ltd. v. Phillips Furnishing Stores Ltd., 1959 AC 20.19. The appellant has referred us to two cases of the Bombay High Court which tend to support him in so far as it is held in them that in circumstances similar to the present one, the case would come under cl. (hh) of S. 13 (1) and not under cl. (g). They are : Manchharam Ghelabhai Pittawala v. Surat Electricity Co. Ltd., (Civil Revn. Appln. No. 204 of 1956 D/- 1-2-1957 (Bom) and Allarkha Fakirmahomed v. Surat Electricity Co. Ltd., Civil Revn. Appl. No. 164 of 1957 D/- 8-10-1957 (Bom). The latter case followed the previous one. In the former case the High Court said :"Indeed the expression occupation occurring in clause (g) means possession followed by actual occupation while for the purpose of cl. (hh) what is necessary is possession for the purpose of demolition. Occupation, within cl. (g) would include possession, as it is obvious that one cannot occupy unless one is able to possess, but in the case of cl. (hh) it is clear that it is not necessary to occupy for the purpose of demolition. What is necessary is that the landlord must possess in order to enable him to demolish and erect a new building." Demolition of the existing building and subsequent erection of a new building are only intermediate steps in order to make the building fit for occupation by the landlord."20. In Krishanlal Ishwarlal Desais case, Civil Appeal No. 804 of 1962 D/- 18-1-1963 (SC) this Court said in connection with the provisions of S. 17 (1) of the Act :"What is, however, clear beyond any doubt is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalf ........"Occupation of the premises in cl. (g) does not necessarily refer to occupation as residence. The owner can occupy a place by making use of it in any manner. In a case like the present, if the plaintiffs on getting possession start their work of demolition within the prescribed period, they would have occupied the premises in order to erect a building fit for their occupation.

0[ds]12. We agree with the Curt below that the respondents case falls under cl. (g) when he bona fide requires the premises for his own occupation. The mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not affect the question of his requiring the house bona fide and reasonably for his occupation, when he has proved his need for occupying the house. There is no such prohibition either in the language of cl. (g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alterations in it. There could not be any logical reason for such a prohibition. Under ordinary law, the landlord is entitled to eject his tenant whenever he likes, after following certain procedure except in cases where he has contracted not to eject him before the happening of a certain event. The Act restricts that general right of the landlord in the special circumstances prevailing in regard to the availability of accommodation and the incidental abuse of those circumstances by landlords in demanding unjustifiably high rents.We are therefore of opinion that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from tenant in view of the provisions of sub-cl. (g) of Section 13 (1) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making the necessary alteration.16. The provisions of cl. (hh) cannot possibly apply to the case whether a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish premises and to erect a new building on them. The provisions of cl. (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants. This is clear from the provisions of sub-s. (3A) which provides that a landlord has to give certain undertaking before a decree for eviction can be passed on the ground specified in cl. (hh). He has to undertake that the new building will have not less than two times the number of residential tenements and not less than two times the floor area contained in the premises sought to be demolished, that the work of demolishing the premises shall be commenced by him not later than one month and shall be completed not later than three months from the date he recovers possession of the entire premises and that the work of erection of the new building shall be completed by him not later than fifteen months from the said date. These undertakings thus provide for a time schedule for the new building to come up into existence and ensure atleast the doubling of the residential tenements, i. e. rooms or groups of rooms rented or offered for rent as a unit void S. 5 (12) of the Act.17. Such undertakings would be unnecessary if the landlord seeks to eject the tenant from the premises in order to occupy the premises himself after making the necessary alterations to suit his convenience. Further, Section 17A provides for the ejected tenants reoccupying the premises in case the landlord does not start the work of demolition within the period specified in sub-s. (3A). Section 17B provides for the ejected tenant to notify to the landlord within six months from the date on which he delivered vacant possession of the premises of his intention to occupy a tenement in the new building on its completion on the conditions specified in the section. Section 17 C provides that the landlord would intimate to the tenant the date when the new building would be complete and that the tenant would be entitled to occupy the tenement on that date. These provisions clearly establish that the provisions of cl. (hh) apply when the landlord desires to demolish the premises for the purpose of ejecting a new building on the premises for being let to tenants.18. We may mention that the provisions of clauses similar to cls. (g) and (hh) of sub-sec. (1) of S. 13 of the Act have been construed in this way in Krishna Das v. Bidhan Chandra, AIR 1959 Cal 181 , McKenna v. Porter Motors Ltd., 1956 AC 688 and Bettys Cafes Ltd. v. Phillips Furnishing Stores Ltd., 1959 AC 20.In Krishanlal Ishwarlal Desais case, Civil Appeal No. 804 of 1962 D/- 18-1-1963 (SC) this Court said in connection with the provisions of S. 17 (1) of the Actis, however, clear beyond any doubt is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalfof the premises in cl. (g) does not necessarily refer to occupation as residence. The owner can occupy a place by making use of it in any manner. In a case like the present, if the plaintiffs on getting possession start their work of demolition within the prescribed period, they would have occupied the premises in order to erect a building fit for their occupation.is clear from this section that the trial Court had full jurisdiction to entertain the suit for ejectment. That being so, it had jurisdiction to interpret whether cl. (g) of S. 13(1) would apply to the present case. The appellate Court had jurisdiction to hear the appeal. The High Court could not, therefore, interfere in revision with the decision of the appellate Court, even if it had gone wrong, on facts or law, in the exercise of it jurisdiction. It follows that the revision application had to be dismissed by the High Court and that this appeal too must fail.8. Since the merits of the case have been argued fully before us, we express our opinion on the law point urged beforeneed not express an opinion on this point, as, for reasons to be mentioned later, the case falls under cl. (g) and not under cl. (hh) of S. 13 (1) of theis therefore no reason why restrictions not mentioned in the grounds be read into them. We do not therefore agree with the contention that cl. (g) will apply only when the landlord bona fide needs to occupy the premises without making any alteration in them i. e. to occupy the identical building which the tenant occupies. There is no jurisdiction to give such a narrow construction either to the word premises or to the word occupies which have been construed by this Court in Krishanlal Ishwarlal Desai v. Bai Vijkor, Civil Appeal No. 804 of 1962 D/referred to later.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: from the date the landlord recovers possession or the premises are re-let within a period of one year of the said date of any person other than the original tenant, the Court may order the landlord, on the application of the original tenant, within the time prescribed, to place him in occupation of the premises on the original terms and conditions. This tends to ensure that a landlord does not eject a tenant unless he really requires the premises for occupation by himself.15. We are therefore of opinion that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from tenant in view of the provisions of sub-cl. (g) of Section 13 (1) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making the necessary alteration.16. The provisions of cl. (hh) cannot possibly apply to the case whether a landlord reasonably and bona fide requires the premises for his own occupation even if he had to demolish premises and to erect a new building on them. The provisions of cl. (hh) apply to cases where the landlord does not require the premises for his own occupation but requires them for erecting a new building which is to be let out to tenants. This is clear from the provisions of sub-s. (3A) which provides that a landlord has to give certain undertaking before a decree for eviction can be passed on the ground specified in cl. (hh). He has to undertake that the new building will have not less than two times the number of residential tenements and not less than two times the floor area contained in the premises sought to be demolished, that the work of demolishing the premises shall be commenced by him not later than one month and shall be completed not later than three months from the date he recovers possession of the entire premises and that the work of erection of the new building shall be completed by him not later than fifteen months from the said date. These undertakings thus provide for a time schedule for the new building to come up into existence and ensure atleast the doubling of the residential tenements, i. e. rooms or groups of rooms rented or offered for rent as a unit void S. 5 (12) of the Act.17. Such undertakings would be unnecessary if the landlord seeks to eject the tenant from the premises in order to occupy the premises himself after making the necessary alterations to suit his convenience. Further, Section 17A provides for the ejected tenants reoccupying the premises in case the landlord does not start the work of demolition within the period specified in sub-s. (3A). Section 17B provides for the ejected tenant to notify to the landlord within six months from the date on which he delivered vacant possession of the premises of his intention to occupy a tenement in the new building on its completion on the conditions specified in the section. Section 17 C provides that the landlord would intimate to the tenant the date when the new building would be complete and that the tenant would be entitled to occupy the tenement on that date. These provisions clearly establish that the provisions of cl. (hh) apply when the landlord desires to demolish the premises for the purpose of ejecting a new building on the premises for being let to tenants.18. We may mention that the provisions of clauses similar to cls. (g) and (hh) of sub-sec. (1) of S. 13 of the Act have been construed in this way in Krishna Das v. Bidhan Chandra, AIR 1959 Cal 181 , McKenna v. Porter Motors Ltd., 1956 AC 688 and Bettys Cafes Ltd. v. Phillips Furnishing Stores Ltd., 1959 AC 20.19. The appellant has referred us to two cases of the Bombay High Court which tend to support him in so far as it is held in them that in circumstances similar to the present one, the case would come under cl. (hh) of S. 13 (1) and not under cl. (g). They are : Manchharam Ghelabhai Pittawala v. Surat Electricity Co. Ltd., (Civil Revn. Appln. No. 204 of 1956 D/- 1-2-1957 (Bom) and Allarkha Fakirmahomed v. Surat Electricity Co. Ltd., Civil Revn. Appl. No. 164 of 1957 D/- 8-10-1957 (Bom). The latter case followed the previous one. In the former case the High Court said :"Indeed the expression occupation occurring in clause (g) means possession followed by actual occupation while for the purpose of cl. (hh) what is necessary is possession for the purpose of demolition. Occupation, within cl. (g) would include possession, as it is obvious that one cannot occupy unless one is able to possess, but in the case of cl. (hh) it is clear that it is not necessary to occupy for the purpose of demolition. What is necessary is that the landlord must possess in order to enable him to demolish and erect a new building." Demolition of the existing building and subsequent erection of a new building are only intermediate steps in order to make the building fit for occupation by the landlord."20. In Krishanlal Ishwarlal Desais case, Civil Appeal No. 804 of 1962 D/- 18-1-1963 (SC) this Court said in connection with the provisions of S. 17 (1) of the Act :"What is, however, clear beyond any doubt is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalf ........"Occupation of the premises in cl. (g) does not necessarily refer to occupation as residence. The owner can occupy a place by making use of it in any manner. In a case like the present, if the plaintiffs on getting possession start their work of demolition within the prescribed period, they would have occupied the premises in order to erect a building fit for their occupation. ### Response: 0

Mohammad Shujat, Ali & Ors. Etc Vs. Union Of India & Ors. Etc

I being denied the opportunity for promotion and the graduate Supervior is preferred? There can be no satisfactory answer to this question. It must be remembered that many of these non-graduate Supervisors might not have been able to obtain degree in engineering because they came from poorer families and did not have the financial resources to pursue degree course in engineering and not because they lacked the necessary capacity and intelligence "Chill penury might have "repressed their noble rage. It is of the essence of equal opportunity for such persons with humble and depressing backgrounds that they should have opportunity, through experience or selfstudy, to level up with their more fortunate colleagues who, by reason of favourable circumstances, could obtain the benefits of higher education, and if they prove themselves fit and more suitable than others, why should they be denied an opportunity to be promoted in a vacancy on the ground that vacancy belongs to Supervisors possessing higher educational qualifications.32. As pointed out by Krishna Iyer, J., in (1974) 1 SCC 19 :(AIR 1974 SC 1 : 1974 Lab IC 1) "the soul of Art. 16 is the promotion of the common mans capabilities, over-powering environmental adversities and opening up full opportunities to develop in official life without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule. To permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle the social thrust of the equality clause. A rule of promotion which while conceding that non-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate Supervisors would clearly be calculated to destroy the guarantee of equal opportunity. But even so, we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors. This differentiation is not something brought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of the Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules the pay scale of graduate Supervisors was Rs. 176-300, while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/-so that their pay-scale was Rs. 150-250. Graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules.In fact, under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay-scale of Junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common gradation list of Supervisors finally approved by the Government of India also consisted of two parts one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them. Contention E cannot, therefore, prevail and must be rejected.33. That takes us to contention D. So far as this contention is concerned, we do not think we can be called upon to decide it. It does not form the subject-matter of Writ Petition No. 385 of 1959. There is no complaint in this petition in regard to the classification of non-graduate Supervisors into different categories and reservation of vacancy for each category in the cyclic order of rotation for promotion to the posts of Assistant Engineers. When we turn to the judgment of the Full Bench impugned in the appeals, we find that there is discussion in that judgment in regard to the rotational system of promotion prescribed under the Andhra Pradesh Rules, but that discussion is mainly in the context of an argument challenging the different proportions of vacancies allotted to graduate and non-graduate Supervisors. No specific contention seems to have been advanced directly impugning the distribution of the vacancies allotted to non-graduate Supervisors. It is true that there is reference in the judgment to the distribution of the non-graduate Supervisors quota of vacancies amongst different classes of non-graduate Supervisors, but that reference is on account of the fact that the respondents relied on this factor as justifying the rotation system as between graduate Supervisors and non-graduate Supervisors. It is indeed difficult to see how the Full Bench could have possibly examined the challenge against distribution of vacancies amongst different categories of non-graduate Supervisors in the cyclic order of rotation when such challenge did not arise out of any averments in the writ petitions, and moreover, all directly recruited non-graduate Supervisors and promotee non-graduate supervisors holding LCE, LME or LEE diplomas, who would be affected by an adverse decision, were not before the High Court. We are of the view that in the absence of necessary averments in regard to this challenge in the writ petitions before the High Court as also in Writ Petition No. 385 of 1969 before this Court and particularly the non-graduate Supervisors, who would be affected by an adverse decision, not being before the High Court or this Court to contest such challenge, it was not possible for the High Court and it is equally not possible for this Court to entertain this challenge and examine its validity on merits. We, therefore, refuse to consider contention D.34.

0[ds]It is, therefore, not possible to overturn the decision of the Government of Andhra Pradesh denying equivalence of US and OCE certificates of the Osmania Engineering College with LCE, LME or LEE diplomas. It may be noted that the Central Government also affirmed the decision of the Government of Andhra Pradesh by its letter dated 17th March, 1966. Even if it be assumed that the Central Government had the exclusive power under the States Reorganisation Act, 1956 to bring about integration of services in the reorganised State of Andhra Pradesh, this decision of the Central Government contained in the letter dated 17th March, 1966 is sufficient to meet the requirement of the statute and it must be upheld for the same reasons as the decision of the Government of Andhra Pradesh. There was a further ground of attack levelled against the decision of the Central Government, albeit faint-heatedly, and that was that the decision of the Central Government was arrived at solely on the basis of the communication dated 9th January, 1965 addressed by the Additional Secretary to the Government of Andhra Pradesh to the Secretary to the Government of India, Ministry of Home Affairs without giving any opportunity to the non-graduate Supervisors from the erstwhile Hyderabad State to put forward their case. This charge is plainly unsustainable as it is evident from paragraph 9 of the affidavit dated 27th July, 1970 filed by K. P. Sing, Under Secretary to the Government of India, Ministry of Home Affairs in reply to Writ Petition No. 385 of 1969, and it can hardly be disputed, that the representations made by the non-graduate Supervisors from the erstwhile Hyderabad State against the decision of the Government of Andhra Pradesh contained in the order dated 3rd October, 1960 were forwarded to the Central Government and it was after giving due consideration to these representations on the basis of the recommendations of the Advisory Board which consisted of experts, that the Central Government affirmed the decision of the Government of Andhra Pradesh by its letter dated 17th March, 1966. The present contention of the petitioners/appellants must, therefore, beobservations made on behalf of a Bench of five Judges of this Court are binding upon us. Even otherwise they have our full concurrence. The view taken by the Court in this case is sound and commends itself to us. In fact that is the only view possible on a conjoint reading of paragraphs 3 and 6 of the memorandum. This decision leaves no room for doubt that, by issuing the memorandum, the Central Government gave its previous approval to any variation which might be made in the conditions of service relating to promotion within the meaning of the proviso to Section 115, sub-section (7). No alteration in the conditions of service relating to promotions could thereafter be struck down, as invalid on the ground of contravention of the mandatory requirement of the proviso to Section 115, sub-sectionaffirm the decision in Raghavendra Raos case, (1964) 7 SCR 549 = (AIR 1965) SC 136 ) and hold that the memorandum dated 11th May, 1957 constituted previous approval of the Central Government to any variation which might be made in the conditions of service relating to promotion within the meaning of the proviso to Section 115, sub-section (7).We may point out that the decision in Raghavendra Raos case, (1964) 7 SCR 549 = (AIR 1965 SC 136 ) has been cited with approval by a Bench of five Judges of this Court as recently as 23rd August, 1972 in N. Subba Rao v. Union of India, AIR 1973 SC 69 = (1974 Lab IC 240).It must, therefore be concluded that in any view of the matter the Andhra Rules and the Andhra Pradesh Rules did not contravene the proviso to Section 115, sub-sectionpost of Sub-Engineer having been equated with the post of Assistant Engineer urged the petitioners/appellants, one stage promotion from the post of Supervisor was to the post of Assistant Engineer and consequently, promotion of the Supervisors from the erstwhile Hyderabad State to the post of Assistant Engineer was governed by the Hyderabad Rules and not by the Andhra Rules from and after 1st November, 1956 and promotion made on the basis of Andhra Rules must accordingly be reviewed and adjusted. This contention of the petitioners/appellants is, in our opinion, untenable and cannot beis difficult to imagine how in these circumstances any promotion could be made from the post of Supervisor to the post of Assistant Engineers according to the Hyderabad Rules. The one stage promotion from the post of Supervisor contemplated by the Hyderabad Rules was to the post of Sub-Engineers and consequently, if the cadre of Sub-Engineer had continued in the reorganised State of Andhra Pradesh, there can be no doubt that, according to the decision contained in the order dated 7th April, 1960, the promotion of Supervisors from the erstwhile Hyderabad State to the post of Sub-Engineer would have been governed by the Hyderabad Rules. But with a view to bringing about integration of the Engineering Service the cadre of Sub-Engineer was abolished by the Government of Andhra Pradesh and therefore, so far as promotion from the post of Supervisors was concerned, the Hyderabad Rules, ceased to have application. The Hyderabad Rules could not govern promotion from the post of Supervisor to the post of Assistant Engineer, because no such promotion was provided or contemplated in the Hyderabad Rules. In fact, if the Andhra Rules were not made applicable to Supervisors from the erstwhile Hyderabad State, all further chances of promotion for such of them as were non-graduates would have been barred, because under the Hyderabad Rules they could be promoted only to the post of Sub-Engineer and no higher and the cadre of Sub-Engineers was abolished. The next higher stage of promotion from the post of Supervisor in the reorganised State of Andhra Pradesh was the post of Assistant Engineer and promotion to that post could be governed only by the Andhra Rules which contemplated such promotion and made express provision for it. The petitioners/appellants were, therefore not entitled to claim that Supervisors from the erstwhile Hyderabad State should have been promoted as Assistant Engineers in the reorganised State of Andhra Pradesh according to the Hyderabadthe post of Assistant Engineer to which Supervisors from the erstwhile State of Hyderabad claimed to be promoted on or after 1st November, 1956 was undoubtedly one stage above that held by the Supervisors there being no intermediate post in the reorganised State, but it cannot be said that the Supervisors would have been qualified for promotion to the post of Assistant Engineer under the Hyderabad Rules, if recruitment to the post of Assistant Engineer had been regulated by the Hyderabad Rules. In the first place the Hyderabad Rules did not provide for promotion directly from the post of Supervisor to the post of Assistant Engineer, and secondly under the Hyderabad Rules, a non-graduate Supervisor would not have been qualified for promotion to the post of Assistant Engineer. The contention based on Rule 42 (h)(i) must also therefore be rejected.We thus arrive at the point at which the demand for equality confronts the right to classify. For it is the classification which determines the range of persons affected by the special burden or benefit of a law which does not apply to all persons. This brings out a paradox. The equal protection of the laws is a "pledge of the protection of equal laws." But laws may classify. And, as pointed out by Justice Brewar, "the very idea of classification is that of inequality. The court has tackled this paradox over the years and in doing so, it has neither abandoned the demand for equality nor denied the legislative right to classify. It has adopted a middle course of realistic reconciliation. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification. This doctrine recognises that the legislature may classify for the purpose of legislation but requires that the classification must be reasonable. It should ensure that persons or things similarly situated are all similarly treated. The measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated. "The Equal Protection of the Laws, 37 California Law Review, 341.The test which has been evolved for this purpose is - and this test has been consistently applied by this Court in all decided cases since the commencement of the Constitution -that the classification must be founded on an intelligible differentia which distinguishes certain persons or things that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the legislation.27.It is in the light of these principles that we must proceed to examine the constitutional validity of the Andhra Pradesh Rules. The complaint of the petitioners under the head of contention E is that the Andhra Pradesh Rules make unjust discrimination between graduates and non-graduates in the matter of promotion of Supervisors as Assistant Engineers. Now, whether we look at the unamended or the amended Andhra Pradesh Rules, it is clear that graduate Supervisors are given a preferential treatment over non-graduate Supervisors, in that two out of every three vacancies initially, and after the amendment, three out of every four vacancy in the posts of Assistant Engineers are reserved for promotion of graduate Supervisors and only the remaining one vacancies is left to be filled by promotion of non-graduate Supervisors. The question is whether this preferential treatment can be justified on the basis of any reasonable classification or it is arbitrary and irrational. The law as it stands today is clear that the burden is always on him who attacks the constitutionality of a legislation to show that the classification made by it is unreasonable and violative of Articles 14 and 16. Has this burden been discharged by the petitioners/appellants: have they shown that the classification of Supervisors into graduates and non-graduates for the purpose of promotion as Assistant Engineers is unrelated to the object of the Andhra Pradesh Rules, or in other words, it is arbitrary andgraduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules the pay scale of graduate Supervisors was Rs. 176-300, while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/-so that their pay-scale was Rs. 150-250. Graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules.In fact, under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay-scale of Junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common gradation list of Supervisors finally approved by the Government of India also consisted of two parts one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them. Contention E cannot, therefore, prevail and must be rejected.That takes us to contention D. So far as this contention is concerned, we do not think we can be called upon to decide it. It does not form the subject-matter of Writ Petition No. 385 of 1959. There is no complaint in this petition in regard to the classification of non-graduate Supervisors into different categories and reservation of vacancy for each category in the cyclic order of rotation for promotion to the posts of Assistant Engineers. When we turn to the judgment of the Full Bench impugned in the appeals, we find that there is discussion in that judgment in regard to the rotational system of promotion prescribed under the Andhra Pradesh Rules, but that discussion is mainly in the context of an argument challenging the different proportions of vacancies allotted to graduate and non-graduate Supervisors. No specific contention seems to have been advanced directly impugning the distribution of the vacancies allotted to non-graduate Supervisors. It is true that there is reference in the judgment to the distribution of the non-graduate Supervisors quota of vacancies amongst different classes of non-graduate Supervisors, but that reference is on account of the fact that the respondents relied on this factor as justifying the rotation system as between graduate Supervisors and non-graduate Supervisors. It is indeed difficult to see how the Full Bench could have possibly examined the challenge against distribution of vacancies amongst different categories of non-graduate Supervisors in the cyclic order of rotation when such challenge did not arise out of any averments in the writ petitions, and moreover, all directly recruited non-graduate Supervisors and promotee non-graduate supervisors holding LCE, LME or LEE diplomas, who would be affected by an adverse decision, were not before the High Court. We are of the view that in the absence of necessary averments in regard to this challenge in the writ petitions before the High Court as also in Writ Petition No. 385 of 1969 before this Court and particularly the non-graduate Supervisors, who would be affected by an adverse decision, not being before the High Court or this Court to contest such challenge, it was not possible for the High Court and it is equally not possible for this Court to entertain this challenge and examine its validity on merits. We, therefore, refuse to consider contention D.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: I being denied the opportunity for promotion and the graduate Supervior is preferred? There can be no satisfactory answer to this question. It must be remembered that many of these non-graduate Supervisors might not have been able to obtain degree in engineering because they came from poorer families and did not have the financial resources to pursue degree course in engineering and not because they lacked the necessary capacity and intelligence "Chill penury might have "repressed their noble rage. It is of the essence of equal opportunity for such persons with humble and depressing backgrounds that they should have opportunity, through experience or selfstudy, to level up with their more fortunate colleagues who, by reason of favourable circumstances, could obtain the benefits of higher education, and if they prove themselves fit and more suitable than others, why should they be denied an opportunity to be promoted in a vacancy on the ground that vacancy belongs to Supervisors possessing higher educational qualifications.32. As pointed out by Krishna Iyer, J., in (1974) 1 SCC 19 :(AIR 1974 SC 1 : 1974 Lab IC 1) "the soul of Art. 16 is the promotion of the common mans capabilities, over-powering environmental adversities and opening up full opportunities to develop in official life without succumbing to the sophistic argument of the elite that talent is the privilege of the few and they must rule. To permit discrimination based on educational attainments not obligated by the nature of the duties of the higher post is to stifle the social thrust of the equality clause. A rule of promotion which while conceding that non-graduate Supervisors are also fit to be promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate Supervisors as against non-graduate Supervisors would clearly be calculated to destroy the guarantee of equal opportunity. But even so, we do not think we can be persuaded to strike down the Andhra Pradesh Rules in so far as they make differentiation between graduate and non-graduate Supervisors. This differentiation is not something brought about for the first time by the Andhra Pradesh Rules. It has always been there in the Engineering Services of the Hyderabad and the Andhra States. The graduate Supervisors have always been treated as a distinct and separate class from non-graduate Supervisors both under the Hyderabad Rules as well as the Andhra Rules and they have never been integrated into one class. Under the Hyderabad Rules the pay scale of graduate Supervisors was Rs. 176-300, while that of non-graduate Supervisors was Rs. 140-300 and similarly, under the Andhra Rules the pay scale of non-graduate Supervisors was Rs. 100-250, but graduate Supervisors were started in this pay scale at the stage of Rs. 150/-so that their pay-scale was Rs. 150-250. Graduate Supervisors and non-graduate Supervisors were also treated differently for the purpose of promotion under both sets of Rules.In fact, under the Andhra Rules a different nomenclature of Junior Engineers was given to graduate Supervisors. The same differentiation into two classes also persisted in the reorganised State of Andhra Pradesh. The pay-scale of Junior Engineers was always different from that of non-graduate Supervisors and for the purpose of promotion, the two categories of Supervisors were kept distinct and apart under the Andhra Rules even after the appointed day. The common gradation list of Supervisors finally approved by the Government of India also consisted of two parts one part relating to Junior Engineers and the other part relating to non-graduate Supervisors. The two categories of Supervisors were thus never fused into one class and no question of unconstitutional discrimination could arise by reason of differential treatment being given to them. Contention E cannot, therefore, prevail and must be rejected.33. That takes us to contention D. So far as this contention is concerned, we do not think we can be called upon to decide it. It does not form the subject-matter of Writ Petition No. 385 of 1959. There is no complaint in this petition in regard to the classification of non-graduate Supervisors into different categories and reservation of vacancy for each category in the cyclic order of rotation for promotion to the posts of Assistant Engineers. When we turn to the judgment of the Full Bench impugned in the appeals, we find that there is discussion in that judgment in regard to the rotational system of promotion prescribed under the Andhra Pradesh Rules, but that discussion is mainly in the context of an argument challenging the different proportions of vacancies allotted to graduate and non-graduate Supervisors. No specific contention seems to have been advanced directly impugning the distribution of the vacancies allotted to non-graduate Supervisors. It is true that there is reference in the judgment to the distribution of the non-graduate Supervisors quota of vacancies amongst different classes of non-graduate Supervisors, but that reference is on account of the fact that the respondents relied on this factor as justifying the rotation system as between graduate Supervisors and non-graduate Supervisors. It is indeed difficult to see how the Full Bench could have possibly examined the challenge against distribution of vacancies amongst different categories of non-graduate Supervisors in the cyclic order of rotation when such challenge did not arise out of any averments in the writ petitions, and moreover, all directly recruited non-graduate Supervisors and promotee non-graduate supervisors holding LCE, LME or LEE diplomas, who would be affected by an adverse decision, were not before the High Court. We are of the view that in the absence of necessary averments in regard to this challenge in the writ petitions before the High Court as also in Writ Petition No. 385 of 1969 before this Court and particularly the non-graduate Supervisors, who would be affected by an adverse decision, not being before the High Court or this Court to contest such challenge, it was not possible for the High Court and it is equally not possible for this Court to entertain this challenge and examine its validity on merits. We, therefore, refuse to consider contention D.34. ### Response: 0

Hindustan Aeronautics Vs. A. Radhika Thirumalai

to be given in accordance with the relevant rules and guidelines that have been framed by the authority concerned and no person can claim appointment on compassionate grounds in disregard of such rule or such guideline (See : LIC v. Asha Ramchhandra Ambekar) 6. In the appellant-Company appointment on compassionate grounds is governed by rules. Under Rule 78.1 provision is made that one of the dependents of the deceased employee could be considered for appointment in the company in preference to other applicants without being sponsored by the employment exchange. But in Rule 78.3 it has been laid down that such appointment would be made depending upon the availability of vacancies in the respective staffing cadre/authorization. In other words, an appointment on compassionate grounds can be made only if a vacancy is available. According to the appellant no vacancy is available since there is surplus labour and the policy of the appellant is to progressively reduce the work force and with that end in view a ban has been imposed on fresh recruitment and the appellant is also offering incentives for voluntary retirement. The learned Single Judge of the High Court was of the view that in spite of such a ban on fresh recruitment it was obligatory for the appellant to make appointment on compassionate grounds. The learned Single Judge has placed reliance on the following observations of this Court in Sushma Gosain at p. 470 : (SCC para 9) "We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." * 7. In Umesh Kumar Nagpal it has been indicated that the decision of Sushma Gosain has been misinterpreted to the point of distortion and that the decision does not justify compassionate appointment as a matter of course. The observations on which reliance has been placed by the learned Single Judge in Sushma Gosain have to be read in the light of the facts of that particular case. In that case the appellant, Smt Sushma Gosain, after the death of her husband, who was working as storekeeper in the Department of Director General Border Road, sought appointment as Lower Division Clerk on compassionate grounds. In January 1983 she was called for the written test and later on for interview and had passed the trade test. She was, however, not appointed till January 1985 when a ban was imposed on appointment of ladies in the said Department. Having regard to these facts this Court has observed : (SCC p. 470, para 8). "... Sushma Gosain made an application for appointment as Lower Division Clerk as far back in November 1982. She had then a right to have her case considered for appointment on compassionate ground under the aforesaid government memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her wait till 1985 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter." * 8. In the instant case the ban on fresh recruitment was in force when the respondent submitted the application for appointment on compassionate grounds. The decision in Sushma Gosain has, therefore, no application in the facts of this case. 9. A situation similar to the present case arose in Himachal Road Transport Corpn. v. Dinesh Kumar. In that case this Court was dealing with two cases where applications had been submitted by the dependents of the deceased employees for appointment on compassionate grounds and both of them were placed on the waiting list and had not been given appointment. They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observed : (SCC p. 563, para 10). "... In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the authorities concerned to create a supernumerary post and then appoint a person to such a post." * 10. As regards the submission of Shri Nageshwara Rao that the respondent could be given compassionate appointment in the medical department it may be stated that there is nothing to show that any appointment on compassionate ground has been made in the medical department after the respondent had submitted her application for such appointment. It cannot, therefore, be said that any vacancy is available for making such appointment in that department. All that can be said is that in the event of the appellant making fresh appointment on a Class III or Class IV post the application of the respondent for appointment on such post shall be given due consideration in accordance with her ranking in the waiting list.

1[ds]8. In the instant case the ban on fresh recruitment was in force when the respondent submitted the application for appointment on compassionate grounds. The decision in Sushma Gosain has, therefore, no application in the facts of thisAs regards the submission of Shri Nageshwara Rao that the respondent could be given compassionate appointment in the medical department it may be stated that there is nothing to show that any appointment on compassionate ground has been made in the medical department after the respondent had submitted her application for such appointment. It cannot, therefore, be said that any vacancy is available for making such appointment in that department. All that can be said is that in the event of the appellant making fresh appointment on a Class III or Class IV post the application of the respondent for appointment on such post shall be given due consideration in accordance with her ranking in the waiting list

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: to be given in accordance with the relevant rules and guidelines that have been framed by the authority concerned and no person can claim appointment on compassionate grounds in disregard of such rule or such guideline (See : LIC v. Asha Ramchhandra Ambekar) 6. In the appellant-Company appointment on compassionate grounds is governed by rules. Under Rule 78.1 provision is made that one of the dependents of the deceased employee could be considered for appointment in the company in preference to other applicants without being sponsored by the employment exchange. But in Rule 78.3 it has been laid down that such appointment would be made depending upon the availability of vacancies in the respective staffing cadre/authorization. In other words, an appointment on compassionate grounds can be made only if a vacancy is available. According to the appellant no vacancy is available since there is surplus labour and the policy of the appellant is to progressively reduce the work force and with that end in view a ban has been imposed on fresh recruitment and the appellant is also offering incentives for voluntary retirement. The learned Single Judge of the High Court was of the view that in spite of such a ban on fresh recruitment it was obligatory for the appellant to make appointment on compassionate grounds. The learned Single Judge has placed reliance on the following observations of this Court in Sushma Gosain at p. 470 : (SCC para 9) "We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." * 7. In Umesh Kumar Nagpal it has been indicated that the decision of Sushma Gosain has been misinterpreted to the point of distortion and that the decision does not justify compassionate appointment as a matter of course. The observations on which reliance has been placed by the learned Single Judge in Sushma Gosain have to be read in the light of the facts of that particular case. In that case the appellant, Smt Sushma Gosain, after the death of her husband, who was working as storekeeper in the Department of Director General Border Road, sought appointment as Lower Division Clerk on compassionate grounds. In January 1983 she was called for the written test and later on for interview and had passed the trade test. She was, however, not appointed till January 1985 when a ban was imposed on appointment of ladies in the said Department. Having regard to these facts this Court has observed : (SCC p. 470, para 8). "... Sushma Gosain made an application for appointment as Lower Division Clerk as far back in November 1982. She had then a right to have her case considered for appointment on compassionate ground under the aforesaid government memorandum. In 1983, she passed the trade test and the interview conducted by the DGBR. There is absolutely no reason to make her wait till 1985 when the ban on appointment of ladies was imposed. The denial of appointment is patently arbitrary and cannot be supported in any view of the matter." * 8. In the instant case the ban on fresh recruitment was in force when the respondent submitted the application for appointment on compassionate grounds. The decision in Sushma Gosain has, therefore, no application in the facts of this case. 9. A situation similar to the present case arose in Himachal Road Transport Corpn. v. Dinesh Kumar. In that case this Court was dealing with two cases where applications had been submitted by the dependents of the deceased employees for appointment on compassionate grounds and both of them were placed on the waiting list and had not been given appointment. They approached the Himachal Pradesh Administrative Tribunal and the Tribunal directed the Himachal Road Transport Corporation to appoint both of them as Clerk on regular basis. Setting aside the said decision of the Tribunal this Court has observed : (SCC p. 563, para 10). "... In the absence of a vacancy it is not open to the Corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorised. Normally, even if the Tribunal finds that a person is qualified to be appointed to a post under the kith and kin policy, the Tribunal should only give a direction to the appropriate authority to consider the case of the particular applicant, in the light of the relevant rules and subject to the availability of the post. It is not open to the Tribunal either to direct the appointment of any person to a post or direct the authorities concerned to create a supernumerary post and then appoint a person to such a post." * 10. As regards the submission of Shri Nageshwara Rao that the respondent could be given compassionate appointment in the medical department it may be stated that there is nothing to show that any appointment on compassionate ground has been made in the medical department after the respondent had submitted her application for such appointment. It cannot, therefore, be said that any vacancy is available for making such appointment in that department. All that can be said is that in the event of the appellant making fresh appointment on a Class III or Class IV post the application of the respondent for appointment on such post shall be given due consideration in accordance with her ranking in the waiting list. ### Response: 1

MALLANAGUODA AND ORS Vs. NINGANAGOUDA AND ORS

judgment. He also argued that the High Court reversed the judgment of the First Appellate Court on the basis of facts contrary to the evidence on record. 6. Mr. S.N. Bhat, learned Counsel appearing for the Respondents/Defendants argued that the High Court has righty held that the land in Block No.5 has non-agricultural potentiality and allotment of the entire block No.5 in favour of the Appellants would cause serious prejudice to the Respondents. He emphasized that the land allotted to the Appellants in Block No.5 is situated adjacent to a busy road which is not in dispute. He submitted that every judgment of the High Court need not be interfered with by this Court, if justice has been done to the parties. Partition of properties should not be lop sided benefitting only one party was the assertion made by Mr. Bhat to persuade this Court not to interfere with the judgment of the High Court. 7. Preliminary decree was passed in favour of the Plaintiff on 16.11.2002 and final decree petition was disposed of by the Trial Court on 28.11.2012. As the main dispute relates to the allotment of 8 acres, 13 guntas of land in Block No.5, it is necessary to examine the findings recorded by the Courts below in respect of the said property. Schedule A has seven properties, totaling 69 acres, 16 guntas. Plaintiff was allotted 8 acres, 27 guntas being 1/8th share of 69 acres, 16 guntas. The partition documents prepared by the Commissioner appointed by the Court shows that the Plaintiff was given 8 acres, 13 guntas in Block No.5. As the Plaintiff was entitled to 8 acres, 24 guntas and he was given only 8 acres, 13 guntas, the Commissioner held that Defendants have to pay Rs.4853-33/- for the remaining 11 guntas. The report of the Commissioner was accepted by the Trial Court and the objections raised by the Defendants were rejected. 8. During the pendency of Regular Appeal filed by the Defendants/Respondents an application was moved under Order 41 Rule 27 CPC seeking permission to produce the village map to show that the land situated in Block No.5 which was allotted to the Plaintiffs is situated adjacent to Dharwad-Saudatti State Highway and is very near to Harobelawadi village whereas the rest of the lands are situated far away from the village. The application filed by the Respondents under Order 41 Rule 27 was dismissed by the Appellate Court on the ground that there was no satisfactory explanation for not producing the document in the Trial Court. The document was obtained by the Respondents on 28.08.2012, prior to the disposal of the final decree proceedings but was not produced before the Trial Court. While upholding the judgment of the Trial Court in the final decree petition, the Appellate Court approved the report of the Court Commissioner who visited the landed property shown in Schedule A and verified the quality and fertility of the land and found them to be similar. The Court Commissioner considered the convenience of the parties to cultivate the land while allotting Block No.5 in favour of the Plaintiff. The First Appellate Court on reexamining the matter was also of the opinion that the convenience of the parties to cultivate the land is of prime importance while partitioning landed properties. The First Appellate Court was of the opinion that if the land in Block No.5 has to be partitioned equally to all the parties, that would cause inconvenience to them for conducting agricultural operation. The First Appellate Court discussed the evidence and held that the Defendants did not dispute the similarity of fertility of the land. The High Court rejected the submission on behalf of the Defendants regarding the non- potentiality of Block No.5 on the ground that the said question was never raised by them in the Trial Court. No ground to that effect was also taken in the first appeal. The First Appellate Court referred to the cross-examination of the Court Commissioner by the Defendants and found that no suggestion regarding the nonpotentiality was put to the Court Commissioner. On the basis of the above findings, the First Appellate Court upheld the final decree proceedings in respect of allotment of 8 acres, 13 guntas of land in Block No.5 in favour of the Plaintiff. 9. The High Court reversed the conclusion of the First Appellate Court relating to non-agricultural potentiality of the land without giving any reasons. The High Court held that 8 acres 13 guntas have to be conveniently divided amongst all sharers so that each one of them will get a portion of the land in Block No.5 which has non-agricultural potentiality. Only on that ground, the High Court set aside the final decree proceedings and remitted the matter back for fresh consideration. 10. The First Appellate Court is the final Court on facts. It has been repeatedly held by this Court that the judgment of the First Appellate Court should not be interfered with by the High Court in exercise of its jurisdiction under Section 100 CPC, unless there is a substantial question of law. The High Court committed an error in setting aside the judgment of the First Appellate Court and finding fault with the final decree by taking a different view on factual findings recorded by the First Appellate Court. That apart, the High Court did not give any reason to substantiate the finding that the land in Block No.5 has non-agricultural potentiality, especially when the First Appellate Court refused to accept the said contention by rejecting the application filed under Order 41 Rule 27 by the Respondents. In the normal course, we would have set aside the judgment of the High Court and remanded the matter back for fresh consideration. However, taking into account the fact that the preliminary decree was passed way back in 2002 and the Appellants have not been able to enjoy the fruits of the decree, we have examined the correctness of the judgment of the First Appellate Court.

1[ds]Schedule A has seven properties, totaling 69 acres, 16 guntas. Plaintiff was allotted 8 acres, 27 guntas being 1/8th share of 69 acres, 16 guntas. The partition documents prepared by the Commissioner appointed by the Court shows that the Plaintiff was given 8 acres, 13 guntas in Block No.5. As the Plaintiff was entitled to 8 acres, 24 guntas and he was given only 8 acres, 13 guntas, the Commissioner held that Defendants have to pay Rs.4853-33/- for the remaining 11 guntas. The report of the Commissioner was accepted by the Trial Court and the objections raised by the Defendants were rejected.8. During the pendency of Regular Appeal filed by the Defendants/Respondents an application was moved under Order 41 Rule 27 CPC seeking permission to produce the village map to show that the land situated in Block No.5 which was allotted to the Plaintiffs is situated adjacent to Dharwad-Saudatti State Highway and is very near to Harobelawadi village whereas the rest of the lands are situated far away from the village. The application filed by the Respondents under Order 41 Rule 27 was dismissed by the Appellate Court on the ground that there was no satisfactory explanation for not producing the document in the Trial Court. The document was obtained by the Respondents on 28.08.2012, prior to the disposal of the final decree proceedings but was not produced before the Trial Court. While upholding the judgment of the Trial Court in the final decree petition, the Appellate Court approved the report of the Court Commissioner who visited the landed property shown in Schedule A and verified the quality and fertility of the land and found them to be similar. The Court Commissioner considered the convenience of the parties to cultivate the land while allotting Block No.5 in favour of the Plaintiff. The First Appellate Court on reexamining the matter was also of the opinion that the convenience of the parties to cultivate the land is of prime importance while partitioning landed properties. The First Appellate Court was of the opinion that if the land in Block No.5 has to be partitioned equally to all the parties, that would cause inconvenience to them for conducting agricultural operation. The First Appellate Court discussed the evidence and held that the Defendants did not dispute the similarity of fertility of the land. The High Court rejected the submission on behalf of the Defendants regarding the non- potentiality of Block No.5 on the ground that the said question was never raised by them in the Trial Court. No ground to that effect was also taken in the first appeal. The First Appellate Court referred to the cross-examination of the Court Commissioner by the Defendants and found that no suggestion regarding the nonpotentiality was put to the Court Commissioner. On the basis of the above findings, the First Appellate Court upheld the final decree proceedings in respect of allotment of 8 acres, 13 guntas of land in Block No.5 in favour of the Plaintiff.9. The High Court reversed the conclusion of the First Appellate Court relating to non-agricultural potentiality of the land without giving any reasons. The High Court held that 8 acres 13 guntas have to be conveniently divided amongst all sharers so that each one of them will get a portion of the land in Block No.5 which has non-agricultural potentiality. Only on that ground, the High Court set aside the final decree proceedings and remitted the matter back for fresh consideration.10. The First Appellate Court is the final Court on facts. It has been repeatedly held by this Court that the judgment of the First Appellate Court should not be interfered with by the High Court in exercise of its jurisdiction under Section 100 CPC, unless there is a substantial question of law. The High Court committed an error in setting aside the judgment of the First Appellate Court and finding fault with the final decree by taking a different view on factual findings recorded by the First Appellate Court. That apart, the High Court did not give any reason to substantiate the finding that the land in Block No.5 has non-agricultural potentiality, especially when the First Appellate Court refused to accept the said contention by rejecting the application filed under Order 41 Rule 27 by the Respondents. In the normal course, we would have set aside the judgment of the High Court and remanded the matter back for fresh consideration. However, taking into account the fact that the preliminary decree was passed way back in 2002 and the Appellants have not been able to enjoy the fruits of the decree, we have examined the correctness of the judgment of the First Appellate Court.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: judgment. He also argued that the High Court reversed the judgment of the First Appellate Court on the basis of facts contrary to the evidence on record. 6. Mr. S.N. Bhat, learned Counsel appearing for the Respondents/Defendants argued that the High Court has righty held that the land in Block No.5 has non-agricultural potentiality and allotment of the entire block No.5 in favour of the Appellants would cause serious prejudice to the Respondents. He emphasized that the land allotted to the Appellants in Block No.5 is situated adjacent to a busy road which is not in dispute. He submitted that every judgment of the High Court need not be interfered with by this Court, if justice has been done to the parties. Partition of properties should not be lop sided benefitting only one party was the assertion made by Mr. Bhat to persuade this Court not to interfere with the judgment of the High Court. 7. Preliminary decree was passed in favour of the Plaintiff on 16.11.2002 and final decree petition was disposed of by the Trial Court on 28.11.2012. As the main dispute relates to the allotment of 8 acres, 13 guntas of land in Block No.5, it is necessary to examine the findings recorded by the Courts below in respect of the said property. Schedule A has seven properties, totaling 69 acres, 16 guntas. Plaintiff was allotted 8 acres, 27 guntas being 1/8th share of 69 acres, 16 guntas. The partition documents prepared by the Commissioner appointed by the Court shows that the Plaintiff was given 8 acres, 13 guntas in Block No.5. As the Plaintiff was entitled to 8 acres, 24 guntas and he was given only 8 acres, 13 guntas, the Commissioner held that Defendants have to pay Rs.4853-33/- for the remaining 11 guntas. The report of the Commissioner was accepted by the Trial Court and the objections raised by the Defendants were rejected. 8. During the pendency of Regular Appeal filed by the Defendants/Respondents an application was moved under Order 41 Rule 27 CPC seeking permission to produce the village map to show that the land situated in Block No.5 which was allotted to the Plaintiffs is situated adjacent to Dharwad-Saudatti State Highway and is very near to Harobelawadi village whereas the rest of the lands are situated far away from the village. The application filed by the Respondents under Order 41 Rule 27 was dismissed by the Appellate Court on the ground that there was no satisfactory explanation for not producing the document in the Trial Court. The document was obtained by the Respondents on 28.08.2012, prior to the disposal of the final decree proceedings but was not produced before the Trial Court. While upholding the judgment of the Trial Court in the final decree petition, the Appellate Court approved the report of the Court Commissioner who visited the landed property shown in Schedule A and verified the quality and fertility of the land and found them to be similar. The Court Commissioner considered the convenience of the parties to cultivate the land while allotting Block No.5 in favour of the Plaintiff. The First Appellate Court on reexamining the matter was also of the opinion that the convenience of the parties to cultivate the land is of prime importance while partitioning landed properties. The First Appellate Court was of the opinion that if the land in Block No.5 has to be partitioned equally to all the parties, that would cause inconvenience to them for conducting agricultural operation. The First Appellate Court discussed the evidence and held that the Defendants did not dispute the similarity of fertility of the land. The High Court rejected the submission on behalf of the Defendants regarding the non- potentiality of Block No.5 on the ground that the said question was never raised by them in the Trial Court. No ground to that effect was also taken in the first appeal. The First Appellate Court referred to the cross-examination of the Court Commissioner by the Defendants and found that no suggestion regarding the nonpotentiality was put to the Court Commissioner. On the basis of the above findings, the First Appellate Court upheld the final decree proceedings in respect of allotment of 8 acres, 13 guntas of land in Block No.5 in favour of the Plaintiff. 9. The High Court reversed the conclusion of the First Appellate Court relating to non-agricultural potentiality of the land without giving any reasons. The High Court held that 8 acres 13 guntas have to be conveniently divided amongst all sharers so that each one of them will get a portion of the land in Block No.5 which has non-agricultural potentiality. Only on that ground, the High Court set aside the final decree proceedings and remitted the matter back for fresh consideration. 10. The First Appellate Court is the final Court on facts. It has been repeatedly held by this Court that the judgment of the First Appellate Court should not be interfered with by the High Court in exercise of its jurisdiction under Section 100 CPC, unless there is a substantial question of law. The High Court committed an error in setting aside the judgment of the First Appellate Court and finding fault with the final decree by taking a different view on factual findings recorded by the First Appellate Court. That apart, the High Court did not give any reason to substantiate the finding that the land in Block No.5 has non-agricultural potentiality, especially when the First Appellate Court refused to accept the said contention by rejecting the application filed under Order 41 Rule 27 by the Respondents. In the normal course, we would have set aside the judgment of the High Court and remanded the matter back for fresh consideration. However, taking into account the fact that the preliminary decree was passed way back in 2002 and the Appellants have not been able to enjoy the fruits of the decree, we have examined the correctness of the judgment of the First Appellate Court. ### Response: 1

Ramprakash Gupta Vs. State of Madhya Pradesh & Others

been allowed by the Minister on 26.8.2003, but the authorities have overlooked the said order and passed another order on 17.1.2005 dismissing the revision of the appellant. It was the submission of the appellant that the act of overlooking the order dated 26.8.2003 and passing a fresh order, amounts to a review not permissible in law. The writ petition was dismissed by the learned Single Judge on the ground that the order dated 26.8.2003 was not placed on the record. A writ appeal was filed thereafter, which was dismissed by a Division Bench of the Madhya Pradesh High Court.4. The only point which was canvassed before the Division Bench of the High Court was that an order had earlier been passed in favour of the appellant by the Minister on 26.08.2003. On this issue the Learned Single Judge of the High Court held that the so called order dated 26.08.2003, which was relied upon by the appellant, did not contain the case number; the appellant had admittedly appeared before the Minister which led to the passing of the order dated 17.01.2005 and if there was an order dated 26.08.2003, the appellant would have filed an affidavit deposing to the aforesaid fact.5. The Division Bench of the High Court, in order to satisfy itself, whether an order was passed by the Minister on 26.08.2003 called for an additional affidavit by the State which was filed. The order of the Division Bench indicates that the records were perused by the Court. After perusing the record, the Division Bench observed that the entire process was riddled with irregularities and that the order sheet relating to the so called order dated 26.08.2003 contained interpolations. The Division Bench consequently arrived at the conclusion that the so called order dated 26.08.2003 had never seen the light of the day; it was never processed or endorsed by the Department and, as a matter of fact, it was only on 17.01.2005 that an order was passed in revision by the Minister, rejecting the revision.6. The submission which has been urged before the Court in support of the appeal is that the then Minister had initially, during the course of the hearing of the revision, adjourned the proceedings on 28.07.2003. However, subsequently, an order was passed by the Minister on 26.08.2003. Hence, it was urged that the mere issuance of the order was only a formality and hence there was no occasion for the succeeding Minister to pass a fresh order on 17.01.2005. It appears that the elections had intervened in the meantime.7. In the counter affidavit which has been filed in response to the proceedings on behalf of the first, second and third respondents, the factual position has been succinctly summarized. We extract below the relevant averments contained in the counter affidavit which read as follows :"(i) Insofar as the Note Sheets are concerned, the interpolation and overwriting is evident even to the naked eye which can be seen at page 66 of the SLP Paper Book. From the Note Sheet dated 28.07.2003 it is clear that the record from the concerned office was awaited and the matter was marked to the Ld. Minister for hearing. However, in absence of the record, hearing could not have taken place.(ii) In the Note sheet dated 28.07.2003, the initial order is Advocates present. The hearing in the matter is adjourned. Put up for orders". However, subsequently the words hearing and adjourned (original in Hindi) have been scored out and the words put up for orders are added.(iii) Subsequently, another date and order seems to have been inserted in the Note Sheet which says order passed. Inform accordingly.(iv) In respect of the order dated 26.08.2003, it is pertinent to note that it does not bear any case number.(v) Further, there is no date of issuance, neither is the order available in the original record.(vi) It is also important to note that any order signed by the Minister is generally issued by the Department. In a copy of the so called order dated 26.08.2003, as filed by the Petitioner before the Honble High Court, the last page bears the name of the Additional Secretary, but without any signatures. Surprisingly, the copy filed in the SLP Paper Book at page 55 does not contain that page and it appears that the same has been deliberately left out while filing the petition...."8. We have perused a photocopy of the record which has been annexed to the present proceedings. The so called order dated 26.08.2003 does not contain any reference to the case number. That apart, the order sheet contains several interpolations. Initially the matter was marked to the Minister but since the record was awaited from the concerned office, the hearing could not have taken place. The note sheet dated 28.07.2003 contains an initial endorsement to the effect that the advocates were present but the hearing of the case was adjourned. Subsequently, these words have been scored out and the words "put up for orders" have been added. The Division Bench of the High Court after a meticulous consideration of the record and upon evaluating the affidavit which was filed by the State, came to the conclusion that so called order dated 26.08.2003 was no order in the eye of law. After perusing the record, we are satisfied that this finding of fact by the High Court is correct as is borne out of the record. The manner in which the matter proceeded before the Minister in revision is clearly indicative of the fact that there was no valid order dated 26.08.2003 passed by the Minister in the revision. To say the least, the record indicates a serious interpolation of the proceedings. In this background, the High Court was justified in rejecting the contention of the appellant that there was a valid order dated 26.08.2003 which enured to his benefit.9. Since no other submission was urged before the Division Bench of the High Court, the challenge to the order of the High Court lacks merit.

0[ds]We have perused a photocopy of the record which has been annexed to the present proceedings. The so called order dated 26.08.2003 does not contain any reference to the case number. That apart, the order sheet contains several interpolations. Initially the matter was marked to the Minister but since the record was awaited from the concerned office, the hearing could not have taken place. The note sheet dated 28.07.2003 contains an initial endorsement to the effect that the advocates were present but the hearing of the case was adjourned. Subsequently, these words have been scored out and the words "put up for orders" have been added. The Division Bench of the High Court after a meticulous consideration of the record and upon evaluating the affidavit which was filed by the State, came to the conclusion that so called order dated 26.08.2003 was no order in the eye of law. After perusing the record, we are satisfied that this finding of fact by the High Court is correct as is borne out of the record. The manner in which the matter proceeded before the Minister in revision is clearly indicative of the fact that there was no valid order dated 26.08.2003 passed by the Minister in the revision. To say the least, the record indicates a serious interpolation of the proceedings. In this background, the High Court was justified in rejecting the contention of the appellant that there was a valid order dated 26.08.2003 which enured to his benefit.Since no other submission was urged before the Division Bench of the High Court, the challenge to the order of the High Court lacks merit.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: been allowed by the Minister on 26.8.2003, but the authorities have overlooked the said order and passed another order on 17.1.2005 dismissing the revision of the appellant. It was the submission of the appellant that the act of overlooking the order dated 26.8.2003 and passing a fresh order, amounts to a review not permissible in law. The writ petition was dismissed by the learned Single Judge on the ground that the order dated 26.8.2003 was not placed on the record. A writ appeal was filed thereafter, which was dismissed by a Division Bench of the Madhya Pradesh High Court.4. The only point which was canvassed before the Division Bench of the High Court was that an order had earlier been passed in favour of the appellant by the Minister on 26.08.2003. On this issue the Learned Single Judge of the High Court held that the so called order dated 26.08.2003, which was relied upon by the appellant, did not contain the case number; the appellant had admittedly appeared before the Minister which led to the passing of the order dated 17.01.2005 and if there was an order dated 26.08.2003, the appellant would have filed an affidavit deposing to the aforesaid fact.5. The Division Bench of the High Court, in order to satisfy itself, whether an order was passed by the Minister on 26.08.2003 called for an additional affidavit by the State which was filed. The order of the Division Bench indicates that the records were perused by the Court. After perusing the record, the Division Bench observed that the entire process was riddled with irregularities and that the order sheet relating to the so called order dated 26.08.2003 contained interpolations. The Division Bench consequently arrived at the conclusion that the so called order dated 26.08.2003 had never seen the light of the day; it was never processed or endorsed by the Department and, as a matter of fact, it was only on 17.01.2005 that an order was passed in revision by the Minister, rejecting the revision.6. The submission which has been urged before the Court in support of the appeal is that the then Minister had initially, during the course of the hearing of the revision, adjourned the proceedings on 28.07.2003. However, subsequently, an order was passed by the Minister on 26.08.2003. Hence, it was urged that the mere issuance of the order was only a formality and hence there was no occasion for the succeeding Minister to pass a fresh order on 17.01.2005. It appears that the elections had intervened in the meantime.7. In the counter affidavit which has been filed in response to the proceedings on behalf of the first, second and third respondents, the factual position has been succinctly summarized. We extract below the relevant averments contained in the counter affidavit which read as follows :"(i) Insofar as the Note Sheets are concerned, the interpolation and overwriting is evident even to the naked eye which can be seen at page 66 of the SLP Paper Book. From the Note Sheet dated 28.07.2003 it is clear that the record from the concerned office was awaited and the matter was marked to the Ld. Minister for hearing. However, in absence of the record, hearing could not have taken place.(ii) In the Note sheet dated 28.07.2003, the initial order is Advocates present. The hearing in the matter is adjourned. Put up for orders". However, subsequently the words hearing and adjourned (original in Hindi) have been scored out and the words put up for orders are added.(iii) Subsequently, another date and order seems to have been inserted in the Note Sheet which says order passed. Inform accordingly.(iv) In respect of the order dated 26.08.2003, it is pertinent to note that it does not bear any case number.(v) Further, there is no date of issuance, neither is the order available in the original record.(vi) It is also important to note that any order signed by the Minister is generally issued by the Department. In a copy of the so called order dated 26.08.2003, as filed by the Petitioner before the Honble High Court, the last page bears the name of the Additional Secretary, but without any signatures. Surprisingly, the copy filed in the SLP Paper Book at page 55 does not contain that page and it appears that the same has been deliberately left out while filing the petition...."8. We have perused a photocopy of the record which has been annexed to the present proceedings. The so called order dated 26.08.2003 does not contain any reference to the case number. That apart, the order sheet contains several interpolations. Initially the matter was marked to the Minister but since the record was awaited from the concerned office, the hearing could not have taken place. The note sheet dated 28.07.2003 contains an initial endorsement to the effect that the advocates were present but the hearing of the case was adjourned. Subsequently, these words have been scored out and the words "put up for orders" have been added. The Division Bench of the High Court after a meticulous consideration of the record and upon evaluating the affidavit which was filed by the State, came to the conclusion that so called order dated 26.08.2003 was no order in the eye of law. After perusing the record, we are satisfied that this finding of fact by the High Court is correct as is borne out of the record. The manner in which the matter proceeded before the Minister in revision is clearly indicative of the fact that there was no valid order dated 26.08.2003 passed by the Minister in the revision. To say the least, the record indicates a serious interpolation of the proceedings. In this background, the High Court was justified in rejecting the contention of the appellant that there was a valid order dated 26.08.2003 which enured to his benefit.9. Since no other submission was urged before the Division Bench of the High Court, the challenge to the order of the High Court lacks merit. ### Response: 0

Rameshwar & Others Vs. State of Haryana & Others

Enviro-Legal Action (Supra) unjust retention of benefit would be completely against the fundamental principles of justice, equity and good conscience. It was observed therein that so long as the deprivation of a party has not been fully compensated for, injustice to that extent continues. Having found that there was a clear case of fraud on power as a result of which unnatural and unreasonable gains have been derived by certain builders/private entities, we consider it our duty to grant full restitution. The restoration in real and substantial terms has to ensure that the public purpose, the acquisition was intended to achieve, stands sub-served. In our considered view, this is an appropriate case where this Court has to declare that there was a completed acquisition and the award deemed to have been passed on the date when it was supposed to be pronounced i.e. on 26.08.2007. The suggested relief by the learned Amicus Curiae is also on similar lines. 37. There are certain other elements which need attention at this stage. The Act now stands replaced by "The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013". In terms of Section 24(1)(b) of said 2013 Act, where an award had been made under Section 11 of the Act, the proceedings under the provisions of the Act would continue as if the Act had not been repealed. Thus, even if a direction is passed that an award be deemed to have been made on 26.08.2007, the provisions of the Act would still continue to operate in respect of such acquisition in question. There is however, one point which may pose some difficulty. Out of 688 acres of land which was covered by Declaration under Section 6 of the Act in the present matter, majority of the lands were taken over by builders/private entities and as such presently the concerned landholders are not in possession of their holdings. However, in case of certain other lands where no transactions were entered into, as a result of dropping of the acquisition, those land holders are presently in occupation without there being any cloud of acquisition. If we restore status ante where the entirety of 688 acres of land continues to be under acquisition, the interest of such landholders is bound to be put to some prejudice. Those landholders are not parties to this litigation, nor their interest in any manner, is represented in the proceedings. They would now be visited with the prospect of losing their holdings. Those who sold away their holdings to the builders/private entities after the acquisition was initiated, naturally would not be prejudiced at all nor can the builders/private entities who purchased the land after the land was initiated can put up a plea of prejudice. However those who had never sold the holdings and continued to face the prospect of acquisition will certainly be put to prejudice. It is possible that some such landholders may have sold away their holdings or may have applied and secured licences for construction. In cases, where third party interests have thus intervened, there would be some more concern. 38. The relief to be granted in the matter has therefore to take care of all the aforesaid aspects. On one hand, the real and substantial relief to be granted in the matter would be not just restoring the status ante and invalidating of the transactions but the relief ought to be that the process of acquisition is taken to its logical end and the objective that said acquisition was to achieve must be sub-served. On the other hand, even while passing appropriate directions in the nature that there was a deemed Award, the interest of those landholders who had not parted with their holdings and had faced the acquisition and had not participated in the proceedings ought to be secured. Further, the interest of purchasers of individual apartments is also required to be protected. It is axiomatic that wherever a superior Court finds that the exercise of power by the executive was mala fide or that there was fraud of power, the full and substantial relief must be granted. The principles of restitution and concept of unjust enrichment as explained in cases referred to hereinabove show that no person who directly or indirectly was a party to the fraud of power be allowed to reap or retain any unjust enrichment. Though, it is through the acts on part of the landholders that the builders/private entities were brought on the scene, we dont hold them to be pari delicto alongwith builders/private respondents. But at the same time they cannot be given benefit of annulment of transactions and restoration of their holdings. The greater victim in the matter was the public interest. The land holders in any case had received considerations which were greater than what was awarded in Awards dated 09.03.2006 and 24.02.2007, which were the most proximate awards in terms of time. However, even when we propose to take the matter to its logical end and say that there was a deemed award, those who had not sold away their holdings and had not in any manner either directly or indirectly, tried to jeopardize the process of acquisition, cannot at this length of time be subjected to any prejudice. We will therefore have to exclude that body of landholders who had not transferred their holdings unlike the writ petitioners and similarly situated landholders, so also the purchasers of individual apartments from the width of our directions. Though fraud vitiates every resultant action and on that principle every beneficiary/ purchaser in subsequent transaction must restore such benefit, an exception has to be made in favour of individual purchasers of flats or apartments who are being left undisturbed while moulding the relief. Any payments made by them can be adjusted towards the amounts payable to the colonizer and their possession can be regularized by HUDA/HSIDC on suitable conditions by making allotment to them. This aspect will stand covered by directions issued hereafter.

1[ds]If we consider the established or crystallized facets of the matter as stated above, in the light of the principles emerging from the decisions rendered by this Court, in our considered view the decisions dated 24.08.2007 and 29.01.2010 were taken to confer advantages and benefits upon the builders/private entities rather than to carry out or effectuate public purpose. The record indicates that various entities including certain "middlemen" cornered unnatural gains and walked away with huge profits taking the entire process of acquisition for a ride. Substantial sums have exchanged hands in the form of settlement money. All the steps and stages show that the builders/private entities were well aware that the acquisition would not go through but the landholders were confronted with the smoke screen of acquisition and were cornered and persuaded in entering into transactions with the builders/private entities. The transactions so entered into between the landholders and the concerned builders/private entities could not be said to be voluntary and free from any influence. The unnatural and unreasonable bargain was forced upon the landholders by creating façade of impending acquisition. Public Interest was not the underlying concern or objective behind those decisions dated 24.08.2007 and 29.01.2010 but the motive was to confer undue advantage on the builders/private entities. It is clear that considerations other than those which were required to be bestowed, guided the exercise of power in arriving at decisions dated 24.08.2007 and 29.01.2010. The inescapable conclusion, therefore, is that there was an unholy nexus between the governmental machinery and the builders/private entities in devising a modality to deprive the innocent and gullible landholders of their holdings and jeopardize public interest which the acquisition was intended to achieve. Mr. Dhruv Mehta, learned Senior Advocate is right in his submission that the entire mechanism was deliberately employed so that gullible landholders could be deprived of their holdings by a set of builders/private entities and after having seen that the desired result was achieved, the acquisition was dropped and later completely withdrawn. The decisions on the part of the State arrived at on 24.08.2007 and 29.01.2010 were clearly a result of fraud on power and cannot be said to be bona fide exercise of power. In our view, the initiation of class action and filing of Writ Petition in the present matter was perfectly justified and we reject all the submissions made by the learned Counsel appearing for various builders/private entities.32. We thus holdThe transactions entered into between the landholders and the concerned builders/private entities in the present case were not voluntary and were brought about by fraudulent influence. Certain `middlemen and builders enriched themselves at the expense of the landholders and public interest which was to be achieved by acquisition.b] The decisions dated 24.08.2007 and 29.01.2010 as well as entertaining of applications for grant of licence from those who had bought the lands after the acquisition was initiated, were not bona fide exercise of power by the State machinery. The exercise of power under the Act was guided by considerations extraneous to the provisions of the Act and as a matter of fact, was designed to enrich the builders/private entities. These decisions were nothing but fraud on power.Having so found that the exercise of power in arriving at decisions dated 24.08.2007 and 29.01.2010 as well as entertaining of applications for licence from those who had bought the lands after the acquisition was initiated, to be fraud on power; we now have to consider what relief be granted in the present matter. The relief to be granted must depend upon who the real victim is and to what extent solace can be granted to such real victim. If the landholders are considered to be the real victim, Mr. Dhruv Mehta, learned Senior Advocate is absolutely right in his submissions. If the result of forcing land holders to enter into unnatural and unreasonable bargain was achieved by wrongful utilization of the power conferred under the Act, in its writ jurisdiction a superior court would be justified in granting the relief of invalidating such transaction as a consequential relief, while holding the State action to be bad and invalid. The law laid down by this Court is quite clear and the objection that instead of a class action in the realm of public law, each individual land holder must make good his submissions on individual facts and seek relief of annulment of transaction entered into by him has to be rejected. To the extent the unnatural and unreasonable bargain was forced upon the landholders, there would be justification in granting such relief. But in the circumstances, the public interest which the acquisition was intended to achieve will never be sub83 served. It is nobodys case that public interest was adequately achieved and therefore the acquisition was required to be dropped. The fact that other acquisitions have been completed and have attained the required objective is a pointer in the direction that there was nothing wrong with the initiation but somewhere along while the process was on, it was completely hijacked by vested interests. We cannot, therefore, grant mere declaration invalidating the transaction and grant relief of restoring status ante. The real and substantial relief would be in restoring the situation where the process of acquisition is made free from such supervening vested interests and is enabled to achieve the objective that the acquisition was intended to subserve.34. At this stage an aspect needs elaboration and clarification. In Uddar Gagan (supra) the proceedings for acquisition under the Act had culminated in passing of an award. After the declaration of award, the lands were withdrawn from acquisition under the provisions of Section 48 of the Act. In terms of the directions issued by this Court in paragraph 33 in Uddar Gagan (supra) the withdrawal under Section 48 of the Act was set aside and the acquisition and award were sustained by this Court. In essence therefore, the lands in question continued to be under acquisition and appropriate directions were thereafter passed by this Court adjusting the competing claims of the concerned parties. In the present case, unlike Uddar Gagan (supra) the acquisition was dropped just two days before the day the award was to be pronounced. It is true that the entire process right upto publishing the date for pronouncement of award was validly undertaken, every possible submission was placed on record and all contentions were taken by the persons or parties interested. It was not as if any person or any party was denied any chance of raising objections or making submissions. The acquisition was dropped for reasons, which in our considered view were not germane at all and the entire exercise of dropping the acquisition was fraud on power. If that fraud on power is to be invalidated, the real and substantial restoration would be to ensure that the acquisition proceeds in the logical direction and the public purpose isIn a way, the directions required in the present matter may go beyond what Uddar Gagan (supra) did.Wherever there has been fraud on power, the duty of the Court is not only to set aside such exercise of power but to see that there is no unjust enrichment directly or indirectly as a result thereof and there is full and substantial restoration. Going by the principles laid down by this Court in Indian Council forAction (Supra) unjust retention of benefit would be completely against the fundamental principles of justice, equity and good conscience. It was observed therein that so long as the deprivation of a party has not been fully compensated for, injustice to that extent continues. Having found that there was a clear case of fraud on power as a result of which unnatural and unreasonable gains have been derived by certain builders/private entities, we consider it our duty to grant full restitution. The restoration in real and substantial terms has to ensure that the public purpose, the acquisition was intended to achieve, standsIn our considered view, this is an appropriate case where this Court has to declare that there was a completed acquisition and the award deemed to have been passed on the date when it was supposed to be pronounced i.e. on 26.08.2007. The suggested relief by the learned Amicus Curiae is also on similarit is through the acts on part of the landholders that the builders/private entities were brought on the scene, we dont hold them to be pari delicto alongwith builders/private respondents. But at the same time they cannot be given benefit of annulment of transactions and restoration of their holdings. The greater victim in the matter was the public interest. The land holders in any case had received considerations which were greater than what was awarded in Awards dated 09.03.2006 and 24.02.2007, which were the most proximate awards in terms of time. However, even when we propose to take the matter to its logical end and say that there was a deemed award, those who had not sold away their holdings and had not in any manner either directly or indirectly, tried to jeopardize the process of acquisition, cannot at this length of time be subjected to any prejudice. We will therefore have to exclude that body of landholders who had not transferred their holdings unlike the writ petitioners and similarly situated landholders, so also the purchasers of individual apartments from the width of our directions. Though fraud vitiates every resultant action and on that principle every beneficiary/ purchaser in subsequent transaction must restore such benefit, an exception has to be made in favour of individual purchasers of flats or apartments who are being left undisturbed while moulding the relief. Any payments made by them can be adjusted towards the amounts payable to the colonizer and their possession can be regularized by HUDA/HSIDC on suitable conditions by making allotment to them. This aspect will stand covered by directions issued hereafter.

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: Enviro-Legal Action (Supra) unjust retention of benefit would be completely against the fundamental principles of justice, equity and good conscience. It was observed therein that so long as the deprivation of a party has not been fully compensated for, injustice to that extent continues. Having found that there was a clear case of fraud on power as a result of which unnatural and unreasonable gains have been derived by certain builders/private entities, we consider it our duty to grant full restitution. The restoration in real and substantial terms has to ensure that the public purpose, the acquisition was intended to achieve, stands sub-served. In our considered view, this is an appropriate case where this Court has to declare that there was a completed acquisition and the award deemed to have been passed on the date when it was supposed to be pronounced i.e. on 26.08.2007. The suggested relief by the learned Amicus Curiae is also on similar lines. 37. There are certain other elements which need attention at this stage. The Act now stands replaced by "The Right of Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013". In terms of Section 24(1)(b) of said 2013 Act, where an award had been made under Section 11 of the Act, the proceedings under the provisions of the Act would continue as if the Act had not been repealed. Thus, even if a direction is passed that an award be deemed to have been made on 26.08.2007, the provisions of the Act would still continue to operate in respect of such acquisition in question. There is however, one point which may pose some difficulty. Out of 688 acres of land which was covered by Declaration under Section 6 of the Act in the present matter, majority of the lands were taken over by builders/private entities and as such presently the concerned landholders are not in possession of their holdings. However, in case of certain other lands where no transactions were entered into, as a result of dropping of the acquisition, those land holders are presently in occupation without there being any cloud of acquisition. If we restore status ante where the entirety of 688 acres of land continues to be under acquisition, the interest of such landholders is bound to be put to some prejudice. Those landholders are not parties to this litigation, nor their interest in any manner, is represented in the proceedings. They would now be visited with the prospect of losing their holdings. Those who sold away their holdings to the builders/private entities after the acquisition was initiated, naturally would not be prejudiced at all nor can the builders/private entities who purchased the land after the land was initiated can put up a plea of prejudice. However those who had never sold the holdings and continued to face the prospect of acquisition will certainly be put to prejudice. It is possible that some such landholders may have sold away their holdings or may have applied and secured licences for construction. In cases, where third party interests have thus intervened, there would be some more concern. 38. The relief to be granted in the matter has therefore to take care of all the aforesaid aspects. On one hand, the real and substantial relief to be granted in the matter would be not just restoring the status ante and invalidating of the transactions but the relief ought to be that the process of acquisition is taken to its logical end and the objective that said acquisition was to achieve must be sub-served. On the other hand, even while passing appropriate directions in the nature that there was a deemed Award, the interest of those landholders who had not parted with their holdings and had faced the acquisition and had not participated in the proceedings ought to be secured. Further, the interest of purchasers of individual apartments is also required to be protected. It is axiomatic that wherever a superior Court finds that the exercise of power by the executive was mala fide or that there was fraud of power, the full and substantial relief must be granted. The principles of restitution and concept of unjust enrichment as explained in cases referred to hereinabove show that no person who directly or indirectly was a party to the fraud of power be allowed to reap or retain any unjust enrichment. Though, it is through the acts on part of the landholders that the builders/private entities were brought on the scene, we dont hold them to be pari delicto alongwith builders/private respondents. But at the same time they cannot be given benefit of annulment of transactions and restoration of their holdings. The greater victim in the matter was the public interest. The land holders in any case had received considerations which were greater than what was awarded in Awards dated 09.03.2006 and 24.02.2007, which were the most proximate awards in terms of time. However, even when we propose to take the matter to its logical end and say that there was a deemed award, those who had not sold away their holdings and had not in any manner either directly or indirectly, tried to jeopardize the process of acquisition, cannot at this length of time be subjected to any prejudice. We will therefore have to exclude that body of landholders who had not transferred their holdings unlike the writ petitioners and similarly situated landholders, so also the purchasers of individual apartments from the width of our directions. Though fraud vitiates every resultant action and on that principle every beneficiary/ purchaser in subsequent transaction must restore such benefit, an exception has to be made in favour of individual purchasers of flats or apartments who are being left undisturbed while moulding the relief. Any payments made by them can be adjusted towards the amounts payable to the colonizer and their possession can be regularized by HUDA/HSIDC on suitable conditions by making allotment to them. This aspect will stand covered by directions issued hereafter. ### Response: 1

Ranendra Chandra Banerjee Vs. Union Of India

(other than a person so employed only occasionally or subject to discharge at less than one months notice) except-(a) persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force ;(b) x x x x x x x x x x x x x x"7. Rule 3(a) thus excludes the application of the Rules only in case of persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force. It has not been shown to us that any special provision has been made as to the appointment and conditions of employment of persons in the all-India Radio service by or under any law for the time being in force. It cannot be said therefore that the term already mentioned, which appears in the letter of appointment issued to the appellant, is a special provision by virtue of any law or was inserted under any law for the time being in force. That term is nothing more than the usual term one finds in letters of appointment issued to persons appointed on probation. The High Court was therefore in our opinion not right in holding that r. 55-B will not apply to the appellant because of this term in the letter of appointment issued to him. We hold that r. 55-B will apply to the appellant and is not excluded by r. 3 (a).8. The next question is whether r. 55-B was complied with. The facts in that connection are these. On December 6, 1951 soon after the appellants probation was extended up to June 3, 1952, he was informed that during the period he had been employed his work had been found to be much below the standard required for the post. The main defects that were found were also pointed out to him, namely,"(i) immature taste,(ii) cannot be entrusted to work without"supervision, and(iii) has few ideas but cannot think logically and plan systematically."9. He was therefore given an opportunity to remedy the defects and to make attempts to bring himself up to the standard at least of an average Programme Assistant. He was further informed that he should do so by systematic concentration on his subjects, application to his job and by making wider studies and contacts. He was told to seek guidance and help of his senior officers wherever required in effecting the necessary improvement. Finally he was told that it would not be possible to give him any further extention of probation after the present one and that if his work during that period did not come up to the required standard, his services might have to be terminated. The appellant thus had been warned to improve his work as far back as December, 1951. On July 4, 1952, the appellant was given a notice by which he was afforded an opportunity to show cause why his services should not be terminated and was informed that any representation made by him in this regard would be duly considered. The notice said that the appellants work had not come up to the average standard of a Programme Assistant and four defects were pointed out, namely, (i) immaturity in taste, and want of tact and discretion, (ii) inability to think logically and plan systematically, (iii) want of programme sense and background necessary for an average programme man, and (iv) he could not be entrusted to work without supervision. The appellant gave his explanation in reply to this notice which was duly considered and on July 31, 1962, he was informed that his explanation had not been considered satisfactory and therefore his service would be terminated after August 31, 1952.It has been contended on behalf of the appellant that this was not sufficient compliance with r. 55-B. That rule lays down that the probationer shall be apprised of the grounds on which it was proposed to terminate his services and given an opportunity to show cause against it. We are of opinion that the appellants contention must be rejected.10. The appellant was apprised of the grounds on which it was proposed to discharge him. But what is urged is that the elaborate procedure provided in r. 55 should have been gone through under r. 55-B also. Rule 55 however deals with cases of removal, dismissal or reduction in rank, which are specifically covered by Art. 311 (2) of the Constitution and the procedure prescribed therein is meant for these three major punishments. That procedure is not meant to be applicable under r. 55-B which deals with the discharge of a probationer which is not a punishment at all. Therefore in a case covered by r. 55-B all that is required is that the defects noticed in the work which make a probationer un- suitable for retention in the service should be pointed out to him and he should be given an opportunity to show cause against the notice, enabling him to give an explanation as to the faults pointed out to him and show any reason why the proposal to terminate his services because of his unsuitability should not be given effect to. If such an opportunity is given to a probationer and his explanation in. reply thereto is given due consideration, there is in our opinion sufficient compliance with r. 55-B. Generally speaking the purpose of a notice under r. 55-B is to ascertain, after considering the explanation which a probationer may give whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those grounds is duly considered before an order is passed. This is what was done in the present case and it cannot therefore be said that the appellant was not given the opportunity envisaged by r. 55-B.

0[ds]We agree with the High Court that though the letter of appointment did not say in so many words that the probation was likely to be extended, it was implicit therein that the probation would continue till such time as the appellant was confirmed or discharged and so would the-term in the appointment letter that his services were liable to be terminated without any notice and without any cause being assigned, during the period ofis now well settled that the protection of Art. 311 of the Constitution applies to temporary government servants also where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment. But it is equally well settled that where the services of a temporary government servant are terminated not by way of punishment, Art. 311 will not apply and the services of such a servant can be terminated under the terms of the contract or by giving him the usual one months notice . [see, Parshotam Lal Dhingra v. Union of India ([1958] S. C. R, 828.)]. Further it is equally well settled that a government servant who is on probation can be discharged and such discharge would not amount to dismissal or removal within the meaning of Art. 311 (2) and would not attract the protection of that Article where the services of a probationer are terminated in accordance with the rules and not by way of punishment. A probationer has no right to the post held by him and under the terms of his appointment he is liable to be discharged at any time during the period of his probation subject to the rules governing such cases : [see The State of Orissa v. Rant Narain Das ( )]. The appellant in the present case was undoubtedly a probationer. There is also no doubt that the termination of his service was not by way of punishment and cannot therefore amount to dismissal or removal within the meaning of Art. 311. As a probationer he would be liable to be discharged during the period of probation subject to the rules in force in that connection. The High Court therefore was right in holding that the appellant was not entitled to the protection of Art 311 (2) of the Constitution.It is however urged on behalf of the appellant that the rules themselves made it obligatory that Art 311 (2) should be complied with before the services of a probationer werehas not been shown to us that any special provision has been made as to the appointment and conditions of employment of persons in the all-India Radio service by or under any law for the time being in force. It cannot be said therefore that the term already mentioned, which appears in the letter of appointment issued to the appellant, is a special provision by virtue of any law or was inserted under any law for the time being in force. That term is nothing more than the usual term one finds in letters of appointment issued to persons appointed on probation. The High Court was therefore in our opinion not right in holding that r. 55-B will not apply to the appellant because of this term in the letter of appointment issued to him. We hold that r. 55-B will apply to the appellant and is not excluded by r. 3in a case covered by r. 55-B all that is required is that the defects noticed in the work which make a probationer un- suitable for retention in the service should be pointed out to him and he should be given an opportunity to show cause against the notice, enabling him to give an explanation as to the faults pointed out to him and show any reason why the proposal to terminate his services because of his unsuitability should not be given effect to. If such an opportunity is given to a probationer and his explanation in. reply thereto is given due consideration, there is in our opinion sufficient compliance with r. 55-B. Generally speaking the purpose of a notice under r. 55-B is to ascertain, after considering the explanation which a probationer may give whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those grounds is duly considered before an order is passed. This is what was done in the present case and it cannot therefore be said that the appellant was not given the opportunity envisaged by r. 55-B.

### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: (other than a person so employed only occasionally or subject to discharge at less than one months notice) except-(a) persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force ;(b) x x x x x x x x x x x x x x"7. Rule 3(a) thus excludes the application of the Rules only in case of persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force. It has not been shown to us that any special provision has been made as to the appointment and conditions of employment of persons in the all-India Radio service by or under any law for the time being in force. It cannot be said therefore that the term already mentioned, which appears in the letter of appointment issued to the appellant, is a special provision by virtue of any law or was inserted under any law for the time being in force. That term is nothing more than the usual term one finds in letters of appointment issued to persons appointed on probation. The High Court was therefore in our opinion not right in holding that r. 55-B will not apply to the appellant because of this term in the letter of appointment issued to him. We hold that r. 55-B will apply to the appellant and is not excluded by r. 3 (a).8. The next question is whether r. 55-B was complied with. The facts in that connection are these. On December 6, 1951 soon after the appellants probation was extended up to June 3, 1952, he was informed that during the period he had been employed his work had been found to be much below the standard required for the post. The main defects that were found were also pointed out to him, namely,"(i) immature taste,(ii) cannot be entrusted to work without"supervision, and(iii) has few ideas but cannot think logically and plan systematically."9. He was therefore given an opportunity to remedy the defects and to make attempts to bring himself up to the standard at least of an average Programme Assistant. He was further informed that he should do so by systematic concentration on his subjects, application to his job and by making wider studies and contacts. He was told to seek guidance and help of his senior officers wherever required in effecting the necessary improvement. Finally he was told that it would not be possible to give him any further extention of probation after the present one and that if his work during that period did not come up to the required standard, his services might have to be terminated. The appellant thus had been warned to improve his work as far back as December, 1951. On July 4, 1952, the appellant was given a notice by which he was afforded an opportunity to show cause why his services should not be terminated and was informed that any representation made by him in this regard would be duly considered. The notice said that the appellants work had not come up to the average standard of a Programme Assistant and four defects were pointed out, namely, (i) immaturity in taste, and want of tact and discretion, (ii) inability to think logically and plan systematically, (iii) want of programme sense and background necessary for an average programme man, and (iv) he could not be entrusted to work without supervision. The appellant gave his explanation in reply to this notice which was duly considered and on July 31, 1962, he was informed that his explanation had not been considered satisfactory and therefore his service would be terminated after August 31, 1952.It has been contended on behalf of the appellant that this was not sufficient compliance with r. 55-B. That rule lays down that the probationer shall be apprised of the grounds on which it was proposed to terminate his services and given an opportunity to show cause against it. We are of opinion that the appellants contention must be rejected.10. The appellant was apprised of the grounds on which it was proposed to discharge him. But what is urged is that the elaborate procedure provided in r. 55 should have been gone through under r. 55-B also. Rule 55 however deals with cases of removal, dismissal or reduction in rank, which are specifically covered by Art. 311 (2) of the Constitution and the procedure prescribed therein is meant for these three major punishments. That procedure is not meant to be applicable under r. 55-B which deals with the discharge of a probationer which is not a punishment at all. Therefore in a case covered by r. 55-B all that is required is that the defects noticed in the work which make a probationer un- suitable for retention in the service should be pointed out to him and he should be given an opportunity to show cause against the notice, enabling him to give an explanation as to the faults pointed out to him and show any reason why the proposal to terminate his services because of his unsuitability should not be given effect to. If such an opportunity is given to a probationer and his explanation in. reply thereto is given due consideration, there is in our opinion sufficient compliance with r. 55-B. Generally speaking the purpose of a notice under r. 55-B is to ascertain, after considering the explanation which a probationer may give whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those grounds is duly considered before an order is passed. This is what was done in the present case and it cannot therefore be said that the appellant was not given the opportunity envisaged by r. 55-B. ### Response: 0

French Motor Car Co., Limited Vs. Workmen

because some recommendation, which is still to be implemented, has been made by a Committee, that the contribution should be increased to eight per centum in the case of the appellant company only, when the general rate is only 6 1/4 per centum. In the circumstances, this part of the award must be set aside and the rate of provident fund contribution so far as the appellant company is concerned should remain at 6 1/4 per centum of the gross earnings (i. e. basic pay plus dearness allowance) as at present.We now come to the question of adjustment. The contention on behalf of the appellant is that when wage scales were introduced in the appellant company, they were granted on a generous scale and there was therefore no reason for adjustment in the manner in which the tribunal has done in this case, for it is not usual to grant adjustment where wage scales already existed, though adjustment is granted when wage scales are fixed for the first time by tribunals. On the other hand, it is contended on behalf of the respondents that industrial tribunals have been granting, adjustments even where wage scales existed formerly and that the grant of adjustment is not limited to those cases where wage scales are being, introduced for the first time. In this connection, reliance was placed on behalf of the respondents on a number of awards which were listed in Ex. U-15. We asked parties to give an agreed statement as to what these awards provided in the matter of adjustment and whether they showed that adjustment had been granted by industrial tribunals even where there were wage scales from before. Such an agreed statement has been filed. The large majority of the awards listed in Ex. U-15 show that they are cases where wage scales were being fixed for the first time and adjustment was therefore granted whether point to point or in such other manner as the tribunals considered just on the facts and circumstances of each case. In some of the cases, however, it appears that adjustment was grant- ed even though there were previous scales of pay in existence. The ground for such grant of adjustment seems to have been that the previous scales were found to be low and the increments prescribed thereunder were particularly low. In the circumstances, the tribunal was of the view that adjustment should be granted even though there had been previous scales of pay.A review therefore of the cases cited on behalf of the respondents shows that generally adjustments are granted when scales of wages are fixed for the first time. But there is nothing in law to prevent the tribunal from granting adjustment even in cases where previously pay scales were in existence; but that has to be done sparingly taking into consideration the facts and circumstances of each case. The usual reason for granting adjustment even where wage scales were formerly in existence is that the increments provided in the former wage scales were particularly low and therefore justice- required that adjustment should be granted a second time. In the present case, however, grades of pay for clerical staff which were existing previously provided increments from Rs. 5/- to Rs. 10/- per year, which was in accordance with the rate of increments prevailing generally in the region for such staff. Further in the case of unskilled workshop employees and subordinate staff the previous rate of increment in the appellant company was comparatively on a generous scale as compared to even such companies as Dumex Private Limited and Greaves Cotton Company. The same could be said of the semi- skilled grade and even of the skilled grade previously in force in. this company. In the circumstances, it seems to us that there is no justification for adjustment in the manner provided by the tribunal when new scales are fixed in the present case, and all that should be reasonably provided in the matter of adjustment is that when an employee is brought on to the new scale his pay should be stepped up to the next step in the new scale in case there is no such pay in the new scale. We ought to add that in making the order of adjustment the tribunal did not consider the merits of the rival contentions from this aspect. In a case of this kind we do not think that adjustment should have been ordered almost as a matter of course. Nor have the respondents satisfied us that a case has been made out for granting adjustments even when a comparatively generous rate of increment was in force in this company previously and the company was paying the highest wages in its own line of business. We are therefore of opinion that the order as to adjustment should be modified as above.The last point is with respect to clarification. So far as that is concerned, the parties agreed that after the publication of Part I of the award the company will classify its employees and send its classification to the sabha (i. e. the union). The sabha will then file its objection if any and finally the disputed cases will be decided by the tribunal. The tribunal therefore did not go into the question of classification when it gave the award under appeal, though there are some observations in the award which appear to have some bearing on the question of classification. However, in view of the fact that the tribunal has not gone into the question of classification at this stage any tentative observations made by it would not affect the agreement between the parties, viz, . that the employees will in the first instance be classified by the appellant company and the classification will be sent to the union which will have the right to object and thereafter the disputed cases will be decided by the tribunal. ln view of this agreement no question of classification arises at the present stage.6.

1[ds]It is now well settled that the principle of industry-cum- region has to be applied by an industrial court, when it proceeds to consider questions like wage structure, dearness allowance and similar conditions of service. In applying that principle industrial courts have to compare wage scales Prevailing in similar concerns in the region with which it is dealing, and generally speaking similar concerns would be those in the same line of business as the concern with respect to which the dispute is under consideration. Further, even in the same line of business, it would not be proper to compare (for example) a small struggling concern with a large flourishing concern. In Williamsons (India) Private Ltd. v. The Workmen , this Court had to consider this aspect of the matter, where Williamsons Private Limited was compared by the tribunal with Messrs. Gillanders Arbuthnot and Company for purposes of wage fixation, and it was observed that the extent of the business carried on by the concerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reserves, the dividends declared by them and the prospects about the future of their business and other relevant factors have to be borne in mind for the purpose of comparison. These observations were made to show how comparison should be made, even in the same line of business and were intended to lay down that a small concern cannot be compared even in the same line of business with a large concern. Thus where there is a large disparity between the two concerns in the same business, it would not be safe to fix the same wage structure as: in the large concern without any other consideration. The question whether there is large disparity between two concerns is, however, always a question of fact and it is not necessary for the purposes of comparison that the two concerns must be exactly equal in all respects. All that the tribunal has to see is that the disparity is not so large as to make the comparison unreal. In Novex Dry Cleaners v. Workmen ((1962) 1 I. L. J. 271.) this Court pointed out that it would not be safe to compare a comparatively small concern with a large concern in the same line of business and impose a wage structure prevailing in the large concern as a rule of thumb without considering the standing, the extent of labour force, the extent of business and the extent of profits made by the two concerns over a number of years.The contention on behalf of the appellant is that in fixing the wage structure for workshop employees in particular, the tribunal has taken into account for purposes of comparison concerns which are in a different line of business altogether and which are also very much bigger concerns than the appellant company. There is in our opinion force in this contention. In dealing with the workshop employees, the tribunal has taken into account wages prevalent in concerns like Greaves Cotton and Dumex, which are very much larger concerns than the appellant company and which are also not in the same line of business. It is obvious that the fixing of wage scales for workshop employees made by the tribunal has been affected by taking into account these con- cerns, and to that extent the award cannot be upheld. At the same time it appears that the appellant company is practically paying the highest wage scales in the particular line of business in which it is engaged, and it is urged on its behalf that if it is compared with concerns in its own line of business, there would be no justification for increasing the wage scales for it is already paying the highest scales in that line ofare of opinion that this argument cannot be accepted, for it would then mean that if a concern is paying the highest wages in a particular line of business, there can be no increase in wages in that concern whatever may be the economic conditions prevailing at the time of dispute. It seems to us, therefore, that where a concern is paying the highest wages in a particular line of business, there should be greater.emphasis on the region part of the industry-cum- region principle, though it would be the duty of the industrial court to see that for purposes of comparison such other industries in the region are taken into account as are as nearly similar to the concern before it as possible. Though, therefore, in a case where a particular concern is already paying the highest wages in its own line of business, the industrial courts would be justified in looking at wages paid in that region in other lines of business, it should take care to see that the concerns from other lines of business taken into account are such as are as nearly similar as possible, to the line of business carried on by the concern before it. It should also take care to see that such concerns are not so disproportionately large as to afford no proper basis for comparison. In the present case even though the tribunal had justification to go beyond the concerns in the particular industry in which the appellant company is engaged for purposes of comparison, because the appellant is already practically paying the highest wages in that line of business, it was not right for the tribunal to take for comparison concerns like Dumex and Greaves Cotton which are in completely different and dis- similar lines of business and also so disproportionately larger than the appellant company as not to afford a proper basis of comparison. We are therefore of opinion that, the wage structure fixed by the tribunal so far as workshop employees are concerned cannot be upheld and must be set aside. In the circumstances (SCR at page 24) the award with respect to the workshop employees is set aside and the matter remanded to the tribunal to fix proper wage scales in the light of the observations made by us.It appears that evidence was given before the tribunal for purposes of comparison of concerns which were in the fine of business nearly similar to the business carried on by the appellant company. Consequently, it would not be necessary to take fresh evidence on the point and the tribunal should proceed to fix the wage structure afresh after excluding for purposes of camparison concerns in absolutely different lines of business and also concerns which are dispro- portionately larger than the appellantCourt observed in that connection that it was impos- sible to say that there was no evidence on which the tribunal could proceed, to revise the wage structure and that on the contrary there was evidence which justified a revision of the wage structure. In effect this decision means that in case of employees of the class mentioned therein it may be possible to take into account even those concerns which are engaged in entirely different lines of business for the work of employees of this class is more or less similar in all concerns. We are in agreement with this view and the argument therefore urged on behalf of the appe- llant company cannot prevail so far as clerical and subordinate staff are concerned: It appears however that a mistake has been made by the tribunal in respect of subordinate staff. The subordinate staff in the appellant company consists of drivers, watchmen, peons, cleaners and, sweepers. According to the system prevailing in the company.. drivers and watchmen stood by themselves and had separate scales. Peons, cleaners and sweepers were however in the same scale and were treated similarly in this company. What the tribunal has done is to prescribe one scale for drivers another for watchmen, peons and cleaners and a third for sweepers, thus distributing the system prevailing in the appellant company without any reason given for it. It appears that the tribunal made a mistake inadvertently when it said that in this company the scales of watchmen, peons and cleaners had been uniform. That was in fact not so and the respondents counsel also fairly admits it. In the circumstances we direct that the order of the tribunal fixing the scale of 50-3-77-4-85 for watchmen, peons and cleaners will only apply to watchmen and not to peons and cleaners. We also order that the scale of 40-2-58-373 will apply not only to sweepers but also to peons and cleaners. The appeal therefore with respect to clerical staff and subordinate staff must fail except as to the modification pointed out above.We now come to dearness allowance for clerical staff. We have already indicated that dearness allowance was revised by agreement in 1954 with respect to clerical staff, and the revision resulted in reduction. What the tribunal has done is to set aside the agreement of 1954 and to bring back the system of dearness allowance prevailing before that agreement. In the circumstances we cannot see how the system now introduced by the tribunal which is also more in consonance with the pattern of dearness allowance prevailing in Bombay and which was in force in the appellant company itself before 1954 can be successfully challenged. We therefore reject the contention of the appellant in thisTribunal therefore increased the provident fund contribution to eight per centum on the ground that that percentage was recommended by the technical committee after a thorough study of the problem from all points of view and it should be adopted by well-established and prosperous concerns like the appellant, though the tribunal was not unaware of the fact that this was not the rate generally prevalent in thatsee no reason why simply because some recommendation, which is still to be implemented, has been made by a Committee, that the contribution should be increased to eight per centum in the case of the appellant company only, when the general rate is only 6 1/4 per centum. In the circumstances, this part of the award must be set aside and the rate of provident fund contribution so far as the appellant company is concerned should remain at 6 1/4 per centum of the gross earnings (i. e. basic pay plus dearness allowance) as at present.We now come to the question ofasked parties to give an agreed statement as to what these awards provided in the matter of adjustment and whether they showed that adjustment had been granted by industrial tribunals even where there were wage scales from before. Such an agreed statement has been filed. The large majority of the awards listed in Ex. U-15 show that they are cases where wage scales were being fixed for the first time and adjustment was therefore granted whether point to point or in such other manner as the tribunals considered just on the facts and circumstances of each case. In some of the cases, however, it appears that adjustment was grant- ed even though there were previous scales of pay in existence. The ground for such grant of adjustment seems to have been that the previous scales were found to be low and the increments prescribed thereunder were particularly low. In the circumstances, the tribunal was of the view that adjustment should be granted even though there had been previous scales of pay.A review therefore of the cases cited on behalf of the respondents shows that generally adjustments are granted when scales of wages are fixed for the first time. But there is nothing in law to prevent the tribunal from granting adjustment even in cases where previously pay scales were in existence; but that has to be done sparingly taking into consideration the facts and circumstances of each case. The usual reason for granting adjustment even where wage scales were formerly in existence is that the increments provided in the former wage scales were particularly low and therefore justice- required that adjustment should be granted a second time. In the present case, however, grades of pay for clerical staff which were existing previously provided increments from Rs. 5/- to Rs. 10/- per year, which was in accordance with the rate of increments prevailing generally in the region for such staff. Further in the case of unskilled workshop employees and subordinate staff the previous rate of increment in the appellant company was comparatively on a generous scale as compared to even such companies as Dumex Private Limited and Greaves Cotton Company. The same could be said of the semi- skilled grade and even of the skilled grade previously in force in. this company. In the circumstances, it seems to us that there is no justification for adjustment in the manner provided by the tribunal when new scales are fixed in the present case, and all that should be reasonably provided in the matter of adjustment is that when an employee is brought on to the new scale his pay should be stepped up to the next step in the new scale in case there is no such pay in the new scale. We ought to add that in making the order of adjustment the tribunal did not consider the merits of the rival contentions from this aspect. In a case of this kind we do not think that adjustment should have been ordered almost as a matter of course. Nor have the respondents satisfied us that a case has been made out for granting adjustments even when a comparatively generous rate of increment was in force in this company previously and the company was paying the highest wages in its own line of business. We are therefore of opinion that the order as to adjustment should be modified as above.The last point is with respect to clarification. So far as that is concerned, the parties agreed that after the publication of Part I of the award the company will classify its employees and send its classification to the sabha (i. e. the union). The sabha will then file its objection if any and finally the disputed cases will be decided by the tribunal. The tribunal therefore did not go into the question of classification when it gave the award under appeal, though there are some observations in the award which appear to have some bearing on the question of classification. However, in view of the fact that the tribunal has not gone into the question of classification at this stage any tentative observations made by it would not affect the agreement between the parties, viz, . that the employees will in the first instance be classified by the appellant company and the classification will be sent to the union which will have the right to object and thereafter the disputed cases will be decided by the tribunal. ln view of this agreement no question of classification arises at the present stage.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: because some recommendation, which is still to be implemented, has been made by a Committee, that the contribution should be increased to eight per centum in the case of the appellant company only, when the general rate is only 6 1/4 per centum. In the circumstances, this part of the award must be set aside and the rate of provident fund contribution so far as the appellant company is concerned should remain at 6 1/4 per centum of the gross earnings (i. e. basic pay plus dearness allowance) as at present.We now come to the question of adjustment. The contention on behalf of the appellant is that when wage scales were introduced in the appellant company, they were granted on a generous scale and there was therefore no reason for adjustment in the manner in which the tribunal has done in this case, for it is not usual to grant adjustment where wage scales already existed, though adjustment is granted when wage scales are fixed for the first time by tribunals. On the other hand, it is contended on behalf of the respondents that industrial tribunals have been granting, adjustments even where wage scales existed formerly and that the grant of adjustment is not limited to those cases where wage scales are being, introduced for the first time. In this connection, reliance was placed on behalf of the respondents on a number of awards which were listed in Ex. U-15. We asked parties to give an agreed statement as to what these awards provided in the matter of adjustment and whether they showed that adjustment had been granted by industrial tribunals even where there were wage scales from before. Such an agreed statement has been filed. The large majority of the awards listed in Ex. U-15 show that they are cases where wage scales were being fixed for the first time and adjustment was therefore granted whether point to point or in such other manner as the tribunals considered just on the facts and circumstances of each case. In some of the cases, however, it appears that adjustment was grant- ed even though there were previous scales of pay in existence. The ground for such grant of adjustment seems to have been that the previous scales were found to be low and the increments prescribed thereunder were particularly low. In the circumstances, the tribunal was of the view that adjustment should be granted even though there had been previous scales of pay.A review therefore of the cases cited on behalf of the respondents shows that generally adjustments are granted when scales of wages are fixed for the first time. But there is nothing in law to prevent the tribunal from granting adjustment even in cases where previously pay scales were in existence; but that has to be done sparingly taking into consideration the facts and circumstances of each case. The usual reason for granting adjustment even where wage scales were formerly in existence is that the increments provided in the former wage scales were particularly low and therefore justice- required that adjustment should be granted a second time. In the present case, however, grades of pay for clerical staff which were existing previously provided increments from Rs. 5/- to Rs. 10/- per year, which was in accordance with the rate of increments prevailing generally in the region for such staff. Further in the case of unskilled workshop employees and subordinate staff the previous rate of increment in the appellant company was comparatively on a generous scale as compared to even such companies as Dumex Private Limited and Greaves Cotton Company. The same could be said of the semi- skilled grade and even of the skilled grade previously in force in. this company. In the circumstances, it seems to us that there is no justification for adjustment in the manner provided by the tribunal when new scales are fixed in the present case, and all that should be reasonably provided in the matter of adjustment is that when an employee is brought on to the new scale his pay should be stepped up to the next step in the new scale in case there is no such pay in the new scale. We ought to add that in making the order of adjustment the tribunal did not consider the merits of the rival contentions from this aspect. In a case of this kind we do not think that adjustment should have been ordered almost as a matter of course. Nor have the respondents satisfied us that a case has been made out for granting adjustments even when a comparatively generous rate of increment was in force in this company previously and the company was paying the highest wages in its own line of business. We are therefore of opinion that the order as to adjustment should be modified as above.The last point is with respect to clarification. So far as that is concerned, the parties agreed that after the publication of Part I of the award the company will classify its employees and send its classification to the sabha (i. e. the union). The sabha will then file its objection if any and finally the disputed cases will be decided by the tribunal. The tribunal therefore did not go into the question of classification when it gave the award under appeal, though there are some observations in the award which appear to have some bearing on the question of classification. However, in view of the fact that the tribunal has not gone into the question of classification at this stage any tentative observations made by it would not affect the agreement between the parties, viz, . that the employees will in the first instance be classified by the appellant company and the classification will be sent to the union which will have the right to object and thereafter the disputed cases will be decided by the tribunal. ln view of this agreement no question of classification arises at the present stage.6. ### Response: 1

Oriental Insurance Co. Ltd Vs. Vimla Devi

Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in these appeals are to the order passed by a Division Bench of the Uttaranchal High Court. Three appeals filed by the appellant against the common judgment and award dated 10th October, 2003 passed by Motor Accident Claims Tribunal, District Judge, Tehri Garhwal (in short the MACT) were dismissed. It is the case of the claimants who filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) that because of rash and negligent driving of the driver of the vehicle i.e., U.P. 07-F-4885 the vehicle fell into a ditch resulting in the death of three persons namely, Sohan Singh, Uttam Singh and a boy Rakesh Singh aged about 12 years. The dependents of the deceased filed three claim petitions for compensation. The appellant-Oriental Insurance Company took the stand that the accident occurred due to mechanical failure of the vehicle and in any event the Insurance Company had no liability as the offending vehicle was being driven in violation of the terms and conditions of the policy and the driver of the offending vehicle did not have a valid driving licence. The MACT took the view that the policy was operative for a period from 5th July, 1999 to 4th July, 2000 and since the accident occurred on 13th April, 2000 it was within the validity period. The MACT also noticed that the drivers licence was valid during the period of time when the accident occurred. The MACT and the High Court held that the vehicle was the subject-matter of insurance for goods as well as for passengers, though it was a goods commercial vehicle. MACT did not accept the stand of the appellant-Insurance Company holding that no premium was paid for any passenger. The High Court also accepted the said view. 3. In support of the appeals, learned Counsel for the appellant submitted that the original records produced by the Insurance Company clearly show that no premium was received in respect of any non-fare paying non-employees. It was the stand of learned Counsel for the appellant that both the MACT and the High Court erroneously held that the premiums were paid for the goods as well as for the passengers. In fact no premium was paid for passengers as admittedly the vehicle was a goods commercial vehicle. The appeal survives in respect of respondent No. 9. The details of premium paid by the owner have been indicated in the policy that the following amounts were paid: Third party liabilityRs.2,779 Third party property damageRs.75 NFPERs.50 DriverRs.15 CoolieRs.15 4. The MACT and the High Court appear to have proceeded on erroneous premises that the premium was also paid in respect of goods and passengers. In the aforesaid circumstances we think it appropriate to remit the matter to the MACT to consider the original documents relating to payment of premium which have been summarized in the paper book the amount of premium paid, and determine the person from whom the recovery is to be made.

1[ds]It was the stand of learned Counsel for the appellant that both the MACT and the High Court erroneously held that the premiums were paid for the goods as well as for the passengers. In fact no premium was paid for passengers as admittedly the vehicle was a goods commercial vehicle. The appeal survives in respect of respondent No. 94. The MACT and the High Court appear to have proceeded on erroneous premises that the premium was also paid in respect of goods and passengers. In the aforesaid circumstances we think it appropriate to remit the matter to the MACT to consider the original documents relating to payment of premium which have been summarized in the paper book the amount of premium paid, and determine the person from whom the recovery is to be made.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: Dr. Arijit Pasayat, J. 1. Leave granted. 2. Challenge in these appeals are to the order passed by a Division Bench of the Uttaranchal High Court. Three appeals filed by the appellant against the common judgment and award dated 10th October, 2003 passed by Motor Accident Claims Tribunal, District Judge, Tehri Garhwal (in short the MACT) were dismissed. It is the case of the claimants who filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short the Act) that because of rash and negligent driving of the driver of the vehicle i.e., U.P. 07-F-4885 the vehicle fell into a ditch resulting in the death of three persons namely, Sohan Singh, Uttam Singh and a boy Rakesh Singh aged about 12 years. The dependents of the deceased filed three claim petitions for compensation. The appellant-Oriental Insurance Company took the stand that the accident occurred due to mechanical failure of the vehicle and in any event the Insurance Company had no liability as the offending vehicle was being driven in violation of the terms and conditions of the policy and the driver of the offending vehicle did not have a valid driving licence. The MACT took the view that the policy was operative for a period from 5th July, 1999 to 4th July, 2000 and since the accident occurred on 13th April, 2000 it was within the validity period. The MACT also noticed that the drivers licence was valid during the period of time when the accident occurred. The MACT and the High Court held that the vehicle was the subject-matter of insurance for goods as well as for passengers, though it was a goods commercial vehicle. MACT did not accept the stand of the appellant-Insurance Company holding that no premium was paid for any passenger. The High Court also accepted the said view. 3. In support of the appeals, learned Counsel for the appellant submitted that the original records produced by the Insurance Company clearly show that no premium was received in respect of any non-fare paying non-employees. It was the stand of learned Counsel for the appellant that both the MACT and the High Court erroneously held that the premiums were paid for the goods as well as for the passengers. In fact no premium was paid for passengers as admittedly the vehicle was a goods commercial vehicle. The appeal survives in respect of respondent No. 9. The details of premium paid by the owner have been indicated in the policy that the following amounts were paid: Third party liabilityRs.2,779 Third party property damageRs.75 NFPERs.50 DriverRs.15 CoolieRs.15 4. The MACT and the High Court appear to have proceeded on erroneous premises that the premium was also paid in respect of goods and passengers. In the aforesaid circumstances we think it appropriate to remit the matter to the MACT to consider the original documents relating to payment of premium which have been summarized in the paper book the amount of premium paid, and determine the person from whom the recovery is to be made. ### Response: 1

HINDUSTAN UNILEVER LIMITED Vs. THE STATE OF MADHYA PRADESH

to the root of the trial, though permissible in law, is justified. 20. A three-Judge Bench of this Court in Aneeta Hada v. Godfather Travels & Tours Private Limited (2012) 5 SCC 661 considered the question of conviction of the Directors in the absence of the Company in proceedings under Section 138 of the Negotiable Instruments Act, 1881 (For short, the NI Act) as also in the proceedings under Information Technology Act, 2000. This Court held that Section 141 of the NI Act dealing with offences by companies contemplates that every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. This Court, considering the said provision, held as under: 38. From the aforesaid pronouncements, the principle that can be culled out is that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court to imagine the fiction with all real consequences and instances unless prohibited from doing so. That apart, the use of the term deemed has to be read in its context and further, the fullest logical purpose and import are to be understood. It is because in modern legislation, the term deemed has been used for manifold purposes. The object of the legislature has to be kept in mind. xx xx xx 56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be understood in the context. xx xx xx 58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the company appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. ………. 21. Section 17 of the Act reads as under: 17. Offences by companies—(1) Where an offence under this Act has been committed by a company— (a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or (ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. (2) **** ***** 22. Clause (a) of Sub-Section (1) of Section 17 of the Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under clause (b) of Sub-Section (1) of Section 17 of the Act. Therefore, there is no material distinction between Section 141 of the NI Act and Section 17 of the Act which makes the Company as well as the Nominated Person to be held guilty of the offences and/or liable to be proceeded and punished accordingly. Clauses (a) and (b) are not in the alternative but conjoint. Therefore, in the absence of the Company, the Nominated Person cannot be convicted or vice versa. Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable.

1[ds]13. We do not find any merit in the arguments raised by Dr. Singhvi with respect to the punishment provided under the 2006 Act. The judgment of this Court in T. Barai is consequent to amendment in the Act when Section 16A was inserted by the Parliament. Similarly, the judgment in Nemi Chand was a judgment arising out of the amendment in the Act only. The benefit of amendments in the Act, has been rightly granted to the accused in an appeal arising out of the proceedings under the Act. But in the present case, the Act has been repealed by Section 97 of the 2006 Act, however, the punishments imposed under the Act have been protected.15. In terms of Section 6 of the General Clauses Act, 1897, unless dif-ferent intention appears, the repeal of a statute does not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or pun- ishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. But in the 2006 Act, the re-peal and saving clause contained in Section 97 (1)(iii) and (iv) specifically provides that repeal of the Act shall not affect any in- vestigation or remedy in respect of any such penalty, forfeiture or punishment and the punishment may be imposed,as if the 2006 Act had not been passed. The question as to whether penalty or prosecution can continue or be initiated under the repealed provi- sions has been examined by this Court in State of Punjab v. Mohar Singh AIR 1955 SC 84 , wherein this Court examined Section 6 of the General Clauses Act which is on lines of Section 38(2) of the Interpretation Act of England. It was held as under:6. Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law [ Vide Craies on Statute Law, 5th edn, p. 323] . A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right [ Vide Crawford on Statutory Construction , p. 599-600w] . To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on, to dispense with the necessity of having to insert a saving clause on each occasion, Section 38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well known, is on the same lines as Section 38(2) of the Interpretation Act of England.9. The offence committed by the respondent consisted in filing a false claim. The claim was filed in accordance with the provision of Section 4 of the Ordinance and under Section 7 of the Ordinance, any false information in regard to a claim was a punishable offence. The High Court is certainly right in holding that Section 11 of the Act does not make the claim filed under the Ordinance a claim under the Act so as to attract the operation of Section 7. Section 11 of the Act is in the following terms:The East Punjab Refugees (Registration of Land Claims) Ordinance 7 of 1948 is hereby repealed and any rules made, notifications issued, anything done, any action taken in exercise of the powers conferred by or under the said Ordinance shall be deemed to have been made, issued, done or taken in exercise of the powers conferred by, or under this Act as if this Act had come into force on 3rd day of March, 1948.……………….The truth or falsity of the claim has to be investigated in the usual way and if it is found that the information given by the claimant is false, he can certainly be punished in the manner laid down in Sections 7 and 8 of the Act. If we are to hold that the penal provisions contained in the Act cannot be attracted in case of a claim filed under the Ordinance, the results will be anomalous and even if on the strength of a false claim a refugee has succeeded in getting an allotment in his favour, such allotment could not be cancelled under Section 8 of the Act. We think that the provisions of Sections 47 and 8 make it apparent that it was not the intention of the Legislature that the rights and liabilities in respect of claims filed under the Ordinance shall be extinguished on the passing of the Act, and this is sufficient for holding that the present case would attract the operation of Section 6 of the General Clauses Act. It may be pointed out that Section 11 of the Act is somewhat clumsily worded and it does not make use of expressions which are generally used in saving clauses appended to repealing statutes; but as has been said above the point for our consideration is whether the Act evinces an intention which is inconsistent with the continuance of rights and liabilities accrued or incurred under the Ordinance and in our opinion this question has to be answered in the negative.17. Thus, in view of Section 97 of the 2006 Act, as also under Section 6 of the General Clauses Act, 1897, the proceedings would continue under the Act. No benefit can be taken under the 2006 Act as the prosecution and punishment under the Act is protected.18. The judgment of this Court in Trilok Chand is the only judgment which has given benefit of the 2006 Act and the sentence was imposed by imposing a fine of Rs.5,000/-. The attention of the Court was not drawn to Section 97 of the 2006 Act, which protects the punishments given under the repealed Act. Therefore, the order in Trilok Chand is on its own facts.19. However, we find merit in the argument of Mr. Luthra that the order of remand by the High Court to the trial court against the Company cannot be sustained for the reason that such an order was passed without giving an opportunity of hearing, as contemplated under Section 401(2) of the Code.20. A three-Judge Bench of this Court in Aneeta Hada v. Godfather Travels & Tours Private Limited (2012) 5 SCC 661 considered the question of conviction of the Directors in the absence of the Company in proceedings under Section 138 of the Negotiable Instruments Act, 1881 (For short, the NI Act) as also in the proceedings under Information Technology Act, 2000. This Court held that Section 141 of the NI Act dealing with offences by companies contemplates that every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. This Court, considering the said provision, held as under:38. From the aforesaid pronouncements, the principle that can be culled out is that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court to imagine the fiction with all real consequences and instances unless prohibited from doing so. That apart, the use of the term deemed has to be read in its context and further, the fullest logical purpose and import are to be understood. It is because in modern legislation, the term deemed has been used for manifold purposes. The object of the legislature has to be kept in mind.56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be understood in the context.58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the company appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted.59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. ……….22. Clause (a) of Sub-Section (1) of Section 17 of the Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under clause (b) of Sub-Section (1) of Section 17 of the Act. Therefore, there is no material distinction between Section 141 of the NI Act and Section 17 of the Act which makes the Company as well as the Nominated Person to be held guilty of the offences and/or liable to be proceeded and punished accordingly. Clauses (a) and (b) are not in the alternative but conjoint. Therefore, in the absence of the Company, the Nominated Person cannot be convicted or vice versa. Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: to the root of the trial, though permissible in law, is justified. 20. A three-Judge Bench of this Court in Aneeta Hada v. Godfather Travels & Tours Private Limited (2012) 5 SCC 661 considered the question of conviction of the Directors in the absence of the Company in proceedings under Section 138 of the Negotiable Instruments Act, 1881 (For short, the NI Act) as also in the proceedings under Information Technology Act, 2000. This Court held that Section 141 of the NI Act dealing with offences by companies contemplates that every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. This Court, considering the said provision, held as under: 38. From the aforesaid pronouncements, the principle that can be culled out is that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court to imagine the fiction with all real consequences and instances unless prohibited from doing so. That apart, the use of the term deemed has to be read in its context and further, the fullest logical purpose and import are to be understood. It is because in modern legislation, the term deemed has been used for manifold purposes. The object of the legislature has to be kept in mind. xx xx xx 56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be understood in the context. xx xx xx 58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the company appearing in the section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. ………. 21. Section 17 of the Act reads as under: 17. Offences by companies—(1) Where an offence under this Act has been committed by a company— (a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or (ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. (2) **** ***** 22. Clause (a) of Sub-Section (1) of Section 17 of the Act makes the person nominated to be in charge of and responsible to the company for the conduct of business and the company shall be guilty of the offences under clause (b) of Sub-Section (1) of Section 17 of the Act. Therefore, there is no material distinction between Section 141 of the NI Act and Section 17 of the Act which makes the Company as well as the Nominated Person to be held guilty of the offences and/or liable to be proceeded and punished accordingly. Clauses (a) and (b) are not in the alternative but conjoint. Therefore, in the absence of the Company, the Nominated Person cannot be convicted or vice versa. Since the Company was not convicted by the trial court, we find that the finding of the High Court to revisit the judgment will be unfair to the appellant/Nominated Person who has been facing trial for more than last 30 years. Therefore, the order of remand to the trial court to fill up the lacuna is not a fair option exercised by the High Court as the failure of the trial court to convict the Company renders the entire conviction of the Nominated Person as unsustainable. ### Response: 1

Shyam Behari Lal Vs. Lalla Jageshwar Prasad

that the decree passed by the Judge, Small Cause Court in Suit No. 1138 of 1952 did not operate as res judicata in the present suit. On the merits of the case the Trial Court found that the respondent had failed to prove that the appellant had taken the accommodation on monthly rent of Rs. 40/- and so the appellant was not liable to pay the rent. The respondent took the matter in appeal but it was dismissed by the First Civil Judge, Kanpur, by his judgment, dated July 6, 1962. The respondent thereafter filed the second appeal in the Allahabad High Court. The appeal was allowed by the High Court by its judgment and decree dated, May 20, 1966, on the ground that the finding of the Judge, Small Cause Court, Kanpur, in suit No. 1138 of 1952 that there was an agreement of tenancy between the parties operates as res judicata in the present suit.4. The question for consideration in this appeal is whether the High court was right in holding that the Small Cause Court was a court of exclusive jurisdiction and that its decision is governed by general principle of res judicata and not by Section 11 of the code of Civil Procedure.5. The plea of res judicata on general principle can be successfully taken in respect of judgments of courts of exclusive jurisdiction. Courts of exclusive jurisdiction are those which have been conferred exclusive powers to decide certain mattes like revenue courts, land acquisition courts. probate courts, etc. It is obvious that these courts are not entitled to try regular suits. When the plea of res judicata is founded on general principles of law all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction. It does not seem necessary in such cases to further prove they have jurisdiction to hear the latter suit. But if the plea of res judicata is raised under Section 11 of the Code of Civil Procedure one of the essential conditions to be satisfied is regarding the competency of the former court to try the subsequent suit. That is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code of Civil Procedure and has application to suits alone. (See the decision of this Court in Raj Lakshmi Pasi v. Banamali Sen.) (1953 SCR 154 : AIR 1953 SC 33 ) It was argued for the appellant that the Court of Small Cause cannot be regarded to be a court of exclusive jurisdiction but it has preferential jurisdiction with regard to certain suits. In support of this view reference was made to Dulare Lal v. Hazari Lal, (AIR 1914 All 229 : 12 ALJ 353) Ghulappa Bin Balappa v. Raghvendra; (ILR 28 Bom 338 : 6 Bom LR 77) Mohini Mohan Roy v. Ramadas Paramhansa; (AIR 1924 Cal 487 : 28 CWN 271 : 39 CLJ 532 : 80 IC 210) Madhorao v. Amrit Rao (AIR 1918 Nag 163 : 14 NLR 115) and Pateshwari Prashad v. A. S. Gilani. (AIR 1959 Punj 420 : 61 Punj LR 75 : ILR 1959 Punj 1503) It is not, however, necessary for us to express any concluded opinion on this point in the present case. We shall assume in favour of the appellant that Section 11, C.P.C. is applicable. On this assumption it is argued for the appellant that the condition imposed by Section 11 C.P.C. regarding the competency of the court is not satisfied because the Judge, Small Cause Court, Kanpur, had no pecuniary jurisdiction to hear a rent suit up to Rs. 1, 440/-. There is, however, no material on the record of the case to show as to what was the pecuniary jurisdiction of the Judge, Court of Small Causes, Kanpur, on the relevant date. In the absence of the relevant information included on this point we are unable to accede to the argument of the appellant that the Judge, Small Cause Court, Kanpur, had not pecuniary jurisdiction up to Rs. 1, 440/- which was the valuation of the latter suit. We, therefore, see no reason for interfering with the finding of the High Court, that the defence of the appellant in the present case is barred on the principle of res judicata.6. It was also argued on behalf of the appellant that after obtaining the decree in suit No. 31 of 1946 the respondent started a garnishee proceeding in execution case No. 21 of 1951 in the Court of First Civil Judge, Kanpur, against the tenants of the house in dispute. In the garnishee proceeding Jageshwar Prashad alleged that the appellant Shyam Behari Lal was tenant of the house and as such he was liable to pay arrears of rent as being due to the original landlord. The garnishee proceedings were contested by the appellant and on April 10, 1956, the Civil Judge, Kanpur, held that Shyam Behari Lal was not a tenant of the house but Smt. Kamala Devi was the tenant thereof. It is contended on behalf of the appellant that the finding of the civil Judge in the execution case in the garnishee proceeding operated as res judicata in the present suit. No such contention was advanced on behalf of the appellant before the High court. In any event it appears that the garnishee order was not made against Smt. Kamala Devi and the proceeding was dismissed on the ground that no debt was due to the original landlord. The order in garnishee proceeding was based on this finding and the issue as to whether Shyam Behari Lal or Smt. Kamala Devi was a tenant in the house was not necessary for the decision of that proceeding and it cannot be said, therefore, to have been a matter "heard and finally decided" within the meaning of Section 11 of the Code of Civil Procedure. We, therefore, reject the argument of the appellant on this point.

0[ds]There is, however, no material on the record of the case to show as to what was the pecuniary jurisdiction of the Judge, Court of Small Causes, Kanpur, on the relevant date. In the absence of the relevant information included on this point we are unable to accede to the argument of the appellant that the Judge, Small Cause Court, Kanpur, had not pecuniary jurisdiction up to Rs. 1, 440/- which was the valuation of the latter suit. We, therefore, see no reason for interfering with the finding of the High Court, that the defence of the appellant in the present case is barred on the principle of resany event it appears that the garnishee order was not made against Smt. Kamala Devi and the proceeding was dismissed on the ground that no debt was due to the original landlord. The order in garnishee proceeding was based on this finding and the issue as to whether Shyam Behari Lal or Smt. Kamala Devi was a tenant in the house was not necessary for the decision of that proceeding and it cannot be said, therefore, to have been a matter "heard and finally decided" within the meaning of Section 11 of the Code of Civil Procedure. We, therefore, reject the argument of the appellant on this point.The plea of res judicata on general principle can be successfully taken in respect of judgments of courts of exclusive jurisdiction. Courts of exclusive jurisdiction are those which have been conferred exclusive powers to decide certain mattes like revenue courts, land acquisition courts. probate courts, etc. It is obvious that these courts are not entitled to try regular suits. When the plea of res judicata is founded on general principles of law all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction. It does not seem necessary in such cases to further prove they have jurisdiction to hear the latter suit. But if the plea of res judicata is raised under Section 11 of the Code of Civil Procedure one of the essential conditions to be satisfied is regarding the competency of the former court to try the subsequent suit. That is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code of Civil Procedure and has application to suits alone. (See the decision of this Court in Raj Lakshmi Pasi v. Banamali Sen.) (1953 SCR 154 : AIR 1953 SC 33 )It was argued for the appellant that the Court of Small Cause cannot be regarded to be a court of exclusive jurisdiction but it has preferential jurisdiction with regard to certain suits. In support of this view reference was made to Dulare Lal v. Hazari Lal, (AIR 1914 All 229 : 12 ALJ 353) Ghulappa Bin Balappa v. Raghvendra; (ILR 28 Bom 338 : 6 Bom LR 77) Mohini Mohan Roy v. Ramadas Paramhansa; (AIR 1924 Cal 487 : 28 CWN 271 : 39 CLJ 532 : 80 IC 210) Madhorao v. Amrit Rao (AIR 1918 Nag 163 : 14 NLR 115) and Pateshwari Prashad v. A. S. Gilani. (AIR 1959 Punj 420 : 61 Punj LR 75 : ILR 1959 Punjis not, however, necessary for us to express any concluded opinion on this point in the present case. We shall assume in favour of the appellant that Section 11, C.P.C. is applicable. On this assumption it is argued for the appellant that the condition imposed by Section 11 C.P.C. regarding the competency of the court is not satisfied because the Judge, Small Cause Court, Kanpur, had no pecuniary jurisdiction to hear a rent suit up to Rs. 1,e is, however, no material on the record of the case to show as to what was the pecuniary jurisdiction of the Judge, Court of Small Causes, Kanpur, on the relevant date. In the absence of the relevant information included on this point we are unable to accede to the argument of the appellant that the Judge, Small Cause Court, Kanpur, had not pecuniary jurisdiction up to Rs. 1, 440/which was the valuation of the latter suit. We, therefore, see no reason for interfering with the finding of the High Court, that the defence of the appellant in the present case is barred on the principle of res

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: that the decree passed by the Judge, Small Cause Court in Suit No. 1138 of 1952 did not operate as res judicata in the present suit. On the merits of the case the Trial Court found that the respondent had failed to prove that the appellant had taken the accommodation on monthly rent of Rs. 40/- and so the appellant was not liable to pay the rent. The respondent took the matter in appeal but it was dismissed by the First Civil Judge, Kanpur, by his judgment, dated July 6, 1962. The respondent thereafter filed the second appeal in the Allahabad High Court. The appeal was allowed by the High Court by its judgment and decree dated, May 20, 1966, on the ground that the finding of the Judge, Small Cause Court, Kanpur, in suit No. 1138 of 1952 that there was an agreement of tenancy between the parties operates as res judicata in the present suit.4. The question for consideration in this appeal is whether the High court was right in holding that the Small Cause Court was a court of exclusive jurisdiction and that its decision is governed by general principle of res judicata and not by Section 11 of the code of Civil Procedure.5. The plea of res judicata on general principle can be successfully taken in respect of judgments of courts of exclusive jurisdiction. Courts of exclusive jurisdiction are those which have been conferred exclusive powers to decide certain mattes like revenue courts, land acquisition courts. probate courts, etc. It is obvious that these courts are not entitled to try regular suits. When the plea of res judicata is founded on general principles of law all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction. It does not seem necessary in such cases to further prove they have jurisdiction to hear the latter suit. But if the plea of res judicata is raised under Section 11 of the Code of Civil Procedure one of the essential conditions to be satisfied is regarding the competency of the former court to try the subsequent suit. That is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code of Civil Procedure and has application to suits alone. (See the decision of this Court in Raj Lakshmi Pasi v. Banamali Sen.) (1953 SCR 154 : AIR 1953 SC 33 ) It was argued for the appellant that the Court of Small Cause cannot be regarded to be a court of exclusive jurisdiction but it has preferential jurisdiction with regard to certain suits. In support of this view reference was made to Dulare Lal v. Hazari Lal, (AIR 1914 All 229 : 12 ALJ 353) Ghulappa Bin Balappa v. Raghvendra; (ILR 28 Bom 338 : 6 Bom LR 77) Mohini Mohan Roy v. Ramadas Paramhansa; (AIR 1924 Cal 487 : 28 CWN 271 : 39 CLJ 532 : 80 IC 210) Madhorao v. Amrit Rao (AIR 1918 Nag 163 : 14 NLR 115) and Pateshwari Prashad v. A. S. Gilani. (AIR 1959 Punj 420 : 61 Punj LR 75 : ILR 1959 Punj 1503) It is not, however, necessary for us to express any concluded opinion on this point in the present case. We shall assume in favour of the appellant that Section 11, C.P.C. is applicable. On this assumption it is argued for the appellant that the condition imposed by Section 11 C.P.C. regarding the competency of the court is not satisfied because the Judge, Small Cause Court, Kanpur, had no pecuniary jurisdiction to hear a rent suit up to Rs. 1, 440/-. There is, however, no material on the record of the case to show as to what was the pecuniary jurisdiction of the Judge, Court of Small Causes, Kanpur, on the relevant date. In the absence of the relevant information included on this point we are unable to accede to the argument of the appellant that the Judge, Small Cause Court, Kanpur, had not pecuniary jurisdiction up to Rs. 1, 440/- which was the valuation of the latter suit. We, therefore, see no reason for interfering with the finding of the High Court, that the defence of the appellant in the present case is barred on the principle of res judicata.6. It was also argued on behalf of the appellant that after obtaining the decree in suit No. 31 of 1946 the respondent started a garnishee proceeding in execution case No. 21 of 1951 in the Court of First Civil Judge, Kanpur, against the tenants of the house in dispute. In the garnishee proceeding Jageshwar Prashad alleged that the appellant Shyam Behari Lal was tenant of the house and as such he was liable to pay arrears of rent as being due to the original landlord. The garnishee proceedings were contested by the appellant and on April 10, 1956, the Civil Judge, Kanpur, held that Shyam Behari Lal was not a tenant of the house but Smt. Kamala Devi was the tenant thereof. It is contended on behalf of the appellant that the finding of the civil Judge in the execution case in the garnishee proceeding operated as res judicata in the present suit. No such contention was advanced on behalf of the appellant before the High court. In any event it appears that the garnishee order was not made against Smt. Kamala Devi and the proceeding was dismissed on the ground that no debt was due to the original landlord. The order in garnishee proceeding was based on this finding and the issue as to whether Shyam Behari Lal or Smt. Kamala Devi was a tenant in the house was not necessary for the decision of that proceeding and it cannot be said, therefore, to have been a matter "heard and finally decided" within the meaning of Section 11 of the Code of Civil Procedure. We, therefore, reject the argument of the appellant on this point. ### Response: 0

Coal India Ltd Vs. Bibbu Ranjan Kumar

(for short `DGMS) with 40% and above marks be sent. The respondent claiming to be an eligible candidate wanted his name to be recommended and his bio-data to be sent to the centralized cell of the appellant-company for the purpose. The appellant did not accept the respondent as a candidate possessing the prescribed eligibility qualification4. The respondent filed a writ petition in the High Court seeking a writ of mandamus to the appellant-company to consider his claim for the post. A single Judge of the High Court by the interim order passed on 17th July 1997 directed the appellant-company to allow the petitioner to sit for the examination but ordered that his result shall not be published for a period of two weeks from the date of the order. It was made clear that the order will be subject to the final order which will be passed in the writ petition.5. At the hearing of the writ petition the main contention raised on behalf of the writ petitioner (respondent herein) was that the petitioner holds a MBA degree (two years course) from the Magadh University, Bodhgaya in the State of Bihar, with a special paper in personnel management and therefore he is duly qualified for holding the post of Welfare Officer (Trainee). On the other hand the stand taken by the respondent in the writ petition (appellant herein) was that the writ petitioner does not have the prescribed qualification inasmuch as he does not possess MBA degree with specialisation in personnel management recognised by the DGMS, and therefore, he is not eligible to be considered for the post.6. The learned single Judge allowed the writ petition and directed the respondent (appellant herein) to publish the result of the examination within two weeks. From the discussions in the judgment it appears that the learned single Judge took the view that since the rules merely prescribed that the candidate must possess a degree or post-graduate degree or diploma with specialisation in certain subjects including `Personnel Management; and the writ petitioner holds a MBA degree which is a post-graduate degree from a recognised University with a special paper in `Personnel Management he possesses the prescribed qualification. The Division Bench, in appeal, confirmed the judgment.7. The learned counsel appearing for the appellant referred to the provisions of Rule 72(2)(b) of the Mines Rules, 1955 (for short `the Rules) and contended that a candidate in order to be eligible to hold the post of Welfare Officer must have a MBA degree with specialisation in `Personnel Management which is duly recognised by the Director General, Mines Safety. Since the MBA degree from the Magadh University has not been recognised by the DGMS the respondent cannot be said to be a candidate possessing the eligible qualification.8. Learned counsel appearing for the respondents supported the judgment of the High Court. 9. Since the determination of the controversy raised in the case depends on interpretation of Rule 72(2)(a) of the Rules it will be convenient to quote the said provision before proceeding to consider the merit of the contention raised on behalf of the parties. 10. Sub-rule (2) of Rule 72 prescribes as follows : "(2) No person shall act as a Welfare Officer of a mine unless he possesses -(a) a university degree;(b) a degree or diploma in social science, (or social work) or labour welfare (recognised by the Government for the purpose of this rule), and preferably practical experience of handling labour problems in any industrial undertaking for at least three years; and(c) a knowledge of the language of the district in which the mine is situated or the language understood by the majority of persons employed in the mine :Provided that in case of a person already in service as a Welfare Officer in a mine the above qualifications may, with the approval of the Chief Inspector, be relaxed.(2A) Notwithstanding anything contained in sub-rule (2), the Labour Officers included in the Central Pool under the provisions of the Labour Officers (Central Pool) Recruitment and Conditions of Service Rules, 1951, shall be eligible for appointment as a Welfare Officer in a mine." 11. On a fair reading of the provisions of the Rule quoted above it is clear to us that clauses (a), (b) and (c) of sub-rule (2) of rule 72 are to be read in conjunction with each other and a person in order to be eligible to hold the post of Welfare Officer must fulfil these conditions except the practical experience of handling labour problems in any industrial undertaking for atleast three years which is optional.12. It is not in dispute before us that the respondent does not have a degree or post-graduate diploma in Social Science including any degree or post-graduate diploma in Sociology/Social Welfare/Work/Service/Science Techniques or Labour Laws/Welfare or Industrial Relations and Personnel Management. The qualification possessed by him is MBA degree (two years course) with `Personnel Management as a special paper which on a bare reading of the provision of the Rule does not come within the qualifications provided therein.13. The further question to be considered is whether the respondent possesses the qualification stated in the letter of the General Manager (Personnel) dated 22.4.1997 (Annexure P-IV) in which the heads of different units were required to send bio-data of the non-executives who possess MBA degree (2 years course) with specialisation in Personnel Management duly recognised by DGMS with 40% and above marks. It is not the case of the respondent that MBA degree of Magadh University has been recognised by the DGMS. Indeed, it is the specific stand of the appellant that the said degree has not been recognised by the DGMS. Therefore, the respondent cannot be said to possess the qualification stated in the circular letter.14. From the discussions in the foregoing paragraphs the resultant position that emerges is that the High Court erred in holding that the respondent possesses the qualification prescribed for the post of Welfare Officer (Trainee) or for promotion from non-executive cadre to the executive cadre.

1[ds]11. On a fair reading of the provisions of the Rule quoted above it is clear to us that clauses (a), (b) and (c) of(2) of rule 72 are to be read in conjunction with each other and a person in order to be eligible to hold the post of Welfare Officer must fulfil these conditions except the practical experience of handling labour problems in any industrial undertaking for atleast three years which is optional.12. It is not in dispute before us that the respondent does not have a degree ordiploma in Social Science including any degree ordiploma in Sociology/Social Welfare/Work/Service/Science Techniques or Labour Laws/Welfare or Industrial Relations and Personnel Management. The qualification possessed by him is MBA degree (two years course) with `Personnel Management as a special paper which on a bare reading of the provision of the Rule does not come within the qualifications provided therein.13.The further question to be considered is whether the respondent possesses the qualification stated in the letter of the General Manager (Personnel) dated 22.4.1997 (Annexurein which the heads of different units were required to sendves who possess MBA degree (2 years course) with specialisation in Personnel Management duly recognised by DGMS with 40% and above marks.It is not the case of the respondent that MBA degree of Magadh University has been recognised by the DGMS. Indeed, it is the specific stand of the appellant that the said degree has not been recognised by the DGMS. Therefore, the respondent cannot be said to possess the qualification stated in the circular letter.14. From the discussions in the foregoing paragraphs the resultant position that emerges is that the High Court erred in holding that the respondent possesses the qualification prescribed for the post of Welfare Officer (Trainee) or for promotion fromcadre to the executive cadre

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: (for short `DGMS) with 40% and above marks be sent. The respondent claiming to be an eligible candidate wanted his name to be recommended and his bio-data to be sent to the centralized cell of the appellant-company for the purpose. The appellant did not accept the respondent as a candidate possessing the prescribed eligibility qualification4. The respondent filed a writ petition in the High Court seeking a writ of mandamus to the appellant-company to consider his claim for the post. A single Judge of the High Court by the interim order passed on 17th July 1997 directed the appellant-company to allow the petitioner to sit for the examination but ordered that his result shall not be published for a period of two weeks from the date of the order. It was made clear that the order will be subject to the final order which will be passed in the writ petition.5. At the hearing of the writ petition the main contention raised on behalf of the writ petitioner (respondent herein) was that the petitioner holds a MBA degree (two years course) from the Magadh University, Bodhgaya in the State of Bihar, with a special paper in personnel management and therefore he is duly qualified for holding the post of Welfare Officer (Trainee). On the other hand the stand taken by the respondent in the writ petition (appellant herein) was that the writ petitioner does not have the prescribed qualification inasmuch as he does not possess MBA degree with specialisation in personnel management recognised by the DGMS, and therefore, he is not eligible to be considered for the post.6. The learned single Judge allowed the writ petition and directed the respondent (appellant herein) to publish the result of the examination within two weeks. From the discussions in the judgment it appears that the learned single Judge took the view that since the rules merely prescribed that the candidate must possess a degree or post-graduate degree or diploma with specialisation in certain subjects including `Personnel Management; and the writ petitioner holds a MBA degree which is a post-graduate degree from a recognised University with a special paper in `Personnel Management he possesses the prescribed qualification. The Division Bench, in appeal, confirmed the judgment.7. The learned counsel appearing for the appellant referred to the provisions of Rule 72(2)(b) of the Mines Rules, 1955 (for short `the Rules) and contended that a candidate in order to be eligible to hold the post of Welfare Officer must have a MBA degree with specialisation in `Personnel Management which is duly recognised by the Director General, Mines Safety. Since the MBA degree from the Magadh University has not been recognised by the DGMS the respondent cannot be said to be a candidate possessing the eligible qualification.8. Learned counsel appearing for the respondents supported the judgment of the High Court. 9. Since the determination of the controversy raised in the case depends on interpretation of Rule 72(2)(a) of the Rules it will be convenient to quote the said provision before proceeding to consider the merit of the contention raised on behalf of the parties. 10. Sub-rule (2) of Rule 72 prescribes as follows : "(2) No person shall act as a Welfare Officer of a mine unless he possesses -(a) a university degree;(b) a degree or diploma in social science, (or social work) or labour welfare (recognised by the Government for the purpose of this rule), and preferably practical experience of handling labour problems in any industrial undertaking for at least three years; and(c) a knowledge of the language of the district in which the mine is situated or the language understood by the majority of persons employed in the mine :Provided that in case of a person already in service as a Welfare Officer in a mine the above qualifications may, with the approval of the Chief Inspector, be relaxed.(2A) Notwithstanding anything contained in sub-rule (2), the Labour Officers included in the Central Pool under the provisions of the Labour Officers (Central Pool) Recruitment and Conditions of Service Rules, 1951, shall be eligible for appointment as a Welfare Officer in a mine." 11. On a fair reading of the provisions of the Rule quoted above it is clear to us that clauses (a), (b) and (c) of sub-rule (2) of rule 72 are to be read in conjunction with each other and a person in order to be eligible to hold the post of Welfare Officer must fulfil these conditions except the practical experience of handling labour problems in any industrial undertaking for atleast three years which is optional.12. It is not in dispute before us that the respondent does not have a degree or post-graduate diploma in Social Science including any degree or post-graduate diploma in Sociology/Social Welfare/Work/Service/Science Techniques or Labour Laws/Welfare or Industrial Relations and Personnel Management. The qualification possessed by him is MBA degree (two years course) with `Personnel Management as a special paper which on a bare reading of the provision of the Rule does not come within the qualifications provided therein.13. The further question to be considered is whether the respondent possesses the qualification stated in the letter of the General Manager (Personnel) dated 22.4.1997 (Annexure P-IV) in which the heads of different units were required to send bio-data of the non-executives who possess MBA degree (2 years course) with specialisation in Personnel Management duly recognised by DGMS with 40% and above marks. It is not the case of the respondent that MBA degree of Magadh University has been recognised by the DGMS. Indeed, it is the specific stand of the appellant that the said degree has not been recognised by the DGMS. Therefore, the respondent cannot be said to possess the qualification stated in the circular letter.14. From the discussions in the foregoing paragraphs the resultant position that emerges is that the High Court erred in holding that the respondent possesses the qualification prescribed for the post of Welfare Officer (Trainee) or for promotion from non-executive cadre to the executive cadre. ### Response: 1

Narasamma and Ors Vs. A. Krishnappa

that his wife, Smt. Narasamma, possessed title was not established on the basis of the documents sought to be propounded. It is also relevant that none of the parties chose to implead her as a party. Once the case of the original Defendant was that it is Smt. Narasamma who had derived title, and alternative plea was of her adverse possession, then to establish that plea, at least, she ought to have been examined. 29. We may also note that on the one hand, the Appellants herein have sought to take a plea of bar of limitation vis-à-vis the original Defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the Defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the Appellants claimed that the wife of the original Defendant, Appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date. 30. We also find that the reliance placed by learned Counsel for the Appellants in Ravinder Kaur Grewal and Ors.2 is also misplaced. The question which arose for consideration before the three Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge. 31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession, i.e., whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by learned Counsel for the Respondent herein, which succinctly set forth the legal position. 32. In Karnataka Board of Wakf2 case, it has been clearly set out that a Plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that ....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.... 33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs.2, which observed in para 4 as under: 4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the Appellants claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the Appellant. 34. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. 35. In the facts of the present case, this fact has not at all been proved. The possession of Smt. Narasamma, the wife of the Defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars. 36. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out. 37. We may also note another judicial pronouncement in Ram Nagina Rai and Anr. v. Deo Kumar Rai (Deceased) by LRs and Anr.MANU/SC/1003/2018 : (2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the Defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time. 38. The legal position, thus, stands as evolved against the Appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.

0[ds]24. It is relevant to note that on the crucial issue of the factual matrix regarding the documents and the conclusion to be drawn from them, both the Courts are ad idem. Not only grave doubt has been thrown on the story of the Appellants herein, but both Courts also record that the documents sought to be propounded by the Appellants, i.e., the Agreement of Sale, the Power of Attorney and the affidavit, have too many discrepancies to be treated worth their while. This is apart from the fact that the non-registration of the title document in favour of Smt. Narasamma, Appellant 1 herein, was sought to be explained away on the ground of there being a bar/prohibition on transfer of land, which aspect was however not proved by the Appellants by leading any evidence. There is also adverse comment on the testimony of the witnesses, who appeared on behalf of the Appellants, more so DW-2, who was alleged to have scribed Exhibits D-1 and D-2. As noticed above, the conclusion of the Trial Court was that this witness had either forgotten all facts or had given tutored evidence as he claimed that both Exhibits D-1 and D-2 were prepared on the same date while the documents were twelve (12) years apart. In fact, the Trial Court has succinctly set out that the treasury seals were found to be erased and fresh dates affixed on Exhibit D-1, the signature of late Mr. A. Muniswamappa was also found to be erased at a particular place, as also the fact that his name was traced on in the General Power of Attorney, Exhibit D-2. These findings have been categorically affirmed by the High Court, which is the last court on facts.25. We find no reason to disturb these concurrent findings of the Courts below, and even if we independently examine the evidence, there is no reason why we would come to a different conclusion.26. We also note that insofar as the title of the wife of the original Defendant is concerned, there is no doubt that it was an HUF property and was so managed; all technical objections sought to be raised by the Appellants herein have been repelled. However, despite this, the only reason for the High Court to reverse the conclusion of the Trial Court was that the original Defendant had not been able to establish the plea of adverse possession.27. If we examine the judgments of the courts below, more so in the context of the reasons which persuaded the High Court to interfere with the conclusions, which are set out in para 65 of the impugned judgment and extracted by us in para 17 hereinabove, it is our view that the finding that there was no specific plea of adverse possession would be difficult to sustain. We have already stated as to how and in what manner this plea has been set out in the written statement and extracted above. However, that is as far as it goes.28. We have already observed, as aforesaid, that the plea of the original Defendant that his wife, Smt. Narasamma, possessed title was not established on the basis of the documents sought to be propounded. It is also relevant that none of the parties chose to implead her as a party. Once the case of the original Defendant was that it is Smt. Narasamma who had derived title, and alternative plea was of her adverse possession, then to establish that plea, at least, she ought to have been examined.29. We may also note that on the one hand, the Appellants herein have sought to take a plea of bar of limitation vis-à-vis the original Defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the Defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the Appellants claimed that the wife of the original Defendant, Appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.30. We also find that the reliance placed by learned Counsel for the Appellants in Ravinder Kaur Grewal and Ors.2 is also misplaced. The question which arose for consideration before the three Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge.32. In Karnataka Board of Wakf2 case, it has been clearly set out that a Plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that ....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced....33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs.2, which observed in para 4 as under:4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the Appellants claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the Appellant.34. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial.35. In the facts of the present case, this fact has not at all been proved. The possession of Smt. Narasamma, the wife of the Defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.36. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out.37. We may also note another judicial pronouncement in Ram Nagina Rai and Anr. v. Deo Kumar Rai (Deceased) by LRs and Anr.MANU/SC/1003/2018 : (2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the Defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.38. The legal position, thus, stands as evolved against the Appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: that his wife, Smt. Narasamma, possessed title was not established on the basis of the documents sought to be propounded. It is also relevant that none of the parties chose to implead her as a party. Once the case of the original Defendant was that it is Smt. Narasamma who had derived title, and alternative plea was of her adverse possession, then to establish that plea, at least, she ought to have been examined. 29. We may also note that on the one hand, the Appellants herein have sought to take a plea of bar of limitation vis-à-vis the original Defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the Defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the Appellants claimed that the wife of the original Defendant, Appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date. 30. We also find that the reliance placed by learned Counsel for the Appellants in Ravinder Kaur Grewal and Ors.2 is also misplaced. The question which arose for consideration before the three Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasized, nec vi, i.e., adequate in continuity, nec clam, i.e., adequate in publicity and nec precario, i.e., adverse to a competitor, in denial of title and his knowledge. 31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession, i.e., whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by learned Counsel for the Respondent herein, which succinctly set forth the legal position. 32. In Karnataka Board of Wakf2 case, it has been clearly set out that a Plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that ....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.... 33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs.2, which observed in para 4 as under: 4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the Appellants claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the Appellant. 34. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. 35. In the facts of the present case, this fact has not at all been proved. The possession of Smt. Narasamma, the wife of the Defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars. 36. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out. 37. We may also note another judicial pronouncement in Ram Nagina Rai and Anr. v. Deo Kumar Rai (Deceased) by LRs and Anr.MANU/SC/1003/2018 : (2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the Defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time. 38. The legal position, thus, stands as evolved against the Appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date. ### Response: 0

Vishal N Kalsaria Vs. Bank Of India

Code of civil Procedure. The Securitisation Act drastically changed the scenario inasmuch as it enabled banks, financial institutions and other secured creditors to recover their dues without intervention of the Courts or Tribunals. The Securitisation Act also made provision for registration and regulation of securitisation/reconstruction companies, securitisation of financial assets of banks and financial institutions and other related provisions.111. However, what is most significant to be noted is that there is no provision in either of these enactments by which first charge has been created in favour of banks, financial institutions or secured creditors qua the property of the borrower.112. Under Section 13(1) of the Securitisation Act, limited primacy has been given to the right of a secured creditor to enforce security interest vis-à-vis Section 69 or Section 69A of the Transfer of Property Act. In terms of that sub-Section, a secured creditor can enforce security interest without intervention of the Court or Tribunal and if the borrower has created any mortgage of the secured asset, the mortgagee or any person acting on his behalf cannot sell the mortgaged property or appoint a receiver of the income of the mortgaged property or any part thereof in a manner which may defeat the right of the secured creditor to enforce security interest. This provision was enacted in the backdrop of Chapter VIII of Narasimham Committees 2nd Report in which specific reference was made to the provisions relating to mortgages under the Transfer of Property Act.113. In an apparent bid to overcome the likely difficulty faced by the secured creditor which may include a bank or a financial institution, Parliament incorporated the non obstante clause in Section 13 and gave primacy to the right of secured creditor vis a vis other mortgagees who could exercise rights under Sections 69 or 69A of the Transfer of Property Act. However, this primacy has not been extended to other provisions like Section 38C of the Bombay Act and Section 26B of the Kerala Act by which first charge has been created in favour of the State over the property of the dealer or any person liable to pay the dues of sales tax, etc.………………116. The non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act give overriding effect to the provisions of those Acts only if there is anything inconsistent contained in any other law or instrument having effect by virtue of any other law. In other words, if there is no provision in the other enactments which are inconsistent with the DRT Act or Securitisation Act, the provisions contained in those Acts cannot override other legislations.” (emphasis laid by this Court) 31. If the interpretation of the provisions of SARFAESI Act as submitted by the learned senior counsel appearing on behalf of the Banks is accepted, it would not only tantamount to violation of rule of law, but would also render a valid Rent Control statute enacted by the State Legislature in exercise of its legislative power under Article 246 (2) of the Constitution of India useless and nugatory. The Constitution of India envisages a federal feature, which has been held to be a basic feature of the Constitution, as has been held by the seven Judge Bench of this Court in the case of S.R. Bommai & Ors. v. Union of India ((1994) 3 SCC 1 ), wherein Justice K. Ramaswamy in his concurring opinion elaborated as under: “247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals including secularism.248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution.” (emphasis laid by this Court) 32. In view of the above legal position, if we accept the legal submissions made on behalf of the Banks to hold that the provisions of SARFAESI Act override the provisions of the various Rent Control Acts to allow a Bank to evict a tenant from the tenanted premise, which has become a secured asset of the Bank after the default on loan by the landlord and dispense with the procedure laid down under the provisions of the various Rent Control Acts and the law laid down by this Court in catena of cases, then the legislative powers of the state legislatures are denuded which would amount to subverting the law enacted by the State Legislature. Surely, such a situation was not contemplated by the Parliament while enacting the SARFAESI Act and therefore the interpretation sought to be made by the learned counsel appearing on behalf of the Banks cannot be accepted by this Court as the same is wholly untenable in law.33. We are unable to agree with the contentions advanced by the learned counsel appearing on behalf of the respondent Banks. 34. In view of the foregoing, the

1[ds]30. It is a settled position of law that once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act. A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant. A non obstante clause (Section 35 of the SARFAESI Act) cannot be used to bulldoze the statutory rights vested on the tenants under the Rent Control Act. The expression ‘any other law for the time being inas appearing in Section 35 of the SARFAESI Act cannot mean to extend to each and every law enacted by the Central and State legislatures. It can only extend to the laws operating in the same field.we accept the legal submissions made on behalf of the Banks to hold that the provisions of SARFAESI Act override the provisions of the various Rent Control Acts to allow a Bank to evict a tenant from the tenanted premise, which has become a secured asset of the Bank after the default on loan by the landlord and dispense with the procedure laid down under the provisions of the various Rent Control Acts and the law laid down by this Court in catena of cases, then the legislative powers of the state legislatures are denuded which would amount to subverting the law enacted by the State Legislature. Surely, such a situation was not contemplated by the Parliament while enacting the SARFAESI Act and therefore the interpretation sought to be made by the learned counsel appearing on behalf of the Banks cannot be accepted by this Court as the same is wholly untenable in law.33. We are unable to agree with the contentions advanced by the learned counsel appearing on behalf of the respondent Banks.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: Code of civil Procedure. The Securitisation Act drastically changed the scenario inasmuch as it enabled banks, financial institutions and other secured creditors to recover their dues without intervention of the Courts or Tribunals. The Securitisation Act also made provision for registration and regulation of securitisation/reconstruction companies, securitisation of financial assets of banks and financial institutions and other related provisions.111. However, what is most significant to be noted is that there is no provision in either of these enactments by which first charge has been created in favour of banks, financial institutions or secured creditors qua the property of the borrower.112. Under Section 13(1) of the Securitisation Act, limited primacy has been given to the right of a secured creditor to enforce security interest vis-à-vis Section 69 or Section 69A of the Transfer of Property Act. In terms of that sub-Section, a secured creditor can enforce security interest without intervention of the Court or Tribunal and if the borrower has created any mortgage of the secured asset, the mortgagee or any person acting on his behalf cannot sell the mortgaged property or appoint a receiver of the income of the mortgaged property or any part thereof in a manner which may defeat the right of the secured creditor to enforce security interest. This provision was enacted in the backdrop of Chapter VIII of Narasimham Committees 2nd Report in which specific reference was made to the provisions relating to mortgages under the Transfer of Property Act.113. In an apparent bid to overcome the likely difficulty faced by the secured creditor which may include a bank or a financial institution, Parliament incorporated the non obstante clause in Section 13 and gave primacy to the right of secured creditor vis a vis other mortgagees who could exercise rights under Sections 69 or 69A of the Transfer of Property Act. However, this primacy has not been extended to other provisions like Section 38C of the Bombay Act and Section 26B of the Kerala Act by which first charge has been created in favour of the State over the property of the dealer or any person liable to pay the dues of sales tax, etc.………………116. The non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act give overriding effect to the provisions of those Acts only if there is anything inconsistent contained in any other law or instrument having effect by virtue of any other law. In other words, if there is no provision in the other enactments which are inconsistent with the DRT Act or Securitisation Act, the provisions contained in those Acts cannot override other legislations.” (emphasis laid by this Court) 31. If the interpretation of the provisions of SARFAESI Act as submitted by the learned senior counsel appearing on behalf of the Banks is accepted, it would not only tantamount to violation of rule of law, but would also render a valid Rent Control statute enacted by the State Legislature in exercise of its legislative power under Article 246 (2) of the Constitution of India useless and nugatory. The Constitution of India envisages a federal feature, which has been held to be a basic feature of the Constitution, as has been held by the seven Judge Bench of this Court in the case of S.R. Bommai & Ors. v. Union of India ((1994) 3 SCC 1 ), wherein Justice K. Ramaswamy in his concurring opinion elaborated as under: “247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals including secularism.248. The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution.” (emphasis laid by this Court) 32. In view of the above legal position, if we accept the legal submissions made on behalf of the Banks to hold that the provisions of SARFAESI Act override the provisions of the various Rent Control Acts to allow a Bank to evict a tenant from the tenanted premise, which has become a secured asset of the Bank after the default on loan by the landlord and dispense with the procedure laid down under the provisions of the various Rent Control Acts and the law laid down by this Court in catena of cases, then the legislative powers of the state legislatures are denuded which would amount to subverting the law enacted by the State Legislature. Surely, such a situation was not contemplated by the Parliament while enacting the SARFAESI Act and therefore the interpretation sought to be made by the learned counsel appearing on behalf of the Banks cannot be accepted by this Court as the same is wholly untenable in law.33. We are unable to agree with the contentions advanced by the learned counsel appearing on behalf of the respondent Banks. 34. In view of the foregoing, the ### Response: 1

Dr. Indramani Pyarelal Gupta Vs. W. R. Nathu And Others

was not comprehended by the phrase "under the Act", it would be illogical to hold that it would take in a bye-law. If would mean that the Legislature specially provided for a rule, which has certainly a higher status than bye-law in legislative practice, while it treated a bye-law as a provision of Act, that cannot be. The other reason that may be suggested is that the word "prescribed" was used in superabundant caution or by mistake. If superabundant caption was required to mention separately the rules, greater caution would have been necessary to provide separately for a bye-law. A court ordinarily shall attempt to give meaning to every word used by the Legislature, unless it is impossible to do so. Here there is not only no such impossibility, but there is also a good reason for the Legislature in excluding the bye-law from the operation of cl. (f) of S. 4 of the Act.66.. Subordinate or delegated legislation takes different forms. Subordinate legislation is divided into two main classes, namely, (i) statutory rules, and (ii) bye-laws or regulations made (a) by authorities concerned with local government, and (b) by persons, societies, or corporations. The Act itself recognizes this distinction and provides both for making of the rules as well as bye-laws. A comparative study of Ss. 11 and 12 whereunder power is conferred on the Central Government and recognized associations to make bye-laws on the one hand, and S. 28, whereunder the Central Government is empowered to make rules on the other, indicate that the former are intended for conducting the business of the association and the latter for the purpose of carrying into effect the objects of the Act. In considering the question raised in this case this distinction will have to be borne in mind.67. It would be unreasonable to assume that a private association, though registered under the Act, could confer powers on a statutory authority under the Act. That is why under S. 4 (f), the Legislature did not think fit to provide for the assignment of a function to the Commission in exercise of a power under a bye-law. The non-mention of bye-laws in cl. (f) is not because of any accidental permission but a deliberate one, because of the incongruity of an assignment of a function to the Commission under a bye-law. I would, therefore, construe the words "by or under this Act or as may be prescribed" as follows : "by this Act" applies to powers assigned proprio vigore by the provisions of the Act; "under this Act" applies to an assignment made in exercise of an express power conferred under the provisions of the Act; and "may be prescribed" takes in an assignment made in exercise of a power conferred under a rule. This construction gives a natural meaning to the plain words used in the section and avoids stretching the language of a statutory provision to save an illegal bye-law. In this context two decisions are cited at the Bar. The first is that of the Judicial Committee in 76 Ind. App 57: (AIR 1949 PC 136 ). There, under S. 3(2)(f) of the Indian Electricity Act (No. IX of 1910) "the provisions contained in the Schedule shall be deemed to be incorporated with and to form part of, every licence granted under this Part." Under S. 4(1)(a) of the said Act, "The Provincial Government may, if in its opinion the pubic interest so requires, revoke a license." inter alia, if "the licensee in the opinion of the Provincial Government makes wilful and unreasonably prolonged default in doing anything required of him by or under this Act." Under sub-cl. (6) of the Schedule, a licensee had to comply with certain conditions. The Government revoked the licence on the ground that the licensee did not comply with the conditions laid down in Schedule VI, which were deemed to be incorporated in the licence by virtue of S. 3(2), and therefore he did not do the thing required of him within the meaning of S. 4 of that Act. The Privy Council held that the performance by the licensee of the conditions of the Schedule to the Act was clearly required to be made under the Act. This decision does not help us very much in the present case, as the question of bye-law did not arise therein. Nor the decision of the Madras High Court in ILR (1958) Mad 513: (AIR 1958 Mad 343 ) is of any assistance. There the question was whether the regulations framed by the Life Insurance Corporation by virtue of the powers vested in it by Act 31 of 1956 prohibiting the employees from standing for election fell within the meaning of the words "under any law" in Art 191 (1)(e) of the Constitution. The High Court held that the regulations were law made under the Act of Parliament. The conclusion was based on the principle that the rule made in pursuance of the delegated power has the same validity and has the same characteristic as a law made directly by the Parliament. Apart from the fact that the words to he construed there were different and in a sense wider than the words to be construed in the present case, the principle accepted in the decision is only of a general application and does not help to construe the specific words of cl. (f) of S. 4; their meaning can be gathered only by interpreting the said words, having regard to the setting and the context in which they are used.68. For the foregoing reasons, I would hold that the Government had no power under S. 12 of the Act to make a bye-law assigning any function to the Commission. It follows that the notification dated January 24, 1956, by the Forward Markets Commission was illegal and the appellants would be entitled to the issue of a writ of mandamus in the terms prayed for. In the result, the appeal is allowed with costs.ORDERSINHA, J.69.

0[ds]In our opinion, these decisions afford no assistance for resolving the controversy before us. There is no question here of deducing an implied power from the grant of an express one. What we are concerned with is the scope of the grant of an express power or rather whether the grant of the power conferred upon the Commission by the bye-law could be held to be a power which could be assigned to the Commission under cl (f). So far as the terms of cl.(f) are concerned there is no limitation upon the nature of the power that might be conferred except, of course, that which might flow from its having to be one in relation to true regulation of forward trading in goods which the Act is designed to effectuate. Any limitation therefore would have to be deduced from outside cl. (f) of S. 4. Taking each of the clauses,(a) to (e), it is not possible to put them positively under one genus in order that there might be scope for the application of the ejusdem generis rule of construction.. Negatively, no doubt it might be said that none of these five clauses confer on executive power such as has been vested in them by the amended Bye-law 52AA but this cannot be the foundation for attracting the rule of construction on which learned Counsel relies. On the other hand, if there is no common positive thread running through cls. (a) to (e) such as would bring them under one genus and negatively they do not unit expressly include any administrative or executive functions, that itself might be a reason why the expression "other" occurring in cl. (f) should receive the construction that it is intended to comprehend such awe are here concerned with is whether it is legally competent to vest a particular power in a statutory body, and in regard to this the proper rule of interpretation would be that unless the nature of the power is such as to be incompatible with the purpose for which the body is created, or unless the particular power is contra-indicated by any specific provision of the enactment bringing the body into existence, any power which would further the provisions of the Act could be legally conferred on it. Judged by this test, it would be obvious that the power conferred by the bye-law is one which could be validly vested in theCounsel is undoubtedly right in his submission that a power conferred by a law is not one conferred "by the Act", for in the context the expression "conferred by the Act" would mean "conferred expressly or necessary implication by the Act itself." It is also common ground that a bye law framed under Sections(11) or 12 could not fall within the phraseology "as may be prescribed", for the expression "prescribed" has been defined to mean "by rules under the Act", i.e, those framed under S.28 and a bye law is certainly not within that description. The question therefore is whether a power "conferred by a bye-law could be held to be a power conferred under the Act". The meaning of the words under the Act" is well known."By an Act would mean by a provision directly enacted in the statute in question and which is gatherable from its express languages or by necessary implication therefrom. The words "under the Act" would in that context signify what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done; in other words, bye-laws made by Subordinate law-making authority which is empowered to do so by the parent Act. The distinction is thus between what is directly done by the enactment and what is done indirectly by rule-making authorities which are vested with powers in that behalf by thefind ourselves wholly unable to accept this argument. If without the reference to the phrase "as may be prescribed" the words ":under the Act" would comprehend powers which might be conferred under "bye-laws" as well as those under "rules" we are unable to appreciate the line of reasoning by which powers conferred by bye-laws have to be excluded, because of the specific reference to powers conferred by "rules". Undoubtedly, there is some little tautology in the use of the expression "as may be prescribed" after the comprehensive reference to the powers conferred "under the Act", but in order merely to avoid redundancy you cannot adopt a rule of construction on which cuts down the amplitude of the words used except, of course, to avoid the redundancy. Thus the utmost that could be said would be that though normally and in their ordinary, signification the words "under the Act" would include both "rules" framed under S.28 as well as "bye-laws" under S. 11 or 12, the reference to "rules" might be eliminated as tautologous since they have been specifically provided by the words that follow. But beyond that to claim that for the reason that it is redundant as to a part, the whole content of the words "under the Act" should be discarded, and the words "by the Act" should be read in a very restricted and, if one may add, in an unnatural sense as excluding a power conferred by necessary implication, when such a power would squarely fall within the reach of these words would not, in our opinion, be any reasonable construction of the provision. We need only add that the construction we have reached of S.4 (f) is reinforced by the language of S.3(1) which is free from the ambiguity created by the occurrence of the expression "as may be prescribed" in the former. We have therefore no hesitation in holding that there was no incompetency in the Forward Markets Commission being the recipient of the power which was conferred upon them by Bye-law 52AA asin the amended bye-law occurring in the group of existing bye-law making provision for emergencies to which sub-clause (o) of S. 11(2) refers, there is no dispute that there was an emergency in the forward market and that the impugned bye-law was framed to meet such a contingency. It was not contended before us that the method by which the emergency was resolved by the impugned bye-law-viz., by closing out subsisting contract was not the usual method employed for the purpose. If therefore the bye-law was a provision for an emergency within S.l1(2)(o) then it would seen to follow that for the resolution of that emergency, every one of the matters which could be included in such bye-laws would be attracted to it, and so we find it impossible to accept Mr. Pathaks submission regarding the invalidity of the bye- law.An analysis of the impugned Bye-law 52 AA and a comparison of it with that which it replaced would show that the main point of difference is that whereas formerly action to stop forward trading and for closing out contracts and to fix the rate at which contracts were to be closed out was vested in the Textile Commissioner, acting with the concurrence of the Forward Markets Commission, under the amended bye-law the power is directly vested in the Forward Markets Commission itself. The arguments, addressed to us on this point are concerned not so much with the propriety as with the vires of a provision by which the power to close out contracts by- the issue of a notification is vested in the Commission. Apart from an argument immediately to be noticed we do not see how, if such a power could validly be conferred upon a Textile Commission or even exercised by the Board of the Association under a bye-law framed under S.11, the same would be beyond the power to make bye -laws under S. 11 by the mere fact that the authority vested with the power is the Forward Markets Commission. We are clearly of the opinion that Bye law 52AA is well within the bye-law making power under S. 11 of the Act and therefore within S.therefore a bye-law could be made by the Association it is manifest that there is no limitation upon its powers such as is to be found in Art. 64 which applies only to the Board. The validity of the bye-law therefore cannot be challenged by reference merely to the powers of the Board, because what is contemplated by S. 11 is the power of the recongnised Association" to frame the bye-law. We have therefore no hesitation in rejecting the contention that the bye-law as framed contravenes the rules of theis thus clear that the entire machinery for resolving emergencies such as is contemplated by bye-law 52A includes the suspension of forward business together with the closing out of forward contracts of hedge and on call types whose volume or nature had led to the emergency. It proceeds on the basis that the crisis could not be met unless subsisting contracts were closed out and, so to speak, a new chapter begun. That is the ratio underlying the combined effect of Bye laws 52AA and 52A and in view of this circumstances the argument that on a reasonable construction of the amended bye-law it would apply to contracts to be entered into in future and not to subsisting contracts must bedo not however consider it necessary to canvass the correctness of this decision or the broad propositions laid down in it. It is clear law that a Statute which could validly enact a law with retrospective effect could in express terms validly confer upon a rule- making authority a power to make a rule or frame a bye-law having retrospective operation and we would add that we did not understand Mr. Pathak to dispute this position. If this were so the same result would follow where the power to enact a rule or a bye-law with "retrospective effect" so as to affect pending transactions, is conferred not by express words but where the necessary intendment of the Act confers such a power. If in the present case the power to make a bye-law so as to operate on contacts subsisting on the day the same was framed, would follow as a necessary implication from the terms of S. 11, it would not be necessary to discuss the latter question as to whether and the circumstances in which Subordinate legislation with retrospective effect could be validlyindicate that in the context of a crisis in forward trading the closing out of contracts was a necessary method of exercising control and was the mechanism by which the enactment contemplated that normalcy could be restored and healthy trading resumed.If therefore we eliminate the provisions in Ss. 16, 17 and 19 as not containing any indication that a power to frame a bye-law with retrospective effect was withheld from the Association, the question whether such bye-law-making power was conferred has to be gathered from the terms of S. 11 itself. Thus considered we are clearly of the opinion that a power to frame a bye-law for emergencies such as those for which a bye-law like 51AA is intended includes a power to frame one so as to affect subsisting contracts for resolving crisis in Forward Markets Commission. We have already referred to the terms of bye-law 52A which shows that when an emergency of the type referred to in S.11(2) (o) arises it is not practicable to rescue a forward market from a crisis without (1) putting an end to forward trading, and (2) closing out subsisting contracts so as to start with a clean slate for theis manifest that the section contemplates the making of a bye-law regulating the performance of contracts, the rescission and termination of contracts and this could obviously refer only to the bye-law affecting rights under contracts which are subsisting on the day the action is taken. It is therefore manifest that S.11 authorises the framing of a bye-law which would operate retrospectively in the sense that it affects rights of parties under subsisting contracts. Finally it should be borne in mind that ultimately what we are concerned in S. 11 of the Act is the power of the Association to frame the bye-law, for if the Association could validly frame such a bye-law, the Central Government could under S. 12 have a similar power. We did not hear any argument to establish that the Association had no suchThere is one other aspect in which the same problem might be viewed and it is this :The contract entered into by the respondents (sic) purported to be one under the bye-laws for the time being in force and any change in the bye-laws therefore would seem to be contemplated and provided for by the contract itself, so that it might not be correct to speak of the new bye-law as affecting any accrued rights under a contract. For when those bye-laws were altered the changes would get incorporated into the contracts themselves, so as to afford no scope for the argument that there has been an infringement of a vested right. In the view however which we have taken about the validity of the bye-law on the ground that it was well within the terms of Ss. 11 and 12 we do not consider it necessary to pursue this aspect further or to rest our decision onground of mala fides alleged was that the impugned notification was issued in order to prevent the Board of Directors of the Association from applying their minds and exercising their judgment which they were directed to do by the terms of the Consent Memo filed on which the appeal from the judgment in C. S. 2 of 1956 was disposed of on January 24, 1956. To the allegation made in this form in the petition the first respondent, the Chairman of the Forward Markets Commission, filed an affidavit in the course of which he pointed out that the continuance of trading in futures was in the circumstances then prevailing in the market detrimental then prevailing in the market detrimental to the interests of the trade and that a conclusion on this matter had been reached by the Commission even before Bye-law 52AA was amended, that the question of closing out existing contracts was engaging the attention of even the Board of the Association from as early as the beginning of January 1956 and it was for the purpose of enables the Commission to take action to set right matters that Bye-law 52AA was amended and that immediately the amended bye-law came into force the Commission took action and issued the notification now impugned. He also pointed out that the liberty given to the Association to consider the matter under the terms of the Compromise Memo was a factor which had also been taken into account before the notification had been taken into account before the notification had been issued. The learned Judges of the High Court accepted this explanation of the circumstances in which the notification came to be issued and considered that on the allegation in the petition no mala fides could be inferred. We are in entire agreement with the learned Judges of the High Court on this point. No personal motive or mala fides in that sense has been attributed to the members of the Commissioner and in these circumstances we consider that there is no basis for impugning the notification on the ground that it was not issued bonadecision is, therefore, an authority for the position that unless a statute confers on the Government an express power to make an order with retrospective effect, it cannot exercise such a power. The Mysore High Court in a considered judgment in AIR 1960 Mys. 326, dealt with the question that now arises for consideration. There, the Government issued three notifications dated 9-4-1956, 15-10-1957 and 13-2-1958 purporting to act under S.14(1) of the Madras Sugar Factories Central Act, 1949, where by cess was imposed on sugarcane brought and crushed in petitioners factory for the crushing season 1955-56, 1956-57 and 1957-58 respectively. One of the questions raised was whether under the said section the Government and power to issue the notifications imposing a cess on sugarcane brought and crushed in petitioners factory for a period prior to the date of the said notifications. Das Gupta, C.J., delivering the judgment of the Division Bench held that it could not.

### Instruction: From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant. ### Input: was not comprehended by the phrase "under the Act", it would be illogical to hold that it would take in a bye-law. If would mean that the Legislature specially provided for a rule, which has certainly a higher status than bye-law in legislative practice, while it treated a bye-law as a provision of Act, that cannot be. The other reason that may be suggested is that the word "prescribed" was used in superabundant caution or by mistake. If superabundant caption was required to mention separately the rules, greater caution would have been necessary to provide separately for a bye-law. A court ordinarily shall attempt to give meaning to every word used by the Legislature, unless it is impossible to do so. Here there is not only no such impossibility, but there is also a good reason for the Legislature in excluding the bye-law from the operation of cl. (f) of S. 4 of the Act.66.. Subordinate or delegated legislation takes different forms. Subordinate legislation is divided into two main classes, namely, (i) statutory rules, and (ii) bye-laws or regulations made (a) by authorities concerned with local government, and (b) by persons, societies, or corporations. The Act itself recognizes this distinction and provides both for making of the rules as well as bye-laws. A comparative study of Ss. 11 and 12 whereunder power is conferred on the Central Government and recognized associations to make bye-laws on the one hand, and S. 28, whereunder the Central Government is empowered to make rules on the other, indicate that the former are intended for conducting the business of the association and the latter for the purpose of carrying into effect the objects of the Act. In considering the question raised in this case this distinction will have to be borne in mind.67. It would be unreasonable to assume that a private association, though registered under the Act, could confer powers on a statutory authority under the Act. That is why under S. 4 (f), the Legislature did not think fit to provide for the assignment of a function to the Commission in exercise of a power under a bye-law. The non-mention of bye-laws in cl. (f) is not because of any accidental permission but a deliberate one, because of the incongruity of an assignment of a function to the Commission under a bye-law. I would, therefore, construe the words "by or under this Act or as may be prescribed" as follows : "by this Act" applies to powers assigned proprio vigore by the provisions of the Act; "under this Act" applies to an assignment made in exercise of an express power conferred under the provisions of the Act; and "may be prescribed" takes in an assignment made in exercise of a power conferred under a rule. This construction gives a natural meaning to the plain words used in the section and avoids stretching the language of a statutory provision to save an illegal bye-law. In this context two decisions are cited at the Bar. The first is that of the Judicial Committee in 76 Ind. App 57: (AIR 1949 PC 136 ). There, under S. 3(2)(f) of the Indian Electricity Act (No. IX of 1910) "the provisions contained in the Schedule shall be deemed to be incorporated with and to form part of, every licence granted under this Part." Under S. 4(1)(a) of the said Act, "The Provincial Government may, if in its opinion the pubic interest so requires, revoke a license." inter alia, if "the licensee in the opinion of the Provincial Government makes wilful and unreasonably prolonged default in doing anything required of him by or under this Act." Under sub-cl. (6) of the Schedule, a licensee had to comply with certain conditions. The Government revoked the licence on the ground that the licensee did not comply with the conditions laid down in Schedule VI, which were deemed to be incorporated in the licence by virtue of S. 3(2), and therefore he did not do the thing required of him within the meaning of S. 4 of that Act. The Privy Council held that the performance by the licensee of the conditions of the Schedule to the Act was clearly required to be made under the Act. This decision does not help us very much in the present case, as the question of bye-law did not arise therein. Nor the decision of the Madras High Court in ILR (1958) Mad 513: (AIR 1958 Mad 343 ) is of any assistance. There the question was whether the regulations framed by the Life Insurance Corporation by virtue of the powers vested in it by Act 31 of 1956 prohibiting the employees from standing for election fell within the meaning of the words "under any law" in Art 191 (1)(e) of the Constitution. The High Court held that the regulations were law made under the Act of Parliament. The conclusion was based on the principle that the rule made in pursuance of the delegated power has the same validity and has the same characteristic as a law made directly by the Parliament. Apart from the fact that the words to he construed there were different and in a sense wider than the words to be construed in the present case, the principle accepted in the decision is only of a general application and does not help to construe the specific words of cl. (f) of S. 4; their meaning can be gathered only by interpreting the said words, having regard to the setting and the context in which they are used.68. For the foregoing reasons, I would hold that the Government had no power under S. 12 of the Act to make a bye-law assigning any function to the Commission. It follows that the notification dated January 24, 1956, by the Forward Markets Commission was illegal and the appellants would be entitled to the issue of a writ of mandamus in the terms prayed for. In the result, the appeal is allowed with costs.ORDERSINHA, J.69. ### Response: 0

Andhra Steel Corporation Ltd. Etc Vs. Andhra Pradesh State Electricityboard And Ors

them from payment of sales tax. What consequently follows is that the exemption granted by the government was only by way of concession. Once this position emerges it goes without saying that a concession can be withdrawn at any time and no time limit can be insisted upon before the concession is withdrawn. The notifications of the government clearly manifest that the State Government had earlier granted the exemption only by way of concession and subsequently by means of the revised notification issued on July 17, 1971, the concession had been withdrawn. As the State Government was under no obligation, in any manner known to law, to grant exemption it was fully within its powers to revoke the exemption by means of a subsequent notification. This is an additional factor militating against the contentions of the appellants." * 14. It was further held : (SCC p. 37, para 11) "The exemption granted by the government as already stated, was only by way of concession for encouraging entrepreneurs to start industries in rural and undeveloped areas and as such it was always open to the State Government to withdraw or revoke the concession. We must, however, observe that the power of revocation or withdrawal would be subject to one limitation viz. the power cannot be exercised in violation of the rule of promissory estoppel. In other words, the government can withdraw an exemption granted by it earlier if such withdrawal could be done without offending the rule of promissory estoppel and depriving an industry entitled to claim exemption from payment of tax under the said rule. If the government grants exemption to a new industry and if on the basis of the representation made by the government an industry is established in order to avail the benefit of exemption, it may then follow that the new industry can legitimately raise a grievance that the exemption could not be withdrawn except by means of legislation having regard to the fact that promissory estoppel cannot be claimed against a statute." * 15. This being the law with regard to grant of concession we are of the opinion that neither of the two orders mentioned above can be said to be illegal on the ground that they were passed in violation of principles of natural justice. The only question in this connection which survives is that of promissory estoppel. With regard to this plea it would be seen that it is not the case of the appellants that they established their mini plants after the grant of concessional tariff by the two government orders referred to above and but for the grant of such concessional tariff they would not have established their mini plants. The necessary facts so as to sustain the plea of promissory estoppel are not, in our opinion, to be found to have been either pleaded or established by the appellants. To take it by way of an illustration reference may be made to the special leave petition gibing rise to Civil Appeal Nos. 1454-1463 of 1981 filed by M/s. Andhra Steel Corporation Ltd. The plea with regard to promissory estoppel is to be found in ground No. (i) which reads "Whether in view of the fact that the petitioner had acted upon the Government orders dated November 2, 1977 and November 26, 1977 and thus altered its position (as without the concessions being granted to the petitioner they would not have possibly run the industry, since it was bound to suffer huge losses) is the State Government estopped from revoking, or modifying the same before the full period of concession had run out of efflux of time that is, by October 31, 1980 ?" * 16. Almost identical is ground No. (i) in the special leave petition giving rise to Civil Appeal Nos. 1642-1645 of 1981. The use of the word "possibly" is obviously indicative of lack of specific averment with regard to principle of estoppel. Even such an averment has not been made qua the Electricity Board. With regard to the plea based on the doctrine of legitimate expectation suffice it to say that except invoking the said doctrine nothing substantial was brought to our notice on the basis of which the appellants could be held entitled to any relief 17. Insofar as the Government Order dated January 16, 1980 on which reliance has been placed by learned counsel for the appellants in the alternative is concerned it may be pointed out that the said order even though in substance amounts to a clarification of the earliest order of clarification dated December 5, 1978, states nothing as to why the clarification contained in the order dated December 5, 1978 in categorical terms did not express the real intention of the State Government in issuing the earlier government orders granting concessional tariff. As already indicated above, the orders granting concessional tariff, in our opinion, did not either expressly or by necessary implication grant immunity to the mini steel plants from their obligation to pay minimum charges and this having been categorically stated by the State Government in its clarificatory order dated December 5, 1978 there was apparently no basis for issuing the second clarificatory order dated January 16, 1980. Further, the said order dated January 16, 1980 had been issued on some representation made on behalf of the mini steel plants as a point of time when writ petitions on their behalf had already been filed in the High Court and the matter was sub judice. In such a situation, apart from the propriety of issuing the second clarificatory order dated January 16, 1980 it is obvious that what was contained in this order is analogous to an averment made by the State Government in reply to the writ petitions filed on behalf of the appellants. In our opinion, in the circumstances pointed out above the order dated January 16, 1980 has no bearing in finding out the true import of the orders of the State Government granting concessional tariff

0[ds]9. Having considered the respective submissions of learned counsel for the parties on this point we are of the opinion that on the facts of the instant appeals it is not necessary to go into the rival contentions referred to above on this point. Here, the Electricity Board as is apparent from its proceedings dated January 20, 1978 proceeded to implement the directions with regard to fixation of concessional tariff issued by the State Government and resolved to realise electricity charges from the appellants only at the concessional tariff of 12.2 p. as fixed in the Government Order dated November 26, 1977. It, however, took the further view in the said proceedings that the directions issued by the government did not have any bearing on the obligation of the appellants to pay minimum charges which they were bound to pay under the agreements executed by them even though such minimum charges were to be calculated at the rate of 12.2 p. per unit subject to escalation as indicated in the government orders in question. Such minimum charges were payable even if no electricity was consumed by the appellants for any reason whatsoever. It is in this context that we are of the opinion that the question with regard to the nature of a direction issued under Section 78-A of the Act is only of academic value in these appeals. The basic question which falls for our consideration, however, is as to whether the obligation of the appellants to pay minimum charges under the agreements executed by them ceased to be operative on account of the directions issued by the State Government fixing concessional tariff as has been asserted by learned counsel for the appellants. As indicated earlier the case of the Electricity Board in this behalf has been that the directions in question did not have any bearing on the obligation of the appellants to continue to pay minimum charges, of course, to be calculated on the basis of the concessional tariff of 12.2 p. per unit. A plaint reading of the Government Orders dated November 2, 1977 and November 26, 1977 makes it clear that there is no specific direction contained therein that the appellants would not be bound to pay minimum charges or that the obligation to pay minimum charges under the agreements executed by them would remain suspended during the period when the concessional tariff would be operative. What was, however, urged by learned counsel for the appellants was that the very purpose of fixing concessional tariff by the State Government would be frustrated if the appellants are held to be bound to continue to pay minimum charges in pursuance of the agreements entered into by them. With regard to this submission it is at the outset necessary to appreciate the genesis of prescription of minimum charges. To put it succinctly the purpose of prescribing minimum charges is to ensure that no undue loss is caused to the Electricity Board because the absence of minimum charges is likely to create a tendency in a prospective consumer to have connection for an inflated requirement and having agreed to meet such requirement the Electricity Board would be under an obligation to maintain the supply up to that requirement even if on or very little energy is consumed.In our opinion, on the material placed before us it is not possible to take the view that such was the intention of the State Government in directing supply to be made to the appellants on concessional tariff. That it was not the intention of the State Government to do so was subsequently clarified by the State Government itself vide Government Order dated December 5, 1978. In this view of the matter the submission made on behalf of the appellants that with the grant of concessional tariff the agreements in so far as they required the appellants to pay minimum charges ceased to be operative or that the purpose of granting concessional tariff was likely to be frustrated if they were required to continue to pay minimum charges cannot, therefore, be accepted. In granting concessional tariff obviously it does not appear to be the purpose to compel the Electricity Board to maintain the supply of the contracted load of electricity to the appellants by incurring losses in the manner stated above. The only purpose in directing supply of energy at concessional rates was to reduce the charges of actual energy consumed by the appellants and this purpose could not be frustrated till the Electricity Board complied with the direction of supplying electricity to them at the concessional rate. In this view of the matter it is apparent that the direction of the State Government to the Electricity Board to supply electricity to the appellants at concessional rate did not either expressly or by necessary implication grant immunity to the appellants from payment of minimumThis being the law with regard to grant of concession we are of the opinion that neither of the two orders mentioned above can be said to be illegal on the ground that they were passed in violation of principles of natural justice. The only question in this connection which survives is that of promissory estoppel. With regard to this plea it would be seen that it is not the case of the appellants that they established their mini plants after the grant of concessional tariff by the two government orders referred to above and but for the grant of such concessional tariff they would not have established their mini plants. The necessary facts so as to sustain the plea of promissory estoppel are not, in our opinion, to be found to have been either pleaded or established by the appellants.Insofar as the Government Order dated January 16, 1980 on which reliance has been placed by learned counsel for the appellants in the alternative is concerned it may be pointed out that the said order even though in substance amounts to a clarification of the earliest order of clarification dated December 5, 1978, states nothing as to why the clarification contained in the order dated December 5, 1978 in categorical terms did not express the real intention of the State Government in issuing the earlier government orders granting concessional tariff. As already indicated above, the orders granting concessional tariff, in our opinion, did not either expressly or by necessary implication grant immunity to the mini steel plants from their obligation to pay minimum charges and this having been categorically stated by the State Government in its clarificatory order dated December 5, 1978 there was apparently no basis for issuing the second clarificatory order dated January 16, 1980. Further, the said order dated January 16, 1980 had been issued on some representation made on behalf of the mini steel plants as a point of time when writ petitions on their behalf had already been filed in the High Court and the matter was sub judice. In such a situation, apart from the propriety of issuing the second clarificatory order dated January 16, 1980 it is obvious that what was contained in this order is analogous to an averment made by the State Government in reply to the writ petitions filed on behalf of the appellants. In our opinion, in the circumstances pointed out above the order dated January 16, 1980 has no bearing in finding out the true import of the orders of the State Government granting concessional tariff

### Instruction: Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant? ### Input: them from payment of sales tax. What consequently follows is that the exemption granted by the government was only by way of concession. Once this position emerges it goes without saying that a concession can be withdrawn at any time and no time limit can be insisted upon before the concession is withdrawn. The notifications of the government clearly manifest that the State Government had earlier granted the exemption only by way of concession and subsequently by means of the revised notification issued on July 17, 1971, the concession had been withdrawn. As the State Government was under no obligation, in any manner known to law, to grant exemption it was fully within its powers to revoke the exemption by means of a subsequent notification. This is an additional factor militating against the contentions of the appellants." * 14. It was further held : (SCC p. 37, para 11) "The exemption granted by the government as already stated, was only by way of concession for encouraging entrepreneurs to start industries in rural and undeveloped areas and as such it was always open to the State Government to withdraw or revoke the concession. We must, however, observe that the power of revocation or withdrawal would be subject to one limitation viz. the power cannot be exercised in violation of the rule of promissory estoppel. In other words, the government can withdraw an exemption granted by it earlier if such withdrawal could be done without offending the rule of promissory estoppel and depriving an industry entitled to claim exemption from payment of tax under the said rule. If the government grants exemption to a new industry and if on the basis of the representation made by the government an industry is established in order to avail the benefit of exemption, it may then follow that the new industry can legitimately raise a grievance that the exemption could not be withdrawn except by means of legislation having regard to the fact that promissory estoppel cannot be claimed against a statute." * 15. This being the law with regard to grant of concession we are of the opinion that neither of the two orders mentioned above can be said to be illegal on the ground that they were passed in violation of principles of natural justice. The only question in this connection which survives is that of promissory estoppel. With regard to this plea it would be seen that it is not the case of the appellants that they established their mini plants after the grant of concessional tariff by the two government orders referred to above and but for the grant of such concessional tariff they would not have established their mini plants. The necessary facts so as to sustain the plea of promissory estoppel are not, in our opinion, to be found to have been either pleaded or established by the appellants. To take it by way of an illustration reference may be made to the special leave petition gibing rise to Civil Appeal Nos. 1454-1463 of 1981 filed by M/s. Andhra Steel Corporation Ltd. The plea with regard to promissory estoppel is to be found in ground No. (i) which reads "Whether in view of the fact that the petitioner had acted upon the Government orders dated November 2, 1977 and November 26, 1977 and thus altered its position (as without the concessions being granted to the petitioner they would not have possibly run the industry, since it was bound to suffer huge losses) is the State Government estopped from revoking, or modifying the same before the full period of concession had run out of efflux of time that is, by October 31, 1980 ?" * 16. Almost identical is ground No. (i) in the special leave petition giving rise to Civil Appeal Nos. 1642-1645 of 1981. The use of the word "possibly" is obviously indicative of lack of specific averment with regard to principle of estoppel. Even such an averment has not been made qua the Electricity Board. With regard to the plea based on the doctrine of legitimate expectation suffice it to say that except invoking the said doctrine nothing substantial was brought to our notice on the basis of which the appellants could be held entitled to any relief 17. Insofar as the Government Order dated January 16, 1980 on which reliance has been placed by learned counsel for the appellants in the alternative is concerned it may be pointed out that the said order even though in substance amounts to a clarification of the earliest order of clarification dated December 5, 1978, states nothing as to why the clarification contained in the order dated December 5, 1978 in categorical terms did not express the real intention of the State Government in issuing the earlier government orders granting concessional tariff. As already indicated above, the orders granting concessional tariff, in our opinion, did not either expressly or by necessary implication grant immunity to the mini steel plants from their obligation to pay minimum charges and this having been categorically stated by the State Government in its clarificatory order dated December 5, 1978 there was apparently no basis for issuing the second clarificatory order dated January 16, 1980. Further, the said order dated January 16, 1980 had been issued on some representation made on behalf of the mini steel plants as a point of time when writ petitions on their behalf had already been filed in the High Court and the matter was sub judice. In such a situation, apart from the propriety of issuing the second clarificatory order dated January 16, 1980 it is obvious that what was contained in this order is analogous to an averment made by the State Government in reply to the writ petitions filed on behalf of the appellants. In our opinion, in the circumstances pointed out above the order dated January 16, 1980 has no bearing in finding out the true import of the orders of the State Government granting concessional tariff ### Response: 0

Hasmukh S/O Bhagwanji M. Patel Vs. The State Of Gujarat & Ors

facts and circumstances of the particular case. In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the facts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudiram case (supra). 19. In the instant case, the grounds supplied to the detenu were elaborate and full and contained all the "basic facts", although they did not set out all the details or particulars of those "basic facts" relied upon or referred to there in. There was thus no breach of the first constitutional imperative embodied in Article 22(5). The short question, therefore, for consideration is : Was the period of 17 days (exclusive of the time taken for communications in transit) for the supply of the further particulars of the basic facts to the detenu "unreasonable" in the circumstances of the case ? In the instant case, several causes contributed to this "delay". Firstly, this a case in which the detenu was according to the allegations in the grounds of detention and the averments in the counter-affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the Government of Gujarat, indulging in smuggling out silver from India and exporting it to the gulf countries in a big way. This silver which was the subject of this illegal activity, was of huge value. The smuggling activity attributed to the detenu had international ramifications. The Collector of Customs was supervision the investigations that were going on at several places, in several countries to unearth and detect all the persons who were involved in this large-scale organised smuggling of international dimensions. It was, therefore, not unreasonable for the detaining authority to consult the Collector of Customs as to the possible detrimental effect of the supply of the copies, at that stage, on the investigations which were still going on. Such a query from or consultations with the collector was necessary, to enable the detaining authority to make up its mind as to whether so not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu of any part thereof under Article 22(6). Indeed, at one stage, the Collector wrote back that the supply of the copies, at that stage, would be detrimental to the investigations which were in progress and it also might endanger the safety of the witnesses and informants. The government, therefore, summoned the Collector and discussed the matter at a high-level meeting and then directed the Collector to supply the copies. Secondly, the documents so statements of which copies were sought covered more than 461 pages. Preparation of such a bulky record could be time-consuming, if the aid of some appliance like XEROX machine were not available to prepare the copies by mechanical process. 20. The third reason for delay-which is in the nature of an explanation-given by the respondent is that it has not caused any prejudice to the right of the detenu to make an effective representation, since the grounds of detention communicated to him were elaborate and full. Indeed, in the counter-affidavit an alternative stand taken by the respondent is, that the detaining authority was not under any constitutional or statutory obligation to supply copies of these additional materials because the grounds communicated to the detenu were elaborate. Shri Nain has also tried to support this reasoning. 21. In view of the law enunciated in Khudiram case, ibid, (AIR 1975 SC 550 ), this stand taken by the respondent is utterly unsustainable. 22. Be that as it may, in the totality of the circumstances of this present case, we do not think that the period of about 17 days taken in considering the supply of the copies was an unreasonably long period which could amount to a denial of the detenus right to make an effective representation. In considering the reasonableness or otherwise of the time taken in supplying the copies, the circumstance that the grounds of detention already communicate to the detenu were very elaborate and full, is not altogether irrelevant. The copies were dispatched to the detenu by registered post on March 7, 1980 and were received by him on March 11, 1980 at Rajkot. The Advisory Board was scheduled to meet shortly thereafter on March 24, 1980. The detenu was also allowed by an order dated February 20, 1980 to be interviewed by his lawyer. Although the government took more than two weeks to consider the lawyers request to interview the detenu, the fact remains that this permission was granted only two days after the dispatch of the detenus application for obtaining copies of the additional documents or materials. In spite of the grant of the detenus request for interview with his lawyer and the supply of the copies, the detenu did not make any representation to the detaining authority or the consideration of the Advisory Board. This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, has, in fact, prejudiced the detenus right to make a speedy and effective representation. 23. According to the petitioner his lawyer by a letter dated February 1, 1980, sought an interview to enable him to draft his representation. But no application for obtaining copies of the material documents had been made by the detenu till February 15/18, 1980, when it was put in a course of communication to the government, while permission for interview with the lawyer was granted on 20 th February. 24. In short, on a consideration of all the circumstances of this particular case, we are of opinion that the delay of 17 days in question, was not so unreasonable as to amount to an infraction of the constitutional imperatives in Article 22(5) of the Constitution.

0[ds]15. Contentions 3 and 4 canvassed by Shri Sorabjee need not detain usShri Nain has produced for the perusal of the Court the original official record from which it is clear that the detention order was passed by the Home Minister. It was authenticated and issued under the Rules of Business by Shri P. M. Shah, deputy Secretary Home Department (Special) who has sworn the counter affidavit in this case. No personal mala fides are alleged against the minister. It was, therefore not necessary for the minister to file the counter, himself. Contention 3 is, therefore, overruled16. What the learned counsel characterises as "irrelevant" matter incorporated in the grounds of detention are really introductory facts or history of the case. We, therefore, negative contention 4, also17. Indeed, the main arguments of the learned counsel are Nos. (1) and (2), that there has been unreasonable delay in supplying the copies of the material documents and statements relied upon or referred to in the grounds of detentionFrom these decisions it is clear that while the expression "grounds" in Article 22(5), and for the matter, in Section 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the basic facts on which those conclusions are founded, they are different from subsidiary facts so further particulars of these basic facts19. In the instant case, the grounds supplied to the detenu were elaborate and full and contained all the "basic facts", although they did not set out all the details or particulars of those "basic facts" relied upon or referred to there in. There was thus no breach of the first constitutional imperative embodied in Article 22(5)In the instant case, several causes contributed to this "delay". Firstly, this a case in which the detenu was according to the allegations in the grounds of detention and the averments in the counter-affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the Government of Gujarat, indulging in smuggling out silver from India and exporting it to the gulf countries in a big way. This silver which was the subject of this illegal activity, was of huge value. The smuggling activity attributed to the detenu had international ramifications. The Collector of Customs was supervision the investigations that were going on at several places, in several countries to unearth and detect all the persons who were involved in this large-scale organised smuggling of international dimensions. It was, therefore, not unreasonable for the detaining authority to consult the Collector of Customs as to the possible detrimental effect of the supply of the copies, at that stage, on the investigations which were still going on. Such a query from or consultations with the collector was necessary, to enable the detaining authority to make up its mind as to whether so not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu of any part thereof under Article 22(6). Indeed, at one stage, the Collector wrote back that the supply of the copies, at that stage, would be detrimental to the investigations which were in progress and it also might endanger the safety of the witnesses and informants. The government, therefore, summoned the Collector and discussed the matter at a high-level meeting and then directed the Collector to supply the copies. Secondly, the documents so statements of which copies were sought covered more than 461 pages. Preparation of such a bulky record could be time-consuming, if the aid of some appliance like XEROX machine were not available to prepare the copies by mechanical process20. The third reason for delay-which is in the nature of an explanation-given by the respondent is that it has not caused any prejudice to the right of the detenu to make an effective representation, since the grounds of detention communicated to him were elaborate and full. Indeed, in the counter-affidavit an alternative stand taken by the respondent is, that the detaining authority was not under any constitutional or statutory obligation to supply copies of these additional materials because the grounds communicated to the detenu were elaborate. Shri Nain has also tried to support this reasoning21. In view of the law enunciated in Khudiram case, ibid, (AIR 1975 SC 550 ), this stand taken by the respondent is utterly unsustainable22. Be that as it may, in the totality of the circumstances of this present case, we do not think that the period of about 17 days taken in considering the supply of the copies was an unreasonably long period which could amount to a denial of the detenus right to make an effective representation. In considering the reasonableness or otherwise of the time taken in supplying the copies, the circumstance that the grounds of detention already communicate to the detenu were very elaborate and full, is not altogether irrelevant. The copies were dispatched to the detenu by registered post on March 7, 1980 and were received by him on March 11, 1980 at Rajkot. The Advisory Board was scheduled to meet shortly thereafter on March 24, 1980. The detenu was also allowed by an order dated February 20, 1980 to be interviewed by his lawyer. Although the government took more than two weeks to consider the lawyers request to interview the detenu, the fact remains that this permission was granted only two days after the dispatch of the detenus application for obtaining copies of the additional documents or materials. In spite of the grant of the detenus request for interview with his lawyer and the supply of the copies, the detenu did not make any representation to the detaining authority or the consideration of the Advisory Board. This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, has, in fact, prejudiced the detenus right to make a speedy and effective representation24. In short, on a consideration of all the circumstances of this particular case, we are of opinion that the delay of 17 days in question, was not so unreasonable as to amount to an infraction of the constitutional imperatives in Article 22(5) of the Constitution.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: facts and circumstances of the particular case. In the circumstances of a given case, if the time taken for supply of such additional particulars, exceeds marginally, the maximum fixed by the statute for communication of the grounds it may still be regarded "reasonable", while in the facts of another case, even a delay which does not exceed 15 days, may be unjustified, and amount to an infraction of the second constitutional imperative pointed out in Khudiram case (supra). 19. In the instant case, the grounds supplied to the detenu were elaborate and full and contained all the "basic facts", although they did not set out all the details or particulars of those "basic facts" relied upon or referred to there in. There was thus no breach of the first constitutional imperative embodied in Article 22(5). The short question, therefore, for consideration is : Was the period of 17 days (exclusive of the time taken for communications in transit) for the supply of the further particulars of the basic facts to the detenu "unreasonable" in the circumstances of the case ? In the instant case, several causes contributed to this "delay". Firstly, this a case in which the detenu was according to the allegations in the grounds of detention and the averments in the counter-affidavit filed by Shri P. M. Shah, Deputy Secretary (Home) to the Government of Gujarat, indulging in smuggling out silver from India and exporting it to the gulf countries in a big way. This silver which was the subject of this illegal activity, was of huge value. The smuggling activity attributed to the detenu had international ramifications. The Collector of Customs was supervision the investigations that were going on at several places, in several countries to unearth and detect all the persons who were involved in this large-scale organised smuggling of international dimensions. It was, therefore, not unreasonable for the detaining authority to consult the Collector of Customs as to the possible detrimental effect of the supply of the copies, at that stage, on the investigations which were still going on. Such a query from or consultations with the collector was necessary, to enable the detaining authority to make up its mind as to whether so not, it would be advisable to withhold in the public interest the supply of the copies asked for by the detenu of any part thereof under Article 22(6). Indeed, at one stage, the Collector wrote back that the supply of the copies, at that stage, would be detrimental to the investigations which were in progress and it also might endanger the safety of the witnesses and informants. The government, therefore, summoned the Collector and discussed the matter at a high-level meeting and then directed the Collector to supply the copies. Secondly, the documents so statements of which copies were sought covered more than 461 pages. Preparation of such a bulky record could be time-consuming, if the aid of some appliance like XEROX machine were not available to prepare the copies by mechanical process. 20. The third reason for delay-which is in the nature of an explanation-given by the respondent is that it has not caused any prejudice to the right of the detenu to make an effective representation, since the grounds of detention communicated to him were elaborate and full. Indeed, in the counter-affidavit an alternative stand taken by the respondent is, that the detaining authority was not under any constitutional or statutory obligation to supply copies of these additional materials because the grounds communicated to the detenu were elaborate. Shri Nain has also tried to support this reasoning. 21. In view of the law enunciated in Khudiram case, ibid, (AIR 1975 SC 550 ), this stand taken by the respondent is utterly unsustainable. 22. Be that as it may, in the totality of the circumstances of this present case, we do not think that the period of about 17 days taken in considering the supply of the copies was an unreasonably long period which could amount to a denial of the detenus right to make an effective representation. In considering the reasonableness or otherwise of the time taken in supplying the copies, the circumstance that the grounds of detention already communicate to the detenu were very elaborate and full, is not altogether irrelevant. The copies were dispatched to the detenu by registered post on March 7, 1980 and were received by him on March 11, 1980 at Rajkot. The Advisory Board was scheduled to meet shortly thereafter on March 24, 1980. The detenu was also allowed by an order dated February 20, 1980 to be interviewed by his lawyer. Although the government took more than two weeks to consider the lawyers request to interview the detenu, the fact remains that this permission was granted only two days after the dispatch of the detenus application for obtaining copies of the additional documents or materials. In spite of the grant of the detenus request for interview with his lawyer and the supply of the copies, the detenu did not make any representation to the detaining authority or the consideration of the Advisory Board. This is also a relevant circumstance to be taken into account for determining whether the delay in supplying the copies, has, in fact, prejudiced the detenus right to make a speedy and effective representation. 23. According to the petitioner his lawyer by a letter dated February 1, 1980, sought an interview to enable him to draft his representation. But no application for obtaining copies of the material documents had been made by the detenu till February 15/18, 1980, when it was put in a course of communication to the government, while permission for interview with the lawyer was granted on 20 th February. 24. In short, on a consideration of all the circumstances of this particular case, we are of opinion that the delay of 17 days in question, was not so unreasonable as to amount to an infraction of the constitutional imperatives in Article 22(5) of the Constitution. ### Response: 0

Collector Of Central Excise, Ahmedabad Vs. I.T.E.C. (P) Ltd., Bombay

persons the Tribunal has rightly allowed the appeal. 4. The question as to whether the respondent and M/s. International are related persons has to be determined in the light of the definition of that expression in Section 4(4) (c) of the Excise Act. It reads as follows: "(c). "related person" means a person who is so associated with the assessee that they have interest directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee, and any sub-distributor of such distributor. Explanation - In this clause "holding company", "subsidiary company"and "relative" have the same meanings as in the companies Act, 1956 (1 of 1956)." 5. From a plain reading of the definition, it is evident that if a person is so associated with the assessee that both of them have interest directly or indirectly in the business of each other, they would be treated as related persons. The definition also includes a holding company, a subsidiary company, a relative and a distributor of the assessee and any sub-distributor of such distributor, but we are not concerned with the later part of the definition. The ingredients of the first part of definition are: first, a person to be treated as related person must be associated with the assessee; secondly, the person so associated and the assessee must have interest in the business of each other; and thirdly, such interest may be direct or indirect. Mutuality of interest between the other person and the assessee in the business of each other, whether direct or indirect, is necessary to label such a person as a related person. 6. In Union of India & Ors. etc. etc. vs. Bombay Tyre International Ltd. etc. etc. [1984 (1) SCR 347 ], a three-Judge Bench of this Court upheld the constitutional validity of the said definition by reading it down. 7. The validity of the same definition again came up for consideration before this Court in the case of Union of India & Ors. vs. Atic Industries Ltd. [1984 (3) SCC 575 ]. Following the judgment in Bombay Tyre International (supra), speaking for the Court, Bhagwati, J., as he then was, observed: "It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest, direct of indirect, in the business of each other. Each of them must have a direct or interest in the business of the other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct, while the interest of the latter in the business of the former may be indirect. That would not make any difference, so long as each has got some interest, direct or indirect, in the business of the other". 8. Keeping these expositions and the ingredients of the definition of the "related person", we shall advert to the question as to whether M/s. International was so associated with the respondent that they had interest, directly or indirectly, so as to conclude that they were related persons. 9. We may now turn to the findings recorded by Customs, Excise and Gold (Control) Appellate Tribunal. It was found that the respondent and M/s. International were having common Directors and that they were relatives of the one another; a further finding was also noted that both the companies were family concerns and were beneficiaries of their ventures and that the benefit of both the concerns are shared by members of one and the same family. From these findings, it is difficult to resist the conclusion that the respondent and M/s. International have a direct interest, in the business of each other and that the mutuality of interest between the two is apparent. We may point out here that the Tribunals observation, quoted above, that no evidence regarding mutuality of interests has been brought on record, is inconsistent with the acceptance of the finding of the adjudicating authority, referred to above. Once those findings are accepted, the conclusion that there is mutuality of interest between the two concerns is inevitable. In this view of the matter, we set aside the finding of the Tribunal that the respondent and M/s. International are not related persons. 10. The next question that arises for consideration is: whether, on the facts and in the circumstances, it is open to the Revenue to invoke the provisions of Section 11-A of the Act. The Tribunal held that once the respondent declared M/s. International as a "related person" giving the prices at which the goods were sold to the related person and to other dealers and the differential price in the classification list while claiming the benefit of the exemption under Notification 71/78, as is evident from page six of the paper book, it was for the Revenue to deal with the respondent before approving the price list. The respondent declared the prices of their goods in proforma Part IV relating to "sale of goods through related buyers" as follows:11. Thus, it is clear that the respondent had disclosed the correct facts including the price at which the goods were sold to related person and the difference in the price. In view of this declaration, it is futile to contend that there was any suppression of fact on the part of the respondent. The learned Attorney General does not seriously dispute this position. It follows that the larger period of limitation provided in Section 11-A of the Excise Act is not available to the Revenue. We, therefore, confirm the conclusion arrived at by the Tribunal on this aspect. For the period April 11, 1978 to September 29, 1979 the show cause notice was issued on April 13, 1982 which is far beyond the period of six months, therefore, the Revenue is not entitled to claim any difference of duty.

1[ds]5. From a plain reading of the definition, it is evident that if a person is so associated with the assessee that both of them have interest directly or indirectly in the business of each other, they would be treated as related persons. The definition also includes a holding company, a subsidiary company, a relative and a distributor of the assessee and anyof such distributor, but we are not concerned with the later part of the definition. The ingredients of the first part of definition are: first, a person to be treated as related person must be associated with the assessee; secondly, the person so associated and the assessee must have interest in the business of each other; and thirdly, such interest may be direct or indirect. Mutuality of interest between the other person and the assessee in the business of each other, whether direct or indirect, is necessary to label such a person as a related person.We may now turn to the findings recorded by Customs, Excise and Gold (Control) Appellate Tribunal. It was found that the respondent and M/s. International were having common Directors and that they were relatives of the one another; a further finding was also noted that both the companies were family concerns and were beneficiaries of their ventures and that the benefit of both the concerns are shared by members of one and the same family. From these findings, it is difficult to resist the conclusion that the respondent and M/s. International have a direct interest, in the business of each other and that the mutuality of interest between the two is apparent. We may point out here that the Tribunals observation, quoted above, that no evidence regarding mutuality of interests has been brought on record, is inconsistent with the acceptance of the finding of the adjudicating authority, referred to above. Once those findings are accepted, the conclusion that there is mutuality of interest between the two concerns is inevitable. In this view of the matter, we set aside the finding of the Tribunal that the respondent and M/s. International are not relatedTribunal held that once the respondent declared M/s. International as a "related person" giving the prices at which the goods were sold to the related person and to other dealers and the differential price in the classification list while claiming the benefit of the exemption under Notification 71/78, as is evident from page six of the paper book, it was for the Revenue to deal with the respondent before approving the price list. The respondent declared the prices of their goods in proforma Part IV relating to "sale of goods through related buyers" as follows:11. Thus, it is clear that the respondent had disclosed the correct facts including the price at which the goods were sold to related person and the difference in the price. In view of this declaration, it is futile to contend that there was any suppression of fact on the part of the respondent. The learned Attorney General does not seriously dispute this position. It follows that the larger period of limitation provided in Sectionof the Excise Act is not available to the Revenue. We, therefore, confirm the conclusion arrived at by the Tribunal on this aspect. For the period April 11, 1978 to September 29, 1979 the show cause notice was issued on April 13, 1982 which is far beyond the period of six months, therefore, the Revenue is not entitled to claim any difference of duty.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: persons the Tribunal has rightly allowed the appeal. 4. The question as to whether the respondent and M/s. International are related persons has to be determined in the light of the definition of that expression in Section 4(4) (c) of the Excise Act. It reads as follows: "(c). "related person" means a person who is so associated with the assessee that they have interest directly or indirectly, in the business of each other and includes a holding company, a subsidiary company, a relative and a distributor of the assessee, and any sub-distributor of such distributor. Explanation - In this clause "holding company", "subsidiary company"and "relative" have the same meanings as in the companies Act, 1956 (1 of 1956)." 5. From a plain reading of the definition, it is evident that if a person is so associated with the assessee that both of them have interest directly or indirectly in the business of each other, they would be treated as related persons. The definition also includes a holding company, a subsidiary company, a relative and a distributor of the assessee and any sub-distributor of such distributor, but we are not concerned with the later part of the definition. The ingredients of the first part of definition are: first, a person to be treated as related person must be associated with the assessee; secondly, the person so associated and the assessee must have interest in the business of each other; and thirdly, such interest may be direct or indirect. Mutuality of interest between the other person and the assessee in the business of each other, whether direct or indirect, is necessary to label such a person as a related person. 6. In Union of India & Ors. etc. etc. vs. Bombay Tyre International Ltd. etc. etc. [1984 (1) SCR 347 ], a three-Judge Bench of this Court upheld the constitutional validity of the said definition by reading it down. 7. The validity of the same definition again came up for consideration before this Court in the case of Union of India & Ors. vs. Atic Industries Ltd. [1984 (3) SCC 575 ]. Following the judgment in Bombay Tyre International (supra), speaking for the Court, Bhagwati, J., as he then was, observed: "It is essential to attract the applicability of the first part of the definition that the assessee and the person alleged to be a related person must have interest, direct of indirect, in the business of each other. Each of them must have a direct or interest in the business of the other. The equality and degree of interest which each has in the business of the other may be different; the interest of one in the business of the other may be direct, while the interest of the latter in the business of the former may be indirect. That would not make any difference, so long as each has got some interest, direct or indirect, in the business of the other". 8. Keeping these expositions and the ingredients of the definition of the "related person", we shall advert to the question as to whether M/s. International was so associated with the respondent that they had interest, directly or indirectly, so as to conclude that they were related persons. 9. We may now turn to the findings recorded by Customs, Excise and Gold (Control) Appellate Tribunal. It was found that the respondent and M/s. International were having common Directors and that they were relatives of the one another; a further finding was also noted that both the companies were family concerns and were beneficiaries of their ventures and that the benefit of both the concerns are shared by members of one and the same family. From these findings, it is difficult to resist the conclusion that the respondent and M/s. International have a direct interest, in the business of each other and that the mutuality of interest between the two is apparent. We may point out here that the Tribunals observation, quoted above, that no evidence regarding mutuality of interests has been brought on record, is inconsistent with the acceptance of the finding of the adjudicating authority, referred to above. Once those findings are accepted, the conclusion that there is mutuality of interest between the two concerns is inevitable. In this view of the matter, we set aside the finding of the Tribunal that the respondent and M/s. International are not related persons. 10. The next question that arises for consideration is: whether, on the facts and in the circumstances, it is open to the Revenue to invoke the provisions of Section 11-A of the Act. The Tribunal held that once the respondent declared M/s. International as a "related person" giving the prices at which the goods were sold to the related person and to other dealers and the differential price in the classification list while claiming the benefit of the exemption under Notification 71/78, as is evident from page six of the paper book, it was for the Revenue to deal with the respondent before approving the price list. The respondent declared the prices of their goods in proforma Part IV relating to "sale of goods through related buyers" as follows:11. Thus, it is clear that the respondent had disclosed the correct facts including the price at which the goods were sold to related person and the difference in the price. In view of this declaration, it is futile to contend that there was any suppression of fact on the part of the respondent. The learned Attorney General does not seriously dispute this position. It follows that the larger period of limitation provided in Section 11-A of the Excise Act is not available to the Revenue. We, therefore, confirm the conclusion arrived at by the Tribunal on this aspect. For the period April 11, 1978 to September 29, 1979 the show cause notice was issued on April 13, 1982 which is far beyond the period of six months, therefore, the Revenue is not entitled to claim any difference of duty. ### Response: 1

M/S. Maharashtra State Seeds Corpn. Ltd Vs. Haridas

would arise only when the delinquent officer is exonerated either wholly or in part of the charges levelled against him whereas the disciplinary authority forms a different opinion. Most of the charges have been found proved and the Disciplinary Authority to that extent did not differ with the report of the Enquiry Officer. So far as the quantum of punishment proposed by the Enquiry Officer is concerned, if in terms of the rules, he had no authority to do so, the Managing Director was entitled to apply his own mind and could come to a conclusion as regard the quantum of punishment which should be imposed on the delinquent officer. He in that view of the matter was not obligated to assign any far less sufficient and cogent reason as it was not the requirement of law. In any view of the matter, from the second notice dated 22.3.1994 issued by the Managing Director of the Corporation it is evident that sufficient and cogent reasons have been assigned therein. 15. A departmental proceeding stricto sensu is not a judicial proceeding. 16. There is nothing in the rules to show that the disciplinary authority cannot consider the materials on record with a view to form an independent opinion as regard quantum of punishment to be imposed upon the delinquent employee. He might have committed a mistake in issuing the first show cause notice but by reason thereof he cannot be held to be wholly precluded from issuing the second show cause notice as thereby he intended to rectify the mistake committed by him. 17. In Indian Council of Agricultural Research and Another v. T.K. Suryanarayan and Others [(1997) 6 SCC 766] a promotion granted by a mistake in ignorance of the service rules was held to be capable of being rectified stating: Incorrect promotion either given erroneously by the Department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective on 1-10-1975 should not be adhered to because in some cases erroneous promotions had been given 18. In Poothundu Plantations Pvt. Ltd. v. Agricultural Income Tax Officer, Chittoor, Kerala State and others [(1996) 9 SCC 499] , it was stated: 4. There can be no doubt that only an apparent error of fact or law can be rectified by an officer. If the mistake of law has to be established by construing the words of a section to find its proper meaning, then such an error cannot normally be a rectifiable error under Section 36. If two views are possible, then obviously the error will not be an error apparent from the record. 19. As the Enquiry Officer had no jurisdiction to recommend any punishment to be imposed on the respondent by the disciplinary authority, he although acted thereupon at the first instance, could have corrected his mistake as the same was apparent on the face of the record. He, therefore, did not commit any illegality in issuing the second show cause notice as Enquiry Officer had no jurisdiction in that behalf. See M. Ahammedkutty Haji V. Tahsildar, Kozhikode, Kerala & Ors. [(2005) 3 SCC 351] . Mistake furthermore, may either be of law or fact. By reason of mistake on the part of the Enquiry Officer, the respondent could not have been inflicted with a minor penalty although he deserved a major penalty. If in law the quantum of punishment to be imposed upon a delinquent officer is within the exclusive domain of the disciplinary authority, unless otherwise delegated to any other authority, he alone could exercise the said jurisdiction and determine the same having regard the nature and guilty of the misconduct on the part of the delinquent officer as the Enquiry Officer or any other authority had no jurisdiction in relation thereto. The matter might have been different if prior to the imposition of penalty of dismissal from service against the 1st respondent, no opportunity of hearing had been given to him. Admittedly the second show cause notice was issued to him and he showed cause. It is also not contended that the order passed by the disciplinary authority suffers from the vice of non-application of mind. The principles of natural justice admittedly have been complied with. 20. The High Court proceeded on the basis that in absence of the specific provision the second show cause notice was impermissible. It failed to consider that there was no statutory interdict in this behalf. An administrative order can be recalled. A mistake can be rectified. The Managing Director of the Corporation as a disciplinary authority, it has not been shown to us, lacked inherent jurisdiction in relation thereto. 21. The 1st respondent held an office of trust. He distributed seeds to the farmers. He collected a huge amount from them. He not only defalcated a huge amount but also misappropriated some bags of seeds. It was in the aforementioned situation improper for the High Court to interfere with the quantum of punishment. It is now well settled that in a matter of disciplinary proceedings the High Court exercises a limited power. [See Govt. of A.P. & Ors. V. Mohad. Nasrullah Khan [ JT 2006 (2) SC 82 ], L. K. Verma V. H.M.T. Ltd. & Anr. [JT 2006 (2) SC 99 ], Karnataka Bank Ltd. V. A.L. Mohan Rao [(2006) 1 SCC 63] and Hombe Gowda Educational Trust & Anr. V. Sate of Karnataka & Ors. [(2006) 1 SCC 430] . The grounds for judicial review are limited. In Damoh Panna Sagar Rural Regional Bank & anr. V. Munna Lal Jain [(2005) 10 SCC 84] this Court held that when the High Court intends to interfere with the quantum of punishment on the ground that the same is shockingly disproportionate, it must record reasons for coming to such a conclusion.

1[ds]12. It has not been shown to us, despite repeated query made in this behalf as to whether under the statutory rules, the Enquiry Officer was empowered to make any recommendation to the Disciplinary Authority as regard quantum of punishment to be imposed upon a delinquent employee. The High Court has noticed that the disciplinary proceedings are governed by the Manual of Departmental Enquiries. However, no provision therein has been pointed out to show that the Enquiry Officer was statutorily or otherwise empowered to make recommendations as regards quantum of punishment. Reference to Rule 42 of the said manual by the High court was wholly irrelevant as indisputably the procedures laid down therein for holding departmental enquiry had been complied with. It is not the case of the 1st respondent either before the High Court or before us that no charge was framed and communicated to him and he has not been given an opportunity to show cause against the action proposed to be taken against him. He admittedly participated in the departmental enquiry. It is also not his case that in the said departmental proceedings principles of natural justice had not been complied with19. As the Enquiry Officer had no jurisdiction to recommend any punishment to be imposed on the respondent by the disciplinary authority, he although acted thereupon at the first instance, could have corrected his mistake as the same was apparent on the face of the record. He, therefore, did not commit any illegality in issuing the second show cause notice as Enquiry Officer had no jurisdiction in that behalf. See M. Ahammedkutty Haji V. Tahsildar, Kozhikode, Kerala & Ors. [(2005) 3 SCC 351] . Mistake furthermore, may either be of law or fact. By reason of mistake on the part of the Enquiry Officer, the respondent could not have been inflicted with a minor penalty although he deserved a major penalty. If in law the quantum of punishment to be imposed upon a delinquent officer is within the exclusive domain of the disciplinary authority, unless otherwise delegated to any other authority, he alone could exercise the said jurisdiction and determine the same having regard the nature and guilty of the misconduct on the part of the delinquent officer as the Enquiry Officer or any other authority had no jurisdiction in relation thereto. The matter might have been different if prior to the imposition of penalty of dismissal from service against the 1st respondent, no opportunity of hearing had been given to him. Admittedly the second show cause notice was issued to him and he showed cause. It is also not contended that the order passed by the disciplinary authority suffers from the vice of non-application of mind. The principles of natural justice admittedly have been complied with20. The High Court proceeded on the basis that in absence of the specific provision the second show cause notice was impermissible. It failed to consider that there was no statutory interdict in this behalf. An administrative order can be recalled. A mistake can be rectified. The Managing Director of the Corporation as a disciplinary authority, it has not been shown to us, lacked inherent jurisdiction in relation thereto21. The 1st respondent held an office of trust. He distributed seeds to the farmers. He collected a huge amount from them. He not only defalcated a huge amount but also misappropriated some bags of seeds. It was in the aforementioned situation improper for the High Court to interfere with the quantum of punishment. It is now well settled that in a matter of disciplinary proceedings the High Court exercises a limited power

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: would arise only when the delinquent officer is exonerated either wholly or in part of the charges levelled against him whereas the disciplinary authority forms a different opinion. Most of the charges have been found proved and the Disciplinary Authority to that extent did not differ with the report of the Enquiry Officer. So far as the quantum of punishment proposed by the Enquiry Officer is concerned, if in terms of the rules, he had no authority to do so, the Managing Director was entitled to apply his own mind and could come to a conclusion as regard the quantum of punishment which should be imposed on the delinquent officer. He in that view of the matter was not obligated to assign any far less sufficient and cogent reason as it was not the requirement of law. In any view of the matter, from the second notice dated 22.3.1994 issued by the Managing Director of the Corporation it is evident that sufficient and cogent reasons have been assigned therein. 15. A departmental proceeding stricto sensu is not a judicial proceeding. 16. There is nothing in the rules to show that the disciplinary authority cannot consider the materials on record with a view to form an independent opinion as regard quantum of punishment to be imposed upon the delinquent employee. He might have committed a mistake in issuing the first show cause notice but by reason thereof he cannot be held to be wholly precluded from issuing the second show cause notice as thereby he intended to rectify the mistake committed by him. 17. In Indian Council of Agricultural Research and Another v. T.K. Suryanarayan and Others [(1997) 6 SCC 766] a promotion granted by a mistake in ignorance of the service rules was held to be capable of being rectified stating: Incorrect promotion either given erroneously by the Department by misreading the said Service Rules or such promotion given pursuant to judicial orders contrary to Service Rules cannot be a ground to claim erroneous promotion by perpetrating infringement of statutory service rules. In a court of law, employees cannot be permitted to contend that the Service Rules made effective on 1-10-1975 should not be adhered to because in some cases erroneous promotions had been given 18. In Poothundu Plantations Pvt. Ltd. v. Agricultural Income Tax Officer, Chittoor, Kerala State and others [(1996) 9 SCC 499] , it was stated: 4. There can be no doubt that only an apparent error of fact or law can be rectified by an officer. If the mistake of law has to be established by construing the words of a section to find its proper meaning, then such an error cannot normally be a rectifiable error under Section 36. If two views are possible, then obviously the error will not be an error apparent from the record. 19. As the Enquiry Officer had no jurisdiction to recommend any punishment to be imposed on the respondent by the disciplinary authority, he although acted thereupon at the first instance, could have corrected his mistake as the same was apparent on the face of the record. He, therefore, did not commit any illegality in issuing the second show cause notice as Enquiry Officer had no jurisdiction in that behalf. See M. Ahammedkutty Haji V. Tahsildar, Kozhikode, Kerala & Ors. [(2005) 3 SCC 351] . Mistake furthermore, may either be of law or fact. By reason of mistake on the part of the Enquiry Officer, the respondent could not have been inflicted with a minor penalty although he deserved a major penalty. If in law the quantum of punishment to be imposed upon a delinquent officer is within the exclusive domain of the disciplinary authority, unless otherwise delegated to any other authority, he alone could exercise the said jurisdiction and determine the same having regard the nature and guilty of the misconduct on the part of the delinquent officer as the Enquiry Officer or any other authority had no jurisdiction in relation thereto. The matter might have been different if prior to the imposition of penalty of dismissal from service against the 1st respondent, no opportunity of hearing had been given to him. Admittedly the second show cause notice was issued to him and he showed cause. It is also not contended that the order passed by the disciplinary authority suffers from the vice of non-application of mind. The principles of natural justice admittedly have been complied with. 20. The High Court proceeded on the basis that in absence of the specific provision the second show cause notice was impermissible. It failed to consider that there was no statutory interdict in this behalf. An administrative order can be recalled. A mistake can be rectified. The Managing Director of the Corporation as a disciplinary authority, it has not been shown to us, lacked inherent jurisdiction in relation thereto. 21. The 1st respondent held an office of trust. He distributed seeds to the farmers. He collected a huge amount from them. He not only defalcated a huge amount but also misappropriated some bags of seeds. It was in the aforementioned situation improper for the High Court to interfere with the quantum of punishment. It is now well settled that in a matter of disciplinary proceedings the High Court exercises a limited power. [See Govt. of A.P. & Ors. V. Mohad. Nasrullah Khan [ JT 2006 (2) SC 82 ], L. K. Verma V. H.M.T. Ltd. & Anr. [JT 2006 (2) SC 99 ], Karnataka Bank Ltd. V. A.L. Mohan Rao [(2006) 1 SCC 63] and Hombe Gowda Educational Trust & Anr. V. Sate of Karnataka & Ors. [(2006) 1 SCC 430] . The grounds for judicial review are limited. In Damoh Panna Sagar Rural Regional Bank & anr. V. Munna Lal Jain [(2005) 10 SCC 84] this Court held that when the High Court intends to interfere with the quantum of punishment on the ground that the same is shockingly disproportionate, it must record reasons for coming to such a conclusion. ### Response: 1

Tata Press Limited Vs. Mahanagar Telephone Nigam Limited And

drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.25. We, therefore, hold that "commercial speech" is a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.26. Adverting to the question whether Tatas compilation is a telephone directory as envisaged under the Rules, we may examine the scheme of the Rules. Rule 452 provides that a copy of the telephone directory shall be supplied free of charge for each telephone, extension or party line, rented by the subscriber. Although the expression "Telephone Directory" has not been defined under the Rules, but Rule 453 clearly provides that an entry in the Telephone Directory shall contain the telephone number, the initials, the surname and the address of the subscriber or user. Rule 457 makes a telephone directory to be the property of the department. It provides that the telephone directory shall remain the exclusive property of the department and shall be delivered to it on demand. The department reserves the right to amend or delete any entry in the telephone directory at any time and undertakes no responsibility for any omission. It shall not entertain any claim or compensation on account of any entry in or omission from the telephone directory or of an error therein. Then come the two crucial rules. Rule 458 under the heading "Publishing of Telephone Directory" provides that except with the permission of the telegraph authority, no person shall publish any list of telephone subscribers. Rule 459 deals with "advertisements" and lays down that the telegraph authority may publish or allow the publication of advertisements in the body of the telephone directory. It is not doubt correct that a telephone directory is an essential instrumentality in connection with the peculiar service which the Union of India offers for the public benefit and convenience. It is as much so as is the telephone receiver itself, it would be practically useless for the receipt and transmission of messages without the accompaniment of such directories. The telephone service being a public utility service, the telephone authority has rightly been given powers under the Act and the Rules to regulate the form and contents of the telephone directory. In the development of this form of public utility service, the telegraph authority has found it practicable and profitable to diminish the cost and increase the profits of operation by making use of its directories as a means and form of advertising available to its subscribers. In the typical classified telephone directory, or the "yellow pages" section of the directory published by the Nigam, there are alphabetical light-faced type listing (for which there is usually no charge), alphabetical bold faced type listings, alphabetical in-column business card listings and display advertising. "Yellow Pages" of the telephone directory are wholly paid advertising. It cannot be disputed that the paid advertising, apart from the light-faced free listing, is not in the nature of a service rendered by a utility. The "Yellow Pages" attached to the telephone directory issued by the Nigam cannot be part of the Nigams public telephone service.27. Rules 458 and 459 of the Rules have to be interpreted in the light of our findings that "commercial speech" by itself is a fundamental right under Article 19(1)(a) of the Constitution and the paid advertisements comprising "Yellow Pages" attached to the telephone directory is not a public utility service.28. Right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution can only be restricted under Article 19(2). The said right cannot be denied by creating a monopoly in favour of the Government or any other authority. "Publication of advertisements" which is a "commercial speech" and protected under Article 19(1)(a) of the Constitution cannot be denied to be appellants on the interpretation of Rule 458 and 459 of the Rules. The plain language of the Rules indicate that the prohibition under Rule 458 of the Rules is only in respect of publishing "any list of telephone subscribers". By no stretch of imagination "publication of advertisements" can be equated with a "list of telephone subscribers". A "list" is a number of names having something in common written out systematically one beneath the other. "List of telephone subscribers" in terms of Rule 458 of the Rules would have to be compiled only on the criterion of the persons listed being telephone subscribers. No person who is not a telephone subscriber could be eligible for inclusion. The said list would necessarily be restricted to the area serviced by the Nigam. On the other hand "Tata Press Yellow Pages" is a Buyers Guide comprising of advertisements given by traders, businessmen and professionals and the only basis/criterion applied for acceptance/publication of advertisements is that an advertiser should be a trader, businessman or professional.29. The scheme of the Rules make it clear that advertisements are treated differently under the Rules from "list of telephone subscribers". Rules 458 of the Rules intends to protect the exclusive property right of Nigam/Union of India created under Rule 457 in respect of the telephone directory prepared in terms of Rule 453. "Publication of advertisements" being a non-utility service cannot come within the prohibition imposed by Rule 458 of the Rules.30. We, therefore, hold that the Nigam/Union of India cannot restrain the appellant from publishing "Tata Press Yellow Pages" comprising paid advertisements from businessmen, traders and professionals. We are, however, of the view that the appellants cannot publish any "list of telephone subscribers" without the permission of the telegraph authority. Rule 458 of the Rules is mandatory and has to be complied with. The appellant shall not publish in the "Tata Press Yellow Pages" any entries similar to those which are printed in the White Pages of the "telephone directory" published by the Nigam under the Rules. We make it clear that the appellant cannot print/publish an entry containing only the telephone number, the initials, the surname and the address of the businessmen, trader or professional concerned.

1[ds]13. It is, thus, obvious that the United States Supreme Court in Virginia Board case has virtually overruled Valentines case decide in 1942. The Court has ruled in clear terms that the Virginia statute which had the effect of prohibiting pharmacies from advertising the price of prescription drugs violated the First Amendment protection.After the decision on Virginia Board case, it is almost settled law in the United States that "commercial speech" is entitled to the First Amendment protection. The Supreme Court has, however, made it clear that Government was completely free to recall "commercial speech" which is false, misleading, unfair, deceptive and which proposes illegal transactions. A political or social speech and other public-affairs - oriented discussions are entitled to full First Amendment protection whereas a "commercial speech" may be restricted more easily whenever the Government can show substantial justification for doing so.Unlike the First Amendment under the United States Constitution, our Constitution itself lays down in Article 19(2) the restrictions which can be imposed on the fundamental right guaranteed under Article 19(1)(a) of the Constitution. The "commercial speech" wh ptive, unfair, misleading and untruthful would be hit by Article 19(2) of the Constitution and can be regulated/prohibited by the State.The combined reading of Hamdard Dawakhanas case and the Indian Express Newspapers case leads us to the conclusion that "commercial speech" cannot be denied the protection of Article 19(1)(a) of the Constitution merely because the same are issued by businessmen.20. Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production is dependent upon volume sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the life blood of free media, paying most of the costs and thus making the media widely available. The newspaper industry obtains 60/80 percent of its revenue from advertising. Advertising pays a large portion of the costs of supplying the public with newspaper. For a democratic press the advertising "subsidy" is crucial. Without advertising, the resources available for expenditure on the "news" would decline, which may lead to an erosion of quality and quality. The cost of the "news" to the public would increase, thereby restricting its "democratic" availability.Advertising as a "commercial speech" has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of "commercial speech." In relation to the publication and circulation of newspapers, this Court in Indian Express Newspapers case, Sakal Papers case and Bennett Colemans case has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1)(a) on the aspects of propagation, publication and circulation.24. Examined from another angle, the public at large has a right to receive the "commercial speech". Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of "commercial speech" may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.25. We, therefore, hold that "commercial speech" is a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.26. Adverting to the question whetherTatas compilation is a telephone directory as envisaged under thewe may examine the scheme of the Rules. Rule 452 provides that a copy of the telephone directory shall be supplied free of charge for each telephone, extension or party line, rented by the subscriber. Although the expression "Telephone Directory" has not been defined under the Rules, but Rule 453 clearly provides that an entry in the Telephone Directory shall contain the telephone number, the initials, the surname and the address of the subscriber or user. Rule 457 makes a telephone directory to be the property of the department. It provides that the telephone directory shall remain the exclusive property of the department and shall be delivered to it on demand. The department reserves the right to amend or delete any entry in the telephone directory at any time and undertakes no responsibility for any omission. It shall not entertain any claim or compensation on account of any entry in or omission from the telephone directory or of an error therein. Then come the two crucial rules. Rule 458 under the heading "Publishing of Telephone Directory" provides that except with the permission of the telegraph authority, no person shall publish any list of telephone subscribers. Rule 459 deals with "advertisements" and lays down that the telegraph authority may publish or allow the publication of advertisements in the body of the telephone directory. It is not doubt correct that a telephone directory is an essential instrumentality in connection with the peculiar service which the Union of India offers for the public benefit and convenience. It is as much so as is the telephone receiver itself, it would be practically useless for the receipt and transmission of messages without the accompaniment of such directories. The telephone service being a public utility service, the telephone authority has rightly been given powers under the Act and the Rules to regulate the form and contents of the telephone directory. In the development of this form of public utility service, the telegraph authority has found it practicable and profitable to diminish the cost and increase the profits of operation by making use of its directories as a means and form of advertising available to its subscribers. In the typical classified telephone directory, or the "yellow pages" section of the directory published by the Nigam, there are alphabetical light-faced type listing (for which there is usually no charge), alphabetical bold faced type listings, alphabetical in-column business card listings and display advertising. "Yellow Pages" of the telephone directory are wholly paid advertising. It cannot be disputed that the paid advertising, apart from the light-faced free listing, is not in the nature of a service rendered by a utility. The "Yellow Pages" attached to the telephone directory issued by the Nigam cannot be part of the Nigams public telephone service.27. Rules 458 and 459 of the Rules have to be interpreted in the light of our findings that "commercial speech" by itself is a fundamental right under Article 19(1)(a) of the Constitution and the paid advertisements comprising "Yellow Pages" attached to the telephone directory is not a public utility service.28. Right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution can only be restricted under Article 19(2). The said right cannot be denied by creating a monopoly in favour of the Government or any other authority. "Publication of advertisements" which is a "commercial speech" and protected under Article 19(1)(a) of the Constitution cannot be denied to be appellants on the interpretation of Rule 458 and 459 of the Rules. The plain language of the Rules indicate that the prohibition under Rule 458 of the Rules is only in respect of publishing "any list of telephone subscribers". By no stretch of imagination "publication of advertisements" can be equated with a "list of telephone subscribers". A "list" is a number of names having something in common written out systematically one beneath the other. "List of telephone subscribers" in terms of Rule 458 of the Rules would have to be compiled only on the criterion of the persons listed being telephone subscribers. No person who is not a telephone subscriber could be eligible for inclusion. The said list would necessarily be restricted to the area serviced by the Nigam. On the other hand "Tata Press Yellow Pages" is a Buyers Guide comprising of advertisements given by traders, businessmen and professionals and the only basis/criterion applied for acceptance/publication of advertisements is that an advertiser should be a trader, businessman or professional.29. The scheme of the Rules make it clear that advertisements are treated differently under the Rules from "list of telephone subscribers". Rules 458 of the Rules intends to protect the exclusive property right of Nigam/Union of India created under Rule 457 in respect of the telephone directory prepared in terms of Rule 453. "Publication of advertisements" being a non-utility service cannot come within the prohibition imposed by Rule 458 of the Rules.30. We, therefore, hold that the Nigam/Union of India cannot restrain the appellant from publishing "Tata Press Yellow Pages" comprising paid advertisements from businessmen, traders and professionals. We are, however, of the view that the appellants cannot publish any "list of telephone subscribers" without the permission of the telegraph authority. Rule 458 of the Rules is mandatory and has to be complied with. The appellant shall not publish in the "Tata Press Yellow Pages" any entries similar to those which are printed in the White Pages of the "telephone directory" published by the Nigam under the Rules. We make it clear that the appellant cannot print/publish an entry containing only the telephone number, the initials, the surname and the address of the businessmen, trader or professional concerned.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.25. We, therefore, hold that "commercial speech" is a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.26. Adverting to the question whether Tatas compilation is a telephone directory as envisaged under the Rules, we may examine the scheme of the Rules. Rule 452 provides that a copy of the telephone directory shall be supplied free of charge for each telephone, extension or party line, rented by the subscriber. Although the expression "Telephone Directory" has not been defined under the Rules, but Rule 453 clearly provides that an entry in the Telephone Directory shall contain the telephone number, the initials, the surname and the address of the subscriber or user. Rule 457 makes a telephone directory to be the property of the department. It provides that the telephone directory shall remain the exclusive property of the department and shall be delivered to it on demand. The department reserves the right to amend or delete any entry in the telephone directory at any time and undertakes no responsibility for any omission. It shall not entertain any claim or compensation on account of any entry in or omission from the telephone directory or of an error therein. Then come the two crucial rules. Rule 458 under the heading "Publishing of Telephone Directory" provides that except with the permission of the telegraph authority, no person shall publish any list of telephone subscribers. Rule 459 deals with "advertisements" and lays down that the telegraph authority may publish or allow the publication of advertisements in the body of the telephone directory. It is not doubt correct that a telephone directory is an essential instrumentality in connection with the peculiar service which the Union of India offers for the public benefit and convenience. It is as much so as is the telephone receiver itself, it would be practically useless for the receipt and transmission of messages without the accompaniment of such directories. The telephone service being a public utility service, the telephone authority has rightly been given powers under the Act and the Rules to regulate the form and contents of the telephone directory. In the development of this form of public utility service, the telegraph authority has found it practicable and profitable to diminish the cost and increase the profits of operation by making use of its directories as a means and form of advertising available to its subscribers. In the typical classified telephone directory, or the "yellow pages" section of the directory published by the Nigam, there are alphabetical light-faced type listing (for which there is usually no charge), alphabetical bold faced type listings, alphabetical in-column business card listings and display advertising. "Yellow Pages" of the telephone directory are wholly paid advertising. It cannot be disputed that the paid advertising, apart from the light-faced free listing, is not in the nature of a service rendered by a utility. The "Yellow Pages" attached to the telephone directory issued by the Nigam cannot be part of the Nigams public telephone service.27. Rules 458 and 459 of the Rules have to be interpreted in the light of our findings that "commercial speech" by itself is a fundamental right under Article 19(1)(a) of the Constitution and the paid advertisements comprising "Yellow Pages" attached to the telephone directory is not a public utility service.28. Right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution can only be restricted under Article 19(2). The said right cannot be denied by creating a monopoly in favour of the Government or any other authority. "Publication of advertisements" which is a "commercial speech" and protected under Article 19(1)(a) of the Constitution cannot be denied to be appellants on the interpretation of Rule 458 and 459 of the Rules. The plain language of the Rules indicate that the prohibition under Rule 458 of the Rules is only in respect of publishing "any list of telephone subscribers". By no stretch of imagination "publication of advertisements" can be equated with a "list of telephone subscribers". A "list" is a number of names having something in common written out systematically one beneath the other. "List of telephone subscribers" in terms of Rule 458 of the Rules would have to be compiled only on the criterion of the persons listed being telephone subscribers. No person who is not a telephone subscriber could be eligible for inclusion. The said list would necessarily be restricted to the area serviced by the Nigam. On the other hand "Tata Press Yellow Pages" is a Buyers Guide comprising of advertisements given by traders, businessmen and professionals and the only basis/criterion applied for acceptance/publication of advertisements is that an advertiser should be a trader, businessman or professional.29. The scheme of the Rules make it clear that advertisements are treated differently under the Rules from "list of telephone subscribers". Rules 458 of the Rules intends to protect the exclusive property right of Nigam/Union of India created under Rule 457 in respect of the telephone directory prepared in terms of Rule 453. "Publication of advertisements" being a non-utility service cannot come within the prohibition imposed by Rule 458 of the Rules.30. We, therefore, hold that the Nigam/Union of India cannot restrain the appellant from publishing "Tata Press Yellow Pages" comprising paid advertisements from businessmen, traders and professionals. We are, however, of the view that the appellants cannot publish any "list of telephone subscribers" without the permission of the telegraph authority. Rule 458 of the Rules is mandatory and has to be complied with. The appellant shall not publish in the "Tata Press Yellow Pages" any entries similar to those which are printed in the White Pages of the "telephone directory" published by the Nigam under the Rules. We make it clear that the appellant cannot print/publish an entry containing only the telephone number, the initials, the surname and the address of the businessmen, trader or professional concerned. ### Response: 1

American Hotel & Lodging Assn. Educational Institute Vs. Central Board of Direct Taxes & Others

grant approvals on such terms and conditions a it deems fit in case where the Institute applies for initial approval for the first time. The PA must give an opportunity to the applicant-institute to comply with the monitoring conditions which have been stipulated for the first time by the third proviso. Therefore, cases where earlier the applicant has obtained exemption (s), as in this case, need not be re-opened on the ground that the third proviso has not been complied with. However, after grant of approval, if it is brought to the notice of the PA that conditions on which approval was given are breached or that circumstances mentioned in the thirteenth proviso exists then the PA can withdraw the approval earlier given by following the procedure mentioned in that proviso. The view we have taken, namely, that the PA can stipulate conditions subject to which approval may be granted finds support from sub-clause (ii) (B) in the thirteenth proviso. 35. The next question which arises for consideration is: whether the words "in India" should be read into Section 10(23C)(vi) and/or in the third proviso thereto? 36. Section 10(23C)(vi) seeks to exempt income of institutions with laudable objects and activities such as universities, hospitals etc.. As stated above, stipulation of monitoring conditions is different from compliance of those conditions. Compliance or non-compliance can only be gauged at the assessment stage. 37. In the case of Oxford University Press (supra), Oxford University had a branch in India. The only activity of that branch was to carry on the business of a commercial printing press which published and printed books and materials and sold the same commercially and made a profit. The Department contended that one should read the words "in India" along with the word University". Accordingly, the Department contended that Section 10(22) exemption should be denied to the profits arising from the commercial printing activity of the University since Section 10(22) gave exemption only to profits/income of an Indian University. All the three Judges held that it was impermissible to read in the words " in India" into Section 10(22) of the 1961 Act. As stated above, Section 10(23C)(vi) is analogous to Section 10(22) of the 1961 Act. The majority view, however, was that the University must carry on educational activities in India in order to satisfy Section 10(22). According to the majority view, some educational activity had to be carried on in India and since Oxford University Press carried on no educational activity in India, the exemption did not apply to the University. In other words, the majority judges held that "non-profit" qualification has to be tested against Indian activities and it is in this context that remarks regarding "in India" are made in the majority at page nos. 672 and 684. 38. Moreover, it is important to note that, even after the Finance Act, 1998 w.e.f. 1.4.1999. the third proviso to Section 10(23C)(vi), which refers to monitoring conditions, confines the words "application o income" to the objects for which the Institution is established. The third proviso does not use the words "in India" in the matter of application or accumulation of income though in several other sections like Sections 10(20A), 10(22B) and 11(1)(a) etc., Parliament has used the words "in India". Therefore, for this one more reason, we cannot read in the words "in India" into the third proviso that the educational institution has to apply its income wholly and exclusively to the objects for which it is established. Therefore, the plain words of the third proviso do not require application of income to be in India. Our judgment should not be understood to mean that the applicant has not to impart educational activities in India. If the applicant wants exemption under Section 10(23C)(vi) it has to impart education in India and only then it would be entitled to claim initial approval under that section. That is the reason for our saying that the "non-profit" qualification has to be tested against Indian activities. Our conclusion is that impartation of education must be in India if applicant desires exemption under Section 10(23C)(vi) and that excess/deficit of income over expenditure will not decide whether the applicant exists for profit or not.39 For the sake of clarity, we may reiterate that items such as application of income or accumulation of income or investment in specified assets indicated in clauses (a) and (b) in the third proviso are a part of compliance/monitoring conditions. As stated, however, there is a difference between application/utilization of income and outward remittance of income out of India. As discussed above, with the insertion of the provisos in Section 10(23C)(vi) of the 1961 Act, it is open to the PA to stipulate, while granting approval, that the approval is being given subject to utilization/application of certain percentage of income, in the accounting sense, towards impartation of education in India. Such exercise would be based on estimation. There is a difference between accounting income and taxable income. At the stage of Section 10, we are concerned with the accounting income. Therefore, it is open to the PA, if it deems fit, to stipulate that certain percentage of accounting income would be utilized for impartation of education in India. Therefore, in our view, it is always open to the PA to impose such terms and conditions as it deems fit. The interpretation we have given is based on harmonious construction of the provisos inserted in Section 10(23C)(vi) by the Finance Act, 1998. Lastly, we may reiterate that there is a difference between stipulation by the PA of such terms and conditions, as it deems fit under the provisos, and the compliance of those conditions by the appellant. The compliance of the terms and conditions stipulated by the PA would be a matter of decision at the time of assessment as availability of exemption has to be evaluated every year in order to find out whether the institution existed during the relevant year solely for educational purposes and not for profit.

0[ds]27. Actual existence of the educational institution was the pre-condition of the application for initial approval under Section 10(22). On grant of approval under Section 10(22), Sections 11 and 13 did not apply. Therefore, earlier prior to 1.4.1999 when exemption was given to the appellant, there was no assessment nor demand. Section 10(22) had an automatic effect. Once an applicant-institution came within the phrase "exists solely for educational purposes and not for profit" no other conditions like application of income were required to be complied with. The Prescribed Authority was only required to examine the nature, activities and genuineness of the Institution. The above phrase was the only requirement for initial approval. The mere existence of profit/surplus did not disqualify the institution if the sole purpose of its existence was not profit/surplus did not disqualify the institution if the sole purpose of its existence was not profit-making but educational activities as Section 10(22) by its very nature contemplated income of such institution to be exempted. Under Section 10(22) the test was restricted to the character of the recipient of income, viz., whether it had the character of educational institution in India, its character outside India was irrelevant for deciding whether its income would be exempt under Section 10(22).28. The moot question in Section 10(22) was-whetherthe activities of the applicant came within the definition of "income of educationalinstitution". Under Section 10(22) one had to closely analyse the activities of the Institute, the objects of the Institute and its source of income and its utilization. Even if one of the objects enabled the Institute to undertake commercial activity, the institute would not be entitled to approval under Section 10(22). The said section inter alia excludes the income of the educational institute from the Total Income.In deciding the character of the recipient, it is not necessary to look at the profits of each year, but to consider the nature of the activities undertaken in India. If the Indian activity has no co-relation to education, exemption has to be denied. (see judgment of this Court in Oxford University Press [supra]). Therefore, the character of the recipient of income must have character of educational institution in India to be ascertained from the nature of the activities. If after meeting expenditure, surplus remains incidentally from the activity carried on by the educational institution, it will not cease to be one existing solely for educational purposes. In other words, existence of surplus from the activity will not mean absence of educational purpose (see judgment of this Court in Aditanar Educational Institution v. ACIT, (1997) 224 ITR 310 ). The test is - the nature of activity. If the activity like running a printing press takes place it is not educational. But whether the income/profit has been applied for non-educational purpose has to be decided only at the end of the financial year.Having analysed the provisos to Section 10(23C)(vi) one finds that there is a difference between stipulation of conditions and compliance thereof. The threshold conditions are actual existence of an educational institution and approval of the prescribed authority for which every applicant has to move an application in the standardized form in terms of the first proviso. It is only if the pre-requisite condition of actual existence of the educational institution is fulfilled that the question of compliance of requirements in the provisos would arise. We find merit in the contention advanced on behalf of the appellant that the third proviso contains monitoring conditions/requirements like application, accumulation, deployment of income in specified assets whose compliance depends on events that have not taken place on the date of the application for initial approval.34. To make the section with the proviso workable we are of the view that the Monitoring Conditions in the third proviso like application/utilization of income, pattern of investments to be made etc. could be stipulated as conditions by the PA subject to which approval could be granted. For example, in marginal cases like the present case, where appellant-Institute was given exemption up to financial year ending 31.3.1998 (assessment year 1998-99) and where an application is made on 7.4.1999, within seven days of the new dispensation coming into force, the PA can grant approval subject to such terms and conditions of the 1961 Act (including the abovementioned monitoring conditions). While imposing stipulations subject to which approval is granted, the PA may insist on certain percentage of accounting Income to be utilized/applied for imparting education in India. While making such stipulations, the PA has to examine the activities in India which the applicant has undertaken in its Constitution, MoUs. and Agreement with Government of India/National Council. In this case, broadly the activities undertaken by the appellant are - conducting classical education by providing course materials, designing courses, conducting exams, granting diplomas, supervising exams, all under the terms of an Agreement entered into with Institutions of the Government of India. Similarly, the PA may grant approvals on such terms and conditions a it deems fit in case where the Institute applies for initial approval for the first time. The PA must give an opportunity to the applicant-institute to comply with the monitoring conditions which have been stipulated for the first time by the third proviso. Therefore, cases where earlier the applicant has obtained exemption (s), as in this case, need not be re-opened on the ground that the third proviso has not been complied with. However, after grant of approval, if it is brought to the notice of the PA that conditions on which approval was given are breached or that circumstances mentioned in the thirteenth proviso exists then the PA can withdraw the approval earlier given by following the procedure mentioned in that proviso. The view we have taken, namely, that the PA can stipulate conditions subject to which approval may be granted finds support from sub-clause (ii) (B) in the thirteenth proviso.Section 10(23C)(vi) seeks to exempt income of institutions with laudable objects and activities such as universities, hospitals etc.. As stated above, stipulation of monitoring conditions is different from compliance of those conditions. Compliance or non-compliance can only be gauged at the assessment stage.Moreover, it is important to note that, even after the Finance Act, 1998 w.e.f. 1.4.1999. the third proviso to Section 10(23C)(vi), which refers to monitoring conditions, confines the words "application o income" to the objects for which the Institution is established. The third proviso does not use the words "in India" in the matter of application or accumulation of income though in several other sections like Sections 10(20A), 10(22B) and 11(1)(a) etc., Parliament has used the words "in India". Therefore, for this one more reason, we cannot read in the words "in India" into the third proviso that the educational institution has to apply its income wholly and exclusively to the objects for which it is established. Therefore, the plain words of the third proviso do not require application of income to be in India. Our judgment should not be understood to mean that the applicant has not to impart educational activities in India. If the applicant wants exemption under Section 10(23C)(vi) it has to impart education in India and only then it would be entitled to claim initial approval under that section. That is the reason for our saying that the "non-profit" qualification has to be tested against Indian activities. Our conclusion is that impartation of education must be in India if applicant desires exemption under Section 10(23C)(vi) and that excess/deficit of income over expenditure will not decide whether the applicant exists for profit or not.39 For the sake of clarity, we may reiterate that items such as application of income or accumulation of income or investment in specified assets indicated in clauses (a) and (b) in the third proviso are a part of compliance/monitoring conditions. As stated, however, there is a difference between application/utilization of income and outward remittance of income out of India. As discussed above, with the insertion of the provisos in Section 10(23C)(vi) of the 1961 Act, it is open to the PA to stipulate, while granting approval, that the approval is being given subject to utilization/application of certain percentage of income, in the accounting sense, towards impartation of education in India. Such exercise would be based on estimation. There is a difference between accounting income and taxable income. At the stage of Section 10, we are concerned with the accounting income. Therefore, it is open to the PA, if it deems fit, to stipulate that certain percentage of accounting income would be utilized for impartation of education in India. Therefore, in our view, it is always open to the PA to impose such terms and conditions as it deems fit. The interpretation we have given is based on harmonious construction of the provisos inserted in Section 10(23C)(vi) by the Finance Act, 1998. Lastly, we may reiterate that there is a difference between stipulation by the PA of such terms and conditions, as it deems fit under the provisos, and the compliance of those conditions by the appellant. The compliance of the terms and conditions stipulated by the PA would be a matter of decision at the time of assessment as availability of exemption has to be evaluated every year in order to find out whether the institution existed during the relevant year solely for educational purposes and not for profit.Before concluding, we may state that in this case the appellant had applied for exemption in Form 56D on 7.4.1999 seeking initial approval of exemption under Section 10(23C)(vi) for the accounting year ending 31.3.1999 (assessment year 1999-2000). That application was made under Rule 2CA of the Income-tax Rules, 1962. Under Rule 2CA, it is open to the PA to grant exemption up to 3 years. We are not concerned with the controversy as to whether the PA should grant initial approval for the accounting year ending 31.3.1999 or for three year. Suffice it to state that, one of the points which arises for determination in this case is whether the matter should be remitted to the Chief Commissioner/Director General or whether it should be remitted to CBDT Because we are informed that today the PA is the chief Commissioner/Director General and not the CBDT.In this case, the initial approval application in Form 56D was dated 7.4.1999. It was dismissed by CBDT on 12.10.2004 (after 5½ years), therefore, in terms of Rule 2CA(1A) we are required to remit this matter to CBDT for fresh consideration in the light of the law discussed hereinabove.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: grant approvals on such terms and conditions a it deems fit in case where the Institute applies for initial approval for the first time. The PA must give an opportunity to the applicant-institute to comply with the monitoring conditions which have been stipulated for the first time by the third proviso. Therefore, cases where earlier the applicant has obtained exemption (s), as in this case, need not be re-opened on the ground that the third proviso has not been complied with. However, after grant of approval, if it is brought to the notice of the PA that conditions on which approval was given are breached or that circumstances mentioned in the thirteenth proviso exists then the PA can withdraw the approval earlier given by following the procedure mentioned in that proviso. The view we have taken, namely, that the PA can stipulate conditions subject to which approval may be granted finds support from sub-clause (ii) (B) in the thirteenth proviso. 35. The next question which arises for consideration is: whether the words "in India" should be read into Section 10(23C)(vi) and/or in the third proviso thereto? 36. Section 10(23C)(vi) seeks to exempt income of institutions with laudable objects and activities such as universities, hospitals etc.. As stated above, stipulation of monitoring conditions is different from compliance of those conditions. Compliance or non-compliance can only be gauged at the assessment stage. 37. In the case of Oxford University Press (supra), Oxford University had a branch in India. The only activity of that branch was to carry on the business of a commercial printing press which published and printed books and materials and sold the same commercially and made a profit. The Department contended that one should read the words "in India" along with the word University". Accordingly, the Department contended that Section 10(22) exemption should be denied to the profits arising from the commercial printing activity of the University since Section 10(22) gave exemption only to profits/income of an Indian University. All the three Judges held that it was impermissible to read in the words " in India" into Section 10(22) of the 1961 Act. As stated above, Section 10(23C)(vi) is analogous to Section 10(22) of the 1961 Act. The majority view, however, was that the University must carry on educational activities in India in order to satisfy Section 10(22). According to the majority view, some educational activity had to be carried on in India and since Oxford University Press carried on no educational activity in India, the exemption did not apply to the University. In other words, the majority judges held that "non-profit" qualification has to be tested against Indian activities and it is in this context that remarks regarding "in India" are made in the majority at page nos. 672 and 684. 38. Moreover, it is important to note that, even after the Finance Act, 1998 w.e.f. 1.4.1999. the third proviso to Section 10(23C)(vi), which refers to monitoring conditions, confines the words "application o income" to the objects for which the Institution is established. The third proviso does not use the words "in India" in the matter of application or accumulation of income though in several other sections like Sections 10(20A), 10(22B) and 11(1)(a) etc., Parliament has used the words "in India". Therefore, for this one more reason, we cannot read in the words "in India" into the third proviso that the educational institution has to apply its income wholly and exclusively to the objects for which it is established. Therefore, the plain words of the third proviso do not require application of income to be in India. Our judgment should not be understood to mean that the applicant has not to impart educational activities in India. If the applicant wants exemption under Section 10(23C)(vi) it has to impart education in India and only then it would be entitled to claim initial approval under that section. That is the reason for our saying that the "non-profit" qualification has to be tested against Indian activities. Our conclusion is that impartation of education must be in India if applicant desires exemption under Section 10(23C)(vi) and that excess/deficit of income over expenditure will not decide whether the applicant exists for profit or not.39 For the sake of clarity, we may reiterate that items such as application of income or accumulation of income or investment in specified assets indicated in clauses (a) and (b) in the third proviso are a part of compliance/monitoring conditions. As stated, however, there is a difference between application/utilization of income and outward remittance of income out of India. As discussed above, with the insertion of the provisos in Section 10(23C)(vi) of the 1961 Act, it is open to the PA to stipulate, while granting approval, that the approval is being given subject to utilization/application of certain percentage of income, in the accounting sense, towards impartation of education in India. Such exercise would be based on estimation. There is a difference between accounting income and taxable income. At the stage of Section 10, we are concerned with the accounting income. Therefore, it is open to the PA, if it deems fit, to stipulate that certain percentage of accounting income would be utilized for impartation of education in India. Therefore, in our view, it is always open to the PA to impose such terms and conditions as it deems fit. The interpretation we have given is based on harmonious construction of the provisos inserted in Section 10(23C)(vi) by the Finance Act, 1998. Lastly, we may reiterate that there is a difference between stipulation by the PA of such terms and conditions, as it deems fit under the provisos, and the compliance of those conditions by the appellant. The compliance of the terms and conditions stipulated by the PA would be a matter of decision at the time of assessment as availability of exemption has to be evaluated every year in order to find out whether the institution existed during the relevant year solely for educational purposes and not for profit. ### Response: 0

Divisonal Manager, Rajasthan S.R.T.C Vs. Kamruddin

committed similar misconduct for the fifth time. It is also beyond any doubt or dispute that he had also been served with a letter of warning.10. The power of Labour Court and/or Industrial Tribunal in terms of Section 11A of the Industrial Disputes Act, 1947 to interfere with the quantum of punishment although cannot be denied, but it is also a well settled principle of law that the said power should be exercised judiciously. The Labour Court relied upon the decision of this Court in Bhagyo Mal (supra) wherein the High Court allowed back wages to the workman concerned. This Court in the facts and circumstances of the case found the order of the High Court to be self-contradictory, stating: "When the High Court had found that the respondent - employee deserved punishment on account of his misconduct, the High Court could not have rewarded the employee by granting him the back wages particularly when the Tribunal had converted the order of dismissal into that of the stoppage of two increments with cumulative effect. We, therefore, allow the appeal and set aside that part of the order of the High Court whereby the respondent - employee has been given the benefit of back wages. The rest of the order is maintained." We fail to understand as to how the said decision advanced the case of the respondent. 11. The question with regard to imposition of appropriate punishment upon a conductor of a bus belonging to a corporation constituted under the Road Transport Corporation Act, 1950 came up for consideration before this Court in Karnataka State Road Transport Corporation vs. B.S. Hullikatti [(2001) 2 SCC 574] , wherein it was held: "5. On the facts as found by the Labour Court and the High Court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty for as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.6. It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare." A three judge Bench of this Court in Regional Manager, RSRTC vs. Ghanshyam Sharma [(2002) 10 SCC 330] , reiterated the said principle, stating: "4. This Court in Karnataka SRTC v. B.S. Hullikatti has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a less rate than the proper rate, the said acts would inter alia amount to either being a case of dishonesty or of gross negligence and such conductors were not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside.5. Furthermore, we agree with the observations of the Single Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though under Section 11-A the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal." Recently in Uttaranchal Transport Corporation vs. Sanjay Kumar Nautiyal [2008 (12) SCC 131 ], Hullikatti (supra) has been followed. 12. Standing Order No. 36 whereto our attention has been drawn merely provides for different nature of penalties which can be imposed on a worker stating that penalties specified at Serial Nos.5 to 7 therein would be appealable. A corrigendum thereto was issued on 24.7.1982 by way of clarification with regard to the full route fare as contained in Circular No. 625 dated 5.6.1982. The said corrigendum has nothing to do with the nature or quantum of penalty. The same does not provide for a substitution of the penalty provided for in the Certified Standing Order. In any event, Certified Standing Order would prevail over such circulars.13. It may be true that in execution of the Award passed by the Labour Court, for a short time respondent was put back in service. This Court, however, as indicated hereinbefore, stayed the operation of the judgment by reason whereof Award as also the judgment of the High Court became non-operational. We are, therefore, of the opinion that by itself that may not be a ground to refrain ourselves from following the authoritative binding precedents.

1[ds]9. It is not a case where the misconduct against the respondent had not been proved. It is also not a case where the domestic enquiry was found to have been conducted in an unfair manner or contrary to the principles of natural justice. The services of the respondent had been terminated while the period of probation was not over. As a conductor, his performance during the period of probation was found to be unsatisfactory. It is not in dispute that a disciplinary proceeding was initiated against him while he was found to have committed similar misconduct for the fifth time. It is also beyond any doubt or dispute that he had also been served with a letter of warning.10. The power of Labour Court and/or Industrial Tribunal in terms of Section 11A of the Industrial Disputes Act, 1947 to interfere with the quantum of punishment although cannot be denied, but it is also a well settled principle of law that the said power should be exercised judiciously.Standing Order No. 36 whereto our attention has been drawn merely provides for different nature of penalties which can be imposed on a worker stating that penalties specified at Serial Nos.5 to 7 therein would be appealable. A corrigendum thereto was issued on 24.7.1982 by way of clarification with regard to the full route fare as contained in Circular No. 625 dated 5.6.1982. The said corrigendum has nothing to do with the nature or quantum of penalty. The same does not provide for a substitution of the penalty provided for in the Certified Standing Order. In any event, Certified Standing Order would prevail over such circulars.13. It may be true that in execution of the Award passed by the Labour Court, for a short time respondent was put back in service. This Court, however, as indicated hereinbefore, stayed the operation of the judgment by reason whereof Award as also the judgment of the High Court became non-operational. We are, therefore, of the opinion that by itself that may not be a ground to refrain ourselves from following the authoritative binding precedents.

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: committed similar misconduct for the fifth time. It is also beyond any doubt or dispute that he had also been served with a letter of warning.10. The power of Labour Court and/or Industrial Tribunal in terms of Section 11A of the Industrial Disputes Act, 1947 to interfere with the quantum of punishment although cannot be denied, but it is also a well settled principle of law that the said power should be exercised judiciously. The Labour Court relied upon the decision of this Court in Bhagyo Mal (supra) wherein the High Court allowed back wages to the workman concerned. This Court in the facts and circumstances of the case found the order of the High Court to be self-contradictory, stating: "When the High Court had found that the respondent - employee deserved punishment on account of his misconduct, the High Court could not have rewarded the employee by granting him the back wages particularly when the Tribunal had converted the order of dismissal into that of the stoppage of two increments with cumulative effect. We, therefore, allow the appeal and set aside that part of the order of the High Court whereby the respondent - employee has been given the benefit of back wages. The rest of the order is maintained." We fail to understand as to how the said decision advanced the case of the respondent. 11. The question with regard to imposition of appropriate punishment upon a conductor of a bus belonging to a corporation constituted under the Road Transport Corporation Act, 1950 came up for consideration before this Court in Karnataka State Road Transport Corporation vs. B.S. Hullikatti [(2001) 2 SCC 574] , wherein it was held: "5. On the facts as found by the Labour Court and the High Court, it is evident that there was a short-charging of the fare by the respondent from as many as 35 passengers. We are informed that the respondent had been in service as a Conductor for nearly 22 years. It is difficult to believe that he did not know what was the correct fare which was to be charged. Furthermore, the appellant had during the disciplinary proceedings taken into account the fact that the respondent had been found guilty for as many as 36 times on different dates. Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket less from as many as 35 passengers could only be to get financial benefit by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant-Corporation.6. It is misplaced sympathy by the Labour Courts in such cases when on checking it is found that the Bus Conductors have either not issued tickets to a large number of passengers, though they should have, or have issued tickets of a lower denomination knowing fully well the correct fare to be charged. It is the responsibility of the Bus Conductors to collect the correct fare from the passengers and deposit the same with the Company. They act in a fiduciary capacity and it would be a case of gross misconduct if knowingly they do not collect any fare or the correct amount of fare." A three judge Bench of this Court in Regional Manager, RSRTC vs. Ghanshyam Sharma [(2002) 10 SCC 330] , reiterated the said principle, stating: "4. This Court in Karnataka SRTC v. B.S. Hullikatti has held that in such cases where the bus conductors carry passengers without ticket or issue tickets at a less rate than the proper rate, the said acts would inter alia amount to either being a case of dishonesty or of gross negligence and such conductors were not fit to be retained in service because such inaction or action on the part of the conductors results in financial loss to the Road Transport Corporation. This Court was firmly of the opinion that in cases like the present, orders of dismissal should not be set aside.5. Furthermore, we agree with the observations of the Single Judge in the present case that the Labour Court was not justified in interfering with the punishment of dismissal. Though under Section 11-A the Labour Court has jurisdiction and powers to interfere with the quantum of punishment, however the discretion has to be used judiciously. When the main duty or function of the conductor is to issue tickets and collect fare and then deposit the same with the Road Transport Corporation and when a conductor fails to do so, then it will be misplaced sympathy to order his reinstatement instead of dismissal." Recently in Uttaranchal Transport Corporation vs. Sanjay Kumar Nautiyal [2008 (12) SCC 131 ], Hullikatti (supra) has been followed. 12. Standing Order No. 36 whereto our attention has been drawn merely provides for different nature of penalties which can be imposed on a worker stating that penalties specified at Serial Nos.5 to 7 therein would be appealable. A corrigendum thereto was issued on 24.7.1982 by way of clarification with regard to the full route fare as contained in Circular No. 625 dated 5.6.1982. The said corrigendum has nothing to do with the nature or quantum of penalty. The same does not provide for a substitution of the penalty provided for in the Certified Standing Order. In any event, Certified Standing Order would prevail over such circulars.13. It may be true that in execution of the Award passed by the Labour Court, for a short time respondent was put back in service. This Court, however, as indicated hereinbefore, stayed the operation of the judgment by reason whereof Award as also the judgment of the High Court became non-operational. We are, therefore, of the opinion that by itself that may not be a ground to refrain ourselves from following the authoritative binding precedents. ### Response: 1

Jeevantha & Others Vs. Hanumantha & Others

by the father of the present plaintiffs against the present appellants for a declaration of his title in respect of three survey numbers, 36, 38 and 54, which were assessed at Rs. 84.00 land revenue. It was also prayed that a sale deed that had been executed in respect of this property by defendants 1 and 3 in favour of defendant 2 be cancelled. The defendants denied the plaintiffs claim. They pleaded that the plaintiff was not a shikmedar in the land in suit and that he was not the owner of it under any sale deed and was not in possession of it. Issues 2 and 3 in this suit were in these terms :"2. Whether the plaintiff is in possession as a shikmedar on half of the land in dispute and whether the other half was sold in his favour by the pattadar in the sum of Rs. 64.00 and therefore he is in possession as an owner of the whole of the land in dispute.3. Whether defendant 1 was competent to execute a sale deed of the land in favour of defendant 2."(3) The valuation of the suit for purposes of jurisdiction was not stated in the plaint but it was mentioned therein that the land revenue assessed on it was Rs. 84.00 . The suit was tried by the Munsif who was competent to try suits up to the pecuniary limits of Rs. 1000.00. On issues 2 and 3 the Munsif found that the plaintiffs title both as a shikmedar and purchaser was not proved. It was further found that the defendants were owners of this land and were in possession of it. On appeal the decision of the Munsif was upheld. There was further appeal against this decree but it was dismissed in default. As no application for restoration of the appeal was made within the time prescribed, the order for dismissal became final. The result was that the plaintiffs claim for declaration and for cancellation of the sale deed was dismissed. On 10-3-1930 the plaintiffs brought the suit out of which this appeal arises. In this suit they claimed possession of the same survey numbers, 36, 38 and 54 on the same allegations which were made by their father in the earlier suit. This suit was valued for purposes of jurisdiction at Rs. 1,040.00, the land revenue assessed on the land at the date of the suit being Rs. 104.00. The defendants pleaded that the suit was barred by res judicata by reason of the decision in the former suit. This plea was resisted by the plaintiffs on the ground that the Munsif who tried the former suit was not competent to try the present suit because his pecuniary jurisdiction to hear cases was below the jurisdictional value of this suit. This plea for res judicata was negatived in the three Courts below on the ground that the Munsif who tried the former suit was not competent to try the present suit. On the merits of the case the plaintiffs succeeded to the extent of one half of their title as shikmedars but their title on the foot of the sale deed was held not proved. This decision was maintained to appeal. On second appeal the High Court not only upheld their title as shikmedars but also held their title on the sale deed proved. In the result a decree in favour of the plaintiffs was passed in respect of the whole of the property. Against this decision these two appeals have been preferred on behalf of the defendants.(4) It is unnecessary to go into the merits of the case because we think that the defendants have made out their plea of the res judicata and the decisions of the Court below on this issue are erroneous. It is true that in order to make out a plea of res judicata it is necessary to prove that the Court that tried the former suit was competent to try the present suit. There can be no question about it but it is also settled that in order to determine whether a Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of that Court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. If at that time such a Court would have been competent to try the subsequent suit, had it been then brought, the decision of such Court would operate as res judicata although subsquently by a rise in the value of the property that Court had ceased to be a proper Court, so far as regards its pecuniary jurisdiction, to take cognizance of a suit relating to that very property. It seems to us that this rule of law was overlooked in all the Courts below. The property in dispute in the two suits is identical. At the date of the earlier suit it was assessed to land revenue in the sum of Rs. 84.00 while at the date of the later suit it was assessed in the sum of Rs. 104.00. The difference in the jurisdictional value has arisen by reason of the increase in the land revenue assessment. The circumstance, however, could not affect the plea of res judicata. The present suit, if brought in the year 1913, would have been within the competence of the Munsif who tried the first suit because the land revenue assessed on these survey members then was only Rs. 84.00 and the valuation of the suit would have been Rs. 840.00, within the Munsifs pecuniary jurisdiction. This was the only ground urged against the application of the rule of res judicata to his case. In all other respects it was admitted that the case was within that rule. The result therefore is that the plaintiffs suit is barred by res judicata by reason of the decision of the former suit decided in the year 1921.

1[ds](4) It is unnecessary to go into the merits of the case because we think that the defendants have made out their plea of the res judicata and the decisions of the Court below on this issue are erroneous. It is true that in order to make out a plea of res judicata it is necessary to prove that the Court that tried the former suit was competent to try the present suit. There can be no question about it but it is also settled that in order to determine whether a Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of that Court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. If at that time such a Court would have been competent to try the subsequent suit, had it been then brought, the decision of such Court would operate as res judicata although subsquently by a rise in the value of the property that Court had ceased to be a proper Court, so far as regards its pecuniary jurisdiction, to take cognizance of a suit relating to that very property. It seems to us that this rule of law was overlooked in all the Courts below. The property in dispute in the two suits is identical. At the date of the earlier suit it was assessed to land revenue in the sum of Rs. 84.00 while at the date of the later suit it was assessed in the sum of Rs. 104.00. The difference in the jurisdictional value has arisen by reason of the increase in the land revenue assessment. The circumstance, however, could not affect the plea of res judicata. The present suit, if brought in the year 1913, would have been within the competence of the Munsif who tried the first suit because the land revenue assessed on these survey members then was only Rs. 84.00 and the valuation of the suit would have been Rs. 840.00, within the Munsifs pecuniary jurisdiction. This was the only ground urged against the application of the rule of res judicata to his case. In all other respects it was admitted that the case was within that rule. The result therefore is that the plaintiffs suit is barred by res judicata by reason of the decision of the former suit decided in the year 1921.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: by the father of the present plaintiffs against the present appellants for a declaration of his title in respect of three survey numbers, 36, 38 and 54, which were assessed at Rs. 84.00 land revenue. It was also prayed that a sale deed that had been executed in respect of this property by defendants 1 and 3 in favour of defendant 2 be cancelled. The defendants denied the plaintiffs claim. They pleaded that the plaintiff was not a shikmedar in the land in suit and that he was not the owner of it under any sale deed and was not in possession of it. Issues 2 and 3 in this suit were in these terms :"2. Whether the plaintiff is in possession as a shikmedar on half of the land in dispute and whether the other half was sold in his favour by the pattadar in the sum of Rs. 64.00 and therefore he is in possession as an owner of the whole of the land in dispute.3. Whether defendant 1 was competent to execute a sale deed of the land in favour of defendant 2."(3) The valuation of the suit for purposes of jurisdiction was not stated in the plaint but it was mentioned therein that the land revenue assessed on it was Rs. 84.00 . The suit was tried by the Munsif who was competent to try suits up to the pecuniary limits of Rs. 1000.00. On issues 2 and 3 the Munsif found that the plaintiffs title both as a shikmedar and purchaser was not proved. It was further found that the defendants were owners of this land and were in possession of it. On appeal the decision of the Munsif was upheld. There was further appeal against this decree but it was dismissed in default. As no application for restoration of the appeal was made within the time prescribed, the order for dismissal became final. The result was that the plaintiffs claim for declaration and for cancellation of the sale deed was dismissed. On 10-3-1930 the plaintiffs brought the suit out of which this appeal arises. In this suit they claimed possession of the same survey numbers, 36, 38 and 54 on the same allegations which were made by their father in the earlier suit. This suit was valued for purposes of jurisdiction at Rs. 1,040.00, the land revenue assessed on the land at the date of the suit being Rs. 104.00. The defendants pleaded that the suit was barred by res judicata by reason of the decision in the former suit. This plea was resisted by the plaintiffs on the ground that the Munsif who tried the former suit was not competent to try the present suit because his pecuniary jurisdiction to hear cases was below the jurisdictional value of this suit. This plea for res judicata was negatived in the three Courts below on the ground that the Munsif who tried the former suit was not competent to try the present suit. On the merits of the case the plaintiffs succeeded to the extent of one half of their title as shikmedars but their title on the foot of the sale deed was held not proved. This decision was maintained to appeal. On second appeal the High Court not only upheld their title as shikmedars but also held their title on the sale deed proved. In the result a decree in favour of the plaintiffs was passed in respect of the whole of the property. Against this decision these two appeals have been preferred on behalf of the defendants.(4) It is unnecessary to go into the merits of the case because we think that the defendants have made out their plea of the res judicata and the decisions of the Court below on this issue are erroneous. It is true that in order to make out a plea of res judicata it is necessary to prove that the Court that tried the former suit was competent to try the present suit. There can be no question about it but it is also settled that in order to determine whether a Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of that Court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. If at that time such a Court would have been competent to try the subsequent suit, had it been then brought, the decision of such Court would operate as res judicata although subsquently by a rise in the value of the property that Court had ceased to be a proper Court, so far as regards its pecuniary jurisdiction, to take cognizance of a suit relating to that very property. It seems to us that this rule of law was overlooked in all the Courts below. The property in dispute in the two suits is identical. At the date of the earlier suit it was assessed to land revenue in the sum of Rs. 84.00 while at the date of the later suit it was assessed in the sum of Rs. 104.00. The difference in the jurisdictional value has arisen by reason of the increase in the land revenue assessment. The circumstance, however, could not affect the plea of res judicata. The present suit, if brought in the year 1913, would have been within the competence of the Munsif who tried the first suit because the land revenue assessed on these survey members then was only Rs. 84.00 and the valuation of the suit would have been Rs. 840.00, within the Munsifs pecuniary jurisdiction. This was the only ground urged against the application of the rule of res judicata to his case. In all other respects it was admitted that the case was within that rule. The result therefore is that the plaintiffs suit is barred by res judicata by reason of the decision of the former suit decided in the year 1921. ### Response: 1

Liyakat Vs. State Of Uttaranchal

observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 16. In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 79 ] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 17. In State of U.P. v. Ashok Kumar Srivastavaii [1992(2) SCC 86] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 18. Sir Alfred Wills in his admirable book Wills Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 19. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. 20. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343 ] it was observed thus: (AIR pp. 345-46, para 10) "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 21. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ]. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 22. The above position was highlighted in State of Rajasthan v. Raja Ram [2003(8) SCC 180]. 23. It has been rightly noted by the trial court and the High Court that the accused persons were absolutely silent and no explanation was offered as to how the body came to be buried in their hut which was in their exclusive user.24. Similarly the non-explanation of this vital circumstance adds to the chain of circumstances. It is now settled law that if the deceased was in the custody or in the company of the accused, then the accused must supply some explanation regarding the disappearance of the deceased.

0[ds]13. Before analysing the factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ]. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.It has been rightly noted by the trial court and the High Court that the accused persons were absolutely silent and no explanation was offered as to how the body came to be buried in their hut which was in their exclusive user.24. Similarly theof this vital circumstance adds to the chain of circumstances. It is now settled law that if the deceased was in the custody or in the company of the accused, then the accused must supply some explanation regarding the disappearance of the deceased.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 16. In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 79 ] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 17. In State of U.P. v. Ashok Kumar Srivastavaii [1992(2) SCC 86] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 18. Sir Alfred Wills in his admirable book Wills Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 19. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. 20. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343 ] it was observed thus: (AIR pp. 345-46, para 10) "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 21. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ]. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 22. The above position was highlighted in State of Rajasthan v. Raja Ram [2003(8) SCC 180]. 23. It has been rightly noted by the trial court and the High Court that the accused persons were absolutely silent and no explanation was offered as to how the body came to be buried in their hut which was in their exclusive user.24. Similarly the non-explanation of this vital circumstance adds to the chain of circumstances. It is now settled law that if the deceased was in the custody or in the company of the accused, then the accused must supply some explanation regarding the disappearance of the deceased. ### Response: 0

Raja Mohammad Amir Ahmad Khan Vs. Municipal Board of Sitapur & Another

there is a disclaimer or renunciation in clear and unequivocal terms whether the same be in a pleading or in other documents. no forfeiture is incurred.19. Ex. A-18 was the only document containing the statement of the appellant which was held by the High Court to amount to a disclaimer entailing a forfeiture. Learned Counsel for the respondent however, drew our attention to statements in a few mere documents which he submitted either by themselves amounted to a disclaimer or could be used to clarify the intention of the appellant in the statements or assertions that he made in Ex. A-18. The first one referred to in this connection was Ex. A-19 dated October 14, 1949. It would be recalled that in Ex. A-18 the appellant made a claim for Rs. 52,900 as the proper compensation payable to him. The officer by his order dated March 26, 1949 awarded him Rs. 15. Complaining of this award he made a claim for the amount he originally sought, by a reference to the District Judge under S. 11(3) of Act XXVI of 1949 and the application he filed for this purpose was Ex. A-19 in which again the appellant made the two alternative prayers as he had done before the Compensation Officer. The learned District Judge, it may be noticed, by his order dated December 23, 1949 stayed the proceedings before him till the disposal of the present suit. The averments made in support of the reference were identical with those in Ex. A-18 which he had filed before the Compensation Officer on March 25, 1949. Paragraph 2 of Ex. A-19 stated that the land acquired was a part of the Jali Kothi or Bangla Maret Saheb "belonging to the claimant" and was situated in the heart of the city. Paragraph 6 which corresponds to paragraph 5 of Ex. A-18 ran:"The claimant and his ancestors have been owners of the land and have been exercising permanent heritable and transferable rights in this (as in other lands mentioned in para 4 above) openly and to the knowledge and consent of the Government for more than sixty years,"and in paragraph 18 he said:"The claimant was then forced to file a declaratory suit No. 24 of 1949 against the U. P. Government and the Municipal Board, Sitapur that the rights of the claimant in the whole land acquired requisitioned and left out are those of an owner or of a permanent lessee."This of anything is less unambiguous and unequivocal than the statements contained in Ex. A-18. Learned Counsel next referred us to the terms of the plaint. Here again, the only assertions made were that the plaintiff and his ancestors had been in possession of the bungalow and its compound since the last 79 years; that the plaintiff and his ancestors had been owing a bungalow and other constructions and holding the premises with permanent heritable and transferable rights, that the plaintiff and his predecessors had been exercising heritable and transferable rights in the land in dispute openly and to the knowledge of the Government and the Municipal Board and in any view of the case had acquired such rights by adverse possession. In paragraph 20 the plaintiff prayed that it may be declared that the plaintiff had a permanent heritable and transferable right as an owner and , in any case, as a permanent lessee for building purposes and he had the right to lease out the same. We do not consider that the position of the respondent is improved by the plaint or that it takes us beyond the assertions in Ex. A-18 which we have considered in detail. If one proceeds on the basis that the appellant was a permanent tenant, holding at a nominal and invariable rent, and had a transferable and heritable interest in the plot, none of the allegations in Exs. A-18, A-19 or the plaint go beyond it or purport to deny the landlord the right to the reversionary interest or to demand and receive the fixed rental for the property. Mr. Agarwala referred us, besides, to the oral evidence of the manager of the appellant who stated that the plaintiffs believed that they were the owners. We do not think that this assists the respondent.20. The one fact that remains is that rent was being continuously paid right up to March, 1947 and the appellant never raised a dispute as regards his liability to pay rent. This was stressed before the learned Judges of the High Court as pointing to the assertion made by the appellant not amounting to a claim to full ownership in himself. The learned Judges, however, dismissed this argument on the ground that it was not proved that rent was paid up to 1949. Mr. Aggarwala made the same submission to us. As regards this matter, however, two things stand out prominently: The first is what we have already stated that the appellant never disputed his liability to pay rent. The next is that as early as September 24, 1947 the Municipal Board objecting to the subleases effected by the appellant applied to the Government to terminate the lease and the Government also appear to have concurred with the municipality in this matter. The notification for acquisition of the suit plots was published on December 3, 1948 and immediately thereafter possession appears to have been taken as is recited in Ex. A-18 which we have extracted earlier. In these circumstances, we do not consider that any inference adverse to the appellant could be drawn from his not tendering the rent for the period up to the date on which possession was taken.21. We, therefore, hold that the learned Judges were in error in holding that the appellant had incurred a forfeiture of his tenancy, assuming it was a permanent tenancy, by the claim that he made in Ex. A-18 and the other documents to which we have referred so as to justify the forfeiture which the Government claimed to enforce by Ex. A-15.

1[ds]Before we proceed to state the points urged before us, it is necessary to mention that the arguments before us have proceeded on the assumption that the appellant was a permanent lessee with heritable and transferable rights. We are saying this because the learned Judges of the High Court have not recorded any definite finding on this issue of fact but have expressed the opinion that if it were necessary to determine that question the matter would have to be remanded to the trial court after summoning the documents which are referred to in the passage extracted earlier. We would only add that we entirely agree with the observations of the learned Judges on thisdoubt, the provisions of the Transfer of Property Act were not, it is stated in terms, applicable to the area in question, but it has been laid down that the principles embodied in S. 111(g) are equally applicable to tenancies to which the Act does not apply on the ground of the same being in consonance with justice, equity and good conscience (See Maharaja of Jeypore v. Rukmini Pattamahadevi, 46 Ind App 109 (AIR 1919 PC 1).It was also clear law that permanent tenancies are within the rule and are liable to forfeiture if there is a disclaimer of the tenancy or a denial of the landlords title. That the disclaimer or the repudiation of the landlords title must be clear and unequivocal and made to the knowledge of the landlord is also beyonddeed was presented for registration and was registered on August 12, 1918. We are not now concerned with the legal effect of the declaration or to ascertain whether by reason thereof the lease of the property attained the character of permanency with hereditary and transferable rights in the hands of the then Talukdar or his successors but we are reciting this anterior history regarding which there is no dispute for the purpose of appreciating the significance of the claim made in Ex.and in ascertaining whether it amounted to a repudiation of the landlords title.Now to revert to paragraphs 2, 5 and 8 which the learned Judges considered amounted to a clear and unequivocal denial of the Governments title, they referred in para 2 to the words "belonging to me" as constituting a disclaimer of the tenancy and a repudiation of the landlords title. We do not agree that this is the only or proper construction which the words are capable of bearing. Though the word "belonging" no doubt is capable of denoting an absolute title, is nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could be signified by thatthe case before us there had been a bungalow constructed on the property and learned Counsel for the respondent conceded that it that bungalow were in existence and the property had been referred to as my bungalow" or "bungalow belonging to me it would not be a disclaimer or rather the denial would not be unequivocal but he urged that if the same terms were used in respect not of theand the land together but of the site alone on which thestood, the interpretation of the assertion would be different. It is in this context that the circumstances of the tenancy become material for determining the nature of the assertion made. Here was a tenancy whose origin was not definitely known. The lessee had constructedand the appellant and his ancestors had been in enjoyment of the property for over three quarters of a century. There had been transfers effected at the property and the same had been the subject of inheritance. There had been a document in which there had been a public assertion that though it was Government land for which a nominal rent was payable, they had "a permanent heritable and transferable right". Notwithstanding enjoyment of this nature with public assertions of the type, when the property was sought to be enjoyed byit to others for construction of houses the municipality had come in and asserted rights in denial of these claims. It is with that background that one has to judge as to whether when the tenant stated that the land "belonged to him" he was asserting merely the substantial character of his interest in the property or was disclaiming the reversionary interests of Government or its right to demand and receive a fixed rent in respect of the property. We consider that the words employed did not, in the circumstances, amount to a disclaimer or a renunciation of the tenancy.15. Coming next to paragraph 5, what we have stated in regard to paragraph 2 and the use of the expression "belonging to me" occurring there would in our opinion apply equally to the use of the word owner in this paragraph. The reference to the appellant and his ancestors exercising permanent heritable and transferable rights to the land is an obvious reference to the deed dated August 8, 1918 executed under S. 32A of the Oudh Estates Act, 1869 in which also the same words occur. Though divorced from the context these words are capable of being construed as an assertion of absolute ownership, they cannot, in our opinion, in the setting in which they occur and bearing in mind the history of the enjoyment by the appellant and his predecessors of this property, be deemed an assertion unequivocal in nature of absolute ownership sufficient to entail a forfeiture of a permanent tenancy of this nature. In this connection it might be noticed that this enjoyment is stated to be with the consent of the Government. If the assertion were understood to be as an absolute owner in derogation of the rights of the Government as landlord, the reference to the consent of Government to such an enjoyment would be wholly inappropriate. Consent would have relevance only if the Government had interest in the property and we, therefore, understand the passage to mean that the permanent, transferable and heritable, particularly the right to transfer which was being denied by the municipality, was stated to have been enjoyed with the consent of the Government. That is an additional reason for our holding that at the worst the assertion was not unequivocal as to entail a forfeiture of the tenancy.16. What remains for consideration is paragraph 8 and the reference there to the suit for declaration "of my title in respect of this land". This passage is, if anything, less capable of the construction sought to be put upon it by the respondent that it amounts to an assertion repudiating the title of the landlord. If we are correct in the conclusion as regards paragraphs 2 and 5 it would follow that the title of which it seeks a declaration is such title as he has in the suit property.All ER 44 a Divisional Court held that even by an inadvertent denial in a pleading of the right of the landlord, a tenant would incur forfeiture. We do not consider that this is the law in India, and for the same reason for which (1881), 16 Ch. D. 730 was held inapplicable to his country. We consider the law to be that unless there is a disclaimer or renunciation in clear and unequivocal terms whether the same be in a pleading or in other documents. no forfeiture isof anything is less unambiguous and unequivocal than the statements contained in Ex.el next referred us to the terms of the plaint.Here again, the only assertions made were that the plaintiff and his ancestors had been in possession of the bungalow and its compound since the last 79 years; that the plaintiff and his ancestors had been owing a bungalow and other constructions and holding the premises with permanent heritable and transferable rights, that the plaintiff and his predecessors had been exercising heritable and transferable rights in the land in dispute openly and to the knowledge of the Government and the Municipal Board and in any view of the case had acquired such rights by adverse possession. In paragraph 20 the plaintiff prayed that it may be declared that the plaintiff had a permanent heritable and transferable right as an owner and , in any case, as a permanent lessee for building purposes and he had the right to lease out the same. We do not consider that the position of the respondent is improved by the plaint or that it takes us beyond the assertions in Ex.which we have considered in detail. If one proceeds on the basis that the appellant was a permanent tenant, holding at a nominal and invariable rent, and had a transferable and heritable interest in the plot, none of the allegations in Exs.9 or the plaint go beyond it or purport to deny the landlord the right to the reversionary interest or to demand and receive the fixed rental for the property. Mr.Agarwala referred us, besides, to the oral evidence of the manager of the appellant who stated that the plaintiffs believed that they were the owners.We do not think that this assists the respondent.20. The one fact that remains is that rent was being continuously paid right up to March, 1947 and the appellant never raised a dispute as regards his liability to pay rent. This was stressed before the learned Judges of the High Court as pointing to the assertion made by the appellant not amounting to a claim to full ownership in himself. The learned Judges, however, dismissed this argument on the ground that it was not proved that rent was paid up to 1949. Mr. Aggarwala made the same submission to us. As regards this matter, however, two things stand out prominently: The first is what we have already stated that the appellant never disputed his liability to pay rent. The next is that as early as September 24, 1947 the Municipal Board objecting to the subleases effected by the appellant applied to the Government to terminate the lease and the Government also appear to have concurred with the municipality in this matter. The notification for acquisition of the suit plots was published on December 3, 1948 and immediately thereafter possession appears to have been taken as is recited in Ex.which we have extracted earlier. In these circumstances, we do not consider that any inference adverse to the appellant could be drawn from his not tendering the rent for the period up to the date on which possession was taken.21. We, therefore, hold that the learned Judges were in error in holding that the appellant had incurred a forfeiture of his tenancy, assuming it was a permanent tenancy, by the claim that he made in Ex.and the other documents to which we have referred so as to justify the forfeiture which the Government claimed to enforce by Ex.

### Instruction: Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0). ### Input: there is a disclaimer or renunciation in clear and unequivocal terms whether the same be in a pleading or in other documents. no forfeiture is incurred.19. Ex. A-18 was the only document containing the statement of the appellant which was held by the High Court to amount to a disclaimer entailing a forfeiture. Learned Counsel for the respondent however, drew our attention to statements in a few mere documents which he submitted either by themselves amounted to a disclaimer or could be used to clarify the intention of the appellant in the statements or assertions that he made in Ex. A-18. The first one referred to in this connection was Ex. A-19 dated October 14, 1949. It would be recalled that in Ex. A-18 the appellant made a claim for Rs. 52,900 as the proper compensation payable to him. The officer by his order dated March 26, 1949 awarded him Rs. 15. Complaining of this award he made a claim for the amount he originally sought, by a reference to the District Judge under S. 11(3) of Act XXVI of 1949 and the application he filed for this purpose was Ex. A-19 in which again the appellant made the two alternative prayers as he had done before the Compensation Officer. The learned District Judge, it may be noticed, by his order dated December 23, 1949 stayed the proceedings before him till the disposal of the present suit. The averments made in support of the reference were identical with those in Ex. A-18 which he had filed before the Compensation Officer on March 25, 1949. Paragraph 2 of Ex. A-19 stated that the land acquired was a part of the Jali Kothi or Bangla Maret Saheb "belonging to the claimant" and was situated in the heart of the city. Paragraph 6 which corresponds to paragraph 5 of Ex. A-18 ran:"The claimant and his ancestors have been owners of the land and have been exercising permanent heritable and transferable rights in this (as in other lands mentioned in para 4 above) openly and to the knowledge and consent of the Government for more than sixty years,"and in paragraph 18 he said:"The claimant was then forced to file a declaratory suit No. 24 of 1949 against the U. P. Government and the Municipal Board, Sitapur that the rights of the claimant in the whole land acquired requisitioned and left out are those of an owner or of a permanent lessee."This of anything is less unambiguous and unequivocal than the statements contained in Ex. A-18. Learned Counsel next referred us to the terms of the plaint. Here again, the only assertions made were that the plaintiff and his ancestors had been in possession of the bungalow and its compound since the last 79 years; that the plaintiff and his ancestors had been owing a bungalow and other constructions and holding the premises with permanent heritable and transferable rights, that the plaintiff and his predecessors had been exercising heritable and transferable rights in the land in dispute openly and to the knowledge of the Government and the Municipal Board and in any view of the case had acquired such rights by adverse possession. In paragraph 20 the plaintiff prayed that it may be declared that the plaintiff had a permanent heritable and transferable right as an owner and , in any case, as a permanent lessee for building purposes and he had the right to lease out the same. We do not consider that the position of the respondent is improved by the plaint or that it takes us beyond the assertions in Ex. A-18 which we have considered in detail. If one proceeds on the basis that the appellant was a permanent tenant, holding at a nominal and invariable rent, and had a transferable and heritable interest in the plot, none of the allegations in Exs. A-18, A-19 or the plaint go beyond it or purport to deny the landlord the right to the reversionary interest or to demand and receive the fixed rental for the property. Mr. Agarwala referred us, besides, to the oral evidence of the manager of the appellant who stated that the plaintiffs believed that they were the owners. We do not think that this assists the respondent.20. The one fact that remains is that rent was being continuously paid right up to March, 1947 and the appellant never raised a dispute as regards his liability to pay rent. This was stressed before the learned Judges of the High Court as pointing to the assertion made by the appellant not amounting to a claim to full ownership in himself. The learned Judges, however, dismissed this argument on the ground that it was not proved that rent was paid up to 1949. Mr. Aggarwala made the same submission to us. As regards this matter, however, two things stand out prominently: The first is what we have already stated that the appellant never disputed his liability to pay rent. The next is that as early as September 24, 1947 the Municipal Board objecting to the subleases effected by the appellant applied to the Government to terminate the lease and the Government also appear to have concurred with the municipality in this matter. The notification for acquisition of the suit plots was published on December 3, 1948 and immediately thereafter possession appears to have been taken as is recited in Ex. A-18 which we have extracted earlier. In these circumstances, we do not consider that any inference adverse to the appellant could be drawn from his not tendering the rent for the period up to the date on which possession was taken.21. We, therefore, hold that the learned Judges were in error in holding that the appellant had incurred a forfeiture of his tenancy, assuming it was a permanent tenancy, by the claim that he made in Ex. A-18 and the other documents to which we have referred so as to justify the forfeiture which the Government claimed to enforce by Ex. A-15. ### Response: 1

Om Prakash & Others Vs. State of Uttar Pradesh & Others

were having abadi on the date on which Section 4 notification was issued on 5-1-1991 and it was that abadi which had continued without any additional construction thereon till the date of Section 6 notification and thereafter and such abadi was squarely covered by the State policy of not acquiring lands having abadi, then it will be open to the State authorities to pass appropriate orders for withdrawing such lands from acquisition and give appropriate relief to the applicants concerned. We, therefore, grant liberty to the appellants, if so advised, to file written representations before appropriate authorities of the State of Uttar Pradesh invoking the State Governments powers under Section 48 sub-section (1) of the Act. It is made clear that we express no opinion on the question whether the appellants lands had such abadi on the date of Section 4 notification which would attract the State policy of not acquiring such lands and whether such policy had continued thereafter at the stage of Section 6 notification of 7-1-1992 and whether such policy is still current and operative at the time when the appellants representations come up for consideration of appropriate authorities of the State Government. It will be for the State authorities to take their informed decision in this connection. We may not be understood to have stated anything on this aspect, nor are we suggesting that the State must release these lands from acquisition if the State authorities are not satisfied about the merits of the representations. The State authorities will have to be satisfied on the following aspects in this connection(i) Whether there was any abadi on the acquired lands at the time of Section 4(1) notification; (ii) Whether such abadi was a legally permissible abadi;(iii) Whether such abadi has continued to exist till the date of representation;(iv) Whether such abadi was covered by any government policy in force at the time of issuance of Section 4(1) notification and/or Section 6 notification for not acquiring lands having such abadi;(v) Whether such government policy has continued to be in force till the date of representation 32. In short, the entire matter is left at large for the consideration of the State authorities in the appellants representations. We also make it clear that if the appellants file their written representations to the aforesaid effect on or before 31-8-1998, then the appropriate authorities of the State Government shall consider their representations regarding the feasibility of releasing such lands from acquisition under Section 48(1) of the Act on the ground that there were "abadis" on these lands at the relevant time and are governed by any existing State policy for releasing such lands from acquisition on that score as indicated hereinabove and for that purpose they may give a hearing to the appellants, either personally or through their counsel, and permit them to lead whatever evidence they want to lead in this connection. The State authorities shall consider these written representations within a period of two months from the date such representations are received, i.e., latest by 31-10-1998 and will take appropriate decisions on these representations and will inform the representationists concerned in writing about the decision of the State Government in this connection. 33. Subject to the aforesaid liberty given to the appellants, these appeals will, therefore, stand dismissed. We may, however, state that the status quo regarding possession on the spot in connection with the appellants lands a shall be maintained by all concerned till 30-11-1998 within the time the consideration of the appellants representations under Section 48(1) of the Act is completed by the State authorities and result thereof is communicated to the representationists. We also make it clear that if the appellants do not file such representations on or before 31-8-1998, the State authorities will not be required to consider any such representation filed thereafter and the status quo order regarding possession as granted by us will stand recalled after 31-8-1998 qua the appellants concerned who do not file such representations within the time granted by us for the purpose. . 34. Before parting with the present proceedings, we may mention one request made by learned Senior Counsel Shri K. K. Venugopal appearing for Respondent 5 whose intervention application was granted in SLP (C) No. 20905 of 1995. Learned Senior Counsel stated that many serious objections are required to be considered against the acquisition of the land of the intervener and it was his contention that lands were acquired for being allotted to persons closely related to the Chairman and other powers that be, but as these contentions raise disputed questions of fact and as Respondent 5 had not filed any writ petition in the High Court, he may be given liberty to file writ petition under Article 226 of the Constitution of India before the High Court. The said request is reasonable. In the present appeals arising out of the judgment of the High Court in writ petitions filed by the appellants, Respondent 5s independent grievance cannot be examined. It would, therefore, be appropriate to relegate Respondent 5-intervener to the remedy of filing a substantive writ petition under Article 226 of the Constitution of India before the High Court. The respondent-authorities had no objection to such course being adopted. Consequently, Respondent 5-interveners contentions are not being examined by us in these proceedings. It is trite to observe that as and when Respondent 5 files a substantive writ petition under Article 226 of the Constitution of India before the High Court, it will be for the High Court to decide the merits of the said writ petition including the question whether the writ petition at such a stage is required to be entertained or not. In short, we express no opinion on the merits of such writ petition that may be filed by the intervener, Respondent 5 in the High Court. The said petition will have to be decided on its merits including the question of its maintainability by the High Court after hearing the parties concerned.

0[ds]12. So far as the question of dispensing with inquiry under Section 5-A is concerned, the scheme of the Land Acquisition Act has to be kept in view. Sub-section (1) of Section 4 of the Act lays down that whenever it appears to the appropriate Government that land in a locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect has to be published in the Official Gazette and also to proceed further according to the mode laid down in the said provision. Then follows Section 5-A. Sub-section (1) thereof provides that any person interested in any land which has been notified under Section 4 sub-section (1), as being needed or is likely to be needed for a public purpose may, within 30 days from the date of publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. Sub-section (2) of Section 5-A of the Act lays down the procedure in connection with such inquiry. The objections under Section 5-A are to be lodged in writing with the Collector and the Collector is required to give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by a pleader and shall after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4 sub-section (1), or make different reports to the Government and in the light of the said report, the appropriate Government has to come to its own decision on the objections and such decision is made final under the Act. Then follows Section 6 sub-section (1) which lays down that subject to the provisions of Part VII of the Act, when the appropriate Government is satisfied after considering the report, if any, made under Section 5-A sub-section (2) that any particular land is needed for a public purpose or for a company, a declaration can be made by the appropriate Government for acquiring such lands. It is, therefore, obvious that under the normal scheme of land acquisition proceedings under the Act before any land can be acquired, by issuing notification under Section 6, the gamut of hearing of objections to such proposed acquisition as laid down by Section 5-A has to be followed.Therefore, so far as the State of Uttar Pradesh is concerned, any type of land after 19-11-1954 even though, not being waste or arable could be subjected to the provisions of Section 17 sub-section (1). However, so far as sub-section (4) of Section 17 was concerned, no amendment was made in the State of Uttar Pradesh till 26-4-1974, when by the Land Acquisition (U.P. Amendment and Validation) Act 8 of 1974, Section 17 sub-section (4) was also amended by subsisting the words, brackets and figures "sub-section (1), sub-section (1-A) or sub-section (2)" as applicable to the State of Uttar Pradesh. The net result of these two State amendments is that after 26-4-1974, if lands of any type, apart from being waste or arable, were sought to be acquired under the Land Acquisition Act as applicable to the State of Uttar Pradesh, in case of urgency, provisions of Section 5-A could be dispensed with provided such lands were acquired for or in connection with sanitary improvements of any kind or planned development. Thus, this enabling provision was available to the appropriate Government functioning in the State of Uttar Pradesh, if it was satisfied that the situation was so urgent that Section 5-A inquiry was to be dispensed with in connection with acquisitions of any type of lands for the planned development of any area. However, still one basic requirement remained for being satisfied before such power could be exercised, namely, that there should be a case of urgency. Even if the acquisition was for the planned development of any area and there was no material before the appropriate Government for dispensing with inquiry under Section 5-A on the touchstone of any urgency as found by the appropriate Government, the provisions of Section 17 sub-section (4) as amended by the Amending Act 8 of 1974 could not have been invoked. However, the parent Act itself underwent an amendment in 1984, as noted earlier, and the words "waste or arable" were taken out from the sweep of Section 17 sub-section (1) read with sub-section (4) thereof. The net result is that after 1984, for acquisition of any type of lands if the appropriate authority is satisfied about the existence of urgency requiring acceleration of taking of possession as per Section 17(1) before award or acceleration of issuance of notification under Section 6 as per Section 17(4), whether such acquisition was for the planned development of any area or for sanitary improvements in the area or for any other public purpose or for a companySo far as the present proceedings are concerned, the situation was tried to be salvaged further in the counter-affidavit filed on behalf of NOIDA. Its Working Secretary Rama Shankar has filed a counter-affidavit in the present proceedings explaining the necessity to apply emergency provisions. It has been averred in para 9 of the counter to the effect that what necessitated application of emergency provisions was imminent possibility of unauthorised construction and/or encroachment upon the suit land which would have hammered the speedy and planned industrial development of the area which was the purpose of acquisition proceedings. This stand is in line with the earlier stand of NOIDA in its written requisition dated 14-12-1989. We have already seen that the said stand reflects a ground which is patently irrelevant for the purpose of arriving at the relevant subjective satisfaction by the State authorities about dispensing with Section 5-A inquiry. We could have appreciated the stand of the State authorities for invoking the urgency clause under Section 17(4) of the Act on the ground that when about 500 acres of land were to be acquired for further planned development of Sector 43 and other sectors of NOIDA, as mentioned in the impugned notification, hearing of objectors who might have filed written objections when there are a large number of occupants of these lands and who possess about 438 plots of land under acquisition, would have indefinitely delayed the acquisition proceedings and years would have rolled by before Section 6 notification could have been issued. Under these circumstances, the entire further development of the area would have, on the peculiar facts and circumstances of these cases, come to a grinding halt. Such a stand would have justified the subjective satisfaction of the authorities for invoking Section 17(4) of the Act. Such satisfaction then could not have been gone behind by a court of law. But unfortunately for the respondents, such was not their case nor did they even whisper in these cases that these aspects were kept in view while dispensing with Section 5-A inquiry. The Court cannot obviously, therefore, make out a new case for them which is not pleaded in these proceedings to justify theirIt is no doubt true that the aforesaid decision of the three-Judge Bench of this Court was explained by a latter two-Judge Bench decision of this Court in State of U. P. v. Pista Devi as being confined to the fact situation in those days when it was rendered. However, it is trite to note that the latter Bench of two learned Judges of this Court could not have laid down any legal proposition by way of a ratio which was contrary to the earlier decision of the three-Judge Bench in Narayan Govind Gavate. In fact, both these decisions referred to the fact situations in the light of which they wereIn the light of the aforesaid discussion, therefore, the conclusion becomes inevitable that the action of dispensing with inquiry under Section 5-A of the Act in the present cases was not based on any real and genuine subjective satisfaction depending upon any relevant data available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and dispensed with Section 5-A inquiry by resorting to Section 17 sub-section (4) thereof. The first point is, therefore, answered in the negative, in favour of the appellants and against the contestingSo far as this point is concerned, Shri Shanti Bhushan, learned Senior Counsel for the appellants, submitted that much prior to the issuance of Section 4 notification and after the earlier acquisition of 15 bighas of land from the appellants own Survey No. 488, as the appellant was apprehending further acquisition of a portion of land on which his construction stood, the appellant was constrained to file a civil suit against NOIDA for a declaration that the appellant was the owner and in possession of land measuring 4 bighas 10 biswas comprising in Khasra No. 488 situated in Village Chhalera Banger, and abadi stood therein for about 5-6 years. The said suit was registered as Case No. 46 of 1989 in the Court of Munsif, Ghaziabad. After hearing the plaintiff and NOIDA, the civil court came to the conclusion on evidence that there was abadi in the disputed property. The civil court also noted the contention of NOIDA which was the defendant in that case, that if disputed land was abadi land of the plaintiff, then he could file objections under Section 5-A of the Land Acquisition Act against the proposed acquisition proceedings and if his abadi was proved on the disputed land, then his abadi land could be left out. Our attention was also invited to the further fact that the said decision of the civil court dated 14-12-1989 was confirmed by the District Court in appeal on 17-11-1990. Thus the final court of facts came to the conclusion that there was abadi of the appellant on the land in question even prior to the date of Section 4 notification in the present case. It is, of course, true as informed to us by Shri Mohta, learned Senior Counsel for NOIDA, that the said decision of the District Court is not final and second appeal against the said decision is pending in the Allahabad High Court. Be that as it may, the contention of Shri Shanti Bhushan, learned Senior Counsel for the appellants, was that there was sufficient evidence one the record of this case to show that the disputed land under acquisition was having abadi since a number of years and that was prior to the issuance of Section 4 notification dated 5-1-1991. He also invited our attention to the further fact that pending the proceeding before the High Court, a site inspection report was prepared in connection with diverse lands under acquisition and the appellants Khasra No. 488 was one of them. This report dated 11-3-1996 was submitted by the Officer on Special Duty, Land Acquisition Department, Revenue Board, U.P. which clearly shows that at the time when the inspection was made of Khasra No. 488 belonging to the appellant, on the extent of 4 acres and 10 bighas of land a factory was located and the property was being used also for residential purpose. There was a telephone number, there were three electric meters installed, about 60 workers were found working in the factory. Besides, 8 shops and 5 residential houses were existing where families were living. It was also noted that the construction was very old and people were residing there for a long time and a factory was also being run. Learned Senior Counsel for NOIDA submitted that the aforesaid inspection report was one-sided and it did not indicate whether NOIDA authorities were also present at the time of the said report. The learned counsel appearing for the appellants in the remaining appeals also submitted that there was abadi on the lands occupied by these appellants also. It is submitted on behalf of the appellants by their a learned counsel that there is a policy followed by the State of Uttar Pradesh not to acquire lands which are having abadi and consequently if Section 5-A inquiry was held, the appellants could have requested the appropriate authorities not to acquire theseRepelling the aforesaid contention, learned Senior Counsel for NOIDA, submitted that there is some misconception about the concept of abadi. That abadi is a term which refers to village-site lands utilised for residential purposes. He, of course, stated that it is true that there is a policy adopted by the State of Uttar Pradesh not to acquire lands on which there is abadi, namely, village-site lands having residential construction thereon. But according to him, the civil courts decree which has not become final tries to equate construction with abadi but in the strict sense of the term, it would not be abadi which would be covered by the State policy of not acquiring lands having such abadi as any stray construction made on agricultural lands outside the village sites reserved for putting up construction of residential quarters in villages would not be covered by the State policy of not acquiring such abadi lands. He stated that whatever stand NOIDA authorities might have taken as the defendants in the suit cannot bind the State authorities. Dr. Ghatate, learned Senior Counsel appearing for the State of Uttar Pradesh, also submitted that the State was not a party to the civil court litigation. He, of course, stated that there is a State policy in existence as on date under which genuine abadi lands on which abadi is situated within the village sites may not be acquired but only because there are some stray constructions on agricultural lands beyond the village sites, they would not be covered by such State policy. It was also submitted by Shri Mohta, learned Senior Counsel for NOIDA and Dr. Ghatate, learned Senior Counsel for the State of U.P., that what is necessary to be seen is whether there was any real abadi on the lands under acquisition on the date of Section 4 notification dated 5-1-1991 as any subsequent construction put up thereafter by any of the occupants would not create any equitable rights in their favour and any subsequent construction and change of user of the land covered by Section 4 notification cannot be of anyIn view of the aforesaid rival contentions, therefore, it appears to us that in the present proceedings arising out of petitions under Article 226 of the Constitution of India, it is not possible to come to a definite conclusion on these highly disputed questions of fact, namely, whether the lands in dispute were part of village-site lands reserved for construction of residential houses and whether they were covered by the term "abadi" so as to be subjected to any policy decision of the State for excluding such abadi lands from acquisition proceedings. Even the civil court litigation which is still sub-judice before the High Court would by itself not bind the State authorities as the State of U.P. was not a party to these proceedings as rightly contended by learned Senior Counsel, Dr. Ghatate. Not only that, but the High Court in the impugned judgment has referred to the set of evidence on record and has held that there is no evidence showing the extent of construction on the lands. On the other hand, there is a 17-point report by the Tehsildar, Dadri, which is Annexure 7 to the model counter-affidavit filed by the State in which he clearly pointed out that the land sought to be acquired was agricultural and that only the boundary wall had been constructed in 11 plots. The High Court has also observed that in exercise of the powers under clause (d) of Section 2 read with Section 3 of the U.P. Industrial Area Development Act, 1976, the notification of 17-4-1976 was published to declare the area comprising the villages mentioned in the Schedule annexed thereto, to be called the New Okhla Industrial Development Area. Village Chhalera Banger, land of which is shown in khasra entries, is one of the villages comprised in the Schedule. The submission of the learned Standing Counsel is that this area was already declared as industrial development area and after the notification of 1976 was issued, such area could not have been converted into abadi. Therefore, a further disputed question would arise as to whether the so-called abadi on these lands sought to be acquired out of the agricultural holdings of the occupants in Village Chhalera Banger were subjected to construction of abadi prior to 1976 notification or subsequent thereto. Consequently, no direction can be issued to the State authorities straightaway to release these lands from acquisition by coming to a firm finding that there were existing old abadi on these lands and which were squarely covered by any State policy of not acquiring lands having abadiWe may also mention at this stage that apart from the appellants in civil appeal arising out of SLP (C) No. 20905 of 1995, in cases of the other appellants, no civil suits were filed and, therefore, in their cases the question even about construction, if any, is totally at large. That the moot question is whether the lands under acquisition in the present case were having abadi at the time of issuance of Section 4(1) notification and whether such construction, if any, could be said to be abadi as covered by a policy decision of the State of U.P. not to acquire such lands. In fairness to Shri Shanti Bhushan, it was submitted by him that we may not answer this question one way or the other if the appellants are to be relegated to the remedy of filing objections under Section 5-A of the Act. It is, of course, true as found by us on Point 1, that Section 17 sub-section (4) was not rightly invoked by the authorities in the present cases. However, as will be seen hereafter, while considering Point 3, we are not inclined to give opportunity under Section 5-A to the appellants on the peculiar facts of these cases. All that we can observe at this stage is that the question whether the appellants lands are covered by any existing policy decision of the State of U.P. for not acquiring lands having abadi thereon, is required to be kept open for consideration of the proper State authorities, as will be indicated by us hereinafter while considering Points 3 and 4. Point 2 is answeredfind considerable force in the contention of learned Senior Counsel for the respondent that it is neither advisable nor feasible to interfere with the acquisition of such large tracts of lands when the occupants of 9/10th of the acquired lands have not thought it fit to challenge these acquisition proceedings and the occupants of only 1/10th of lands are agitating their grievance since more than six years, firstly before the High Court and then before this Court. The appellants main grievance centres round the question whether their lands having alleged abadi could be acquired in the light of the State policy for not acquiring such lands. For such a contention, of course, grievance could have been made under Section 5-A inquiry if it was held. But that could have been urged years back before Section 6 notification saw the light of day in 1992. Now after a passage of more than six years, it would not be feasible to put the clock back and permit the appellants to agitate this contention which appears to be the sole contention for opposing the acquisition proceedings in the facts of the present cases by permitting them to urge this grievance in Section 5-A inquiry which according to them should be held at this stage. We will show presently that this solitary grievance of the appellants could be vindicated before the State authorities themselves by relegating the appellants to proper remedy by way of representation under Section 48 of the Act and when that remedy is available to the appellants and when that is the sole grievance of the appellants, at this stage no useful purpose would be served by striking down the notification under Section 4(1) qua the appellants so far as invocation of Section 17(4) is concerned and the consequent notification under Section 6. That we cannot permit upsetting the entire apple-cart of acquisition of 500 acres only at the behest of 1/10th of landowners whose lands are sought to be acquired. We may also keep in view the further salient fact that all the appellants have filed references for additional compensation under Section 18 of the Act. Shri Shanti Bhushan, learned Senior Counsel, was right when he contended that the appellants could not have taken the risk of getting their reference applications time-barred during the pendency of these proceedings. Therefore, without prejudice to their contentions in the present proceedings, they have filed such references. Be that as it may, that shows that an award is also made and references are pending. Under these circumstances, for enabling the appellants to have their say regarding release of their lands on the ground that they are having abadi and that the State policy helps them in this connection, the appellants can be permitted to have their grievances voiced before the State authorities under Section 48 rather than under Section 5-A of the Act at such a late stage. Consequently, despite our finding in favour of the appellants on Point 1, we do not think that this is a fit case to set aside the acquisition proceedings on the plea of the appellants about non-compliance with Section 5-A at this late stage. It is also obvious that if on this point, the notifications are quashed for non-compliance of Section 5-A, that would open a Pandoras box and those occupants who are uptil now sitting on the fence may also get a hint to file further proceedings on the ground of discriminatory treatment by the State authorities. All these complications are required to be avoided and hence while considering the question of exercise of our discretionary jurisdiction under Article 136 of the Constitution of India, we do not think that this is a fit case for interference in the present proceedings with the impugned notifications. Point 3, therefore, is answered in the affirmative against the appellants and in favour of theBefore parting with the present proceedings, we may mention one request made by learned Senior Counsel Shri K. K. Venugopal appearing for Respondent 5 whose intervention application was granted in SLP (C) No. 20905 of 1995. Learned Senior Counsel stated that many serious objections are required to be considered against the acquisition of the land of the intervener and it was his contention that lands were acquired for being allotted to persons closely related to the Chairman and other powers that be, but as these contentions raise disputed questions of fact and as Respondent 5 had not filed any writ petition in the High Court, he may be given liberty to file writ petition under Article 226 of the Constitution of India before the High Court. The said request is reasonable. In the present appeals arising out of the judgment of the High Court in writ petitions filed by the appellants, Respondent 5s independent grievance cannot be examined. It would, therefore, be appropriate to relegate Respondent 5-intervener to the remedy of filing a substantive writ petition under Article 226 of the Constitution of India before the High Court. The respondent-authorities had no objection to such course being adopted. Consequently, Respondent 5-interveners contentions are not being examined by us in these proceedings. It is trite to observe that as and when Respondent 5 files a substantive writ petition under Article 226 of the Constitution of India before the High Court, it will be for the High Court to decide the merits of the said writ petition including the question whether the writ petition at such a stage is required to be entertained or not. In short, we express no opinion on the merits of such writ petition that may be filed by the intervener, Respondent 5 in the High Court. The said petition will have to be decided on its merits including the question of its maintainability by the High Court after hearing the parties concerned.

### Instruction: Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal? ### Input: were having abadi on the date on which Section 4 notification was issued on 5-1-1991 and it was that abadi which had continued without any additional construction thereon till the date of Section 6 notification and thereafter and such abadi was squarely covered by the State policy of not acquiring lands having abadi, then it will be open to the State authorities to pass appropriate orders for withdrawing such lands from acquisition and give appropriate relief to the applicants concerned. We, therefore, grant liberty to the appellants, if so advised, to file written representations before appropriate authorities of the State of Uttar Pradesh invoking the State Governments powers under Section 48 sub-section (1) of the Act. It is made clear that we express no opinion on the question whether the appellants lands had such abadi on the date of Section 4 notification which would attract the State policy of not acquiring such lands and whether such policy had continued thereafter at the stage of Section 6 notification of 7-1-1992 and whether such policy is still current and operative at the time when the appellants representations come up for consideration of appropriate authorities of the State Government. It will be for the State authorities to take their informed decision in this connection. We may not be understood to have stated anything on this aspect, nor are we suggesting that the State must release these lands from acquisition if the State authorities are not satisfied about the merits of the representations. The State authorities will have to be satisfied on the following aspects in this connection(i) Whether there was any abadi on the acquired lands at the time of Section 4(1) notification; (ii) Whether such abadi was a legally permissible abadi;(iii) Whether such abadi has continued to exist till the date of representation;(iv) Whether such abadi was covered by any government policy in force at the time of issuance of Section 4(1) notification and/or Section 6 notification for not acquiring lands having such abadi;(v) Whether such government policy has continued to be in force till the date of representation 32. In short, the entire matter is left at large for the consideration of the State authorities in the appellants representations. We also make it clear that if the appellants file their written representations to the aforesaid effect on or before 31-8-1998, then the appropriate authorities of the State Government shall consider their representations regarding the feasibility of releasing such lands from acquisition under Section 48(1) of the Act on the ground that there were "abadis" on these lands at the relevant time and are governed by any existing State policy for releasing such lands from acquisition on that score as indicated hereinabove and for that purpose they may give a hearing to the appellants, either personally or through their counsel, and permit them to lead whatever evidence they want to lead in this connection. The State authorities shall consider these written representations within a period of two months from the date such representations are received, i.e., latest by 31-10-1998 and will take appropriate decisions on these representations and will inform the representationists concerned in writing about the decision of the State Government in this connection. 33. Subject to the aforesaid liberty given to the appellants, these appeals will, therefore, stand dismissed. We may, however, state that the status quo regarding possession on the spot in connection with the appellants lands a shall be maintained by all concerned till 30-11-1998 within the time the consideration of the appellants representations under Section 48(1) of the Act is completed by the State authorities and result thereof is communicated to the representationists. We also make it clear that if the appellants do not file such representations on or before 31-8-1998, the State authorities will not be required to consider any such representation filed thereafter and the status quo order regarding possession as granted by us will stand recalled after 31-8-1998 qua the appellants concerned who do not file such representations within the time granted by us for the purpose. . 34. Before parting with the present proceedings, we may mention one request made by learned Senior Counsel Shri K. K. Venugopal appearing for Respondent 5 whose intervention application was granted in SLP (C) No. 20905 of 1995. Learned Senior Counsel stated that many serious objections are required to be considered against the acquisition of the land of the intervener and it was his contention that lands were acquired for being allotted to persons closely related to the Chairman and other powers that be, but as these contentions raise disputed questions of fact and as Respondent 5 had not filed any writ petition in the High Court, he may be given liberty to file writ petition under Article 226 of the Constitution of India before the High Court. The said request is reasonable. In the present appeals arising out of the judgment of the High Court in writ petitions filed by the appellants, Respondent 5s independent grievance cannot be examined. It would, therefore, be appropriate to relegate Respondent 5-intervener to the remedy of filing a substantive writ petition under Article 226 of the Constitution of India before the High Court. The respondent-authorities had no objection to such course being adopted. Consequently, Respondent 5-interveners contentions are not being examined by us in these proceedings. It is trite to observe that as and when Respondent 5 files a substantive writ petition under Article 226 of the Constitution of India before the High Court, it will be for the High Court to decide the merits of the said writ petition including the question whether the writ petition at such a stage is required to be entertained or not. In short, we express no opinion on the merits of such writ petition that may be filed by the intervener, Respondent 5 in the High Court. The said petition will have to be decided on its merits including the question of its maintainability by the High Court after hearing the parties concerned. ### Response: 0

State of Rajasthan & Another Vs. Fateh Chand & Another

the Commission is available.5. Rule 12 thus lays down the minimum academic qualifications required for eligibility to apply for the post of a Lower Division Clerk, while the rules as to passing the examination held under Rule 7, as to nationality, age and physical fitness etc., are other qualifications required for the purpose of recruitment.It follows, therefore, that before a person can be recruited, he has to have not only the minimum academic qualifications required under Rule 12, but other qualifications also, namely, nationality, age and the necessity of his having to pass the examination under Rule 7 held on such terms and conditions laid down by Government under that Rule. These being the different qualifications necessary for a person to be recruited under these rules, the expression qualifications in Rule 23A (2) of the Rajasthan Service Rules has to be read in the light of the Ministerial Staff Rules, for, it is the latter, and not the former, which provides for the qualifications necessary for recruitment of, among other employees the Lower Division Clerks. The High Court, therefore, was not correct in construing the word qualifications to mean academic qualifications only.Accepting the High Courts interpretation of Rule 23A (2) would mean reading Rule 12 and not the other rules in the Ministerial Staff Rules, which apart from the minimum academic qualifications provide for other necessary qualifications before a person can be recruited. It would furthermore mean that a person having the minimum academic qualifications, without the other qualifications required for recruitment, if only because he is in temporary service for more than 3 years, would be placed underRule 23A (2) in a position equivalent to that of a permanent servant for purposes of termination of his services. Rule 23A, dealing as it does with the Governments right of termination of service, must be read along with the rules of recruitment relating to the particular post on which the person whose services are sought to be terminated in exercise of the power under that rule is serving. So read, Rule 23A (2) protects only those temporary servants who have put in service of more than 3 years, who possess the qualifications for the post and have been appointed in consultation with the Public Service Commission. The expression qualifications to the post in clause 2 of the rule, therefore, means qualifications on the satisfaction of which only the person in question could have been recruited to the post. That being so, the term qualifications in that rule must relate to the qualifications laid down in the Ministerial Staff Rules. There is, therefore, no question as the High Court believed, of inducting into Rule 23A (2) any additional condition or qualification other than those envisaged by Rule 23A (2). This was the construction canvassed by counsel who appeared before the High Court on behalf of the Government.But the High Court, it would seem, felt difficulty in accepting it because it thought that if that were accepted the result would be that there would be no cases of temporary servants getting the benefit of Rule 23A (2) as all persons temporarily appointed as Lower Division Clerks would have been made permanent once they had passed the examination prescribed under Rule 7. That reasoning also is not correct.There is no obligation on the Government to make all temporary clerks permanent once they pass the examination prescribed under R. 7. Only those would be made permanent who can be filled into the available permanent vacancies. The rest would have to wait till their turn comes. This is precisely what is provided for by Rule 25. There would, therefore, be temporary servants who, due to the exigencies of the service, cannot be made permanent though they have qualified themselves for being so made. It is this class of temporary servants who, due to no fault of theirs and who otherwise would have been made permanent, are equated with permanent servants and whose services can be terminated in the same manner as those of the permanent servants. There is, therefore, no difficulty of there being no temporary servants getting the protection of Rule 23A (2) as apprehended by the High Court.6. In pursuance of the power under Rule 7, the Government issued the order dated March 5, 1964 regarding the examination for the Lower Division Clerks appointed on a temporary basis. This became necessary as otherwise there would be temporary clerks appointed before 1957 and those appointed thereafter, the former continuing to be temporary clerks without undergoing the examination necessary under the rules and the latter having to pass the examination under R. 7 for being recruited. So far as the latter class of persons are concerned, they would not be recruited if they were to fail in the examination held under Rule 7 and Rule 19. It appears that since the former were in temporary service already, the Government gave them as a matter of indulgence two chances to pass the examination and directed that their services should be terminated only if they failed to pass even after two trials. The order was competently made as Rule 7 empowers the Government to make such an order. We do not see how any objection can be validly taken against such an order when its object clearly was to require temporary servants recruited prior to 1957 to conform to the requirements of the rules as to recruitment.7. In our view the respondents did not fall under the category of temporary servants entitled to the benefit of R. 23A (2) as they did not possess the qualifications there mentioned, i.e., of having passed the examination prescribed under Rule 7. That being so, the Government was entitled to terminate their services under and in accordance with Rule 23A (1). It is true that proviso 2 of the said Rule 7 has been amended in 1969 and the passing of the said examination has been dispensed with. But this amendment, not being retrospective, cannot unfortunately be availed of by the respondents.

1[ds]6. In pursuance of the power under Rule 7, the Government issued the order dated March 5, 1964 regarding the examination for the Lower Division Clerks appointed on a temporary basis. This became necessary as otherwise there would be temporary clerks appointed before 1957 and those appointed thereafter, the former continuing to be temporary clerks without undergoing the examination necessary under the rules and the latter having to pass the examination under R. 7 for being recruited. So far as the latter class of persons are concerned, they would not be recruited if they were to fail in the examination held under Rule 7 and Rule 19. It appears that since the former were in temporary service already, the Government gave them as a matter of indulgence two chances to pass the examination and directed that their services should be terminated only if they failed to pass even after two trials. The order was competently made as Rule 7 empowers the Government to make such an order. We do not see how any objection can be validly taken against such an order when its object clearly was to require temporary servants recruited prior to 1957 to conform to the requirements of the rules as to recruitment.7. In our view the respondents did not fall under the category of temporary servants entitled to the benefit of R. 23A (2) as they did not possess the qualifications there mentioned, i.e., of having passed the examination prescribed under Rule 7. That being so, the Government was entitled to terminate their services under and in accordance with Rule 23A (1). It is true that proviso 2 of the said Rule 7 has been amended in 1969 and the passing of the said examination has been dispensed with. But this amendment, not being retrospective, cannot unfortunately be availed of by the respondents.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: the Commission is available.5. Rule 12 thus lays down the minimum academic qualifications required for eligibility to apply for the post of a Lower Division Clerk, while the rules as to passing the examination held under Rule 7, as to nationality, age and physical fitness etc., are other qualifications required for the purpose of recruitment.It follows, therefore, that before a person can be recruited, he has to have not only the minimum academic qualifications required under Rule 12, but other qualifications also, namely, nationality, age and the necessity of his having to pass the examination under Rule 7 held on such terms and conditions laid down by Government under that Rule. These being the different qualifications necessary for a person to be recruited under these rules, the expression qualifications in Rule 23A (2) of the Rajasthan Service Rules has to be read in the light of the Ministerial Staff Rules, for, it is the latter, and not the former, which provides for the qualifications necessary for recruitment of, among other employees the Lower Division Clerks. The High Court, therefore, was not correct in construing the word qualifications to mean academic qualifications only.Accepting the High Courts interpretation of Rule 23A (2) would mean reading Rule 12 and not the other rules in the Ministerial Staff Rules, which apart from the minimum academic qualifications provide for other necessary qualifications before a person can be recruited. It would furthermore mean that a person having the minimum academic qualifications, without the other qualifications required for recruitment, if only because he is in temporary service for more than 3 years, would be placed underRule 23A (2) in a position equivalent to that of a permanent servant for purposes of termination of his services. Rule 23A, dealing as it does with the Governments right of termination of service, must be read along with the rules of recruitment relating to the particular post on which the person whose services are sought to be terminated in exercise of the power under that rule is serving. So read, Rule 23A (2) protects only those temporary servants who have put in service of more than 3 years, who possess the qualifications for the post and have been appointed in consultation with the Public Service Commission. The expression qualifications to the post in clause 2 of the rule, therefore, means qualifications on the satisfaction of which only the person in question could have been recruited to the post. That being so, the term qualifications in that rule must relate to the qualifications laid down in the Ministerial Staff Rules. There is, therefore, no question as the High Court believed, of inducting into Rule 23A (2) any additional condition or qualification other than those envisaged by Rule 23A (2). This was the construction canvassed by counsel who appeared before the High Court on behalf of the Government.But the High Court, it would seem, felt difficulty in accepting it because it thought that if that were accepted the result would be that there would be no cases of temporary servants getting the benefit of Rule 23A (2) as all persons temporarily appointed as Lower Division Clerks would have been made permanent once they had passed the examination prescribed under Rule 7. That reasoning also is not correct.There is no obligation on the Government to make all temporary clerks permanent once they pass the examination prescribed under R. 7. Only those would be made permanent who can be filled into the available permanent vacancies. The rest would have to wait till their turn comes. This is precisely what is provided for by Rule 25. There would, therefore, be temporary servants who, due to the exigencies of the service, cannot be made permanent though they have qualified themselves for being so made. It is this class of temporary servants who, due to no fault of theirs and who otherwise would have been made permanent, are equated with permanent servants and whose services can be terminated in the same manner as those of the permanent servants. There is, therefore, no difficulty of there being no temporary servants getting the protection of Rule 23A (2) as apprehended by the High Court.6. In pursuance of the power under Rule 7, the Government issued the order dated March 5, 1964 regarding the examination for the Lower Division Clerks appointed on a temporary basis. This became necessary as otherwise there would be temporary clerks appointed before 1957 and those appointed thereafter, the former continuing to be temporary clerks without undergoing the examination necessary under the rules and the latter having to pass the examination under R. 7 for being recruited. So far as the latter class of persons are concerned, they would not be recruited if they were to fail in the examination held under Rule 7 and Rule 19. It appears that since the former were in temporary service already, the Government gave them as a matter of indulgence two chances to pass the examination and directed that their services should be terminated only if they failed to pass even after two trials. The order was competently made as Rule 7 empowers the Government to make such an order. We do not see how any objection can be validly taken against such an order when its object clearly was to require temporary servants recruited prior to 1957 to conform to the requirements of the rules as to recruitment.7. In our view the respondents did not fall under the category of temporary servants entitled to the benefit of R. 23A (2) as they did not possess the qualifications there mentioned, i.e., of having passed the examination prescribed under Rule 7. That being so, the Government was entitled to terminate their services under and in accordance with Rule 23A (1). It is true that proviso 2 of the said Rule 7 has been amended in 1969 and the passing of the said examination has been dispensed with. But this amendment, not being retrospective, cannot unfortunately be availed of by the respondents. ### Response: 1

The State of Punjab Vs. Bhagat Ram

Ray, C.J.1. This appeal by certificate turns on the question as to whether the State gave the respondent a reasonable opportunity as contemplated by Article 311 of the constitution.2. The respondent was a Sub-Divisional Officer. The State ordered a departmental enquiry against the respondent.3. The respondent filed a suit for a declaration that the dismissal of the respondent was illegal. One of the grounds challenging the order of the dismissal was that copies of statements recorded by the police in the course of investigation of the witnesses proposed to be examined at the departmental enquiry were not supplied by the State to the respondent in spite of the request in that behalf.4. The trial Court found that copies of the statements of the witnesses as recorded by the Vigilance Department during the preliminary enquiry were not supplied to the respondent but only the synopsis was given. The trial Court, therefore held that no reasonable opportunity was given to the respondent.5. The High Court upheld the decision.6. The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross examination the respondent would have the opportunity of confronting the witnesses with the statement. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. We can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have a effective and useful cross-examination.8. It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken.

0[ds]7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. We can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have a effective and useful cross-examination.8. It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: Ray, C.J.1. This appeal by certificate turns on the question as to whether the State gave the respondent a reasonable opportunity as contemplated by Article 311 of the constitution.2. The respondent was a Sub-Divisional Officer. The State ordered a departmental enquiry against the respondent.3. The respondent filed a suit for a declaration that the dismissal of the respondent was illegal. One of the grounds challenging the order of the dismissal was that copies of statements recorded by the police in the course of investigation of the witnesses proposed to be examined at the departmental enquiry were not supplied by the State to the respondent in spite of the request in that behalf.4. The trial Court found that copies of the statements of the witnesses as recorded by the Vigilance Department during the preliminary enquiry were not supplied to the respondent but only the synopsis was given. The trial Court, therefore held that no reasonable opportunity was given to the respondent.5. The High Court upheld the decision.6. The State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross examination the respondent would have the opportunity of confronting the witnesses with the statement. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence.7. The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. We can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have a effective and useful cross-examination.8. It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken. ### Response: 0

M/S. S.J.S. Business Enterprises(P)Ltd Vs. State Of Bihar

If they do their action can be called into question under Article 226. Reasonableness is to be tested against the dominant consideration to secure the best price for the property to be sold. "This can only be achieved when there is a maximum participation in the process of sale and everybody has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interesting in purchasing the property and generally secures the best price". 17. Adequate publicity to ensure maximum participation of bidders in turn requires that a fair and practical period of time must be given to purchasers to effectively participate in the sale. Unless the subject matter of sale is of such a nature which requires immediate disposal, an opportunity must be given to the possible purchaser who is required to purchase the property on As is where is basis to inspect it and to give a considered offer with the necessary financial support to deposit the earnest money and pay the offered amount, if required. 18. In this case, the first notice of sale was given on 31st January 2002. A period of about four weeks was given to the purchasers to submit their offers by 28th February 2002. The period of four weeks can therefore be taken to be the ordinary norm. But when the second impugned notice of sale was given on 26th March 2002, less than three days were given for the purchasers to inspect the premises, make necessary arrangements and submit their offers to BICICO. Of these three days, two were public holidays when banks would have also been shut. The period of notice was, in the circumstances, entirely inadequate. Besides, we have not been told the reason for this unusual haste. Such precipitate action was not called for unless there were some other considerations weighing with the authorities, considerations which have not been disclosed to the Court. 19. The method in which the sale was conducted is also questionable. Three valuations were obtained between 3rd July 2001 to February 2002 before the property was sold to the respondent No. 6. What was valued in July 2001 as worth Rs. 2.16 crores is valued at Rs. 94.81 about 10 months later, a fall of over Rs. 1.50 crores. 20. The third extra ordinary circumstance is that the respondent No. 6 had submitted his offer on the day on which the sale notice was published and made payment of the entire consideration on the same day before the last date for submission of tenders was over and even before its offer could been accepted. It is unlikely that this would have been done unless the respondent No. 6 knew (i) the valuation made and (ii) that its offer would be accepted. Indeed a portion of the respondent No. 6s offer had already been paid on 7th March 2002 i.e. prior to the sale notice itself. According to the Respondent No. 6 this was pursuant to the earlier infructuous sale notice, a payment which, again for some undisclosed reasons, had not been returned by BICICO to the respondent No. 6.21. No satisfactory explanation is forthcoming from the authorities to explain these deviations from the norm. The concatenation of inexplicable and unexplained circumstances is sufficient for us to hold that the sale was unfair and consequently invalid. 22. In Jagdamba Oils Mills Ltd. (supra), it was observed that, "the Court may assist the borrower who has intention to repay but is prevented by insurmountable difficulties in meeting the commitment". The borrower in that case had made no payment whatsoever to the State Financial Corporation of its outstanding loan. As not even "a minimal portion of the amount borrowed had been paid the Court refused to help the defaulter. The borrower, in this case had paid over Rs. 14 lakhs as against the principal amount of Rs. 44.56 lakhs. A further amount of Rs. 10 lakhs was paid on 27th March 2002 by the appellant to ICICO i.e. the day after the impugned sale notice was published. Before the High Court a sum of Rs. 10 lakhs was paid pursuant to the interim order. In addition, the appellant had approached the BICICO to settle its outstanding dues under the one time settlement policy. As we have already recorded, we entertained the special petition on the condition that the appellant would deposit a sum of Rs. 1 crore over the above the amount already paid by it to BICICO. This the appellant has also done. All this shows that the appellant could not be termed to be such a defaulter who deserved no sympathy or assistance by the Court. 23. The respondent No. 6 has pleaded that it has been deprived of Rs. 1 crore, had been kept out of the possession for 14 months and has, after taking possession, made substantial investments in the property. As far as the first factor is concerned, the appellant has offered to pay interest on the amount of Rs. 1 crore to the respondent Rs. 6. On the second, we have not been told whether any formal agreement has been concluded between BICICO and the respondent No. 6 or whether any conveyance has been executed or any other formalities completed by BICICO to transfer the title in the hotel in favour of the respondent no. 6. It appears to have handed over possession to the Respondent No. 6 only upon the direction of the High Court. As far as the third ground is concerned, the appellant was fully aware that the appellant was fighting tooth and nail to redeem its property and that the sale was the subject matter of scrutiny by Court. If it has chosen to make renovation or investment in the hotel, it has done so despite the knowledge of the precarious nature of its possession. The investments, if any, were a calculated risk taken by the respondent No. 6 itself the consequence of which cannot be foisted on the appellant.

1[ds]15. In this case, admittedly the appellant has withdrawn the suit two weeks after the suit had been filed. In other words the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No. doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Courts reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable.16. As the issue of suppression was the only ground on which the High Court has rejected the appellants plea for relief, we would ordinarily have set aside the order of the High Court in view of our finding and remanded back to the High Court for decision of the matter on merits. But the matter has been argued on merits before us and we are in a position to dispose of the matter which we accordingly proceed tois unlikely that this would have been done unless the respondent No. 6 knew (i) the valuation made and (ii) that its offer would be accepted. Indeed a portion of the respondent No. 6s offer had already been paid on 7th March 2002 i.e. prior to the sale notice itself. According to the Respondent No. 6 this was pursuant to the earlier infructuous sale notice, a payment which, again for some undisclosed reasons, had not been returned by BICICO to the respondent No. 6.21. No satisfactory explanation is forthcoming from the authorities to explain these deviations from the norm. The concatenation of inexplicable and unexplained circumstances is sufficient for us to hold that the sale was unfair and consequently invalid.The respondent No. 6 has pleaded that it has been deprived of Rs. 1 crore, had been kept out of the possession for 14 months and has, after taking possession, made substantial investments in the property. As far as the first factor is concerned, the appellant has offered to pay interest on the amount of Rs. 1 crore to the respondent Rs. 6. On the second, we have not been told whether any formal agreement has been concluded between BICICO and the respondent No. 6 or whether any conveyance has been executed or any other formalities completed by BICICO to transfer the title in the hotel in favour of the respondent no. 6. It appears to have handed over possession to the Respondent No. 6 only upon the direction of the High Court. As far as the third ground is concerned, the appellant was fully aware that the appellant was fighting tooth and nail to redeem its property and that the sale was the subject matter of scrutiny by Court. If it has chosen to make renovation or investment in the hotel, it has done so despite the knowledge of the precarious nature of its possession. The investments, if any, were a calculated risk taken by the respondent No. 6 itself the consequence of which cannot be foisted on the appellant.

### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: If they do their action can be called into question under Article 226. Reasonableness is to be tested against the dominant consideration to secure the best price for the property to be sold. "This can only be achieved when there is a maximum participation in the process of sale and everybody has an opportunity of making an offer. Public auction after adequate publicity ensures participation of every person who is interesting in purchasing the property and generally secures the best price". 17. Adequate publicity to ensure maximum participation of bidders in turn requires that a fair and practical period of time must be given to purchasers to effectively participate in the sale. Unless the subject matter of sale is of such a nature which requires immediate disposal, an opportunity must be given to the possible purchaser who is required to purchase the property on As is where is basis to inspect it and to give a considered offer with the necessary financial support to deposit the earnest money and pay the offered amount, if required. 18. In this case, the first notice of sale was given on 31st January 2002. A period of about four weeks was given to the purchasers to submit their offers by 28th February 2002. The period of four weeks can therefore be taken to be the ordinary norm. But when the second impugned notice of sale was given on 26th March 2002, less than three days were given for the purchasers to inspect the premises, make necessary arrangements and submit their offers to BICICO. Of these three days, two were public holidays when banks would have also been shut. The period of notice was, in the circumstances, entirely inadequate. Besides, we have not been told the reason for this unusual haste. Such precipitate action was not called for unless there were some other considerations weighing with the authorities, considerations which have not been disclosed to the Court. 19. The method in which the sale was conducted is also questionable. Three valuations were obtained between 3rd July 2001 to February 2002 before the property was sold to the respondent No. 6. What was valued in July 2001 as worth Rs. 2.16 crores is valued at Rs. 94.81 about 10 months later, a fall of over Rs. 1.50 crores. 20. The third extra ordinary circumstance is that the respondent No. 6 had submitted his offer on the day on which the sale notice was published and made payment of the entire consideration on the same day before the last date for submission of tenders was over and even before its offer could been accepted. It is unlikely that this would have been done unless the respondent No. 6 knew (i) the valuation made and (ii) that its offer would be accepted. Indeed a portion of the respondent No. 6s offer had already been paid on 7th March 2002 i.e. prior to the sale notice itself. According to the Respondent No. 6 this was pursuant to the earlier infructuous sale notice, a payment which, again for some undisclosed reasons, had not been returned by BICICO to the respondent No. 6.21. No satisfactory explanation is forthcoming from the authorities to explain these deviations from the norm. The concatenation of inexplicable and unexplained circumstances is sufficient for us to hold that the sale was unfair and consequently invalid. 22. In Jagdamba Oils Mills Ltd. (supra), it was observed that, "the Court may assist the borrower who has intention to repay but is prevented by insurmountable difficulties in meeting the commitment". The borrower in that case had made no payment whatsoever to the State Financial Corporation of its outstanding loan. As not even "a minimal portion of the amount borrowed had been paid the Court refused to help the defaulter. The borrower, in this case had paid over Rs. 14 lakhs as against the principal amount of Rs. 44.56 lakhs. A further amount of Rs. 10 lakhs was paid on 27th March 2002 by the appellant to ICICO i.e. the day after the impugned sale notice was published. Before the High Court a sum of Rs. 10 lakhs was paid pursuant to the interim order. In addition, the appellant had approached the BICICO to settle its outstanding dues under the one time settlement policy. As we have already recorded, we entertained the special petition on the condition that the appellant would deposit a sum of Rs. 1 crore over the above the amount already paid by it to BICICO. This the appellant has also done. All this shows that the appellant could not be termed to be such a defaulter who deserved no sympathy or assistance by the Court. 23. The respondent No. 6 has pleaded that it has been deprived of Rs. 1 crore, had been kept out of the possession for 14 months and has, after taking possession, made substantial investments in the property. As far as the first factor is concerned, the appellant has offered to pay interest on the amount of Rs. 1 crore to the respondent Rs. 6. On the second, we have not been told whether any formal agreement has been concluded between BICICO and the respondent No. 6 or whether any conveyance has been executed or any other formalities completed by BICICO to transfer the title in the hotel in favour of the respondent no. 6. It appears to have handed over possession to the Respondent No. 6 only upon the direction of the High Court. As far as the third ground is concerned, the appellant was fully aware that the appellant was fighting tooth and nail to redeem its property and that the sale was the subject matter of scrutiny by Court. If it has chosen to make renovation or investment in the hotel, it has done so despite the knowledge of the precarious nature of its possession. The investments, if any, were a calculated risk taken by the respondent No. 6 itself the consequence of which cannot be foisted on the appellant. ### Response: 1

State Of Punjab Vs. Hiralal & Ors

and reservation of posts means reservation of initial posts which may be adopted in order to expedite and make more effective the reservation of appointments themselves. On this construction the use of the word "posts" appears to be wholly redundant. In our opinion, having regard to the fact that we are constructing the relevant expression "reservation of appointments" in a constitutional provision it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing certain percentage in that behalf as well as reservation of certain initial posts in order to make the reservation of appointments more effective. That being so, this alternative argument which confines the word "posts" to initial posts seems to us to be entirely unreasonable. On the other hand under the construction by which the word "posts" includes selection posts the use of the word "posts" is not superfluous but serves a very important purpose. It shows that reservation can be made not only in regard to appointments which, are initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment. This construction has the merit of interpreting the word "appointments" and posts in their broad and liberal sense and giving effect to the policy which is obviously the basis of the provisions of Article 16 (4). Therefore, we are disposed to take the view that the power of reservation which is conferred on the State under Article 16 (4) can be exercise by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction, in our opinion, would serve to give effect to the intention of the Constitution makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services." 10. The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial review. The reservation must be only for the purpose of giving adequate representation in the services to the Scheduled Castes, Scheduled Tribes and Backward Classes. The exception provided in Art. 16 (4) should not make the rule embodied in Art. 16 (1) meaningless. But the burden of establishing that a particular reservation made by the State is offensive to Art. 16 (1) is on the person who takes the plea. The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered. As observed by the majority in Rangacharis case, (1962) 2 SCR 586 = (AIR 1962 SC 36 ) (supra):"The condition precedent for the exercise of the powers conferred by Art. 16 (4) is that the State ought to be satisfied that any backward class of citizens is not adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In the context the expression "adequately represented" imports considerations of "size" as well as "values", numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It is thus by the operation of the numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service has to be judged and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the State may well take the view that a certain percentage of selection posts should also be reserved, for reservation of such posts may make the representation of backward classes in the services adequate, the adequacy of such representation being considered qualitatively." 11. It is true that every reservation under Art. 16 (4) does introduce an element of discrimination particularly when the question of promotion arises. It is an inevitable consequence of any reservation of posts that junior officers are allowed to take a march over their seniors. This circumstance is bound to displease the senior officers. It may also be that some of them will get frustrated but then the Constitution makers have though fit in the interests of the society as a whole that the backward class of citizens of this country should be afforded certain protection as observed by this Court in A. Peeriakaruppan etc. v. State of Tamil Nadu, Writ Petns. Nos. 285 and 314 of 1970, D/-23-9-1970 = (reported in AIR 1971 NSC 171)."It cannot be denied that unaided many sections of this country cannot compete with the advanced sections of the Nation. Advantages secured due to historical reasons should not be considered as fundamental rights. Nations interest will be best served taking a long range view - if the backward classes are helped to march forward and take their place in line with the advanced sections of the people." 12. There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of Article 16 (1).Reservation of appointments under Article 16 (4) cannot be struck down on hypothetical grounds or on imaginary possibilities. He who assails the reservation under that Article must satisfactorily establish that there has been a violation of Article 16 (1).

1[ds]10. The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial review. The reservation must be only for the purpose of giving adequate representation in the services to the Scheduled Castes, Scheduled Tribes and Backward Classes. The exception provided in Art. 16 (4) should not make the rule embodied in Art. 16 (1) meaningless. But the burden of establishing that a particular reservation made by the State is offensive to Art. 16 (1) is on the person who takes the plea. The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered11. It is true that every reservation under Art. 16 (4) does introduce an element of discrimination particularly when the question of promotion arises. It is an inevitable consequence of any reservation of posts that junior officers are allowed to take a march over their seniors. This circumstance is bound to displease the senior officers. It may also be that some of them will get frustrated but then the Constitution makers have though fit in the interests of the society as a whole that the backward class of citizens of this country should be afforded certain protection as observed by this Court in A. Peeriakaruppan etc. v. State of Tamil Nadu, Writ Petns. Nos. 285 and 314 of 1970, D/-23-9-1970 = (reported in AIR 1971 NSC 171)"It cannot be denied that unaided many sections of this country cannot compete with the advanced sections of the Nation. Advantages secured due to historical reasons should not be considered as fundamental rights. Nations interest will be best served taking a long range view - if the backward classes are helped to march forward and take their place in line with the advanced sections of the people."12. There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of Article 16 (1).Reservation of appointments under Article 16 (4) cannot be struck down on hypothetical grounds or on imaginary possibilities. He who assails the reservation under that Article must satisfactorily establish that there has been a violation of Article 16 (1)6. In the opinion of the High Court reservation made for the Scheduled Castes, Scheduled Tribes and Backward Classes is not impermissible under the Constitution in view of Article 16 (4) of the Constitution as interpreted by this Court in The General Manager, Southern Rly. v. Rangachari, (1962) 2 SCR 586 = (AIR 1962 SC 36 ). But the Government has violated Art. 16 (1) by reserving the first out of a group of 10 posts for the Scheduled Castes, Scheduled Tribes and Backward Classes. The High Court was persuaded by the Counsel for the first respondent to visualise various hypothetical cases under which reservation of the type impugned in the present case could lead to various anomalies such as the person getting the benefit of the reservation may jump over the heads of several of his Seniors not only in his own grade but even in the higher grades. They visualised the possibility of Head Assistants leaping over the heads of several seniors of his in the grade of Head Assistants and thereafter in the grade of Superintendent; subsequently in the grade of Under Secretaries, Deputy Secretaries and so on and so forth. It is not the finding of the High Court that in any of the grades to which the impugned orders apply, the possibilities visualised by the High Court are imminent or even likely.

### Instruction: Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)? ### Input: and reservation of posts means reservation of initial posts which may be adopted in order to expedite and make more effective the reservation of appointments themselves. On this construction the use of the word "posts" appears to be wholly redundant. In our opinion, having regard to the fact that we are constructing the relevant expression "reservation of appointments" in a constitutional provision it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing certain percentage in that behalf as well as reservation of certain initial posts in order to make the reservation of appointments more effective. That being so, this alternative argument which confines the word "posts" to initial posts seems to us to be entirely unreasonable. On the other hand under the construction by which the word "posts" includes selection posts the use of the word "posts" is not superfluous but serves a very important purpose. It shows that reservation can be made not only in regard to appointments which, are initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment. This construction has the merit of interpreting the word "appointments" and posts in their broad and liberal sense and giving effect to the policy which is obviously the basis of the provisions of Article 16 (4). Therefore, we are disposed to take the view that the power of reservation which is conferred on the State under Article 16 (4) can be exercise by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction, in our opinion, would serve to give effect to the intention of the Constitution makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services." 10. The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial review. The reservation must be only for the purpose of giving adequate representation in the services to the Scheduled Castes, Scheduled Tribes and Backward Classes. The exception provided in Art. 16 (4) should not make the rule embodied in Art. 16 (1) meaningless. But the burden of establishing that a particular reservation made by the State is offensive to Art. 16 (1) is on the person who takes the plea. The mere fact that the reservation made may give extensive benefits to some of the persons who have the benefit of the reservation does not by itself make the reservation bad. The length of the leap to be provided depends upon the gap to be covered. As observed by the majority in Rangacharis case, (1962) 2 SCR 586 = (AIR 1962 SC 36 ) (supra):"The condition precedent for the exercise of the powers conferred by Art. 16 (4) is that the State ought to be satisfied that any backward class of citizens is not adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In the context the expression "adequately represented" imports considerations of "size" as well as "values", numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It is thus by the operation of the numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service has to be judged and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the State may well take the view that a certain percentage of selection posts should also be reserved, for reservation of such posts may make the representation of backward classes in the services adequate, the adequacy of such representation being considered qualitatively." 11. It is true that every reservation under Art. 16 (4) does introduce an element of discrimination particularly when the question of promotion arises. It is an inevitable consequence of any reservation of posts that junior officers are allowed to take a march over their seniors. This circumstance is bound to displease the senior officers. It may also be that some of them will get frustrated but then the Constitution makers have though fit in the interests of the society as a whole that the backward class of citizens of this country should be afforded certain protection as observed by this Court in A. Peeriakaruppan etc. v. State of Tamil Nadu, Writ Petns. Nos. 285 and 314 of 1970, D/-23-9-1970 = (reported in AIR 1971 NSC 171)."It cannot be denied that unaided many sections of this country cannot compete with the advanced sections of the Nation. Advantages secured due to historical reasons should not be considered as fundamental rights. Nations interest will be best served taking a long range view - if the backward classes are helped to march forward and take their place in line with the advanced sections of the people." 12. There was no material before the High Court and there is no material before us from which we can conclude that the impugned order is violative of Article 16 (1).Reservation of appointments under Article 16 (4) cannot be struck down on hypothetical grounds or on imaginary possibilities. He who assails the reservation under that Article must satisfactorily establish that there has been a violation of Article 16 (1). ### Response: 1

The Naihati Municipality And Ors Vs. Chinmoyee Mukherjee And Ors

K. Ramaswamy, J. 1. This appeal by special leave arises from the judgment of the Division Bench of the Calcutta High Court dated July 26, 1979 made in C. R. No 2030 (W) of 1978. The admitted facts are that a resolution was passed by the appellant-municipality for rehabilitation of the hawkers by acquiring the land in question. By that date the municipality did not have sufficient funds to meet the acquisition costs. As a consequence, the hawkers union was requested to contribute the fund to meet acquisition costs. In furtherance thereof, the hawkers union deposited with the municipality a sum of Rs. 3,90,000/- for the acquisition of the land. The said amount was credited to the funds of the municipality. Thereafter a reference was made to the Government requesting to acquire the land. In furtherance thereof, the Government issued notification under Section 4 (1) of the Land Acquisition Act, 1894 (1 of 1894) (for short, the Act) on August 1, 1974 and acquired the plots of land bearing Nos. 412 to 426, 497, 2400 to 2407 admeasuring about 4. 717 hectares of the land in the village Kantalpura, P.S. Nahati Municipality. Declaration under Section 6 came to published on November 9, 1976. Both the notification and the declaration came to be challenged in the writ petition. The High Court concluded in its judgment that though there was initial resolution passed by the municipality to acquire the land there was no final resolution directing the Commissioner to spend the money from the fund of the municipality. The hawkers themselves deposited the money with the municipal Corporation. The Government imposed a condition that the said amount should be used only for the purpose of acquisition of land for rehabilitation of the hawkers. The appropriate provisions contained in the Municipality Act have not been complied with. Under those circumstances, there is no public purpose indeed for acquiring the land. Accordingly, the declaration under Section 6 came to be quashed. Thus this appeal by special leave. 2. We have been taken through the reasoning of the learned Judges and have also heard contentions of the learned counsel for the parties. We are of the view that High Court was not right in its approach in dealing with the matter. The rehabilitation of the hawkers by acquiring the land is indisputadly the public purpose; otherwise it would be a perpetual nuisance to the residents of the municipal area if hawkers were permitted to hawk the goods on public payment obstructing the traffic flow in the city. Therefore, it can, by no stretch of imagination, be considered that it is not a public purpose. The question then is : Whether the part of whole of the compensation would come from the funds of the local authority ? The second proviso to sub-section (1) of Section 6 deals that according to which no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some funds controlled or managed by a local authority. Indisputedly municipality is a local authority and the funds are controlled or managed by the municipality. In view of the fact that at the relevant point of time the municipality did not have necessary funds to meet the cost of acquisition, they had requested hawkers union to contribute the money for the acquisition. Consequently, Rs.3,90,000/- came to be handed over to the Municipal Commissioner who had deposited the same into the funds of the municipality. Thereby, the amount had formed and fused into the integral part of the municipal funds. It is true that the Government had put restriction that the said money would be used only for the public purpose. It would be obvious that since municipality did not have the required funds, the Government had imposed a condition that the money contributed by the hawkers should be used only for the purpose of cost of the acquisition apprehending that the same may be directed to other purposes. The meat of the matter is that after the deposit by the hawkers, they have no right to withdraw the said amount which formed part of the funds of the municipality, The High Court, therefore, was not right in holding that the amount has not become part of the funds managed or controlled by the local authority within the meaning of second proviso of sub-section (1) of Section 6.

1[ds]We are of the view that High Court was not right in its approach in dealing with the matter. The rehabilitation of the hawkers by acquiring the land is indisputadly the public purpose; otherwise it would be a perpetual nuisance to the residents of the municipal area if hawkers were permitted to hawk the goods on public payment obstructing the traffic flow in the city. Therefore, it can, by no stretch of imagination, be considered that it is not a publicsecond proviso to sub-section (1) of Section 6 deals that according to which no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some funds controlled or managed by a local authority. Indisputedly municipality is a local authority and the funds are controlled or managed by the municipality. In view of the fact that at the relevant point of time the municipality did not have necessary funds to meet the cost of acquisition, they had requested hawkers union to contribute the money for the acquisition. Consequently, Rs.3,90,000/- came to be handed over to the Municipal Commissioner who had deposited the same into the funds of the municipality. Thereby, the amount had formed and fused into the integral part of the municipal funds. It is true that the Government had put restriction that the said money would be used only for the public purpose. It would be obvious that since municipality did not have the required funds, the Government had imposed a condition that the money contributed by the hawkers should be used only for the purpose of cost of the acquisition apprehending that the same may be directed to other purposes. The meat of the matter is that after the deposit by the hawkers, they have no right to withdraw the said amount which formed part of the funds of the municipality, The High Court, therefore, was not right in holding that the amount has not become part of the funds managed or controlled by the local authority within the meaning of second proviso of sub-section (1) of Section 6.

### Instruction: Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant? ### Input: K. Ramaswamy, J. 1. This appeal by special leave arises from the judgment of the Division Bench of the Calcutta High Court dated July 26, 1979 made in C. R. No 2030 (W) of 1978. The admitted facts are that a resolution was passed by the appellant-municipality for rehabilitation of the hawkers by acquiring the land in question. By that date the municipality did not have sufficient funds to meet the acquisition costs. As a consequence, the hawkers union was requested to contribute the fund to meet acquisition costs. In furtherance thereof, the hawkers union deposited with the municipality a sum of Rs. 3,90,000/- for the acquisition of the land. The said amount was credited to the funds of the municipality. Thereafter a reference was made to the Government requesting to acquire the land. In furtherance thereof, the Government issued notification under Section 4 (1) of the Land Acquisition Act, 1894 (1 of 1894) (for short, the Act) on August 1, 1974 and acquired the plots of land bearing Nos. 412 to 426, 497, 2400 to 2407 admeasuring about 4. 717 hectares of the land in the village Kantalpura, P.S. Nahati Municipality. Declaration under Section 6 came to published on November 9, 1976. Both the notification and the declaration came to be challenged in the writ petition. The High Court concluded in its judgment that though there was initial resolution passed by the municipality to acquire the land there was no final resolution directing the Commissioner to spend the money from the fund of the municipality. The hawkers themselves deposited the money with the municipal Corporation. The Government imposed a condition that the said amount should be used only for the purpose of acquisition of land for rehabilitation of the hawkers. The appropriate provisions contained in the Municipality Act have not been complied with. Under those circumstances, there is no public purpose indeed for acquiring the land. Accordingly, the declaration under Section 6 came to be quashed. Thus this appeal by special leave. 2. We have been taken through the reasoning of the learned Judges and have also heard contentions of the learned counsel for the parties. We are of the view that High Court was not right in its approach in dealing with the matter. The rehabilitation of the hawkers by acquiring the land is indisputadly the public purpose; otherwise it would be a perpetual nuisance to the residents of the municipal area if hawkers were permitted to hawk the goods on public payment obstructing the traffic flow in the city. Therefore, it can, by no stretch of imagination, be considered that it is not a public purpose. The question then is : Whether the part of whole of the compensation would come from the funds of the local authority ? The second proviso to sub-section (1) of Section 6 deals that according to which no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some funds controlled or managed by a local authority. Indisputedly municipality is a local authority and the funds are controlled or managed by the municipality. In view of the fact that at the relevant point of time the municipality did not have necessary funds to meet the cost of acquisition, they had requested hawkers union to contribute the money for the acquisition. Consequently, Rs.3,90,000/- came to be handed over to the Municipal Commissioner who had deposited the same into the funds of the municipality. Thereby, the amount had formed and fused into the integral part of the municipal funds. It is true that the Government had put restriction that the said money would be used only for the public purpose. It would be obvious that since municipality did not have the required funds, the Government had imposed a condition that the money contributed by the hawkers should be used only for the purpose of cost of the acquisition apprehending that the same may be directed to other purposes. The meat of the matter is that after the deposit by the hawkers, they have no right to withdraw the said amount which formed part of the funds of the municipality, The High Court, therefore, was not right in holding that the amount has not become part of the funds managed or controlled by the local authority within the meaning of second proviso of sub-section (1) of Section 6. ### Response: 1

Commissioner of Sales Tax, Cuttack, Orissa Vs. Brijraj Rameshwar

registration certificate was granted; and whether proceedings for assessment for the quarter ending on 30th June, 1951, which commenced on 23rd November, 1953, should have been instituted under section 12(2) or section 12(4) and not under section 12(5) of the Orissa Sales Tax Act, 1947?4. Whether in the facts and circumstances of the case completion of assessment in respect of quarters ending 31st December, 1950, and 31st March, 1951 under section 12(5) was illegal?The High Court answered the first question in the affirmative, namely, "that in the facts and circumstances of the case the application for registration submitted by the opposite party to the Sales Tax Officer, Sambalpur Circle, on 22nd August, 1949, was valid or is to be treated as valid, and was pending till 11th September, 1951."The answer to the second question was in the negative.4. The High Court answered the first part of the third question in the negative, namely, "that in the facts and circumstances of the case the certificate of registration, granted to the opposite party on application made subsequent to the date of accrual of his liability to pay tax, did not remain valid for the entire financial year during which the application was made and the registration certificate was granted." The second part of question No. 3 was answered thus:"So, our answer to the second part of question No. 3 is that the proceedings for assessment for the quarter ending on 30th June, 1951, which commenced on 23rd November, 1953, should have been instituted under section 12(2) or section 12(4) and not under section 12(5) of the Orissa Sales Tax Act, 1947, and accordingly our answer to the second part of question No. 3 is in the affirmative."Question No. 4 was answered in the affirmative on the following reasoning :"In view of our finding that the dealers application, dated August 22, 1949, was a valid application, the question of assessment under section 12(5) does not arise, since it contemplates cases of failure to apply for registration without sufficient causes. So our answer to question No. 5 (Question No. 4 in our judgment) is that in the facts and circumstances of the cases completion of assessment in respect of quarters ending 31st December, 1950, and 31st March, 1951, under section 12(5) was illegal."The learned counsel for the appellant, Mr. Bindra, submits that the application of the assessee, dated August 22, 1949, for registration, was not a valid application, and that the assessments under section 12(5) of the Act were valid.It is not necessary to decide the question whether the said application, dated August 22, 1949, was a valid application or not, because even if we assume that the application was invalid under section 9(2) of the Act, we are satisfied that section 12(5) of the Act did not apply to the facts and circumstances of the case.Section 12(5) reads thus :"12. (5) If upon information which has come into this possession, the Collector is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registration, the Collector shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and the Collector may direct that the dealer shall pay, by way of penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount."5. Section 12(5) enables the Collector to assess a dealer if two conditions are satisfied : (a) that the ealer was liable to pay tax in respect of a period, and (b) that he wilfully failed to apply registration. Mr. Bindra contends that on the facts in this case both conditions are fulfilled. He says that the application, dated August 22, 1949, must be left out of account for it was invalid. If this is treated as non est it follows that the assessee wilfully failed to apply for registration. He urges that the assessee did not enquire about the fate of his application till September 11, 1951, and this is material on which the assessing authority could well come to the conclusion that the assessee had wilfully failed to apply for registration. We are unable to accede to this contention. The fact that the assessee applied for registration cannot be ignored in determining the question. He, in fact, stated that he was liable to tax under the Act as his gross turnover exceeded Rs. 5, 000. He was not thereby trying to avoid tax, but on the contrary he was telling the Sales Tax Officer that he was liable to be taxed. It is negligence of the Sales Tax Officer in not informing him that his application has been rejected that led him not to file another application. The expression "nevertheless wilfully failed to apply for registration" connotes a deliberate failure to apply for registration in order to avoid taxation. We are of the opinion that on the facts of this case it is not established that the assessee wilfully failed to apply for registration. Therefore, it follows that the assessments could not be made under section 12(5) of the Act.Accordingly we hold that the answer to question No. 4 should be in the affirmative. Mr. Bindra did not attack any others answer given by the High Court, except perhaps, by inference, the answer to the second part of question No. 3, which also involves the applicability of section 12(5) in respect of the quarter ending June 30, 1951. We need only say that the assessment in respect of this quarter could not be made under section 12(5). Whether section 12(2) or section 12(4) applies or whether section 12(7) applies was not argued before us and therefore, we say nothing about this. We should not be taken to endorse the view of the High Court that section 12(2) or section 12(4) applied.

0[ds]It is not necessary to decide the question whether the said application, dated August 22, 1949, was a valid application or not, because even if we assume that the application was invalid under section 9(2) of the Act, we are satisfied that section 12(5) of the Act did not apply to the facts and circumstances of the case.Section 12(5) enables the Collector to assess a dealer if two conditions are satisfied : (a) that the ealer was liable to pay tax in respect of a period, and (b) that he wilfully failed to apply registration. Mr.Bindra contends that on the facts in this case both conditions are fulfilled. He says that the application, dated August 22, 1949, must be left out of account for it was invalid.If this is treated as non est it follows that the assessee wilfully failed to apply for registration. He urges that the assessee did not enquire about the fate of his application till September 11, 1951, and this is material on which the assessing authority could well come to the conclusion that the assessee had wilfully failed to apply for registration. We are unable to accede to this contention. The fact that the assessee applied for registration cannot be ignored in determining the question. He, in fact, stated that he was liable to tax under the Act as his gross turnover exceeded Rs. 5, 000. He was not thereby trying to avoid tax, but on the contrary he was telling the Sales Tax Officer that he was liable to be taxed. It is negligence of the Sales Tax Officer in not informing him that his application has been rejected that led him not to file another application. The expression "nevertheless wilfully failed to apply for registration" connotes a deliberate failure to apply for registration in order to avoid taxation. We are of the opinion that on the facts of this case it is not established that the assessee wilfully failed to apply for registration. Therefore, it follows that the assessments could not be made under section 12(5) of the Act.Accordingly we hold that the answer to question No. 4 should be in the affirmative. Mr.Bindra did not attack any others answer given by the High Court, except perhaps, by inference, the answer to the second part of question No. 3, which also involves the applicability of section 12(5) in respect of the quarter ending June 30, 1951.We need only say that the assessment in respect of this quarter could not be made under section 12(5). Whether section 12(2) or section 12(4) applies or whether section 12(7) applies was not argued before us and therefore, we say nothing about this. We should not be taken to endorse the view of the High Court that section 12(2) or section 12(4) applied.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: registration certificate was granted; and whether proceedings for assessment for the quarter ending on 30th June, 1951, which commenced on 23rd November, 1953, should have been instituted under section 12(2) or section 12(4) and not under section 12(5) of the Orissa Sales Tax Act, 1947?4. Whether in the facts and circumstances of the case completion of assessment in respect of quarters ending 31st December, 1950, and 31st March, 1951 under section 12(5) was illegal?The High Court answered the first question in the affirmative, namely, "that in the facts and circumstances of the case the application for registration submitted by the opposite party to the Sales Tax Officer, Sambalpur Circle, on 22nd August, 1949, was valid or is to be treated as valid, and was pending till 11th September, 1951."The answer to the second question was in the negative.4. The High Court answered the first part of the third question in the negative, namely, "that in the facts and circumstances of the case the certificate of registration, granted to the opposite party on application made subsequent to the date of accrual of his liability to pay tax, did not remain valid for the entire financial year during which the application was made and the registration certificate was granted." The second part of question No. 3 was answered thus:"So, our answer to the second part of question No. 3 is that the proceedings for assessment for the quarter ending on 30th June, 1951, which commenced on 23rd November, 1953, should have been instituted under section 12(2) or section 12(4) and not under section 12(5) of the Orissa Sales Tax Act, 1947, and accordingly our answer to the second part of question No. 3 is in the affirmative."Question No. 4 was answered in the affirmative on the following reasoning :"In view of our finding that the dealers application, dated August 22, 1949, was a valid application, the question of assessment under section 12(5) does not arise, since it contemplates cases of failure to apply for registration without sufficient causes. So our answer to question No. 5 (Question No. 4 in our judgment) is that in the facts and circumstances of the cases completion of assessment in respect of quarters ending 31st December, 1950, and 31st March, 1951, under section 12(5) was illegal."The learned counsel for the appellant, Mr. Bindra, submits that the application of the assessee, dated August 22, 1949, for registration, was not a valid application, and that the assessments under section 12(5) of the Act were valid.It is not necessary to decide the question whether the said application, dated August 22, 1949, was a valid application or not, because even if we assume that the application was invalid under section 9(2) of the Act, we are satisfied that section 12(5) of the Act did not apply to the facts and circumstances of the case.Section 12(5) reads thus :"12. (5) If upon information which has come into this possession, the Collector is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registration, the Collector shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and the Collector may direct that the dealer shall pay, by way of penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount."5. Section 12(5) enables the Collector to assess a dealer if two conditions are satisfied : (a) that the ealer was liable to pay tax in respect of a period, and (b) that he wilfully failed to apply registration. Mr. Bindra contends that on the facts in this case both conditions are fulfilled. He says that the application, dated August 22, 1949, must be left out of account for it was invalid. If this is treated as non est it follows that the assessee wilfully failed to apply for registration. He urges that the assessee did not enquire about the fate of his application till September 11, 1951, and this is material on which the assessing authority could well come to the conclusion that the assessee had wilfully failed to apply for registration. We are unable to accede to this contention. The fact that the assessee applied for registration cannot be ignored in determining the question. He, in fact, stated that he was liable to tax under the Act as his gross turnover exceeded Rs. 5, 000. He was not thereby trying to avoid tax, but on the contrary he was telling the Sales Tax Officer that he was liable to be taxed. It is negligence of the Sales Tax Officer in not informing him that his application has been rejected that led him not to file another application. The expression "nevertheless wilfully failed to apply for registration" connotes a deliberate failure to apply for registration in order to avoid taxation. We are of the opinion that on the facts of this case it is not established that the assessee wilfully failed to apply for registration. Therefore, it follows that the assessments could not be made under section 12(5) of the Act.Accordingly we hold that the answer to question No. 4 should be in the affirmative. Mr. Bindra did not attack any others answer given by the High Court, except perhaps, by inference, the answer to the second part of question No. 3, which also involves the applicability of section 12(5) in respect of the quarter ending June 30, 1951. We need only say that the assessment in respect of this quarter could not be made under section 12(5). Whether section 12(2) or section 12(4) applies or whether section 12(7) applies was not argued before us and therefore, we say nothing about this. We should not be taken to endorse the view of the High Court that section 12(2) or section 12(4) applied. ### Response: 0

SIDDARAJU Vs. THE STATE OF KARNATAKA

the reservation policy for the disabled and to protect their rights. 7. We may mention that, pursuant to this Court?s judgment, the Union of India issued Office Memorandum dated 03.12.2013 in which it made only one change in the Office Memorandum dated 29.12.2015 as follows:-"5. Keeping in view the directions of the Hon?ble Supreme Court, Para 14 of the OM dated 29.12.2005 is modified to the following extent:?Reservation for persons with disabilities in Group ‘A? or Group ‘B? posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group ‘A? posts or Group ‘B? posts respectively, in the cadre.?Contempt petitions were filed stating that the directions contained in this judgment have not been carried out, which is not the subject-matter before us. These petitions have been ordered to be listed after the decision in these cases. 8. The next important judgment that needs to be adverted to in this behalf is the judgment in National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 , in para 10 of which para 51 of the earlier judgment was clarified as follows:-?10. Para 51 of the order on which reliance has been placed by Shri Rungta must be viewed in the context of the questions arising for answer before the Court i.e. the manner of computation of vacancies in case of Groups A, B, C and D posts. All that the Court in the aforesaid paragraph 51 has held is that the manner of such identification must be uniform in the case of all the groups viz. A, B, C and D. Nothing beyond the above should be read in paragraph 51 of the Courts? order as aforesaid.?9. We now come to the Division Bench judgment of this Court reported as Rajeev Kumar Gupta & Others v. Union of India & Others – (2016) 13 SCC 153. In this judgment, the posts in Prasar Bharati were classified into four Groups–A to D. The precise question that arose before the Court is set out in para 5 thereof in which it is stated that the statutory benefit of 3 per cent reservation in favour of those who are disabled is denied insofar as identified posts in Groups A and B are concerned, since these posts are to be filled through direct recruitment. After noticing the arguments based on the nine-Judge bench in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, this Court held:?14. We now examine the applicability of the prohibition on reservation in promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, reservation in promotions were permitted under law as interpreted by this Court in Southern Railway v. Rangachari, AIR 1962 SC 36 . Indra Sawhney specifically overruled Rangachari to the extent that reservations in promotions were held in Rangachari to be permitted under Article 16(4) of the Constitution. Indra Sawhney specifically addressed the question whether reser- vations could be permitted in matters of promotion under Article 16(4). The majority held that reservations in promotion are not permitted under our constitutional scheme. 15. The respondent argued that the answer to Que- tion 7 in Indra Sawhney squarely covers the situation on hand and the reasons outlined by the majority opinion in Indra Sawhney at para 828 must also apply to bar reservation in promotions to identified posts of Group A and Group B. 16. We do not agree with the respondent?s submission. Indra Sawhney ruling arose in the context of reservations in favour of backward classes of citizens falling within the sweep of Article 16(4). xxx xxx 21. The principle laid down in Indra Sawhney is applicable only when the State seeks to give preferential treatment in the matter of employment under the State to certain classes of citizens identified to be a backward class. Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion, etc. mentioned in Article 16(1) as the basis. The basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to PWD."The Court then concluded:24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post. 25. In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed.?10. After hearing learned counsel appearing on behalf of all the parties including the learned Additional Solicitor General, we are of the view that the judgment of this Court cannot be faulted when it stated that Indra Sawhney dealt with a different problem and, therefore, cannot be followed. 11. We may also note that review petitions were filed and have since been dismissed against both the 2013 and 2016 judgments.

0[ds]Contempt petitions were filed stating that the directions contained in this judgment have not been carried out, which is not the subject-matter before us. These petitions have been ordered to be listed after the decision in thesejudgment in National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 , in para 10 of which para 51 of the earlier judgment was clarified asPara 51 of the order on which reliance has been placed by Shri Rungta must be viewed in the context of the questions arising for answer before the Court i.e. the manner of computation of vacancies in case of Groups A, B, C and D posts. All that the Court in the aforesaid paragraph 51 has held is that the manner of such identification must be uniform in the case of all the groups viz. A, B, C and D. Nothing beyond the above should be read in paragraph 51 of the Courts? order as aforesaid.We now come to the Division Bench judgment of this Court reported as Rajeev Kumar Gupta & Others v. Union of India & Others – (2016) 13 SCC 153. In this judgment, the posts in Prasar Bharati were classified into four Groups–A to D. The precise question that arose before the Court is set out in para 5 thereof in which it is stated that the statutory benefit of 3 per cent reservation in favour of those who are disabled is denied insofar as identified posts in Groups A and B are concerned, since these posts are to be filled through direct recruitment. After noticing the arguments based on the nine-Judge bench in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, this CourtWe now examine the applicability of the prohibition on reservation in promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, reservation in promotions were permitted under law as interpreted by this Court in Southern Railway v. Rangachari, AIR 1962 SC 36 . Indra Sawhney specifically overruled Rangachari to the extent that reservations in promotions were held in Rangachari to be permitted under Article 16(4) of the Constitution. Indra Sawhney specifically addressed the question whether reser- vations could be permitted in matters of promotion under Article 16(4). The majority held that reservations in promotion are not permitted under our constitutional scheme.The respondent argued that the answer to Que- tion 7 in Indra Sawhney squarely covers the situation on hand and the reasons outlined by the majority opinion in Indra Sawhney at para 828 must also apply to bar reservation in promotions to identified posts of Group A and Group B.We do not agree with the respondent?s submission. Indra Sawhney ruling arose in the context of reservations in favour of backward classes of citizens falling within the sweep of Article. The principle laid down in Indra Sawhney is applicable only when the State seeks to give preferential treatment in the matter of employment under the State to certain classes of citizens identified to be a backward class. Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion, etc. mentioned in Article 16(1) as the basis. The basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed.After hearing learned counsel appearing on behalf of all the parties including the learned Additional Solicitor General, we are of the view that the judgment of this Court cannot be faulted when it stated that Indra Sawhney dealt with a different problem and, therefore, cannot be followed.We may also note that review petitions were filed and have since been dismissed against both the 2013 and 2016 judgments.The impugned judgment of the High Court dated 22.06.2016 in this appeal, after referring to the judgment of this Court in National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 arrived at the followingThe contention of the learned Attorney General was that except for sub-section 2 of Section 47, there was no other provision under the Disabilities Act dealing with the promotions and, therefore, on the strength of sub-section 2 of Section 47 of the Disabilities Act, it cannot be contended that the Act provides for reservation in the matter of promotion. In paragraphs 9 and 10 of the judgment and order dated 1 st September, 2015, the Apex Court has dealt with issue of reservation in promotion. In paragraph 10 of the judgment and order dated 1 st September, 2015, the Apex Court has explained paragraph 51 of the earlier judgment and order dated 8 th October, 2013 by observing that what is observed in paragraph 51 is about the manner of computation of vacancies in case of all the Groups viz. A, B, C and D posts. That is the reason why the Apex Court declined to initiate any action for contempt on the basis of allegations that there is no provision made for the reservation of persons with disabilities in promotion. In terms the Apex Court observed that what is held in paragraph 51 of the judgment and order dated 8 th October, 2013 cannot be construed to mean that there is a direction issued to provide for the reservation for the persons with disabilities even in the promotional posts.In view of the clarification issued by the Apex Court under the order dated 1 st September, 2015 in Contempt Petition (Civil) No. 499 of 2014, now the directions contained in paragraph 13 of the judgment and order dated 4 th December, 2013 cannot be implemented insofar as the same deal with giving benefit of reservation to the persons with disabilities in the matter of promotion to the posts in the Indian Administrative Service by applying the Office Memorandum dated 29 th December,the High Court held that no action can be initiated in the contempt petition on the ground that reservation had not been provided in the matter of promotion. We may hasten to add that this is not a correct reading of the law laid down by this Court. National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 was a judgment in a contempt petition in which the contention taken up by the petitioner was repelled by stating that para 51 of the 2013 judgment has held that the manner of identification of posts of all groups must be uniform and nothing beyond. After the declaration of the law in Rajeev Kumar Gupta & Others v. Union of India & Others – (2016) 13 SCC 153 it is now clear beyond doubt that the O.M. of 2005 cannot be given effect to when it is in the teeth of the 2016 judgment.It is clear that the Internal Committee of respondent No. 2 has applied its mind to the post of Executive Engineer, Mechanical and Electrical, and has opined that in the said post, reservation for the physically disabled will not be possible for the reason given therein.

### Instruction: Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant. ### Input: the reservation policy for the disabled and to protect their rights. 7. We may mention that, pursuant to this Court?s judgment, the Union of India issued Office Memorandum dated 03.12.2013 in which it made only one change in the Office Memorandum dated 29.12.2015 as follows:-"5. Keeping in view the directions of the Hon?ble Supreme Court, Para 14 of the OM dated 29.12.2005 is modified to the following extent:?Reservation for persons with disabilities in Group ‘A? or Group ‘B? posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group ‘A? posts or Group ‘B? posts respectively, in the cadre.?Contempt petitions were filed stating that the directions contained in this judgment have not been carried out, which is not the subject-matter before us. These petitions have been ordered to be listed after the decision in these cases. 8. The next important judgment that needs to be adverted to in this behalf is the judgment in National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 , in para 10 of which para 51 of the earlier judgment was clarified as follows:-?10. Para 51 of the order on which reliance has been placed by Shri Rungta must be viewed in the context of the questions arising for answer before the Court i.e. the manner of computation of vacancies in case of Groups A, B, C and D posts. All that the Court in the aforesaid paragraph 51 has held is that the manner of such identification must be uniform in the case of all the groups viz. A, B, C and D. Nothing beyond the above should be read in paragraph 51 of the Courts? order as aforesaid.?9. We now come to the Division Bench judgment of this Court reported as Rajeev Kumar Gupta & Others v. Union of India & Others – (2016) 13 SCC 153. In this judgment, the posts in Prasar Bharati were classified into four Groups–A to D. The precise question that arose before the Court is set out in para 5 thereof in which it is stated that the statutory benefit of 3 per cent reservation in favour of those who are disabled is denied insofar as identified posts in Groups A and B are concerned, since these posts are to be filled through direct recruitment. After noticing the arguments based on the nine-Judge bench in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, this Court held:?14. We now examine the applicability of the prohibition on reservation in promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, reservation in promotions were permitted under law as interpreted by this Court in Southern Railway v. Rangachari, AIR 1962 SC 36 . Indra Sawhney specifically overruled Rangachari to the extent that reservations in promotions were held in Rangachari to be permitted under Article 16(4) of the Constitution. Indra Sawhney specifically addressed the question whether reser- vations could be permitted in matters of promotion under Article 16(4). The majority held that reservations in promotion are not permitted under our constitutional scheme. 15. The respondent argued that the answer to Que- tion 7 in Indra Sawhney squarely covers the situation on hand and the reasons outlined by the majority opinion in Indra Sawhney at para 828 must also apply to bar reservation in promotions to identified posts of Group A and Group B. 16. We do not agree with the respondent?s submission. Indra Sawhney ruling arose in the context of reservations in favour of backward classes of citizens falling within the sweep of Article 16(4). xxx xxx 21. The principle laid down in Indra Sawhney is applicable only when the State seeks to give preferential treatment in the matter of employment under the State to certain classes of citizens identified to be a backward class. Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion, etc. mentioned in Article 16(1) as the basis. The basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to PWD."The Court then concluded:24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post. 25. In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed.?10. After hearing learned counsel appearing on behalf of all the parties including the learned Additional Solicitor General, we are of the view that the judgment of this Court cannot be faulted when it stated that Indra Sawhney dealt with a different problem and, therefore, cannot be followed. 11. We may also note that review petitions were filed and have since been dismissed against both the 2013 and 2016 judgments. ### Response: 0

State Of U.P. Vs. United Bank Of India

expectation is not valid at all in the eye of law. Moreover, this Court in number of decisions has held clearly that doctrine of legitimate expectation cannot be invoked by someone who has no dealing or transaction or negotiations with an authority or by someone who has a recognized legal relationship with the authority. Therefore, as the Bank is not having any recognized legal relationship with the State in view of the fact that the mortgage by the ABP in favour of the Bank itself is bad in law, there is no question of invoking doctrine of legitimate expectation in the present case as it applies to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid, cannot be a legitimate expectation.42. The doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted a statute. The legitimate expectation should be legitimate, reasonable and valid. For the application of doctrine of legitimate expectation, any representation or promise should be made by an authority. A person unconnected with the authority, who had no previous dealing and who has not entered into any transaction or negotiations with the authority cannot invoke the doctrine of legitimate expectation. A person, who bases his claim on the doctrine of legitimate expectation has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. This Court in the case of Sethi Auto Service Station and another vs. Delhi Development Authority and others, (2009) 1 SCC 180 , while considering the doctrine observed:- “33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. (Vide Hindustan Development Corpn. (1993) 3 SCC 499.” 43. The High Court after having recorded a finding that the Bank being the nominee of the mortgagee has a right to make an application for conversion of Nazul land into a freehold land, without appreciating the fact that the Bank has not having any subsistence interest in the leasehold property obtained a mortgage decree behind the back of the State being the paramount title holder applied the doctrine of legitimate expectation. 44. In the instant case, admittedly, the State never recognized the appellant Bank as a mortgagee. Further the State was not aware about the alleged mortgage said to have been created by the lessee ABP Co. by deposit of Lease document. Moreover, the State never represented or promised either to the lessee or to the Bank to give any benefit under the lease. In such circumstances, we are of the definite opinion that the High Court has committed grave error in applying the doctrine of legitimate expectation in favour of the bank. 45. After considering the entire facts of the case and the submissions made by learned counsel appearing for the parties, we come to the following conclusion:- (i) Indisputably, the property in question i.e. Premises No.19, Clive Road, Allahabad is a Nazul land governed by the Government Grants Act, 1895 and Nazul Rules.(ii) The property was given on lease by the State of U.P.to Mrs. Mortha Anthony and second time the lease was renewed in favour of Ms. Verna Anthony and Ms. Leena Anthony for a further period of 50 years which was valid up to 31.8.1987.(iii) During the subsistence of lease, the leasehold interest was transferred in 1945 in favour of ABP Co. and on the basis of the said transfer a lease was executed in 1949 by the State of U.P. in favour of ABP Co. for the remaining period of lease which expired in 1987.(iv) As against the loan taken by the Company from the Bank, a mortgage was created in respect of the property by the Company in favour of Bank. The lease in respect of the leasehold interest in the property admittedly expired in 1987.(v) The mortgage so created by the Company in favour of the Bank in respect of Nazul land without the sanction of the State of Uttar Pradesh in terms of the lease, is ab initio void, hence no right was created in favour of the Bank by reason of the said mortgage.(vi) Consequently, a mortgage decree obtained by the Bank on the basis of settlement, in absence of and behind the back of the State of U.P. could not have been enforced against the State. The subsequent proceedings of transferring the decree to the Debt Recovery Tribunal and again passing an order for auction sale of the property on the basis of settlement is wholly illegal and without jurisdiction.(vii) The appellant Bank has no right, title or interest in the property so as to claim a right of conversion of the property into a freehold property.(viii) The impugned notice issued by the State of U.P. directing resumption of the property is legal and valid and cannot be quashed at the instance of the Bank.

1[ds]21. It is pertinent to mention here that the land in dispute being a Government property, the appellant-Bank cannot get any right over it. Moreover, neither the appellant-Bank is a lessee of the land in question nor any lease has ever been sanctioned by the Govt, of U.P. in its favour. Hence, the appellant is not entitled to get any right or to keep possession of the properties in question situated at 19, Clive Road and 10, Edmoston Road.22. The contention of the appellant-Bank is that only on the basis of the notice issued on 9.12.1998, the appellant cannot be deprived of its rights. It is pertinent to mention here that the above notice was not issued to the appellant Bank, but was issued to the Secretary/Director of M/s ABP Pvt. Ltd. vide letter No. 56/Nazul-(CL)-XXI-8/11(96-97) dated 19th December, 1998 in relation to the Nazul land No.25 and 25A, Chikatpur, Nasibpur Bakhtiara. Hence, the appellant is not competent to file any petition and challenge the above notice. It is worthwhile to mention that the above show cause notice was issued on the ground of violation of the terms of lease for which a reply was filed by Shri B.P. Tiwari, Secretary of M/s ABP Co. Ltd. dated 13.01.1999. This Court vide order dated 8.1.1999 in the writ petition has stayed further proceedings of the above show cause notice issued on 19.12.1998. It is also worthwhile to mention here that in the case of Nazul Land No.120-1/2 Civil Station (which is situated at 10, Edmoston Road), on violating the terms of lease by raising illegal construction without prior sanction and for other irregularities, a show cause notice vide letter No.448/Nazul-(CL)-XXI-8/51(80-81) dated 14th May, 1999 was sent to the Director/Secretary of M/s ABP Pvt.Ltd through registered post and its reply was given by Shri B.P. Tiwari, Secretary, ABP Pvt. Ltd. on 27.5.1999 and in that reply no justified reasons have been given by the Secretary of the above Company for the violation of the terms of the lease by unauthorisedly raising construction and for unauthorisedly running a workshop for repairing LML Vespa Scooter. Hence, after thorough consideration when it was found that the issuance of new lease in favour of M/s ABP was not in accordance with rules, the name of M/s ABP was cancelled from the above land vide order No. 47/Nazul-CL-XXI-8/51(80-81), dated 9th May, 2005 and the entire area of Nazul Land No.120-1/2 Civil Station has been vested with the Government of Uttar Pradesh. Admittedly, no notice was issued to the appellant Bank by the State. Hence, the appellant was not aggrieved by these notices in any manner. Neither the appellant-Bank is having any relation with both the lands in question nor any lease of the above land has ever been sanctioned in its favour.In the instant case, the renewal of lease dated 25th July, 1940 was prepared as per Form 4 of the Nazul rule. The said lease was renewed in accordance with the terms, conditions and covenants contained in the prescribed forms appended to the said rules.32. The primary question which needs consideration is as to whether there is a valid mortgage created by the ABP Pvt. Ltd in favour of the Union Bank of India?33. As stated above the disputed property, which is a Nazul Land and governed by the Government grant, was given by way of Renewal of Lease to the ABP Co. for 50 years w.e.f. 1st September 1937, which expired on 31st August 1987. Admittedly, ABP Co. mortgaged the said Nazul land in favour of the Bank, in which the ABP Co. had only a leasehold interest in the property. There is nothing on record which shows as to when the alleged mortgage was created by the ABP Co. in favour of the Bank. If we assume that the mortgage was created before the expiry of the lease i.e. before 31st August 1987 then as per the Form 2 read with Form 3 which governs conditions for renewal of lease of the Nazul Rules any transfer or sub-lease by the ABP Co. had to be done with the previous sanction of the State, but in the present case not a single document is produced to show that any such sanction was obtained by the ABP from the State.34. It is admitted fact that the suit property is the Nazul Land, and as per the definition of Nazul, as provided in the Rule 1 of the Nazul Rules, it means any land or building which, being the property of Government is not administered as a State Property.35. Admittedly, lease was renewed in favour of M/s. ABP Co. as per the Government order in accordance with the rules mentioned in the Rules 13 to 16 of the Nazul Rules read with Form 3 of the Nazul Manual which talks about Renewal of a Lease.36. In Form 3 of the Nazul Manual it is mentioned in the renewal lease deed thatpursuance of the premises the lessor hereby demises upto the Lessee all and singular the hereditaments and premises comprised in and demised by the within the written lease, now standing thereon with the same exceptions and reservations as are therein expressed to hold unto the Lease…… and subject to and with the benefit of such and the likeconvenants respectively and the like provisions and conditions in all respects (including the proviso for re-entry) as are contained in the within written lease.37. Thisis the original lease deed as mentioned in the Form 2 of the Nazul Manual. Form 2 of lease of Nazul land for building purposes it is one of the condition between the lessor and the lessee thatThe aforesaid decision makes it clear that this doctrine cannot be applied in cases of invalid expectation, and as in the present case, the mortgage done by the ABP itself is bad in law. We are of the clear view that this expectation is not valid at all in the eye of law. Moreover, this Court in number of decisions has held clearly that doctrine of legitimate expectation cannot be invoked by someone who has no dealing or transaction or negotiations with an authority or by someone who has a recognized legal relationship with the authority. Therefore, as the Bank is not having any recognized legal relationship with the State in view of the fact that the mortgage by the ABP in favour of the Bank itself is bad in law, there is no question of invoking doctrine of legitimate expectation in the present case as it applies to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid, cannot be a legitimate expectation.42. The doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted a statute. The legitimate expectation should be legitimate, reasonable and valid. For the application of doctrine of legitimate expectation, any representation or promise should be made by an authority. A person unconnected with the authority, who had no previous dealing and who has not entered into any transaction or negotiations with the authority cannot invoke the doctrine of legitimate expectation. A person, who bases his claim on the doctrine of legitimate expectation has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his

### Instruction: Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable? ### Input: expectation is not valid at all in the eye of law. Moreover, this Court in number of decisions has held clearly that doctrine of legitimate expectation cannot be invoked by someone who has no dealing or transaction or negotiations with an authority or by someone who has a recognized legal relationship with the authority. Therefore, as the Bank is not having any recognized legal relationship with the State in view of the fact that the mortgage by the ABP in favour of the Bank itself is bad in law, there is no question of invoking doctrine of legitimate expectation in the present case as it applies to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid, cannot be a legitimate expectation.42. The doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted a statute. The legitimate expectation should be legitimate, reasonable and valid. For the application of doctrine of legitimate expectation, any representation or promise should be made by an authority. A person unconnected with the authority, who had no previous dealing and who has not entered into any transaction or negotiations with the authority cannot invoke the doctrine of legitimate expectation. A person, who bases his claim on the doctrine of legitimate expectation has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. This Court in the case of Sethi Auto Service Station and another vs. Delhi Development Authority and others, (2009) 1 SCC 180 , while considering the doctrine observed:- “33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. (Vide Hindustan Development Corpn. (1993) 3 SCC 499.” 43. The High Court after having recorded a finding that the Bank being the nominee of the mortgagee has a right to make an application for conversion of Nazul land into a freehold land, without appreciating the fact that the Bank has not having any subsistence interest in the leasehold property obtained a mortgage decree behind the back of the State being the paramount title holder applied the doctrine of legitimate expectation. 44. In the instant case, admittedly, the State never recognized the appellant Bank as a mortgagee. Further the State was not aware about the alleged mortgage said to have been created by the lessee ABP Co. by deposit of Lease document. Moreover, the State never represented or promised either to the lessee or to the Bank to give any benefit under the lease. In such circumstances, we are of the definite opinion that the High Court has committed grave error in applying the doctrine of legitimate expectation in favour of the bank. 45. After considering the entire facts of the case and the submissions made by learned counsel appearing for the parties, we come to the following conclusion:- (i) Indisputably, the property in question i.e. Premises No.19, Clive Road, Allahabad is a Nazul land governed by the Government Grants Act, 1895 and Nazul Rules.(ii) The property was given on lease by the State of U.P.to Mrs. Mortha Anthony and second time the lease was renewed in favour of Ms. Verna Anthony and Ms. Leena Anthony for a further period of 50 years which was valid up to 31.8.1987.(iii) During the subsistence of lease, the leasehold interest was transferred in 1945 in favour of ABP Co. and on the basis of the said transfer a lease was executed in 1949 by the State of U.P. in favour of ABP Co. for the remaining period of lease which expired in 1987.(iv) As against the loan taken by the Company from the Bank, a mortgage was created in respect of the property by the Company in favour of Bank. The lease in respect of the leasehold interest in the property admittedly expired in 1987.(v) The mortgage so created by the Company in favour of the Bank in respect of Nazul land without the sanction of the State of Uttar Pradesh in terms of the lease, is ab initio void, hence no right was created in favour of the Bank by reason of the said mortgage.(vi) Consequently, a mortgage decree obtained by the Bank on the basis of settlement, in absence of and behind the back of the State of U.P. could not have been enforced against the State. The subsequent proceedings of transferring the decree to the Debt Recovery Tribunal and again passing an order for auction sale of the property on the basis of settlement is wholly illegal and without jurisdiction.(vii) The appellant Bank has no right, title or interest in the property so as to claim a right of conversion of the property into a freehold property.(viii) The impugned notice issued by the State of U.P. directing resumption of the property is legal and valid and cannot be quashed at the instance of the Bank. ### Response: 1

PRAVEEN KUMAR C.P Vs. KERALA PUBLIC SERVICE COMMISSION COMMISSION & ORS

after the employment notifications were issued. But what we have to address in these appeals is as to whether the respective B.Ed. degrees of the appellants declared as equivalent to those of the concerned subjects as notified would operate from the dates of issue of the respective GOs or the same would relate back to the time when they obtained the degrees or at least to the date of the employment notification. The appellants have relied on a decision of a coordinate Bench in the case of Beena R. v. Kerala Public Service Commission and Ors. [(2017) 15 SCC 306] . In that case, however, there was no dispute in the case of appellant that she possessed equivalent qualification of KGTE (English typewriting) but she did not have separate certificate as far as the computer wordprocessing was concerned. In this judgment, a coordinate Bench examined the implication of the expression produced. This authority does not aid the appellants. 26. Note (v) of Clause 7 of the employment notification in the case PK and Note (vi) of Clause 7 of the employment notification in the case of AD required disclosure of the equivalency orders. A plain reading of the two GOs clearly reflect that their degrees were equivalent to the requisite qualifications contained in the eligibility criteria. In the case of Aarya K. Babu (supra), the disputed subject was recognized subsequently and introduced as part of the eligibility criteria. The principle of equivalency was not the main reasoning on the basis of which the said case was decided. The word equivalence in its plain meaning implies something which is equal to another. In the field of academics, application of the principle of equivalency in relation to degrees in two subjects would mean that they had the same standing or status all along, unless the official instrument according equivalency specifies a date from which the respective subjects would be treated as such, in express terms or by implication. 27. Whether a GO would have prospective effect or relate back to an earlier date is a question which would have to be decided on the basis of text and tenor of the respective orders. The GOs which declared appellants degrees to be equivalent to those required as per the applicable notifications were not general orders but these two orders were person specific, relating to the two appellants. Once the GOs specifically declared that their B.Ed. degrees were equivalent to the designated subject which formed part of the employment notification, the GOs in substance have to be interpreted as clarificatory in nature and these cannot be construed to have had elevated the status or position of the degree they already had after the declaration was made in the GOs. The subject GOs only recognised an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed. Though these equivalent orders were not in existence on the dates of issue of employment notifications, the GOs in substance recognize such status from the dates of obtaining such degrees. The GOs do not reveal any intervening circumstances which could be construed to imply that the respective degrees acquired the equivalent status because of such circumstances occurring subsequent to grant of their B.Ed. degrees. The aforesaid Notes to Clause 7 of the employment notifications postulated disclosure of the number and date of the orders on equivalence. But the GOs to which we have referred treat the equivalency to be operating on the dates of obtaining such degrees. Thus, the defect, if any, on disclosure requirement, shall stand cured on issue of the University orders followed by the GOs. The GOs also specify the context in which these were issued and refer to the appellants being included in the list of KPSC. This being the case, we do not think treating the appellants degrees as equivalent to those required under the applicable notifications by the GOs issued in the year 2019 would result in change in the rules of the game midway. At best, it can be termed as interpreting the rules when the game was on, figuratively speaking. Such a course would, in our opinion, be permissible. For this reason, we do not consider it necessary to deal with the different authorities cited on the principle of change in the rule of the game midway. We have opined that the appellants degrees in B.Ed. were equivalent to those required by the employment notifications and the equivalency orders were merely clarificatory in nature. For this reason, we do not think there was any fundamental breach of Notes (v) and (vi) of Clause 7 of the respective employment notifications in the cases of the appellants. 28. Once we hold so, we do not think relief can be denied to these two appellants on the ground that other similarly situated persons may not have had applied for the same posts and were being put to disadvantage. In the case of Aarya K. Babu (supra), that course was adopted by a coordinate Bench as it was a new subject which was added to a subsisting range of subjects in the qualification criteria. The principle of service jurisprudence that a candidate must possess the requisite qualification for a post on the date of issue of employment notification cannot be applied in the appellants cases, as in our view, they possessed equivalent qualifications when they applied for the posts. The GOs only confirmed the equivalency of their B.Ed. degrees. In our opinion, they shall be deemed to have had the equivalent qualification on the relevant date. As we have held that the respective GOs only clarified or confirmed an existing status of certain educational qualifications, in absence of specific instance of similarly situated but unspecified number of persons having not applied for the posts would be unfair to the ones who apply for the same and undergo three levels of litigations to establish that they had equivalent degrees.

1[ds]These decisions are mainly authorities on the point that the Rules prevailing on the date of issue of employment notifications ought to prevail under normal circumstances and new Rules or amendments coming midway through a selection process cannot be applied to that process. Such new Rules would operate prospectively. Certain judgments of the Kerala High Court have also been relied upon by the KPSC on the same proposition of law. But we do not consider it necessary to multiply the authorities in this judgment on the same point.This argument of the State is advanced on the ground that it would be in the interest of maintaining quality of education. But on a plain reading of the said clause, it is apparent that there is no specific subject in B.Ed. has been made to be the qualifying criteria in Clause 2(2)(a) of Chapter XXXI of the 1959 Rules. The graduation requirement in concerned subject is there, but going by the said Clause, it postulates B.Ed. degree simplicitor as the eligibility criteria. No other Rule has been shown to us by the learned counsel for the State of Kerala or the Commission from which it can be inferred that there was requirement of a candidate for the subject posts to hold B.Ed. degree in the concerned subject. So far as the present appellants are concerned, no dispute has been raised over their graduation being in the concerned subject.18. Clause 13 of the 1958 Rules permits the Commission to prescribe special qualifications in cases where appointments have to be made in consultation with it or by the State Government or by an appointing authority with approval of State Government in other cases. No specific notification or order issued by the KPSC has been brought to our notice under which the eligibility criteria of holding B.Ed. Degree had to be in the concerned subject for the posts of High School Assistants. KPSCs submission on this point is that the same was not raised at any earlier stage of the proceeding. But in our opinion, the appellants cannot take aid of this argument as the respective employment notifications had specified B.Ed. in concerned subject. The appellants having participated in the said selection process without raising any objection on that count, it would not be open to them to question the eligibility criteria specified in the employment notification. We shall, thus, proceed on the basis that the candidates for the posts in question were required to have B.Ed. degree in the concerned subject and it is not in dispute that B.Ed. degrees of the appellants were not in the concerned subjects. The two GOs, however, confer on the subjects in which the appellants obtained B.Ed. degrees, equivalency to the required subjects.19. There is support for adoption of principle of equivalency in Clause 10 (a)(ii) of the 1958 Rules.We have reproduced the said Clauses earlier in this judgment. There was requirement in Clause 7 that the candidates ought to disclose the dates of GOs declaring equivalency to the concerned subjects. But neither the KPSC nor the State has argued before us that there was any defect in the appellants applications. They were permitted to participate in the written test.The High Court particularly relied on a Full Bench decision of the Kerala High Court in the case of A. Suma v. The Kerala Public Service Commission & Ors. reported in [(2011) 1 KLT1 (FB)]. In that judgment, referring to the 1958 Rules, it was held that the Commission was incompetent to deal with the question of equivalence of educational and other qualifications prescribed unless the subject rules provided for recognition of qualifications other than that prescribed as equivalent. But so far as these two appeals are concerned, we are not dealing with a question as regards the authority of Commission to deal with the question of equivalency. In this case, equivalency has been declared by the State Government, and prior to that, by two universities of the State of Kerala. The power of the State Government to make orders on the question of equivalence is not in dispute. Such power, inter alia, stems from Clause 10(a) (ii) of 1958 Rules. Thus, the case of A. Suma (supra) has no application as regards the appellants rights to be considered for the posts in question having regard to their B.Ed. degrees.24. The candidates who brought that action initially did not possess degree in any of the subjects specified therein, but their degrees were in Forestry. They were successful in the selection process but their selection was cancelled on the ground that they did not possess the prescribed qualification in terms of the notification. It transpired that there was no 4-year degree programme being offered in this country for Agro-Forestry. Indian Council of Agricultural Research (ICAR) had taken a view that definition of agriculture included forestry. It appears that on that basis the degrees of the respective candidates in that proceeding were accepted at the initial stage. In the month of November, 2015, an Office Memorandum was issued by the Ministry in which the fact of there being no 4-year bachelor programme in Agro-Forestry available in the country was taken note of. On the ground that Agro- Forestry was covered comprehensively as a subject in the ICAR approved syllabus for B.Sc. Forestry, it was suggested that it would be appropriate that degree in B.Sc. Forestry ought to be considered for the posts of Agricultural Field Officer in banks. A corrigendum was subsequently issued by the Indian Bank Personnel Selection (IBPS) on 16th January, 2016 in that regard. The cancellation order was successfully challenged by the terminated candidates in the High Court of Kerala, against which the Bank instituted the petition for special leave to appeal. Leave was granted in the Banks petition. It was held by a coordinate Bench of this Court in the case of Aarya K. Babu (supra):-17. In that backdrop, though in the instant facts presently the qualification possessed by the private respondents is decided to be included for the purpose of recruitment to the post of Agricultural Field Officer, as on the date of the recruitment notification the same was not included therein, which cannot be substituted by the Court with retrospective effect for the reasons stated above. Therefore, in the said circumstance, in the present facts, the High Court was not justified in its conclusion. We, however, make it clear that though we have referred to the legal position and applied the same to the case of the parties who are before us, if in the case of similar recruitment, the employers themselves have permitted the equivalence and have continued such of those officers recruited, this decision shall not be applied to initiate action against such officers at this distant point of time. Subject to the above, the orders passed by the High Court of Kerala which are impugned herein are set aside.18. Having arrived at the above conclusion we also take note of the submission of the learned counsel for the private respondent in the appeal arising out of SLP (C) No. 16567 of 2016, namely, Smt. Aarya K. Babu that she is placed in very difficult circumstances subsequent to the discharge from service which is also due to certain setback in her personal life. Though we do not wish to articulate the actual fact situation narrated we have no reason to disbelieve the same, hence, we find it appropriate that in her case it is necessary to exercise our discretion under Article 142 of the Constitution to serve the ends of justice and do complete justice without prejudicing either of the parties. In that view, we direct the appellant Bank of India to provide appointment to Smt. Aarya K. Babu as Agricultural Field Officer or such other equivalent post if the vacancy exists as on today or in the vacancy that would arise in future. In that regard it is made clear that the same will be considered as a fresh appointment from the date of appointment and no previous benefit can be claimed by her. Further, it is made clear that this direction is issued in the peculiar facts and circumstances of this case and the same shall not be treated as a precedent for any other case.25. So far as the present appeals are concerned, the facts are not identical or near similar also considering the factual background of the case of Aarya K. Babu (supra). In the two GOs which have been reproduced earlier, it has been specified that the respective B.Ed. degrees of the appellants through regular study were equivalent to B.Ed. degree in Natural Science. In the case of PK, his B.Ed. Degree in Biological Science was recognized as equivalent to B.Ed. Natural Science Degree of Mahatma Gandhi University, Kerala. In the case of AD, the GO stipulated that Double Main B.Ed. (Biological Science Education and Physical Science Education) degree obtained by her through regular mode was recognized as equivalent to B.Ed. Natural Science Degree of University of Calicut. It is a fact that these orders came much after the employment notifications were issued. But what we have to address in these appeals is as to whether the respective B.Ed. degrees of the appellants declared as equivalent to those of the concerned subjects as notified would operate from the dates of issue of the respective GOs or the same would relate back to the time when they obtained the degrees or at least to the date of the employment notification. The appellants have relied on a decision of a coordinate Bench in the case of Beena R. v. Kerala Public Service Commission and Ors. [(2017) 15 SCC 306] . In that case, however, there was no dispute in the case of appellant that she possessed equivalent qualification of KGTE (English typewriting) but she did not have separate certificate as far as the computer wordprocessing was concerned. In this judgment, a coordinate Bench examined the implication of the expression produced. This authority does not aid the appellants.26. Note (v) of Clause 7 of the employment notification in the case PK and Note (vi) of Clause 7 of the employment notification in the case of AD required disclosure of the equivalency orders. A plain reading of the two GOs clearly reflect that their degrees were equivalent to the requisite qualifications contained in the eligibility criteria. In the case of Aarya K. Babu (supra), the disputed subject was recognized subsequently and introduced as part of the eligibility criteria. The principle of equivalency was not the main reasoning on the basis of which the said case was decided. The word equivalence in its plain meaning implies something which is equal to another. In the field of academics, application of the principle of equivalency in relation to degrees in two subjects would mean that they had the same standing or status all along, unless the official instrument according equivalency specifies a date from which the respective subjects would be treated as such, in express terms or by implication.27. Whether a GO would have prospective effect or relate back to an earlier date is a question which would have to be decided on the basis of text and tenor of the respective orders. The GOs which declared appellants degrees to be equivalent to those required as per the applicable notifications were not general orders but these two orders were person specific, relating to the two appellants. Once the GOs specifically declared that their B.Ed. degrees were equivalent to the designated subject which formed part of the employment notification, the GOs in substance have to be interpreted as clarificatory in nature and these cannot be construed to have had elevated the status or position of the degree they already had after the declaration was made in the GOs. The subject GOs only recognised an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed. Though these equivalent orders were not in existence on the dates of issue of employment notifications, the GOs in substance recognize such status from the dates of obtaining such degrees. The GOs do not reveal any intervening circumstances which could be construed to imply that the respective degrees acquired the equivalent status because of such circumstances occurring subsequent to grant of their B.Ed. degrees. The aforesaid Notes to Clause 7 of the employment notifications postulated disclosure of the number and date of the orders on equivalence. But the GOs to which we have referred treat the equivalency to be operating on the dates of obtaining such degrees. Thus, the defect, if any, on disclosure requirement, shall stand cured on issue of the University orders followed by the GOs. The GOs also specify the context in which these were issued and refer to the appellants being included in the list of KPSC. This being the case, we do not think treating the appellants degrees as equivalent to those required under the applicable notifications by the GOs issued in the year 2019 would result in change in the rules of the game midway. At best, it can be termed as interpreting the rules when the game was on, figuratively speaking. Such a course would, in our opinion, be permissible. For this reason, we do not consider it necessary to deal with the different authorities cited on the principle of change in the rule of the game midway. We have opined that the appellants degrees in B.Ed. were equivalent to those required by the employment notifications and the equivalency orders were merely clarificatory in nature. For this reason, we do not think there was any fundamental breach of Notes (v) and (vi) of Clause 7 of the respective employment notifications in the cases of the appellants.28. Once we hold so, we do not think relief can be denied to these two appellants on the ground that other similarly situated persons may not have had applied for the same posts and were being put to disadvantage. In the case of Aarya K. Babu (supra), that course was adopted by a coordinate Bench as it was a new subject which was added to a subsisting range of subjects in the qualification criteria. The principle of service jurisprudence that a candidate must possess the requisite qualification for a post on the date of issue of employment notification cannot be applied in the appellants cases, as in our view, they possessed equivalent qualifications when they applied for the posts. The GOs only confirmed the equivalency of their B.Ed. degrees. In our opinion, they shall be deemed to have had the equivalent qualification on the relevant date. As we have held that the respective GOs only clarified or confirmed an existing status of certain educational qualifications, in absence of specific instance of similarly situated but unspecified number of persons having not applied for the posts would be unfair to the ones who apply for the same and undergo three levels of litigations to establish that they had equivalent degrees.

### Instruction: Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request? ### Input: after the employment notifications were issued. But what we have to address in these appeals is as to whether the respective B.Ed. degrees of the appellants declared as equivalent to those of the concerned subjects as notified would operate from the dates of issue of the respective GOs or the same would relate back to the time when they obtained the degrees or at least to the date of the employment notification. The appellants have relied on a decision of a coordinate Bench in the case of Beena R. v. Kerala Public Service Commission and Ors. [(2017) 15 SCC 306] . In that case, however, there was no dispute in the case of appellant that she possessed equivalent qualification of KGTE (English typewriting) but she did not have separate certificate as far as the computer wordprocessing was concerned. In this judgment, a coordinate Bench examined the implication of the expression produced. This authority does not aid the appellants. 26. Note (v) of Clause 7 of the employment notification in the case PK and Note (vi) of Clause 7 of the employment notification in the case of AD required disclosure of the equivalency orders. A plain reading of the two GOs clearly reflect that their degrees were equivalent to the requisite qualifications contained in the eligibility criteria. In the case of Aarya K. Babu (supra), the disputed subject was recognized subsequently and introduced as part of the eligibility criteria. The principle of equivalency was not the main reasoning on the basis of which the said case was decided. The word equivalence in its plain meaning implies something which is equal to another. In the field of academics, application of the principle of equivalency in relation to degrees in two subjects would mean that they had the same standing or status all along, unless the official instrument according equivalency specifies a date from which the respective subjects would be treated as such, in express terms or by implication. 27. Whether a GO would have prospective effect or relate back to an earlier date is a question which would have to be decided on the basis of text and tenor of the respective orders. The GOs which declared appellants degrees to be equivalent to those required as per the applicable notifications were not general orders but these two orders were person specific, relating to the two appellants. Once the GOs specifically declared that their B.Ed. degrees were equivalent to the designated subject which formed part of the employment notification, the GOs in substance have to be interpreted as clarificatory in nature and these cannot be construed to have had elevated the status or position of the degree they already had after the declaration was made in the GOs. The subject GOs only recognised an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed. Though these equivalent orders were not in existence on the dates of issue of employment notifications, the GOs in substance recognize such status from the dates of obtaining such degrees. The GOs do not reveal any intervening circumstances which could be construed to imply that the respective degrees acquired the equivalent status because of such circumstances occurring subsequent to grant of their B.Ed. degrees. The aforesaid Notes to Clause 7 of the employment notifications postulated disclosure of the number and date of the orders on equivalence. But the GOs to which we have referred treat the equivalency to be operating on the dates of obtaining such degrees. Thus, the defect, if any, on disclosure requirement, shall stand cured on issue of the University orders followed by the GOs. The GOs also specify the context in which these were issued and refer to the appellants being included in the list of KPSC. This being the case, we do not think treating the appellants degrees as equivalent to those required under the applicable notifications by the GOs issued in the year 2019 would result in change in the rules of the game midway. At best, it can be termed as interpreting the rules when the game was on, figuratively speaking. Such a course would, in our opinion, be permissible. For this reason, we do not consider it necessary to deal with the different authorities cited on the principle of change in the rule of the game midway. We have opined that the appellants degrees in B.Ed. were equivalent to those required by the employment notifications and the equivalency orders were merely clarificatory in nature. For this reason, we do not think there was any fundamental breach of Notes (v) and (vi) of Clause 7 of the respective employment notifications in the cases of the appellants. 28. Once we hold so, we do not think relief can be denied to these two appellants on the ground that other similarly situated persons may not have had applied for the same posts and were being put to disadvantage. In the case of Aarya K. Babu (supra), that course was adopted by a coordinate Bench as it was a new subject which was added to a subsisting range of subjects in the qualification criteria. The principle of service jurisprudence that a candidate must possess the requisite qualification for a post on the date of issue of employment notification cannot be applied in the appellants cases, as in our view, they possessed equivalent qualifications when they applied for the posts. The GOs only confirmed the equivalency of their B.Ed. degrees. In our opinion, they shall be deemed to have had the equivalent qualification on the relevant date. As we have held that the respective GOs only clarified or confirmed an existing status of certain educational qualifications, in absence of specific instance of similarly situated but unspecified number of persons having not applied for the posts would be unfair to the ones who apply for the same and undergo three levels of litigations to establish that they had equivalent degrees. ### Response: 1

Rajindra Kumar Vs. Shri Chandra Narain Singh and Others

born to Shiv Narain Lodhi of Kankua on 14-3-1943. The father of respondent No. 1, Shiv Narain Singh stated that this entry related to respondent No.1. It has been pointed out on behalf of the appellant that there are certain indications in the original Register Ext. A-7 of entries having been tampered with or fabricated. It has been pointed out on behalf of the appellant that there are certain indications in the original register Ext. A-7 of entries having been tampered with or fabricated. It has been suggested that the caste Lodhi was added later to connect that entry with the father of respondent No. 1 Shiv Narain Singh whereas it related to some other Shiv Narain Singh. The High Court was satisfied and so are we that there was nothing suspicious about this entry. The word "Lodhi" appears to have been written with the same pen. The ink is slightly dimmer but it would appear, as has been pointed out by the High Court, that the in ink was black in the beginning but got progressively weaker and faint as the four components of the name Shiv Narain Singh Lodhi were written at stretch with one dip of the pen. Another suspicious feature which was brought to the notice of the High court and to out notice is that in the certified copy Ext. A-5 the caste of Shiv Narain Singh namely "Lodhi" is not mentioned. While making the copy there may have been some accidental omission and we do not consider that the entry in the original register can be held to have been fabricated or tampered with merely for that reason. The only other irregularity which has been pointed out is that there are certain entries which are not in chronological order e.g., the date of birth of the entries preceding the entry in dispute is 12-4-1943. The suggestion is that the entries have been interpolated because an entry dated 14-3-1943 could not have been made after the entries relating to the month of April had been made. Some explanation may have been possible but as the person who made the entry was not produced it is difficult to make a guess in the matter. However a careful look at the various pages contained in this register is sufficient to convince the court that the register is a genuine document and there has been no fabrication of tampering with the entries in respect of both were produced. Ext. A-5 related to the birth of respondent No. 1 on 14-3-1943 and Ext. A-6 related to the birth of another son along with a twin sister on 24-11-1947. The High Court rightly observed that the appellant had failed to produce any entry from the birth register to show that any other son of Shiv Narain Singh had been born on some other date. We find no reason to disagree with the finding of the High Court given after a careful appraisal of the evidence that the birth entry Ext. A-5 relates to respondent No. 1.5. The only other point which has been urged is that the birth entry Ext. A-5 was not admissible in evidence. Section 35 of the Evidence Act provides that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by law of the country in which such book, register or record in kept is itself a relevant fact. It has been submitted on behalf of the appellant that no proof was adduced that the entries contained in the register A-7 had been made by the public servant in his official capacity. Our attention has been invited to Brij Mohan Singh v. Priya Brat Narain Sinha and others (1965 (3) SCR 861 ), in which it was held that an entry made in an official record maintained by an illiterate Chowkidar by some body else at his request is not relevant under Section 35 of the Evidence Act. It was pointed out in that judgment that if the entry had been made by the Chowkidar himself it would have been relevant by where the Chowkidar himself was illiterate and had asked some one else to make the entry that could not be treated as an entry made by a public servant. The above decision was followed in Ram Prasad Sharma v. The State of Bihar(AIR 1970 SC 326 ). In that case also no proof had been given as to who had made the entry and whether the entry had been made in the discharge of any official duty. There is nothing to show that the entries in the register Ext. A-7 were made by an illiterate person and were to made by the Head Moharir of the police station whose duty it was to do so under Clauses III and VI of para 322 of the U.P. Police Regulations. The High Court which is familiar with these Regulations has referred to certain earlier decision of that court also in which similar point came up for consideration and has pointed out that under the aforesaid regulations it is the Head Moharir of a police station who is the registration officer and he is required to make the entries in the register of births and deaths himself. No attempt was made on behalf of the appellant to assail the correctness of the statement made by the High Court regarding the Head Moharir being the registration officer and that the entries are required to be made by him under the Police Regulations. As no evidence was led by the appellant to rebut the presumption which the court is entitled to draw in the matter of regular performance of official acts we are unable to hold that the entries from the register Ext. A-7 are not relevant under Section 35 of the Evidence Act.

0[ds]Before the High Court four types of evidence were adduced by the parties. The first was the oral evidence the second entries in the Kutumb register maintained by the Gaon Sabha; the third, entries in the school records and the fourth, birth certificate. The High Court did not rightly, place much reliance on the oral evidence. As regards the Kutumb register the original is kept in Kankua to which place respondent No. 1 belongs and it is kept in the Block Development Office. Ext.is a certified extract taken from the original Kutumb register Ext. 1. The copy shows that one Chandra Narain Singh was born onbut as pointed out by the high court the year 1942 is difficult to decipher in the original register. In the copy itself it is written that the month is doubtful. Karori Lal, R.W. 2 who produced these documents stated that the register had been given to him by respondent No. 1 and it was on the latter telling him that he was born in the year 1942 that he issued the copy. There is a discrepancy in the copy of the Kutumb register maintained in the Block Development Office inasmuch as the date of birth of respondent is shown asin it. The High Court rightly did not place any reliance on Ext.because apart from the matters pointed out the Kutumb register had been prepared for the first time in 1955 and could have little or no evidentiaryfind it difficult to place much reliance on the testimony of P.W. 4 because it is extremely difficult, if not impossible, for any head of the institution after a lapse of a number of year to remember the person or persons who accompanied a student when he came for admission. The High Court was influenced by the usual practice prevailing in this country of giving lower age than the correct one when children are admitted to school. It may be that judicial notice cannot be taken of any such practice by it would appear that if the birth certificate Ext.which has been produced is genuine it would furnish more cogent and reliable evidence than entries from the School register. Ext.is an extract from the birth register Ext.This register was maintained at Mahobkant Police Station in the year 1943 in accordance with the provisions of Chapter 25 of the U.P. Police Regulations. According to the entries in that register a male child was born to Shiv Narain Lodhi of Kankua onThe father of respondent No. 1, Shiv Narain Singh stated that this entry related to respondent No.1. It has been pointed out on behalf of the appellant that there are certain indications in the original Register Ext.of entries having been tampered with or fabricated. It has been pointed out on behalf of the appellant that there are certain indications in the original register Ext.of entries having been tampered with or fabricated. It has been suggested that the caste Lodhi was added later to connect that entry with the father of respondent No. 1 Shiv Narain Singh whereas it related to some other Shiv Narain Singh. The High Court was satisfied and so are we that there was nothing suspicious about this entry. The word "Lodhi" appears to have been written with the same pen. The ink is slightly dimmer but it would appear, as has been pointed out by the High Court, that the in ink was black in the beginning but got progressively weaker and faint as the four components of the name Shiv Narain Singh Lodhi were written at stretch with one dip of the pen. Another suspicious feature which was brought to the notice of the High court and to out notice is that in the certified copy Ext.the caste of Shiv Narain Singh namely "Lodhi" is not mentioned. While making the copy there may have been some accidental omission and we do not consider that the entry in the original register can be held to have been fabricated or tampered with merely for that reason. The only other irregularity which has been pointed out is that there are certain entries which are not in chronological order e.g., the date of birth of the entries preceding the entry in dispute isThe suggestion is that the entries have been interpolated because an entry datedcould not have been made after the entries relating to the month of April had been made. Some explanation may have been possible but as the person who made the entry was not produced it is difficult to make a guess in the matter. However a careful look at the various pages contained in this register is sufficient to convince the court that the register is a genuine document and there has been no fabrication of tampering with the entries in respect of both were produced. Ext.related to the birth of respondent No. 1 on6 related to the birth of another son along with a twin sister onThe High Court rightly observed that the appellant had failed to produce any entry from the birth register to show that any other son of Shiv Narain Singh had been born on some other date. We find no reason to disagree with the finding of the High Court given after a careful appraisal of the evidence that the birth entry Ext.relates to respondent No.is nothing to show that the entries in the register Ext.were made by an illiterate person and were to made by the Head Moharir of the police station whose duty it was to do so under Clauses III and VI of para 322 of the U.P. Police Regulations. The High Court which is familiar with these Regulations has referred to certain earlier decision of that court also in which similar point came up for consideration and has pointed out that under the aforesaid regulations it is the Head Moharir of a police station who is the registration officer and he is required to make the entries in the register of births and deaths himself. No attempt was made on behalf of the appellant to assail the correctness of the statement made by the High Court regarding the Head Moharir being the registration officer and that the entries are required to be made by him under the Police Regulations. As no evidence was led by the appellant to rebut the presumption which the court is entitled to draw in the matter of regular performance of official acts we are unable to hold that the entries from the register Ext.are not relevant under Section 35 of the Evidence Act.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: born to Shiv Narain Lodhi of Kankua on 14-3-1943. The father of respondent No. 1, Shiv Narain Singh stated that this entry related to respondent No.1. It has been pointed out on behalf of the appellant that there are certain indications in the original Register Ext. A-7 of entries having been tampered with or fabricated. It has been pointed out on behalf of the appellant that there are certain indications in the original register Ext. A-7 of entries having been tampered with or fabricated. It has been suggested that the caste Lodhi was added later to connect that entry with the father of respondent No. 1 Shiv Narain Singh whereas it related to some other Shiv Narain Singh. The High Court was satisfied and so are we that there was nothing suspicious about this entry. The word "Lodhi" appears to have been written with the same pen. The ink is slightly dimmer but it would appear, as has been pointed out by the High Court, that the in ink was black in the beginning but got progressively weaker and faint as the four components of the name Shiv Narain Singh Lodhi were written at stretch with one dip of the pen. Another suspicious feature which was brought to the notice of the High court and to out notice is that in the certified copy Ext. A-5 the caste of Shiv Narain Singh namely "Lodhi" is not mentioned. While making the copy there may have been some accidental omission and we do not consider that the entry in the original register can be held to have been fabricated or tampered with merely for that reason. The only other irregularity which has been pointed out is that there are certain entries which are not in chronological order e.g., the date of birth of the entries preceding the entry in dispute is 12-4-1943. The suggestion is that the entries have been interpolated because an entry dated 14-3-1943 could not have been made after the entries relating to the month of April had been made. Some explanation may have been possible but as the person who made the entry was not produced it is difficult to make a guess in the matter. However a careful look at the various pages contained in this register is sufficient to convince the court that the register is a genuine document and there has been no fabrication of tampering with the entries in respect of both were produced. Ext. A-5 related to the birth of respondent No. 1 on 14-3-1943 and Ext. A-6 related to the birth of another son along with a twin sister on 24-11-1947. The High Court rightly observed that the appellant had failed to produce any entry from the birth register to show that any other son of Shiv Narain Singh had been born on some other date. We find no reason to disagree with the finding of the High Court given after a careful appraisal of the evidence that the birth entry Ext. A-5 relates to respondent No. 1.5. The only other point which has been urged is that the birth entry Ext. A-5 was not admissible in evidence. Section 35 of the Evidence Act provides that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by law of the country in which such book, register or record in kept is itself a relevant fact. It has been submitted on behalf of the appellant that no proof was adduced that the entries contained in the register A-7 had been made by the public servant in his official capacity. Our attention has been invited to Brij Mohan Singh v. Priya Brat Narain Sinha and others (1965 (3) SCR 861 ), in which it was held that an entry made in an official record maintained by an illiterate Chowkidar by some body else at his request is not relevant under Section 35 of the Evidence Act. It was pointed out in that judgment that if the entry had been made by the Chowkidar himself it would have been relevant by where the Chowkidar himself was illiterate and had asked some one else to make the entry that could not be treated as an entry made by a public servant. The above decision was followed in Ram Prasad Sharma v. The State of Bihar(AIR 1970 SC 326 ). In that case also no proof had been given as to who had made the entry and whether the entry had been made in the discharge of any official duty. There is nothing to show that the entries in the register Ext. A-7 were made by an illiterate person and were to made by the Head Moharir of the police station whose duty it was to do so under Clauses III and VI of para 322 of the U.P. Police Regulations. The High Court which is familiar with these Regulations has referred to certain earlier decision of that court also in which similar point came up for consideration and has pointed out that under the aforesaid regulations it is the Head Moharir of a police station who is the registration officer and he is required to make the entries in the register of births and deaths himself. No attempt was made on behalf of the appellant to assail the correctness of the statement made by the High Court regarding the Head Moharir being the registration officer and that the entries are required to be made by him under the Police Regulations. As no evidence was led by the appellant to rebut the presumption which the court is entitled to draw in the matter of regular performance of official acts we are unable to hold that the entries from the register Ext. A-7 are not relevant under Section 35 of the Evidence Act. ### Response: 0

Central Excise S. C. Limited and Others Vs. Bowrech Cotton Mills Company Limited and Others

1. Special leave granted 2. We have heard the learned counsel on either side. This appeal arises against the judgment of the Division bench of the Calcutta High Court dated May 21, 1991 granting interim direction pending the matter arising under Article 226 of the Constitution. The appellant admittedly supplies electric energy to the respondent-mill and in terms of the contract the appellant, as contended by its learned counsel had to supply the electric energy and the respondent had to pay the consumption charges as well as surcharge on delay in payment thereof plus additional security deposit on average of three months consumption of electricity as per Section 24 of the Indian Electricity Act, 1910. It is the case of the appellants that the respondent-mill had undertaken in July 1990 to make the payment of the arrears at the rate of Rs 10 lakhs per month in addition to regular consumption charges till all the arrears were liquidated and had also undertaken to furnish the additional security and to pay surcharge on the delayed payments but the respondent-mill committed default. The appellants, therefore, issued notice of disconnection and challenging the validity thereof, a writ petition was filed in the High Court. Ultimately in that write petition direction given to pay the arrears at the rate of Rs 10 lakhs per mensem till all the arrears were liquidated became final and again default was committed. Again notice of disconnection was issued. The second writ petition was filed and in the second writ petition, the learned Single Judge directed to deposit at the rate of Rs 6 lakhs per mensem. When challenged, on appeal the impugned order was passed. The High Court directed as an interim measure that the respondent-mill should pay the balance sum of Rs 25 lakhs within five months from the date of the order and first instalment shall be payable on or before June 15, 1991 and thereafter on the 15th of every succeeding month. The instalment paid shall not be less than Rs 4 lakhs per mensem. However, the entire dues shall be liquidate within five months as stipulated earlier. If any default is committed, then the appellant shall be at liberty to disconnect the supply after giving three days clear notice 3. It is contended by Sri P. P. Rao, the learned senior counsel for the appellants that when High Court had given direction in the first write petition, the resplendent-mill had committed default and that, therefore, the second write petition is not maintainable. We do not propose to go into this aspect of the matter since it was not raised in the High Court. It is next contended that the appellants are entitled in terms of Section 24 of the Indian Electricity Act, 1910 to the current rate of consumption charges and also surcharge on delayed payment and additional security. The respondent-mill is bound to comply thereof. Having undertaken in the contract and also as per the order of the High Court in the first instance the respondent-mill is bound to make payment in terms thereof. Sri A. N. Sen, the learned senior counsel for respondent-mill contended that under Section 3 of the Sick Industrial Companies (Special Provisions) Act, 1985, on September 6, 1990 the responded-mill has been declared as a sick mill and proceedings have been initiated before the Board for Industrial and Financial Reconstruction (hereinafter referred to as B.I.F.R.). The appellant company is one of the creditors and it has to lay its claims and decision is to be rendered by the Board. The respondent-mill is not obligated in these circumstances to pay the same. It is a matter pending in the High Court. The liability to pay to the appellant was disputed before the High Court. The B.I.F.R.s order would become final and that, therefore, the respondent has been paying only the current consumption charges. The directions cannot, therefore, be given to liquidate the arrears4. Having given our anxious consideration to the respective contentions, we are of the opinion that it is premature to express any opinion on merits with regard to liability of the mills regarding the arrears as it is a matter to be gone into before the Board. Suffice to say that as per the statement given by the appellants as on January 22, 1992, the respondent-mill has to pay only current consumption charges for the month of December, 1991 at Rs 25, 83, 360.20, the surcharge on delayed payments towards arrears is Rs 14, 83, 928.39 and further accrual delayed payment surcharge is Rs 2, 24, 237.91. The balance security for three moths average consumption charges on every three months is Rs 77, 17, 500.00 after giving credit to the existing security deposit of Rs 11, 00, 100.00.

1[ds]The appellant company is one of the creditors and it has to lay its claims and decision is to be rendered by the Board. Theis not obligated in these circumstances to pay the same. It is a matter pending in the High Court. The liability to pay to the appellant was disputed before the High Court. The B.I.F.R.s order would become final and that, therefore, the respondent has been paying only the current consumption charges. The directions cannot, therefore, be given to liquidate the arrears4. Having given our anxious consideration to the respective contentions, we are of the opinion that it is premature to express any opinion on merits with regard to liability of the mills regarding the arrears as it is a matter to be gone into before the Board. Suffice to say that as per the statement given by the appellants as on January 22, 1992, thehas to pay only current consumption charges for the month of December, 1991 at Rs 25, 83, 360.20, the surcharge on delayed payments towards arrears is Rs 14, 83, 928.39 and further accrual delayed payment surcharge is Rs 2, 24, 237.91. The balance security for three moths average consumption charges on every three months is Rs 77, 17, 500.00 after giving credit to the existing security deposit of Rs 11, 00, 100.00.

### Instruction: Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner? ### Input: 1. Special leave granted 2. We have heard the learned counsel on either side. This appeal arises against the judgment of the Division bench of the Calcutta High Court dated May 21, 1991 granting interim direction pending the matter arising under Article 226 of the Constitution. The appellant admittedly supplies electric energy to the respondent-mill and in terms of the contract the appellant, as contended by its learned counsel had to supply the electric energy and the respondent had to pay the consumption charges as well as surcharge on delay in payment thereof plus additional security deposit on average of three months consumption of electricity as per Section 24 of the Indian Electricity Act, 1910. It is the case of the appellants that the respondent-mill had undertaken in July 1990 to make the payment of the arrears at the rate of Rs 10 lakhs per month in addition to regular consumption charges till all the arrears were liquidated and had also undertaken to furnish the additional security and to pay surcharge on the delayed payments but the respondent-mill committed default. The appellants, therefore, issued notice of disconnection and challenging the validity thereof, a writ petition was filed in the High Court. Ultimately in that write petition direction given to pay the arrears at the rate of Rs 10 lakhs per mensem till all the arrears were liquidated became final and again default was committed. Again notice of disconnection was issued. The second writ petition was filed and in the second writ petition, the learned Single Judge directed to deposit at the rate of Rs 6 lakhs per mensem. When challenged, on appeal the impugned order was passed. The High Court directed as an interim measure that the respondent-mill should pay the balance sum of Rs 25 lakhs within five months from the date of the order and first instalment shall be payable on or before June 15, 1991 and thereafter on the 15th of every succeeding month. The instalment paid shall not be less than Rs 4 lakhs per mensem. However, the entire dues shall be liquidate within five months as stipulated earlier. If any default is committed, then the appellant shall be at liberty to disconnect the supply after giving three days clear notice 3. It is contended by Sri P. P. Rao, the learned senior counsel for the appellants that when High Court had given direction in the first write petition, the resplendent-mill had committed default and that, therefore, the second write petition is not maintainable. We do not propose to go into this aspect of the matter since it was not raised in the High Court. It is next contended that the appellants are entitled in terms of Section 24 of the Indian Electricity Act, 1910 to the current rate of consumption charges and also surcharge on delayed payment and additional security. The respondent-mill is bound to comply thereof. Having undertaken in the contract and also as per the order of the High Court in the first instance the respondent-mill is bound to make payment in terms thereof. Sri A. N. Sen, the learned senior counsel for respondent-mill contended that under Section 3 of the Sick Industrial Companies (Special Provisions) Act, 1985, on September 6, 1990 the responded-mill has been declared as a sick mill and proceedings have been initiated before the Board for Industrial and Financial Reconstruction (hereinafter referred to as B.I.F.R.). The appellant company is one of the creditors and it has to lay its claims and decision is to be rendered by the Board. The respondent-mill is not obligated in these circumstances to pay the same. It is a matter pending in the High Court. The liability to pay to the appellant was disputed before the High Court. The B.I.F.R.s order would become final and that, therefore, the respondent has been paying only the current consumption charges. The directions cannot, therefore, be given to liquidate the arrears4. Having given our anxious consideration to the respective contentions, we are of the opinion that it is premature to express any opinion on merits with regard to liability of the mills regarding the arrears as it is a matter to be gone into before the Board. Suffice to say that as per the statement given by the appellants as on January 22, 1992, the respondent-mill has to pay only current consumption charges for the month of December, 1991 at Rs 25, 83, 360.20, the surcharge on delayed payments towards arrears is Rs 14, 83, 928.39 and further accrual delayed payment surcharge is Rs 2, 24, 237.91. The balance security for three moths average consumption charges on every three months is Rs 77, 17, 500.00 after giving credit to the existing security deposit of Rs 11, 00, 100.00. ### Response: 1

Banwari Lal Vs. Tirlok Chand & Others (And Vice Versa)

had served them during their illness and that he was affectionately attached to them so that at the time when the wills were executed there was no. one nearer or dearer to Govind Ram and Smt. Chhoti than Banwari Lal. In this view of the matter, the failure to establish the stated relationship is not decisive of the point under consideration, and as remarked by the High Court, it appears that the testator made the will not for the reason that he had in fact and lawfully adopted Banwair Lal but for the reason that he treated Banwari Lal as an adopted son and was moved really by the service which the latter had rendered to him. The relationship mentioned in the will was merely a description of the devisee as understood by the testator who executed the will in favour of the devisee not because of the relationship brought about by the adoption but by reason of feelings of affection which the devisee had earned by his association and asistance.4. The only other noticeable point raised on behalf of the plaintiff was that the will executed by Smt. Chhoti must be held to be wholly inoperative in so far as properties detailed in schedules A and B are concerned. There is no. force in that contention either. One half of the properties mentioned in those two schedules had vested in Smt. Chhoti under the will of Govind Ram which itself declared that Smt. Chhoti would hold them merely as a life-tenant and that thereafter they would devolve on defendant No. 1. In devising those properties to defendant No. 1 Smt. Chhoti did nothing more than carry out the behest of her own testator, which behest was good in law and would have been effective even if Smt. Chhoti had made no. will in favour of defendant No. 1 in respect of the properties acquired by her under Govind Rams will.5. On behalf of defendant No. 1 the only submission made was that the two wills must be given effect to not only with regard to the properties received by Smt. Chhoti from Govind Ram but also in respect of those which developed on her as a successor to her husband Jagannath. This submission is also without substances. Jagannath died in 1940 when Smt. Chhoti came into his property on the usual life-tenure without any right of alienation (except for necessity) or of devise. To the extent that she overstepped her rights in devising Jagannaths property the will transgressed the law and has been rightly held to be inoperative, the result being that her reversioners and not her devisee would succeed to Jaganaths share in the properties, covered by schedules A and B. The situation would certainly have been different if the adoption had been proved; for, in that case, defendant No. 1 would have succeeded as the sole reversioner to the estate left by Smt. Chhoti, being her husbands brothers son and therefore his nearest and sole heir. and that is why a contention was raised on behalf of a defendant No. 1 that a valid adoption had been proved and that the finding to the contrary arrived at by two of the courts below was unsupportable. Reference in this connection was made to the recital in the will executed by Govind Ram about defendant No. 1 being the adopted son of the devisor and to the oral evidence of Raj Pal, P.W. 2 who attested that will and deposed that defendant No. 1 had been adopted by the testator. These two pieces of evidence were considered by the trial Court as well as the High Court, both of whom regarded the material as insufficient to hold that a valid adoption was proved. The finding in relation to the adoption is a finding of fact which we see no. reason to interfere with in the circumstances of the case. The adoption is alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witness who were present at the actual adoption and had seen the giving and taking would normally have been available. however, no. attempt was made to produce any such witness not to explain why no. such witness was forthcoming. Different considerations may have prevailed if proof of adoption was required to be submitted to court after a very long period of its having taken place, which is not the case here. The statement made by the testator in the will about the adoption is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh, AIR 1927 Pat 61 cited by learned counsel for defendant No. 1 but there is no. rule of law or prudence laying down the principle that such a statement must be regarded as conclusive, and this was also the view taken in that case. And the burden of proof of adoption was heavy on the defendant. In this connection we may refer to the following passage in Article 512 of Mullas Hindu Law (14th edition) :"....... But the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption. That onus is particularly heavy where the adoption is made a long time along after the date of the alleged authority to adopt...."It is true, as pointed out by Mulla in a later passage occurring in the same article that when there is a lapse of a very long period between the adoption and its being questioned, every allowance for the absence of evidence to prove the factum of adoption must be favourably entertained; but then that is not the situation here as we have already pointed out. We are therefore one with the High Court in holding that on the evidence, defendant No. 1 has not been successful in establishing the alleged adoption.

0[ds]To this question also we think the High Court gave the correct answer. In this connection reference may be made to the relevant part of Govind Rams will and the same is extracted below :"Shri Banwarilal is the adopted son and heir of the executant. Smt. Chhoti is the widow of Jagannath Prasad, resident of Pilkhuwa, Pargana Dasna, Tahsil Ghaziabad. Both the persons live along with the executant and render all due service to the executant. Therefore, I make the following will : That after the death of the executant all my estate, movable and immovable, with all other goods and household property along with Dharmshala No. 1/60 and one-storeyed shop No. 1/57 bounded as given below shall be owned by Shrimati Chhoti widow of Jagannath Prasad, occupation shopkeeper resident of Pilkhuwa, who shall have no. right to sell the estate. She shall have the right to spend for the Dharamshala the income of shop No. 1/57 connected with the Dharamshala. After the death of Smt. Chhoti, Banwarilal, adopted son and heir of the executant, shall be the owner...."Interpreting this document and considering the surrounding circumstances of the case, the trial court found that the motive for the execution of the will was not merely the recognition by the testator of his relationship through adoption with the devisee but mainly the existence of feelings of love and affection for him. It was found as a fact that Banwarilal was living with Govind Ram and Smt, Chhoti, that he had served them during their illness and that he was affectionately attached to them so that at the time when the wills were executed there was no. one nearer or dearer to Govind Ram and Smt. Chhoti than Banwari Lal. In this view of the matter, the failure to establish the stated relationship is not decisive of the point under consideration, and as remarked by the High Court, it appears that the testator made the will not for the reason that he had in fact and lawfully adopted Banwair Lal but for the reason that he treated Banwari Lal as an adopted son and was moved really by the service which the latter had rendered to him. The relationship mentioned in the will was merely a description of the devisee as understood by the testator who executed the will in favour of the devisee not because of the relationship brought about by the adoption but by reason of feelings of affection which the devisee had earned by his association andhalf of the properties mentioned in those two schedules had vested in Smt. Chhoti under the will of Govind Ram which itself declared that Smt. Chhoti would hold them merely as a life-tenant and that thereafter they would devolve on defendant No. 1. In devising those properties to defendant No. 1 Smt. Chhoti did nothing more than carry out the behest of her own testator, which behest was good in law and would have been effective even if Smt. Chhoti had made no. will in favour of defendant No. 1 in respect of the properties acquired by her under Govind Ramsfinding in relation to the adoption is a finding of fact which we see no. reason to interfere with in the circumstances of the case. The adoption is alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witness who were present at the actual adoption and had seen the giving and taking would normally have been available. however, no. attempt was made to produce any such witness not to explain why no. such witness was forthcoming. Different considerations may have prevailed if proof of adoption was required to be submitted to court after a very long period of its having taken place, which is not the caseis true, as pointed out by Mulla in a later passage occurring in the same article that when there is a lapse of a very long period between the adoption and its being questioned, every allowance for the absence of evidence to prove the factum of adoption must be favourably entertained; but then that is not the situation here as we have already pointed out. We are therefore one with the High Court in holding that on the evidence, defendant No. 1 has not been successful in establishing the alleged adoption.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: had served them during their illness and that he was affectionately attached to them so that at the time when the wills were executed there was no. one nearer or dearer to Govind Ram and Smt. Chhoti than Banwari Lal. In this view of the matter, the failure to establish the stated relationship is not decisive of the point under consideration, and as remarked by the High Court, it appears that the testator made the will not for the reason that he had in fact and lawfully adopted Banwair Lal but for the reason that he treated Banwari Lal as an adopted son and was moved really by the service which the latter had rendered to him. The relationship mentioned in the will was merely a description of the devisee as understood by the testator who executed the will in favour of the devisee not because of the relationship brought about by the adoption but by reason of feelings of affection which the devisee had earned by his association and asistance.4. The only other noticeable point raised on behalf of the plaintiff was that the will executed by Smt. Chhoti must be held to be wholly inoperative in so far as properties detailed in schedules A and B are concerned. There is no. force in that contention either. One half of the properties mentioned in those two schedules had vested in Smt. Chhoti under the will of Govind Ram which itself declared that Smt. Chhoti would hold them merely as a life-tenant and that thereafter they would devolve on defendant No. 1. In devising those properties to defendant No. 1 Smt. Chhoti did nothing more than carry out the behest of her own testator, which behest was good in law and would have been effective even if Smt. Chhoti had made no. will in favour of defendant No. 1 in respect of the properties acquired by her under Govind Rams will.5. On behalf of defendant No. 1 the only submission made was that the two wills must be given effect to not only with regard to the properties received by Smt. Chhoti from Govind Ram but also in respect of those which developed on her as a successor to her husband Jagannath. This submission is also without substances. Jagannath died in 1940 when Smt. Chhoti came into his property on the usual life-tenure without any right of alienation (except for necessity) or of devise. To the extent that she overstepped her rights in devising Jagannaths property the will transgressed the law and has been rightly held to be inoperative, the result being that her reversioners and not her devisee would succeed to Jaganaths share in the properties, covered by schedules A and B. The situation would certainly have been different if the adoption had been proved; for, in that case, defendant No. 1 would have succeeded as the sole reversioner to the estate left by Smt. Chhoti, being her husbands brothers son and therefore his nearest and sole heir. and that is why a contention was raised on behalf of a defendant No. 1 that a valid adoption had been proved and that the finding to the contrary arrived at by two of the courts below was unsupportable. Reference in this connection was made to the recital in the will executed by Govind Ram about defendant No. 1 being the adopted son of the devisor and to the oral evidence of Raj Pal, P.W. 2 who attested that will and deposed that defendant No. 1 had been adopted by the testator. These two pieces of evidence were considered by the trial Court as well as the High Court, both of whom regarded the material as insufficient to hold that a valid adoption was proved. The finding in relation to the adoption is a finding of fact which we see no. reason to interfere with in the circumstances of the case. The adoption is alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witness who were present at the actual adoption and had seen the giving and taking would normally have been available. however, no. attempt was made to produce any such witness not to explain why no. such witness was forthcoming. Different considerations may have prevailed if proof of adoption was required to be submitted to court after a very long period of its having taken place, which is not the case here. The statement made by the testator in the will about the adoption is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh, AIR 1927 Pat 61 cited by learned counsel for defendant No. 1 but there is no. rule of law or prudence laying down the principle that such a statement must be regarded as conclusive, and this was also the view taken in that case. And the burden of proof of adoption was heavy on the defendant. In this connection we may refer to the following passage in Article 512 of Mullas Hindu Law (14th edition) :"....... But the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption. That onus is particularly heavy where the adoption is made a long time along after the date of the alleged authority to adopt...."It is true, as pointed out by Mulla in a later passage occurring in the same article that when there is a lapse of a very long period between the adoption and its being questioned, every allowance for the absence of evidence to prove the factum of adoption must be favourably entertained; but then that is not the situation here as we have already pointed out. We are therefore one with the High Court in holding that on the evidence, defendant No. 1 has not been successful in establishing the alleged adoption. ### Response: 0

Gujarat Steel Tubes Ltd. Etc Vs. State Of Kerala & Ors

1. These appeals by certificate granted by the High Court of Kerala raise the question whether galvanised iron pipes and tubes are a commercially different commodity from steel tubes mentioned in S.14(iv)(xi) of the Central Sales Tax Act. 2. The appellant is a company registered under the Companies Act, 1956. It has its registered office at Ahamedabad in Gujarat. It is engaged in the manufacture and sale of steel tubes and pipes both black and galvanised.3. In the assessment proceedings for the assessment years 1982-83 and 1983-84 under the Kerala General Sales Tax Act, 1963, the appellant contended that the galvanised iron pipes manufactured by it are "declared goods" and are not liable to additional sales tax as well as surcharge. The appellants contention was not accepted by the assessing authority, who taxed the turnover of galvanised iron pipes at four per cent and also assessed an additional tax and surcharge treating the galvanised iron pipes as goods falling under Entry 46 of the First Schedule to the Kerala Sales Tax Act. Demands were raised accordingly.4. It appears that the matter was brought to the High Court by writ petition, and the High Court held on the basis of its decision in Apollo Tubes Limited v. State of Kerala (1986) 61 STC. 275 that the category of goods called galvanised iron pipes had acquired a different commercial identity as a result of the process of galvanisation and could not be identified with steel tubes mentioned in S.14(iv)(xi) of the Central Sales Tax Act. Cases on the other side of the line are Associated Mechanical Industries v. Commissioner of Commercial Taxes, Bangalore (1986) 61 STC 225 and Commissioner of Sales Tax v. Om Engineering Works, 1986 U.P., T.C.55. The High Court preferred to follow its own decision and on 24th March, 1986 held against the appellant. A certificate having been granted by the High Court these appeals are now before us.5. The purpose of galvanising a pipe is merely to make it weather-proof. It remains a steel tube. By being put through the process of galvanising it is made rust-proof. Neither its structure nor function is altered. As a commercial item it is not different from a steel tube. That galvanisation is done on steel tubes or pipes as a protective measure only was the basis of the decision of the Karnataka High Court in Associated Mechanical Industries (supra). Merely because the steel tube has been galvanised does not mean that it ceased to be a steel tube. The Gujarat High Court in State of Gujarat v. Shah Veljibai Motichand, Lunawada (1969) 23 STC 288 held that merely because iron is given the shape of a sheet and is subject to corrugation does not take it out of the description of "iron and steel". So also in Sales Tax Commissioner and Others v. Jammu Iron and Steel Syndicate (1980) 45 STC 99 the High Court of Jammu and Kashmir held that galvanisation and corrugation do not change the essential character of iron sheets, and they remain iron sheets.6. We are unable to agree with the view taken by the Madras High Court in Deputy Commissioner of Commercial Taxes, Tiruchirappalli v. P.C. Mohammed Ibrahim Marakayar Sons (1980) 46 STC, 22 . The limited purpose of galvanisation does not, it seems to us bring a new commodity into existence. The respondents rely on Deputy Commissioner of Sales Tax (Law) Board of Revenue v. G.S. Pai & Co. (1980) 1 SCR. 938 but in that case this Court held that Bullion as understood popularly does not include ornaments or other articles of gold. It was pointed out that Bullion was commonly treated as a commodity distinct and separate from ornaments and articles of gold. Gold ornaments and ankles were manufactured on finished products of gold. A number of other cases were cited on behalf of the respondents, but we do not find any of them to be of assistance to the respondents.7. We are of the view that galvanised pipes are steel tubes within the meaning of S.14(iv)(xi) of the Central Sales tax Act. The view taken by the High Court is erroneous.8. We may note that shortly after judgment was reserved in the present appeals, an identical point arose before a Bench of this Court on 28 April, 1988 in S.L.P. (Civil) No. 3549 of 1988 - Commissioner of Sales Tax v. Mitra Industries (1988) 69 STC Note No.55 at P. 16, and the learned judges took the same view which finds favour with us here.

1[ds]5. The purpose of galvanising a pipe is merely to make it weather-proof. It remains a steel tube. By being put through the process of galvanising it is made rust-proof. Neither its structure nor function is altered. As a commercial item it is not different from a steel tube. That galvanisation is done on steel tubes or pipes as a protective measure only was the basis of the decision of the Karnataka High Court in Associated Mechanical Industries (supra). Merely because the steel tube has been galvanised does not mean that it ceased to be a steel tube. The Gujarat High Court in State of Gujarat v. Shah Veljibai Motichand, Lunawada (1969) 23 STC 288 held that merely because iron is given the shape of a sheet and is subject to corrugation does not take it out of the description of "iron and steel". So also in Sales Tax Commissioner and Others v. Jammu Iron and Steel Syndicate (1980) 45 STC 99 the High Court of Jammu and Kashmir held that galvanisation and corrugation do not change the essential character of iron sheets, and they remain iron sheets.6. We are unable to agree with the view taken by the Madras High Court in Deputy Commissioner of Commercial Taxes, Tiruchirappalli v. P.C. Mohammed Ibrahim Marakayar Sons (1980) 46 STC, 22 . The limited purpose of galvanisation does not, it seems to us bring a new commodity into existence. The respondents rely on Deputy Commissioner of Sales Tax (Law) Board of Revenue v. G.S. Pai & Co. (1980) 1 SCR. 938 but in that case this Court held that Bullion as understood popularly does not include ornaments or other articles of gold. It was pointed out that Bullion was commonly treated as a commodity distinct and separate from ornaments and articles of gold. Gold ornaments and ankles were manufactured on finished products of gold. A number of other cases were cited on behalf of the respondents, but we do not find any of them to be of assistance to the respondents.7. We are of the view that galvanised pipes are steel tubes within the meaning of S.14(iv)(xi) of the Central Sales tax Act. The view taken by the High Court is erroneous.8. We may note that shortly after judgment was reserved in the present appeals, an identical point arose before a Bench of this Court on 28 April, 1988 in S.L.P. (Civil) No. 3549 of 1988 - Commissioner of Sales Tax v. Mitra Industries (1988) 69 STC Note No.55 at P. 16, and the learned judges took the same view which finds favour with us here.

### Instruction: Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case. ### Input: 1. These appeals by certificate granted by the High Court of Kerala raise the question whether galvanised iron pipes and tubes are a commercially different commodity from steel tubes mentioned in S.14(iv)(xi) of the Central Sales Tax Act. 2. The appellant is a company registered under the Companies Act, 1956. It has its registered office at Ahamedabad in Gujarat. It is engaged in the manufacture and sale of steel tubes and pipes both black and galvanised.3. In the assessment proceedings for the assessment years 1982-83 and 1983-84 under the Kerala General Sales Tax Act, 1963, the appellant contended that the galvanised iron pipes manufactured by it are "declared goods" and are not liable to additional sales tax as well as surcharge. The appellants contention was not accepted by the assessing authority, who taxed the turnover of galvanised iron pipes at four per cent and also assessed an additional tax and surcharge treating the galvanised iron pipes as goods falling under Entry 46 of the First Schedule to the Kerala Sales Tax Act. Demands were raised accordingly.4. It appears that the matter was brought to the High Court by writ petition, and the High Court held on the basis of its decision in Apollo Tubes Limited v. State of Kerala (1986) 61 STC. 275 that the category of goods called galvanised iron pipes had acquired a different commercial identity as a result of the process of galvanisation and could not be identified with steel tubes mentioned in S.14(iv)(xi) of the Central Sales Tax Act. Cases on the other side of the line are Associated Mechanical Industries v. Commissioner of Commercial Taxes, Bangalore (1986) 61 STC 225 and Commissioner of Sales Tax v. Om Engineering Works, 1986 U.P., T.C.55. The High Court preferred to follow its own decision and on 24th March, 1986 held against the appellant. A certificate having been granted by the High Court these appeals are now before us.5. The purpose of galvanising a pipe is merely to make it weather-proof. It remains a steel tube. By being put through the process of galvanising it is made rust-proof. Neither its structure nor function is altered. As a commercial item it is not different from a steel tube. That galvanisation is done on steel tubes or pipes as a protective measure only was the basis of the decision of the Karnataka High Court in Associated Mechanical Industries (supra). Merely because the steel tube has been galvanised does not mean that it ceased to be a steel tube. The Gujarat High Court in State of Gujarat v. Shah Veljibai Motichand, Lunawada (1969) 23 STC 288 held that merely because iron is given the shape of a sheet and is subject to corrugation does not take it out of the description of "iron and steel". So also in Sales Tax Commissioner and Others v. Jammu Iron and Steel Syndicate (1980) 45 STC 99 the High Court of Jammu and Kashmir held that galvanisation and corrugation do not change the essential character of iron sheets, and they remain iron sheets.6. We are unable to agree with the view taken by the Madras High Court in Deputy Commissioner of Commercial Taxes, Tiruchirappalli v. P.C. Mohammed Ibrahim Marakayar Sons (1980) 46 STC, 22 . The limited purpose of galvanisation does not, it seems to us bring a new commodity into existence. The respondents rely on Deputy Commissioner of Sales Tax (Law) Board of Revenue v. G.S. Pai & Co. (1980) 1 SCR. 938 but in that case this Court held that Bullion as understood popularly does not include ornaments or other articles of gold. It was pointed out that Bullion was commonly treated as a commodity distinct and separate from ornaments and articles of gold. Gold ornaments and ankles were manufactured on finished products of gold. A number of other cases were cited on behalf of the respondents, but we do not find any of them to be of assistance to the respondents.7. We are of the view that galvanised pipes are steel tubes within the meaning of S.14(iv)(xi) of the Central Sales tax Act. The view taken by the High Court is erroneous.8. We may note that shortly after judgment was reserved in the present appeals, an identical point arose before a Bench of this Court on 28 April, 1988 in S.L.P. (Civil) No. 3549 of 1988 - Commissioner of Sales Tax v. Mitra Industries (1988) 69 STC Note No.55 at P. 16, and the learned judges took the same view which finds favour with us here. ### Response: 1

Transocean Shipping Agency P.Ltd Vs. Black Sea Shipping

any material including the law of Ukraine to establish that the award was invalid as per Ukrainian law or the procedure was incorrect. 16. Under Section 7 of the Foreign Awards (Recognition and Enforcement) Act, 1961 it is provided as follows :- "7. Conditions for enforcement of foreign award : (1) A foreign award may not be enforced under this Act :- (a) If the party against whom it is sought to enforce the award proves to the Court dealing with the case that : (i) ....................... (ii) ...................... (iii) ..................... (iv) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place. ..................." It is for the party against whom a foreign award is sought to be enforced, to prove to the court dealing with the case that the composition of the arbitral authority or the arbitral procedure was not in accordance with the law of the country where the arbitration took place. The burden to prove in this regard is expressly placed on the challenger by the statute. This section is in conformity with Article V of the New York Convention which provides "(1) recognition and enforcement of the award may be refused at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proves that ....... (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or failing such agreement was not in accordance with the law of the country where the arbitration took place .........". It was, therefore, entirely for the appellants to prove before the High Court that the appointment of the second respondent or the procedure of arbitration was not in accordance with the law of Ukraine. The appellants, however, did not produce any relevant law of Ukraine in this connection apart from raising the bare contention. 17. Under Rule 801 of the Bombay High Court Rules, which forms a part of Chapter XLIII dealing with Rules under the Foreign Awards (Recognition and Enforcement) Act, 1961, it is provided as follows :- "801. Enforcement of foreign award - The party seeking to enforce a foreign award shall produce with his petition : ..................... (c) An affidavit or affidavits showing (1) .................... (2) .................... (3) that it was made in conformity with the law governing the arbitration procedure and (4) that it had become binding on the parties in the country in which it was made................." The respondents did file an affidavit in this connection affirming that the award had been made in conformity with the law of Ukraine and that it was binding on the parties under the law of Ukraine. It was for the appellants who were challenging the validity of the award to have shown that appointment of the arbitrator or the arbitration procedure was not in accordance with the law of Ukraine. They failed to do so. The High Court, therefore, rightly rejected this contention. 18. The appellants have now sought permission to produce before us the arbitration law of Ukraine which, according to them, is the prevailing law. This is rightly objected to by the respondents. The respondents also contend that what is sought to be produced is not the entire law on the subject. We do not propose to permit the appellants now to produce/prove the relevant law of Ukraine when they have failed to do so before the High Court, and their contention has been consequently rejected by the High Court. The practice of filing fresh documents or evidence for the first time before this Court when the High Court had rejected the claim in the absence of such material, must be deprecated. The appellants were in a position to produce the relevant material before the High court. They failed and neglected to do so. They must take the consequence. The respondents have, in this connection, also pointed out that any objections to the competence of the arbitrator, or any defect in arbitration procedure could have been agitated by the appellants in Ukraine before the prescribed authorities. They have, however, not taken any steps in accordance with the law of Ukraine to challenge the arbitration or the award. Hence the award has now become final and binding. The respondents have filed an affidavit stating that the award has become final and binding as per Ukrainian law. The appellants has not controverted this by showing the relevant law. A mere assertion by the appellants that the award is defective or not in accordance with the law of Ukraine cannot be treated as establishing this contention. On the contrary, the presumption would be in favour of the validity of the award. 19. The last objection which is taken by the appellants is to the second respondent being appointed as arbitrator on the ground that she was a high ranking officer of the first respondent. According to the appellants an award which is given by her cannot be enforced in India because it would be against public policy. There is, however, no violation of any public policy in the present case. The parties had agreed to be governed by the law of Ukraine as far as the arbitration proceedings were concerned. If the award given by the second respondent is valid under the law of Ukraine, then there is no violation of any public in enforcing it here. Often parties appoint an officer of one of the parties to the arbitration agreement, as a sole arbitrator. Sometimes the agreement in terms so provides. This does not ipso facto make the arbitration or the award contrary to any public policy, especially if the officer had not personally handled disputed transactions and is impartial. The High Court has, therefore, correctly passed a decree in terms of the award.

0[ds]We do not propose to permit the appellants now to produce/prove the relevant law of Ukraine when they have failed to do so before the High Court, and their contention has been consequently rejected by the High Court. The practice of filing fresh documents or evidence for the first time before this Court when the High Court had rejected the claim in the absence of such material, must be deprecated. The appellants were in a position to produce the relevant material before the High court. They failed and neglected to do so. They must take the consequence. The respondents have, in this connection, also pointed out that any objections to the competence of the arbitrator, or any defect in arbitration procedure could have been agitated by the appellants in Ukraine before the prescribed authorities. They have, however, not taken any steps in accordance with the law of Ukraine to challenge the arbitration or the award. Hence the award has now become final and binding. The respondents have filed an affidavit stating that the award has become final and binding as per Ukrainian law. The appellants has not controverted this by showing the relevant law. A mere assertion by the appellants that the award is defective or not in accordance with the law of Ukraine cannot be treated as establishing this contention. On the contrary, the presumption would be in favour of the validity of the award.The last objection which is taken by the appellants is to the second respondent being appointed as arbitrator on the ground that she was a high ranking officer of the first respondent. According to the appellants an award which is given by her cannot be enforced in India because it would be against public policy. There is, however, no violation of any public policy in the present case. The parties had agreed to be governed by the law of Ukraine as far as the arbitration proceedings were concerned. If the award given by the second respondent is valid under the law of Ukraine, then there is no violation of any public in enforcing it here. Often parties appoint an officer of one of the parties to the arbitration agreement, as a sole arbitrator. Sometimes the agreement in terms so provides. This does not ipso facto make the arbitration or the award contrary to any public policy, especially if the officer had not personally handled disputed transactions and isHigh Court has, therefore, correctly passed a decree in terms of the award.

### Instruction: Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal? ### Input: any material including the law of Ukraine to establish that the award was invalid as per Ukrainian law or the procedure was incorrect. 16. Under Section 7 of the Foreign Awards (Recognition and Enforcement) Act, 1961 it is provided as follows :- "7. Conditions for enforcement of foreign award : (1) A foreign award may not be enforced under this Act :- (a) If the party against whom it is sought to enforce the award proves to the Court dealing with the case that : (i) ....................... (ii) ...................... (iii) ..................... (iv) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place. ..................." It is for the party against whom a foreign award is sought to be enforced, to prove to the court dealing with the case that the composition of the arbitral authority or the arbitral procedure was not in accordance with the law of the country where the arbitration took place. The burden to prove in this regard is expressly placed on the challenger by the statute. This section is in conformity with Article V of the New York Convention which provides "(1) recognition and enforcement of the award may be refused at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proves that ....... (d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties or failing such agreement was not in accordance with the law of the country where the arbitration took place .........". It was, therefore, entirely for the appellants to prove before the High Court that the appointment of the second respondent or the procedure of arbitration was not in accordance with the law of Ukraine. The appellants, however, did not produce any relevant law of Ukraine in this connection apart from raising the bare contention. 17. Under Rule 801 of the Bombay High Court Rules, which forms a part of Chapter XLIII dealing with Rules under the Foreign Awards (Recognition and Enforcement) Act, 1961, it is provided as follows :- "801. Enforcement of foreign award - The party seeking to enforce a foreign award shall produce with his petition : ..................... (c) An affidavit or affidavits showing (1) .................... (2) .................... (3) that it was made in conformity with the law governing the arbitration procedure and (4) that it had become binding on the parties in the country in which it was made................." The respondents did file an affidavit in this connection affirming that the award had been made in conformity with the law of Ukraine and that it was binding on the parties under the law of Ukraine. It was for the appellants who were challenging the validity of the award to have shown that appointment of the arbitrator or the arbitration procedure was not in accordance with the law of Ukraine. They failed to do so. The High Court, therefore, rightly rejected this contention. 18. The appellants have now sought permission to produce before us the arbitration law of Ukraine which, according to them, is the prevailing law. This is rightly objected to by the respondents. The respondents also contend that what is sought to be produced is not the entire law on the subject. We do not propose to permit the appellants now to produce/prove the relevant law of Ukraine when they have failed to do so before the High Court, and their contention has been consequently rejected by the High Court. The practice of filing fresh documents or evidence for the first time before this Court when the High Court had rejected the claim in the absence of such material, must be deprecated. The appellants were in a position to produce the relevant material before the High court. They failed and neglected to do so. They must take the consequence. The respondents have, in this connection, also pointed out that any objections to the competence of the arbitrator, or any defect in arbitration procedure could have been agitated by the appellants in Ukraine before the prescribed authorities. They have, however, not taken any steps in accordance with the law of Ukraine to challenge the arbitration or the award. Hence the award has now become final and binding. The respondents have filed an affidavit stating that the award has become final and binding as per Ukrainian law. The appellants has not controverted this by showing the relevant law. A mere assertion by the appellants that the award is defective or not in accordance with the law of Ukraine cannot be treated as establishing this contention. On the contrary, the presumption would be in favour of the validity of the award. 19. The last objection which is taken by the appellants is to the second respondent being appointed as arbitrator on the ground that she was a high ranking officer of the first respondent. According to the appellants an award which is given by her cannot be enforced in India because it would be against public policy. There is, however, no violation of any public policy in the present case. The parties had agreed to be governed by the law of Ukraine as far as the arbitration proceedings were concerned. If the award given by the second respondent is valid under the law of Ukraine, then there is no violation of any public in enforcing it here. Often parties appoint an officer of one of the parties to the arbitration agreement, as a sole arbitrator. Sometimes the agreement in terms so provides. This does not ipso facto make the arbitration or the award contrary to any public policy, especially if the officer had not personally handled disputed transactions and is impartial. The High Court has, therefore, correctly passed a decree in terms of the award. ### Response: 0

M/S.Thyssen Stahl union Gmbh Vs. Steel Authority Of India

enforce the foreign award under that Act, But before that right is exercised Foreign Awards Act has been repealed. It cannot, therefore, be said that any right had accrued to the party for him to claim to enforce the foreign award under the Foreign Awards Act. After the repeal of the Foreign Awards Act a foreign award can now be enforced under the new Act on the basis of the provisions contained in Part II of the new Act depending whether it is a New York Convention Award or Geneva Convention Award. It is irrespective of the fact when the arbitral proceedings commenced in a foreign jurisdiction. Since no right has accrued Section 6 of the General Clauses Act would not apply. 51. In the very natural of the provisions of Foreign Awards Act it is not possible to agree to the submissions that Section 85(2)(a) of the new Act would keep that Act alive for the purpose of enforcement of a foreign award given after the date of commencement of the new Act though arbitral proceedings in foreign land had commenced prior to that. It is correct that Section 85(2)(a) uses the words the said enactments which would include all the three Acts, i.e., the old Act, Foreign Awards Act and the Arbitration (Protocol and Convention) Act, 1937. Foreign Awards Act and even the 1937 Act contain provisions only for the enforcement of the foreign award and not for the arbitral proceedings. Arbitral proceedings and enforcement of the award are two separate stages in the whole process of arbitration. When the Foreign Awards Act does not contain any provision for arbitral proceedings it is difficult to agree to the argument that in spite of that the applicability of the Foreign Awards Act is saved by virtue of Section 85(2)(a). As a matter of fact if we examine the provisions of Foreign Awards Act and the new Act there is not much difference for the enforcement of the foreign award. Under the Foreign Awards Act when the court is satisfied that the foreign award is enforceable under that Act the court shall order the award to be filed and shall proceed to pronounce judgment accordingly and upon the judgment so pronounced a decree shall follow. Sections 7 and 8 of the Foreign Awards Act respectively prescribe the conditions for enforcement of a foreign award and the evidence to be produced by the party applying for its enforcement. Definition of foreign award is same in both the enactments. Sections 48 and 47 of the new Act correspond to Sections 7 and 8 respectively of the Foreign Awards Act. While Section 49 of the new Act states that where the court is satisfied that the foreign award is enforceable under this Chapter (Chapter I, Part II, relating to New York Convention Awards) the award is deemed to be decree of that court. The only difference, therefore, appears to be that while under the Foreign Awards Act a decree follows, under the new Act foreign award is already stamped as the decree. Thus if provisions of the Foreign Awards Act and the new Act relating to enforcement of the foreign award are juxtaposed there would appear to be hardly any difference. 52. Again a bare reading of the Foreign Awards Act and the Arbitration (Protocol and Convention) Act, 1937 would show that these two enactments are concerned only with recognition and enforcement of the foreign awards and do not contain provisions for the conduct of arbitral proceedings which would, of necessity, have taken place in a foreign country. The provisions of Section 85(2)(a) in so far these apply to the Foreign Awards Act and 1937 Act, would appear to be quite superfluous. Literal interpretation would render Section 85(2)(a) unworkable. Section 85(2)(a) provides for a dividing line dependent on commencement of arbitral proceedings which expression would necessarily refer to Section 2110 of the new Act. This Court has relied on this Section as to when arbitral proceedings commence in the case of Shettys Construction Co. P. Ltd. v. Konkan Railway Construction AIR 1999 SC 1535 . Section 2(2)11 read with Section 2(7)12 and Section 21 falling in Part-I of the new Act make it clear that these provisions would apply when the place of arbitration is in India, i.e., only in domestic proceedings. There is no corresponding provision anywhere in the new Act with reference to foreign arbitral proceedings to hold as to what is to be treated as date of commencement in those foreign proceedings. We would, therefore, hold that on proper construction of Section 85(2)(a) the provision of this sub-section must be confined to the old Act only. Once having held so it could be said that Section 6 of the General Clauses Act would come into play and foreign award would be enforced under the Foreign Awards Act. But then it is quite apparent that a different intention does appear that there is no right that could be said to have been acquired by a party when arbitral proceedings are held in a place resulting in a foreign award to have that award enforced under the Foreign Awards Act. 53. We, therefore, hold that the award given on September 24, 1997 in the case of Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. AIR 1999 SC 3923 when the arbitral proceedings commenced before the Arbitration and Conciliation Act, 1996 came into force on 22nd August 1996, would be enforced under the provisions of Arbitration Act, 1940. We also hold that Clause 25 containing the arbitration agreement in the case of Rani Constructions Pvt. Ltd. v. Himachal Pradesh State Electricity Board Civil Appeal No. 61 of 1999 does admit of interpretation that the case is governed by the provisions of the Arbitration and Conciliation Act, 1996. We further hold that the foreign award given in the case of Western Shipbreaking Corporation v. Clareheaven Ltd. (1997) 3 GLR 1984 would be governed by the provisions of the Arbitration and Conciliation Act, 1996.

0[ds]34. Section 85(2)(a) of the new Act is in two limbs : (1) Provisions of the old Act shall apply in relation to arbitral proceedings which commenced before the new Act came into force unless otherwise agreed by the parties and (2) new Act shall apply in relation to arbitral proceedings which commenced on or after the new Act came into force. First limb can further be bifurcated into two : (a) Provisions of old Act shall apply in relation to arbitral proceedings commenced before the new Act came into force and (b) old Act will not apply in such cases where the parties agree that it will not apply in relation to arbitral proceedings which commenced before the new Act came into force. The expression in relation to is of widest import as held by various decisions of this Court in M/s. Doypack Systems Pvt. Ltd. [1988] 2 SCC 299 ; Mansukhlal Dhanraj Jain & On. [1995] 2 SCC; M/s. Dhanrajamal Gobindram [1961] 3 SCR 1020 and Naveen Chemicals Mfg. and Ors. [1993] 4 SCC 320 . This expression in relation to has to be given full effect to, particularly when read in conjunction with the word the provisions of the old Act. That would mean that the old Act will apply to whole gambit of arbitration culminating in the enforcement of the award. If it was not so, only the word to could have sufficed and when the legislature has used the expression in relation to, a proper meaning has to be given. This expression does not admit of restrictive meaning. First limb of Section 85(2)(a) is not a limited saving clause. It saves not only the proceedings pending at the time of commencement of the new Act but also the provisions of the old Act for enforcement of the award under that Act.35. The contention that if it is accepted that the expression in relation to arbitral proceedings would include proceedings for the enforcement of the award as well, the second limb of Section 85(2)(a) would become superfluous. We do not think that would be so. The second limb also takes into account the arbitration agreement entered into under the old Act when the arbitral proceedings commenced after the coming into force of the new Act. Reference in this connection be made to a decision of this Court in MMTC Ltd. v. Sterlite Industries (India) Ltd. (1996) 6 SCC7 16 where this Court held that validity of an arbitration agreement did not depend on the number of arbitrators specified in Section 7 of the new Act and that the number of arbitrators is dealt with separately under Section 10 of that Act which is a part of machinery provision for working of the arbitration agreement. In this case the question which came up for decision was the effect of the new Act on the arbitration agreement made prior to the commencement of the new Act which provided for appointment of one arbitrator by each of the parties who shall appoint an umpire before proceeding with the reference. The agreement was entered into on December 14, 1993 before the coming into force of the new Act. Section 10 of the new Act provides that parties are free to determine the number of arbitrators, provided that such number shall not be an even number. Further failing the determination of odd number of arbitrators, the arbitral tribunal shall consist of a sole arbitrator. This Court upheld the validity of the arbitration agreement dated December 14, 1993 and directed the Chief Justice of the High Court concerned to appoint the third arbitrator under Section 11(4)(b) of the new Act in view of the failure of the two appointed arbitrators to appoint the third arbitrator. In this case it may be noticed that the respondent had invoked arbitration clause in the agreement by letter dated January 19, 1996 which was received by the appellant on January 31, 1996. The arbitral proceedings would, therefore, commence under Section 21 of the new Act on January 31, 1996 as by that time new Act had come into force.36. In this view of the matter, Section 6 of the General Clauses Act would be inapplicable. It is, therefore, not necessary for us to examine if any right to enforce the award under the old Act accrued to a party when arbitral proceedings had commenced before the coming into force of the new Act and the SAIL (CA 6036/98) had acquired a right to challenge the award made under the old Act and there would be corresponding right with the Thyssen to enforce the award under the old Act.37. Present day the courts tend to adopt purposive approach while interpreting the statute which repeals the old law and for that purpose to take into account the objects and reasons which led to the enacting of the new Act. We have seen above this approach was adopted by this Court in MMTC Ltd.s case (1996) 6 SCC7 16 . Provisions of both the Acts, old and new are very different and it has been so observed in Sundaram Finance Ltd.s case [1999] 1 SCR 89 . In that case, this Court also said that provisions of the new Act have to be interpreted and construed independently and that in fact reference to old Act may actually lead to the misconstruction of the provisions of the new Act, The Court said that it will be more relevant, while construing the provisions of the new Act, to refer to the UNCITRAL Model Law rather than the old Act. In the case of Kuwait Minister of Public Works v. Sir Frederick Snow and Partners (1984) 1 ALL ER 733 HL the award was given before Kuwait became party to the New York Convention recognised by Order in Council in England. House of Lords held that though a foreign award could be enforced in England under the (U.K.) Arbitration Act, 1975 as when the proceedings for enforcement of the award were initiated in England Kuwait had become party to the Convention. It negatived the contention that on the date the award was given Kuwait was not party to the New York Convention.39. Section 85(2)(a) is the saving clause. It exempts the old Act from complete obliteration so far as pending arbitration proceedings are concerned. That would include saving of whole of the old Act up till the time of the enforcement of the award. This Section 85(2)(a) prevents the accrued right under the old Act from being affected. Saving provision preserves the existing right accrued under the old Act. There is a presumption that Legislature does not intend to limit or take away vested rights unless the language clearly points to the contrary. It is correct that the new Act is a remedial statute and, therefore, Section 85(2)(a) calls for strict construction, it being a repealing provision. But then as stated above where one interpretation would produce an unjust or an inconvenient result and another would not have those effects, there is then also a presumption in favour of the latter.40. Enforcement of the award, therefore, has to be examined on the touchstone of the proceedings held under the old Act.41. Various decisions have been cited before us to show as to what is a mere right and what is right accrued or acquired. We have to examine this question with reference to the provisions of Section 6 of the General Clauses Act if it could be said that when the arbitral proceedings have commenced under the old Act, a party has acquired a right to have the award given thereafter enforced under the old Act.43. Principles enunciated in the judgments show as to when a right accrues to a party under the repealed Act. It is not necessary that for the right to accrue that legal proceedings must be pending when the new Act comes into force. To have the award enforced when arbitral proceedings commenced under the old Act under that very Act is certainly an accrued right. Consequences for the parties against whom award is given after arbitral proceedings have been held under the old Act though given after the coming into force of the new Act, would be quite grave if it is debarred from challenging the award under the provisions of the old Act. Structure of both the Acts is different. When arbitral proceedings commenced under the old Act it would be in the mind of everybody, i.e., arbitrators and the parties that the award given should not fall foul of Sections 30 and 32 of the old Act. Nobody at that time could have thought that Section 30 of the old Act could be substituted by Section 34 of the new Act. As a matter of fact appellant Thyssen in Civil Appeal No. 6036/98 itself understood that the old Act would apply when it approached the High Court under Sections 14 and 17 of the old Act for making the award rule of the Court. It was only later on that it changed the stand and now took the position that new Act would apply and for that purpose filed an application for execution of the award. By that time limitation to set aside the award under the new Act had elapsed. Appellant itself led the respondent SAIL in believing that the old Act would apply. SAIL had filed objections to the award under Section 30 of the old Act after notice for filing of the award was received by it on the application filed by the Thyssen under Sections 14 and 17 of the old Act. We have been informed that numerous such matters are pending all over the country where the award in similar circumstances is sought to be enforced or set aside under the provisions of the old Act. We, therefore, cannot adopt a construction which would lead to such anomalous situations where the party seeking to have the award set aside finds himself without any remedy. We are, therefore, of the opinion that it would be the provisions of the old Act that would apply to the enforcement of the award in the case of Civil Appeal No. 6036 of 1998. Any other construction on the Section 85(2)(a) would only lead to the confusion and hardship. This construction put by us is consistent with the wording of Section 85(2)(a) using the terms provision and in relation to arbitral proceedings which would mean that once the arbitral proceedings commenced under the old Act it would be the old Act which would apply for enforcing the award as well.44. Because of the view of Section 85(2)(a) of the new Act which we have taken, it is not necessary for us to consider difference in the repealing provisions as contained in Section 48 of the old Act and Section 85 of the new Act. We may, however, note that under Section 48 of the old Act concept is of reference while under the new Act it is commencement. Section 2(e) of the old Act defines reference. Then under Section 48 the word used is to, and under Section 85(2)(a) the expression is in relation to. It, therefore, also appears that it is not quite relevant to consider the provision of Section 48 of the old Act to interpret Section 85(2)(a).46. Parties can agree to the applicability of the new Act even before the new Act comes into force and when the old Act is still holding the field. There is nothing in the language of Section 85(2)(a) which bars the parties from so agreeing. There is, however, a bar that they cannot agree to the applicability of the old Act after the new Act has come into force when arbitral proceedings under the old Act have not commenced though the arbitral agreement was under the old Act. Arbitration clause in the contract in the case of Rani Constructions (Civil Appeal 61 of 1999) uses the expression for the time being in force meaning thereby that provision of that Act would apply to the arbitration proceedings which will be in force at the relevant time when arbitration proceedings are held. We have been referred to two decisions - one of Bombay High Court and the other of Madhya Pradesh High Court on the interpretation of the expression for the time being in force and we agree with them that the expression aforementioned not only refers to the law in force at the time the arbitration agreement was entered into but also to any law that may be in force for the conduct of arbitration proceedings, which would also include the enforcement of the award as well. Expression unless otherwise agreed as appearing in Section 85(2)(a) of the new Act would clearly apply in the case of Rani Construction in Civil Appeal No. 61 of 1999. Parties were clear in their minds that it would be the old Act or any statutory modification or re-enactment of that Act which would govern the arbitration. We accept the submission of the appellant Rani Construction that parties could anticipate that the new enactment may come into operation at the time the disputes arise. We have seen Section 28 of the Contract Act. It is difficult for us to comprehend that arbitration agreement could be said to be in restraint of legal proceedings. There is no substance in the submission of respondent that parties could not have agreed to the application of the new Act till they knew the provisions thereof and that would mean that any such agreement as mentioned in the arbitration clause could be entered into only after the new Act had come into force. When the agreement uses the expressions unless otherwise agreed and law in force it does give option to the parties to agree that new Act would apply to the pending arbitration proceedings. That agreement can be entered into even before the new Act comes into force and it cannot be said that agreement has to be entered into only after coming into force of the new Act.48. The Court held that these terms in the clause disclosed that the parties had agreed to be governed by the law which was in force at the time of execution of the arbitration agreement as well as by any further statutory changes that may be brought about in such law. This is how the High Court considered the issue before it:Considering the scheme of the Act, harmonious reading of the said provision contained in Sub-section (2) of Section 85 thereof would disclose that the reference otherwise agreed necessarily refers to the intention of the parties as regards the procedure to be followed in the matter of arbitration proceedings and not to the time factor as regards execution of the agreements. It provides that though the law provides that the provisions of the old Act would continue to apply to the pending proceedings by virtue of the said saving clause in Section 85, it simultaneously provides that the parties can agree to the contrary. Such a provision leaving it to the discretion of the parties to the proceedings to decide about the procedure to be followed - other in terms of the new Act or the old Act - is certainly in consonance with the scheme of the Act, whereunder most of the provisions of the new Act, the procedure regarding various stages of the arbitration proceedings is made subject to the agreement to the contrary between the parties, thereby giving ample freedom to the parties to decide about the procedure to be followed in such proceedings; being so, it is but natural that the legislature in its wisdom has left it to the option of the parties in the pending proceedings to choose the procedure for such pending proceedings. The reference otherwise agreed by the parties in Section 85(2)(c) of the new Act, therefore, would include an agreement already entered into between the parties even prior to enforcement of the new Act as also the agreement entered into after enforcement of the new Act. Such a conclusion is but natural since the expression otherwise agreed do not refer to the time factor but refers to the intention of the parties regarding applicability of the provisions of the new or old Act.We agree with the High Court on interpretation put to the arbitration clause in the contract.49. Section 28 of the Contract Act contains provision regarding agreements in the restraint of legal proceedings. Exception 1 to Section 28 of the Contract Act does not render illegal a contract by which the parties agree that any future dispute shall be referred to arbitration. That being so parties can also agree that the provisions of the arbitration law existing at that time would apply to the arbitral proceedings. It is not necessary for the parties to know what law will be in force at the time of the conduct of arbitration proceedings. They can always agree that provisions that are in force at the relevant time would apply. In this view of the matter, if the parties have agreed that at the relevant time provisions of law as existing at that time would apply, there cannot be any objection to that. Thus construing the Clause 25, in Rani Constructions (CA 61/99) new Act will apply.50. Foreign Awards Act gives the party right to enforce the foreign award under that Act, But before that right is exercised Foreign Awards Act has been repealed. It cannot, therefore, be said that any right had accrued to the party for him to claim to enforce the foreign award under the Foreign Awards Act. After the repeal of the Foreign Awards Act a foreign award can now be enforced under the new Act on the basis of the provisions contained in Part II of the new Act depending whether it is a New York Convention Award or Geneva Convention Award. It is irrespective of the fact when the arbitral proceedings commenced in a foreign jurisdiction. Since no right has accrued Section 6 of the General Clauses Act would not apply.51. In the very natural of the provisions of Foreign Awards Act it is not possible to agree to the submissions that Section 85(2)(a) of the new Act would keep that Act alive for the purpose of enforcement of a foreign award given after the date of commencement of the new Act though arbitral proceedings in foreign land had commenced prior to that. It is correct that Section 85(2)(a) uses the words the said enactments which would include all the three Acts, i.e., the old Act, Foreign Awards Act and the Arbitration (Protocol and Convention) Act, 1937. Foreign Awards Act and even the 1937 Act contain provisions only for the enforcement of the foreign award and not for the arbitral proceedings. Arbitral proceedings and enforcement of the award are two separate stages in the whole process of arbitration. When the Foreign Awards Act does not contain any provision for arbitral proceedings it is difficult to agree to the argument that in spite of that the applicability of the Foreign Awards Act is saved by virtue of Section 85(2)(a). As a matter of fact if we examine the provisions of Foreign Awards Act and the new Act there is not much difference for the enforcement of the foreign award. Under the Foreign Awards Act when the court is satisfied that the foreign award is enforceable under that Act the court shall order the award to be filed and shall proceed to pronounce judgment accordingly and upon the judgment so pronounced a decree shall follow. Sections 7 and 8 of the Foreign Awards Act respectively prescribe the conditions for enforcement of a foreign award and the evidence to be produced by the party applying for its enforcement. Definition of foreign award is same in both the enactments. Sections 48 and 47 of the new Act correspond to Sections 7 and 8 respectively of the Foreign Awards Act. While Section 49 of the new Act states that where the court is satisfied that the foreign award is enforceable under this Chapter (Chapter I, Part II, relating to New York Convention Awards) the award is deemed to be decree of that court. The only difference, therefore, appears to be that while under the Foreign Awards Act a decree follows, under the new Act foreign award is already stamped as the decree. Thus if provisions of the Foreign Awards Act and the new Act relating to enforcement of the foreign award are juxtaposed there would appear to be hardly any difference.52. Again a bare reading of the Foreign Awards Act and the Arbitration (Protocol and Convention) Act, 1937 would show that these two enactments are concerned only with recognition and enforcement of the foreign awards and do not contain provisions for the conduct of arbitral proceedings which would, of necessity, have taken place in a foreign country. The provisions of Section 85(2)(a) in so far these apply to the Foreign Awards Act and 1937 Act, would appear to be quite superfluous. Literal interpretation would render Section 85(2)(a) unworkable. Section 85(2)(a) provides for a dividing line dependent on commencement of arbitral proceedings which expression would necessarily refer to Section 2110 of the new Act. This Court has relied on this Section as to when arbitral proceedings commence in the case of Shettys Construction Co. P. Ltd. v. Konkan Railway Construction AIR 1999 SC 1535 . Section 2(2)11 read with Section 2(7)12 and Section 21 falling in Part-I of the new Act make it clear that these provisions would apply when the place of arbitration is in India, i.e., only in domestic proceedings. There is no corresponding provision anywhere in the new Act with reference to foreign arbitral proceedings to hold as to what is to be treated as date of commencement in those foreign proceedings. We would, therefore, hold that on proper construction of Section 85(2)(a) the provision of this sub-section must be confined to the old Act only. Once having held so it could be said that Section 6 of the General Clauses Act would come into play and foreign award would be enforced under the Foreign Awards Act. But then it is quite apparent that a different intention does appear that there is no right that could be said to have been acquired by a party when arbitral proceedings are held in a place resulting in a foreign award to have that award enforced under the Foreign Awards Act.53. We, therefore, hold that the award given on September 24, 1997 in the case of Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. AIR 1999 SC 3923 when the arbitral proceedings commenced before the Arbitration and Conciliation Act, 1996 came into force on 22nd August 1996, would be enforced under the provisions of Arbitration Act, 1940. We also hold that Clause 25 containing the arbitration agreement in the case of Rani Constructions Pvt. Ltd. v. Himachal Pradesh State Electricity Board Civil Appeal No. 61 of 1999 does admit of interpretation that the case is governed by the provisions of the Arbitration and Conciliation Act, 1996. We further hold that the foreign award given in the case of Western Shipbreaking Corporation v. Clareheaven Ltd. (1997) 3 GLR 1984 would be governed by the provisions of the Arbitration and Conciliation Act, 1996.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: enforce the foreign award under that Act, But before that right is exercised Foreign Awards Act has been repealed. It cannot, therefore, be said that any right had accrued to the party for him to claim to enforce the foreign award under the Foreign Awards Act. After the repeal of the Foreign Awards Act a foreign award can now be enforced under the new Act on the basis of the provisions contained in Part II of the new Act depending whether it is a New York Convention Award or Geneva Convention Award. It is irrespective of the fact when the arbitral proceedings commenced in a foreign jurisdiction. Since no right has accrued Section 6 of the General Clauses Act would not apply. 51. In the very natural of the provisions of Foreign Awards Act it is not possible to agree to the submissions that Section 85(2)(a) of the new Act would keep that Act alive for the purpose of enforcement of a foreign award given after the date of commencement of the new Act though arbitral proceedings in foreign land had commenced prior to that. It is correct that Section 85(2)(a) uses the words the said enactments which would include all the three Acts, i.e., the old Act, Foreign Awards Act and the Arbitration (Protocol and Convention) Act, 1937. Foreign Awards Act and even the 1937 Act contain provisions only for the enforcement of the foreign award and not for the arbitral proceedings. Arbitral proceedings and enforcement of the award are two separate stages in the whole process of arbitration. When the Foreign Awards Act does not contain any provision for arbitral proceedings it is difficult to agree to the argument that in spite of that the applicability of the Foreign Awards Act is saved by virtue of Section 85(2)(a). As a matter of fact if we examine the provisions of Foreign Awards Act and the new Act there is not much difference for the enforcement of the foreign award. Under the Foreign Awards Act when the court is satisfied that the foreign award is enforceable under that Act the court shall order the award to be filed and shall proceed to pronounce judgment accordingly and upon the judgment so pronounced a decree shall follow. Sections 7 and 8 of the Foreign Awards Act respectively prescribe the conditions for enforcement of a foreign award and the evidence to be produced by the party applying for its enforcement. Definition of foreign award is same in both the enactments. Sections 48 and 47 of the new Act correspond to Sections 7 and 8 respectively of the Foreign Awards Act. While Section 49 of the new Act states that where the court is satisfied that the foreign award is enforceable under this Chapter (Chapter I, Part II, relating to New York Convention Awards) the award is deemed to be decree of that court. The only difference, therefore, appears to be that while under the Foreign Awards Act a decree follows, under the new Act foreign award is already stamped as the decree. Thus if provisions of the Foreign Awards Act and the new Act relating to enforcement of the foreign award are juxtaposed there would appear to be hardly any difference. 52. Again a bare reading of the Foreign Awards Act and the Arbitration (Protocol and Convention) Act, 1937 would show that these two enactments are concerned only with recognition and enforcement of the foreign awards and do not contain provisions for the conduct of arbitral proceedings which would, of necessity, have taken place in a foreign country. The provisions of Section 85(2)(a) in so far these apply to the Foreign Awards Act and 1937 Act, would appear to be quite superfluous. Literal interpretation would render Section 85(2)(a) unworkable. Section 85(2)(a) provides for a dividing line dependent on commencement of arbitral proceedings which expression would necessarily refer to Section 2110 of the new Act. This Court has relied on this Section as to when arbitral proceedings commence in the case of Shettys Construction Co. P. Ltd. v. Konkan Railway Construction AIR 1999 SC 1535 . Section 2(2)11 read with Section 2(7)12 and Section 21 falling in Part-I of the new Act make it clear that these provisions would apply when the place of arbitration is in India, i.e., only in domestic proceedings. There is no corresponding provision anywhere in the new Act with reference to foreign arbitral proceedings to hold as to what is to be treated as date of commencement in those foreign proceedings. We would, therefore, hold that on proper construction of Section 85(2)(a) the provision of this sub-section must be confined to the old Act only. Once having held so it could be said that Section 6 of the General Clauses Act would come into play and foreign award would be enforced under the Foreign Awards Act. But then it is quite apparent that a different intention does appear that there is no right that could be said to have been acquired by a party when arbitral proceedings are held in a place resulting in a foreign award to have that award enforced under the Foreign Awards Act. 53. We, therefore, hold that the award given on September 24, 1997 in the case of Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. AIR 1999 SC 3923 when the arbitral proceedings commenced before the Arbitration and Conciliation Act, 1996 came into force on 22nd August 1996, would be enforced under the provisions of Arbitration Act, 1940. We also hold that Clause 25 containing the arbitration agreement in the case of Rani Constructions Pvt. Ltd. v. Himachal Pradesh State Electricity Board Civil Appeal No. 61 of 1999 does admit of interpretation that the case is governed by the provisions of the Arbitration and Conciliation Act, 1996. We further hold that the foreign award given in the case of Western Shipbreaking Corporation v. Clareheaven Ltd. (1997) 3 GLR 1984 would be governed by the provisions of the Arbitration and Conciliation Act, 1996. ### Response: 0

State Of Mysore Vs. K. Manche Gowda

bring out the conflicting views. Under Art. 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam v. Bimal Kumar Pandit([1964] 2 S.C.R. 1.). If the grounds are not given in the Notice , it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment : he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact .was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations.The point is not whether his explanation would be acceptable, but whether he has been given an Opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.7. Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it, relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same.In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Art. 311(2)of the Constitution as interpreted by Courts.8. This order will not preclude the Government from holding the second stage of the enquiry afresh and in accordance with law.9.

0[ds]It is not, therefore, sufficient that other considerations on which a higher punishment is proposed are present in the mind of the competent authority or are supported by the record of service of the civil servant concerned. In a case where these factors did not form part of any specific charge and did not otherwise figure in the departmental enquiry, it is necessary that they should be intimated to the civil servant in order to enable him to put up proper defence against the proposedof Assam v. Bimal Kumar Pandit([1964] 2 S.C.R.cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give anreport submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it, relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same.In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Art. 311(2)of the Constitution as interpreted byorder will not preclude the Government from holding the second stage of the enquiry afresh and in accordance with law.

### Instruction: Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0). ### Input: bring out the conflicting views. Under Art. 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam v. Bimal Kumar Pandit([1964] 2 S.C.R. 1.). If the grounds are not given in the Notice , it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment : he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact .was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations.The point is not whether his explanation would be acceptable, but whether he has been given an Opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.7. Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it, relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same.In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave. But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Art. 311(2)of the Constitution as interpreted by Courts.8. This order will not preclude the Government from holding the second stage of the enquiry afresh and in accordance with law.9. ### Response: 0