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What is the summary of this judgment?
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These cases were also considered and applied by the Privy Council in Doughty vs Commissioner of Taxes (3), which is relied upon by (1) (2) (3) 967 both sides, in view of certain observations of the Privy. Council, to which we shall presently refer. In that case, there were two partners carrying on business in New Zealand as general merchants. They sold the partnership to a limited company, of which they were the only shareholders. The sale was of the entire assets including the goodwill, and the price was payable in the shape of fully paid shares in the new company. The nominal value of the shares was more then the capital account as shown in the last balance sheet, and the partners prepared a new balance sheet in which a larger value was placed upon the stock in trade.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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The Income tax authorities in New Zealand treated the difference between the value placed on the stock in trade in the old balance sheet and that placed in the new balance sheet as a profit liable to tax. The Privy Council held that this was wrong, pointing out that for profit to arise, there must be a trading, and that a mere alteration of a book keeping entry was not evidence that there was profit. It also held that the sale was of the entire assets, and that the price represented a payment for the entire business without a separate sale or valuation of this stock in trade for purposes of sale. It referred to two cases decided respectively by the Supreme Court of New Zealand and the, High Court of Australia, in which sales by pastora lists of their flock of sheep had taken place. In the New Zealand case, the excess obtained over the book value was treated as assessable profit, but in the Australian case, it was not. Both the sales were of the entire stock.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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The Privy Council approved of the Australian case, and though it did not ex pressly dissent from the New Zealand case, it indicated that it found it difficult to appreciate the decision. These two cases from New ' Zealand and Australia were, of course, relied upon by the rival parties before us, and we shall consider them. 968 The Australian case is Commissioner of Taxation (W. A.) vs Newman (II. A person who carried on business in Western Australia as a pastoralist sold his property including all live stock and plant, as a going concern.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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The Commissioner of Taxation for the State apportioned the purchase money in respect of the live stock, and assessed the amount which was received in excess, as income derived from carrying on a business. The High Court held that the transaction was not during the carrying on of the business or even for the purpose of carrying on the business, but was for the purpose of putting an end to the business, and that thus the excess represented a capital appreciation and not a trading profit. The Now Zealand case is Anson vs Commissioner of Taxes (2). In that case also, a sheep farmer sold his entire stock of sheep. He had the practice of placing on his sheep at the beginning and end of each year an arbitrary value without reference to the, actual market value. When he sold his entire stock, a nominal profit of pound 5,000 odd appeared, and he was assessed on it.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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The Supreme Court hold that it was not an accretion to capital but a profit on the sale of the appellant 's stock in trade. Sir John Salmond, who delivered the judgment of Court, observed that the holding of a sheep farmer was not a capital holding, but his sheep represented a stock in trade, and since every appreciation of a stock in trade represented a profit assessable to income tax, it mattered not that the stock in trade was sold at once or from time to time. Of this case, the Privy Council in Doughty 's case (3) did not say much, but enough to cast a doubt upon it. This is what the Privy Council said at p. 335. "It would be difficult to arrive at the profit in this way if it were the case of a (1) [1921] 2 (2) [1922] N.7.L.R. 330.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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(3) [1927] A. C. 327. 969 farmer in England but the trade of a pastora list is one with which the New Zealand Courts would be familiar, and which it would be more easy for the New Zealand Judges than for their Lordships to appreciate. " The Privy Council made a distinction between a sale of the entire stock as a part of trading and a sale of the same stock as a winding up sale. It observed that if the business be one of purely buying and selling, "a profit made by the sale of the whole of the stock, if it stood by itself, might well be assessable to income tax". It observed that in Dougherty 's case (1) the sale was a slump transaction, and was a winding up of the business rather than a trading. The Privy Council further pointed out that there is a difficulty in deciding cases of a business, which involve breeding of sheep for the purpose of selling wool This is quite true, because the sheep may be regarded as the capital, with which the wool, which is sold, is produced, or the sheep with the wool on them may be regarded as the stock in trade.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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Such a question, fortunately, does not arise in the present case, which can be decided on the narrow ground whether the business was being wound up and the sale, a realisation sale, or whether trading was going on in spite of the winding up, so as to attract tax on profits made. Before we answer this question in relation to the facts of this case, we wish to refer to a ' few more cases, which were cited before us. In J. & R. O 'Kane & Co. vs The Commissioners of Inland Revenue (2), the appellants carried on business as wine and spirit merchants. They then wished to retire from the business and sent a circular letter to their customers. During the year, they sold their *bole stock to diverse customers., and the question was whether they were still carrying on their trade during that period, and whether the profits were thus made in the (1) [1927] A.C. 327.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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(2) 970 ordinary course of trade. It was held by the King 's Bench Division of the High Court of Justice in Ireland that the sales were not in the ordinary course of trade but were part of the realisation of the trading stock and winding up of the business, and thus not liable to tax. The Court of Appeal in Ireland unanimously reversed the decision of the High Court. Ronan, L. J., pointed out that though the taxpayer had retired from business and had decided not to purchase any more stock, he was still carrying on the business of trading in wines and spirits till his existing stocks were exhausted, and, therefore, the excess obtained by him represented profit. On appeal to the House of Lords, it was held that there was evidence on which the Commissioners could arrive at their finding that trading was, in fact, being carried on. Lord Buckmaster, speaking Of the facts in that case, observed as follows : "For in truth it is quite plain that right up to the en of 1917 they were engaged in trading which, so far as the external world is concerned, was the ordinary method of carrying on trade modified only by arrangements which were merely part of the machinery of business dealing adopted to effect their intention to retire.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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It may well be accepted that they did so intend ; yet the intention of a man cannot be considered as determining what it is that his acts amount to; and the real thing that has to be decided here is what were the acts that were done in connection with this business and whether they amount to a trading which would 'cause the profits that accrued to be profits arising from a trade or business The case was, therefore, decided on the finding of the special Commissioners, for which there was enough material in evidence. Similarly, the case 971 of The Commissioner of Inland Revenue vs "Old Bashmills" Distillery Co., Ltd. (in Liquidation) (1) was one decided on a finding, in support of which there was evidence. The two cases relied upon by the Department and the assessee Company respectively do not shed any light upon the problem before us ' because the central decision in both of them was whether the Commissioners ' finding was justified or not. In J. and M. Craig (Kilmarnock),Ltd. vs Cowperthwaite(2), the question was how the opening.stock should have been valued, And whether any profit could be said to have resulted. The Privy Council in Doughty 's case (3) remarked about this case as follows: "There, on a transference from one company to another, one third of the value of each item, other than stock in trade, as it stood in the books of the selling company, was treated as its value for transfer purpose, and the balance of a slump price, which, with an under taking to discharge liabilities, formed the consideration, was inferentially attributable to the stock. It was held, however, in that case that no sum could be pitched upon as the actual price of the stock, and no claim to assess a profit could be based upon such a foundation. "
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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This case shows that where a slump price is paid and no portion is attributable to the stock iii trade, it may not be possible to hold that there is a profit other than what results from the appreciation of capital. The essence of the matter however, is not that an extra amount has been gained by the selling out or the exchange but whether it can fairly (1) (2) (3) (1927) A.C. 327. 972 be said that there was a trading from which alone profits can arise in business. If this test is applied to the present case, then the true answer would be the one given by the High Court in the judgment under appeal. There is no doubt, in this case, that the assessee Company was wound up at least in so far as its match manufacture was concerned. That the business of the Company was sold as a going concern, and was, in fact, worked by the assessee Company on behalf of the buyer till the entire consideration was paid, makes no difference, because the agreement clearly indicated that the, assessee Company was keeping the factory going, not on its own behalf but entirely on behalf of the buyer.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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One cannot fairly say, therefore, that a sale of the chemicals and raw materials for match manufacture was anything more than a winding up sale, not with a view to trading in chemicals and raw material but to close down the business and to realise the assets. There was, in fact, no identifiable price for the chemicals and raw materials except by comparing the two prices offered to be paid by the buyer, that is to say, the price without the chemicals and raw materials and the price with them. From that alone, however, it is impossible to infer that the chemicals and raw materials were sold in the ordinary way of business or that the assessee Company was carrying on a trading busi ness. The fact that the clause in the Memorandum gave power to the Company to Bell chemicals cannot be used in this connection, because the evidence clearly shows that that clause was never used and the two sales of chemicals through the years were too petty in themselves to afford evidence of a continued or sustained trading In chemicals. In our judgment, this was a winding up sale with a view to realising the capital assets of the assessee 973 Company and not a sale in the course of business operations, which alone would had attracted tax, if profit resulted. In the result, the appeal fails and is dismissed with costs.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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: Criminal Appeal No. 50 of 1976. Appeal by Special leave from the Judgment and order dated the 2nd October, 1975 of the Rajasthan High Court in S.B. Criminal Appeal No. 850 of 1971. V.B.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Raju and N.N. Sharma for the Appellant. Badri Das Sharma for the Respondent The Judgment of the Court was delivered by RANGANATH MISRA J. This appeal by special leave seeks to assail the conviction of the appellant under section 161 of the Indian Penal Code as also section 5(1) (d) and section 5(2) of the Prevention of Corruption Act, 1947 ( 'Act ' for short), and a consolidated sentence of two years ' rigorous imprisonment. Appellant 's conviction by the Special Judge has been upheld in appeal by the Rajasthan High Court. Appellant at the relevant time was a Head Constable attached to the Bhusawar Police Station within the District of Bharatpur.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Prosecution alleged that PW. 2 Ram Swaroop had given first Information Report of two offences but appropriate investigation was not being furnished to the Court. He had approached Shanker Lal, Head Constable attached to the Police Station and had, on demand, paid him some money by way of bribe to expedite submission of the charge sheet, Shanker Lal got transferred and appellant came in his place. When contacted, appellant also demanded money. 2 thereupon informed the Anti Corruption Department about the demand and Kastoori Lal, Dy. Superintendent of Police attached to the Anti Corruption Department at Jaipur agreed to lay a trap.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Details were fixed up and the trap was laid on March 30, 1969. An amount of Rs. 50 was to be passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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For that purpose 1139 Ram Swaroop, PW. 2, Kastoori Lal, PW. 6, Prabhu Dayal, a literate Constable attached to the Anti Corruption Department, PW. 1, accompanied by two Panch witnesses Girdhari, PW. 3 and Gulji, PW. 4 came to Bhusawar.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Ram Swaroop came to the bus stand adjacent to the Police Station. Banshi Kumar, the waterman at the bus stand (DW. 1) was requested by PW. 2 to inform the accused at the Police Station that he (Ram Swaroop) had come prepared for the purpose as arranged earlier and accused should came and contact him. Prosecution further alleged that the accused come pursuant to the request and the money was passed on and the payment of bribe was duly detected. In due course sanction was obtained and the case came up for trial before the Special Judge.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Prosecution led evidence of 8 witnesses five as indicated above and PW. 5, the Superintendent of Police (Intelligence), Jaipur; PW. 7 Kedar Nath, a literate Constable attached to the Bhusawar Police Station and PW. 8 the Superintendent of Police, Bharatpur, who proved sanction for the prosecution. Certain documents were also produced to support the charge. Defence examined four witnesses in support of its stand that the accused had not received any bribe and he was falsely implicated without any basis.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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The Special Judge accepted the prosecution case and convicted the appellant in the manner already indicated. His appeal to the High Court has failed. Ordinarily the Supreme Court does not enter into re appreciation of evidence in exercise of its jurisdiction under Article 136 of the Constitution (see Ram Parkash Arora vs State of Punjab). It is also true that in the case of State of Bihar vs Basawan Singh a five Judge Bench of this Court has laid down that if any of the witnesses are accomplices, their evidence is admissible in law but the Judge should indicate in his judgment that he had the rule of caution in mind namely, the danger of convicting the accused on the uncorroborated testimony of an accomplice and give reasons for considering it unnecessary to require corroboration; if, however, the witnesses are not accomplices but are merely partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested, in the same way as any other interested evidence is tested, and in a proper case, the Court may look for independent corroboration before convicting the accused person. There are certain features in this case which appear to have been overlooked both by the trial Court as also the High Court. The 1140 two panch witnesses have not only turned hostile, but have disclosed fact which support the defence version of the incident.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct a feature which the two Courts have overlooked. We are of the opinion that this is a case where the evidence has to be looked into with a view to finding out whether the prosecution case can at all be accepted.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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The restriction on appreciation of evidence of an appeal by special leave is a self imposed one and is not a jurisdictional bar. While we reiterate that ordinarily this Court would refrain from reexamining the evidence, in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. Prosecution has examined 8 witnesses in all. PW. 5, as already noted, is the Superintendent of Police (Intelligence) at Jaipur who is not a material witness at all. Similarly, PW.8 being the Superintendent of Police of Bharatpur, is connected with sanction for prosecution and is not material for any other purpose.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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This leaves six witnesses in the field. Of them, PWs. 1 and 6 are of the Anti Corruption Department, PW. 1 being a literate Constable attached to that establishment and PW. 6 being the Dy. Superintendent of Police under whose active supervision the trap was laid.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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PW. 2 is the decoy witness himself on whose report the trap was laid. 3 and 4 are the Panch witnesses and PW. 7 is a literate Constable attached to the Police Station. PW. 2 is a supplier of water at the bus stand like DW.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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1. From his own evidence it appears that he has been involved in laying of traps. In his cross examination he has admitted: "before this occurrence, I took the Dy. section P. for arresting another employee Shankerlal. The statement A V in exhibit P. 8 was given by me in the presence of the Deputy Sahib. " He seems to have made two other complaints before the police and those were found to be false and police had already decided to prosecute him under section 182, I.P.C.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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It is after that incident that present move had been taken. PW. 2 has admitted in his cross examination: "Prior to this I took the Deputy Sahib to get Shankerlal caught but Shankerlal could not be caught and the Deputy said that you have harassed me for nothing. " It is the case of the prosecution that Shankerlal was the Head Constable 1141 attached to the police station and that PW. 2 had negotiated with him. PW.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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3 who is a Panch witness has stated that the Deputy Superintendent of Police had told him that Ram Swaroop was giving illegal gratification to Shankerlal. PW. 3 was previously employed in the Police Department, and had been discharged. According to him, the name of the accused was never discussed and even at the time of payment it was Shankerlal who was supposed to receive the bribe. PW. 3 has said that he is not a literate person and his statement and signature had been extracted from him under pressure.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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PW. 4, the other Panch witness has similarly stated that he had been told that Shankerlal was to be bribed and he made no statement with reference to the accused. In view of this evidence it becomes doubtful whether the Panch witnesses had really anything to do with the offer of bribe to the present accused. Since PW. 2 admitted the position that the Deputy Superintendent of Police had been taken previously in respect of a bribe to Shankerlal and the two Panch witnesses have referred to that incident, it appears logical to infer that these two witnesses were really referring to the other incident. The defence version seems to be that the trap had been arranged with reference to Shankerlal.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Ram Swaroop on reaching the bus stand requested DW. 1 to ask Shankerlal to come but since Shankerlal was absent from the Police Station, the accused who was the senior most of the lot then available within the police station came out. This part of the defence story has been supported by PW. 7 Kedar Nath, a Constable attached to the Police Station. He in his cross examination has stated: "Banshi Kumar said that Shankerlal Head Constable is being called at the stand. There I, Babu Ram, Constable and Khilli Ram (accused) were present.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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We said, 'Khilli Ram, you being the Head may go '. Accordingly he went. " To that effect is the evidence of DW. I, the person whose services Ram Swaroop had admittedly taken to call the accused from the police station. He stated: "Shankerlal was sent for from the police station at 6 p.m. 2 years 20 days ago. Then one more person was with him.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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I went to the Police station Bhusawar. Shankerlal was not found there. The two constables and the accused present in the Court were there. On the advice of the police constables the accused accompanied me to the bus stand. " The evidence of PW. 7 and DW.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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1 thus clearly support the position we have indicated above. It is quite probable, therefore, that PW. 2 had negotiated with Shankerlal only and so far as the accused is concerned there was no negotiation and he had come out to the bus stand after being told by DW. 1 in the manner and circumstances indicated by PW. 7 and DW. 1.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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If that be so, 1142 implicating the accused for the offence of receiving bribe would be without any basis. PW. 2 stated in his evidence that the appellant had demanded a sum of Rs. 100. When this was pointed out to him in cross examination he stated that the accused demanded Rs. 100 from him for taking out the application and this was settled between to be paid to the accused.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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This part of the story runs counter to the deposition of PW. 6 who stated: "Ram Swaroop came to my office on 30.3.69 and said that Shankerlal has been transferred and in his place Khilli Ram, Head Constable has came and the latter has settled with me to accept bribe of Rs. 50. " The discrepancy is indeed a material one in the facts of the case. The defence of the appellant has all throughout been that he never received any bribe. PW.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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1 in his evidence in chief has stated that the Deputy Superintendent of Police demanded the bribe amount to be taken out and the accused stated that he had not received the amount. To the same effect is the evidence of PW. 2. This evidence of PWs. 1 and 2 makes it clear that the first reaction of the accused when accosted was a denial of receipt of any bribe. That has reiterated the same in his examination under section 342, Cr.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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P. C. According to the defence version of the matter there was really no passing of any money. PW. 1, the Constable accompanying the Dy. Superintendent of Police, according to the prosecution, searched the person of the accused and found the five currency notes. There is no acceptable evidence that the Constable had given search of his person before he started searching the person of the accused. PW.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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6, the Dy. Superintendent of Police was at a distance. He had not seen the actual passing of the money. Once PWs. 3 and 4 the Panch witnesses did not support the prosecution case, the only evidence for the passing of the money has to rest is of PWs. 1 and 2.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Both of them were vitally interested in the fate of the prosecution and would, therefore, be disposed to support the prosecution case. We have already indicated that PW. 2 was anxious to satisfy the police as he was about to face the prosecution under section 182, I.P.C. for having made false allegation in two cases. The Deputy Superintendent of Police has stated that he had taken PW. 2 to task for having brought him once to Bhusawar on the allegation that Shankerlal was to receive the bribe and that had failed.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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In these circumstances it is quite likely that these two witnesses would go out of their way to support the prosecution version. 1143 If Shankerlal was the person with whom PW. 2 had negotiated in the matter of taking of the bribe, it would indeed be difficult to accept, the position that the accused readily agreed to receive the amount when offered. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to chose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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1 raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has narrated this part of the story thus. "There the Deputy Sahib and we all stood at on place and Ram Swaroop (PW. 2) and Prabhu Dayal (PW. 1) went towards the police station.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Both had some talks. Prabhu Dayal remained this side and Ram Swaroop went inside the police station. Ram Swaroop returned and looked here and there. In the meantime Prabhu Dayal constable shouted that the money has been found, come on; come on. " PW. 4 stated that he did not see anybody giving or taking illegal gratification.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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DW. 1 has stated: "I told pointing toward Ram Swaroop and his companions that they are summoning. Thereupon the companion of Ram Swaroop (refereeing to Prabhu Dayal) shouted near the 'Imli ' tree that 'caught, caught '. He took out from the pocket of his pant notes like and putting them in his hand shouted, 'caught, caught '. " DW. 3 the hotelier has stated: "I and the Inspector went together, then the notes were in the hand of a Constable."
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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He has further said that the Constable was shouting that the amount had been recovered from Khilli Ram. DW. 4, an independent witness 1144 described this part of the story thus: "At the same time, Banshi waterman and Killi Ram accused present in the Court came from the side of Police Station. The man standing near Ram Swaroop (obviously Prabhu Dayal), shouted: 'caught, caught '. He took out the currency notes of Rs. 50 from his (witness ') pocket and raised this alarm."
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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In cross examination this witness stated that the person who raised the cry said that the notes have been recovered from Khilli Ram but Khilli Ram was saying that he did not take the notes. Two other aspects are relevant to be indicated here. According to PW. 1, Kastoori Lal, the Deputy Superintendent of Police ordered him to take the search of the accused whereupon he proceeded to do the needful. PW. 2, however, stated that it was the Dy.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Superintendent of Police who recovered the notes from the accused. PW. 6 has, however, indicated that under his orders search was conducted by PW. 1. There is again material discrepancy as to from where the amount was recovered. PW.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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2 has stated that the accused kept the notes of Rs. 50 given by him in the left side pocket of his shirt. PW. 6 has stated: "When Prabhu Dayal conducted the search of the accused, Ext. P 1, 2, 3, 4 and 5 notes of the denomination of Rs. 10 each were found out from the right side pocket of the shirt of the accused."
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Ext. P 1 is the recovery memo purported to have been prepared att he spot. It indicates: "Then the settled five currency notes of the denomination of Rs. 10 each were recovered from the right hand pocket of the worn shirt of khaki uniform. " There is thus a discrepancy as to the place from where recovery was made. It was pointed out by this Court in Raghbir Singh vs State of Punjab: "Where a trap is laid for a public servant, it is desirable that the marked currency notes which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of dubious character for the purpose of deciding the fate of the public servant."
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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Ordinarily in cases of this type the powder treatment is made. There is no material at all on the record to explain why such a 1145 process was not followed in the instant case even though detection is alleged to have been handled by experienced people of the Anti Corruption Department. PW. 6 was a very senior officer and in fact by the time the trial took place he had retired from service. It is difficult for us to accept the position that he was not aware of the powder treatment. It has been in vogue for well over three decades now.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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If such powder treatment had been made, the passing of the bribe would indeed not have been difficult to be proved. We are prepared to agree with counsel to the State of Rajasthan that ordinarily a case of type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this Court in the case of Prakash Chand vs State (Delhi Administration), and Kishan Chand Mangal vs State of Rajasthan, but in the present case the evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to the rejected.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. In these circumstances we are of the view that sufficient material has been brought out to merit interference in this appeal. We allow the appeal, set aside the conviction of the appellant and acquit him. He is discharged form his bail bond. N.V.K. Appeal allowed.
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The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court. When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money. 2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected. The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment. The conviction and sentence were upheld in appeal by the High Court. Allowing the Appeal, to this Court, ^ HELD: 1. The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction. [1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl. L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to. In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident. PW. 2, the decoy witness has stated facts which probabilise the defence stand. Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version. The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B] 2. Sufficient material has been brought out to merit interference. The evidence of the panchas is not available to support the prosecution case. There is discrepancy in many material aspects. The prosecution story is opposed to ordinary human conduct. The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version. Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected. An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable. The conviction of the appellant is therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to. The accused was, according to the prosecution evidence, in full uniform. He had been called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing. In such a surrounding a police man in uniform would ordinarily not accept a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given. Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have. There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid. PW. 3 has also stated that he did not see anybody giving or taking illegal gratification. [1143 B D] 4. There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment. It has been in vogue for well over three decades. If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved. [1145 A B] Raghbir Singh vs State of Punjab, referred to.
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What is the summary of this judgment?
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nd the writ petitions of the appellants will have to be heard by the High Court on merits. Since the appellants have applied for amendment of their respective writ petitions and the Court feels that the amendments sought to be made are of such a nature that they require to be considered and dealt with by the High Court, the same are allowed. [400G H; 401A D; F H] 387 3(i). It is difficult to reconcile to the decision in Trilok Singh & Co, 's case. The Court 's attention was not drawn in that case to Rule 8 of the said Rules. Rule 8 to which the court has adverted earlier is the one as substituted by Notification No.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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1995/XXIX E 55 (A) 75 dated May 25, 1977. The original rule, however, was to the same effect and under it also the conclusion reached by the Rent Control Inspector contained in his report of the inspection of the building was required to be posted on the notice board of the office of the District Magistrate for the information of the general public, and the order of allotment could not be passed before the expiration of three days from the date of such posting and, if in the meantime any objection was received, not before the disposal of such objection. The District Magistrate was, therefore, not justified in immediately directing the vacancy to be notified and this act on his part was a clear violation of the statutory requirements of Rule 8 and had the result of depriving the appellant firm of an opportunity of hearing which Rule 8 conferred upon it. On this ground alone the appellant firm should have succeeded. The observation of this Court in Trilok Singh & Co.s Case that it was unnecessary for the District Magistrate to hear the appellants before notifying the vacancy does not, therefore, appear to be correct. It equally does not, appear to be correct to hold that an order notifying the vacancy did not injury and caused no prejudice to the interests of any party because an order notifying the vacancy could be objected to and if any objections were filed, they would have to be decided after considering the evidence that the objector or any other person concerned might adduce and that after an order of allotment or release was passed following upon the notification of vacancy, the aggrieved person could file a review application or an appeal under s.18.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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In so holding the court appears to have overlooked that the stage for objecting to a vacancy being notified was not after it was notified and that under the said Rule 8 the notification of vacancy could only be after the objections were heard and disposed of. [398H; 399A F] 3(ii). It is also difficult to understand how a party who has no right to appear at the original hearing of an application could be said to have a right of review or an appeal against an order passed on that application. From the very nature of things, a right to defend an application in the first instance is a very different matter from a right to seek a review of the order on that application or a right of appeal against that order. In its very nature and scope, an original hearing differs substantially from a review or an appeal party applying for review or an appellant cannot as of right lead evidence Further, it is he who comes before the authority challenging an order passed to his prejudice and is not in the same position as the party against whom an order is sought in the first instance. The correctness of Trilok Singh & Co. 's case is, therefore, open to doubt.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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[400 B C] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3552 of 1983 From the Judgment and order dated 5.10.1982 of the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No, 14310 of 1981. 388 Civil Appeal No. 8553 of 1983 From the Judgment and order dated 5.10.82 of the High Court of Allahabad in Civil Misc. Writ No.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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1058 of 1982. Shanti Bhushan, R.K. Jain, R.P. Singh, Advs. with him for the Appellants in C. A. No. 8552/83.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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Mr. S.N. Kacker, Sr. Adv., Mr. R.B. Mahrotra, Adv. with him for the Respondents in C. A. No.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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8552/83. Mr. Soli J. Sorabjee, Sr. Adv., Mr. E.C. Agarwala, Adv. with him for the Appellants in C. A. No.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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8553/83. Mr. Anwar Ahmed, Sr. Adv., Mr. Ali Ahmed & Miss Halida Khatoon, Advs. with him for the Respondents in C. A. No. 8553/83.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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The following Judgment of the Court was delivered by MADON, J. The Appellants in each of the above two Appeals by Special Leave granted by this Court filed in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India challenging an order notifying a deemed vacancy under sub section (2) of section 12 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972). This Act will hereinafter be referred to in short as "the Act". The High Court dismissed both these petitions holding that they were premature.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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In coming to this conclusion the High Court relied upon a judgment of a two Judge Bench of this Court in Trilok Singh & Co. vs District Magistrate, Lucknow, & Ors. (1) The said decision of this Court was given prior to the amendment of the Act by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976(U.P. Act No. 28 of 1976) (hereinafter in short referred to as "the 1976 Amendment Act"). The 1976 Amendment Act came into force on July 5, 1976. It is unnecessary for the purpose of deciding these Appeals to set out the facts in great detail The subject matter of Civil Appeal (1) [1976] 3 S.C.R.942 389 No.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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8552 of 1983 is a shop bearing Municipal No. 24/34, situate at Mahatma Gandhi Marg, Civil Lines Market, Allahabad. According to the Appellants in this Appeal, the premises were let out to their father, Sheobux Roy, in 1937 and the Appellants ' father commenced carrying on business in the said premises in the name and style of Messrs B.N. Rama & Co. The Appellants ' father died on or about February 3, 1941, and according to these Appellants the tenancy was inherited by them being his sons. Thereafter, there was a partition amongst the Appellants but in spite of it all the three brothers continued to carry on their businesses separately in the same premises though under different names.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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While according to the Appellants the tenancy continued jointly with all of them, according to the contesting Respondents, who are the landlords, the tenancy rights belonged to the First Appellant, Ganpat Roy, alone, who is carrying on business in the said premises as Messrs B.N. Rama & Co. (Stores) and who paid the rent and used to recover rent from his other brothers in respect of the businesses carried on by them in the said premises. Under section 12 (2) of the, Act, a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition Of "family" given in clause, (g) of section 3 of the Act does not include a son in law or a daughter in law. By a Deed of Partnership dated August 10, 1976, the First Appellant entered into a partner ship with his son, Ramesh Roy, and his son in law, Swarup Kailash, to carry on business as authorized retail dealer of the Mafatlal, Group of Mills under the firm name and style of Messrs B.N. Rama & Co. (Textiles) According to the Appellants, the said partner ship is Occupying less than one seventh area of the said premises.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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Thereafter in 1979, the landlords filed a suit for eviction against the First Appellant on the ground that he had sublet the said premises to his son in law. For some reason not apparent on record, the First Appellant 's defence in the suit was struck out. The First Appellant filed a revision application to the Allahabad High Court and further proceedings in that suit were stayed by an interim order. That suit was withdrawn some time before the hearing of these Appeals. On or about March 19, 1981, one Ramesh Nath Kapoor and Radhey Shyam Kapoor, who are related to the landlords. filed an application for allotment of the said premises to them on the ground that there was a deemed vacancy under section 12 (2) of the 390 Act in respect of the said premises.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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Thereupon the Rent Control and Eviction Officer got the said premises inspected by a Rent Control Inspector who made his report on May 23, 1981, to the effect that as the matter relating to the said premises was pending in the High Court and a stay order had been granted by the High Court, there was no need to take any action. It thereafter appears that in order to clarify the position with respect to the stay order, the Rent Controller issued notices to the parties. The Appellants did not appear on the date fixed for hearing and the Rent Controller by his order dated August 13, 1981, held that there was a deemed vacancy in respect of the said premises and ordered such deemed vacancy to be notified and fixed the hearing of the application for allotment on September 2, 1981. Thereafter a fresh inspection report was made on September 1, 1981, by the Rent Control Inspector to the effect that the requirement of the applicants for allotment of the said premises was genuine. It further appears that an application for release of the said premises was also made by the landlords. On September 2, 1981, the Rent Controller fixed September 11, 1981, for the hearing of the said application for allotment as also of the said application for release.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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On September 11, the said order directing notification of deemed vacancy and for permission to urge their objections and to contest the said application for release. By an order dated September 30, 1981, the Rent Controller set aside the order notifying the deemed vacancy but refused permission to the Appellants to contest the said application for release of the said premises on the ground that if it were held that there was no vacancy, the question of release would not arise and if it were held that there was a vacancy, the occupant would go out of the picture and thereafter the matter would lie between the District Magistrate and the landlord and that no other person could contest the release of the premises to the landlord according to a judgment of the Allahabad High Court. Thereafter, by his order dated November 11, 1981, the Rent Controller negatived the contentions of the Appellant and held that there was a deemed vacancy in respect of the said premises and ordered such vacancy to be notified. The Appellants thereupon filed the said writ petitions in the High Court which, as mentioned earlier, was dismissed. During the pendency of this Appeal, further proceedings with respect to the release or allotment of the said premises have been stayed by this Court. The subject matter of Civil Appeal No.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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8553 of 1983 is also 391 non residential premises consisting of a house bearing Nos. 51 and 52, known as West Mount and West View Estates situate on Survey No. 256 in Santhat Cantonment, Ranikhet, District Almora, Uttar Pradesh. By a registered Indenture of Lease dated November 10, 1964, the said property was leased to the First Appellant in this Appeal, Smt. Kaushal Rekhi, for a period of few years with two options for renewal for a like period. The First Appellant has been conducting a hotel in the said premises known as "West View Hotel".
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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Respondents Nos. 2 to 4 to the said Appeals are the present landlords of the said property. On or about June 1, 1968, the First Appellant entered into a deed of partnership with her son. Thereafter the First Appellant exercised two Options given to her. According to the First Appellant, as her son went to the United States for advanced training in hotel managements the said partnership was dissolved and she took her daughter in law, Smt. Sunita Rekhi, the Second Appellant in this Appeal, as a partner in the said business by a Deed of Partnership dated October 22, 1975.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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According to the first Appellant, she had intimated the fact of this partnership to the District Magistrate who is the prescribed authority under the Act. On October 4, 1980, the landlords made an application to the prescribed authority for release of the said property in their favour on the ground that there was a deemed vacancy in respect thereof. By his order dated May 6, 1981, the Rent Controller and Eviction Officer held that there was a deemed vacancy in respect of the said premises. According to the Appellants, the Rent Controller had earlier by his order dated January 20, 1981, held that there was no deemed vacancy in respect of the said premises but had thereafter without any jurisdiction suo moto held a fresh inquiry and passed the said order dated May 6, 1981. According to the contesting Respondents, the earlier order was passed on some of the objections raised by the Appellants on the said application for release and the other objections were disposed of by the said order dated May 6, 1981. The Appellants thereafter filed their said writ petition in the High Court which, as aforesaid was dismissed.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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In their respective writ petitions, the Appellants had raised various contentions. Several of them were contentions of law relating to the interpretation of the definition of the word "family" in clause (g) of Section 2 and of other Sections of the Act. The Appellants in Civil Appeal No. 8552 of 1983 had also contended that sub sections (1) and (2) of Section 12 of the Act were discrimi 392 natory and unconstitutional as infringing Articles 14 and 19 of the Constitution of India. None of these contentions were dealt with by the High Court because, as mentioned earlier, it held that the writ petitions were premature. It was urged on behalf of the Appellants in Civil Appeal No.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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8552 of 1983 that in any event the point of constitutionality raised by them ought to have been decided by the High Court because an authority constituted by an Act has no power to determine the constitutionality of that Act or of any provision thereof. This does not appear to be a just criticism of the judgment of the High Court. Apart from stating that the said sub sections were unreasonable, discriminatory and unconstitutional and, therefore, violated Articles 14 and 19 of the Constitution, no, reason was given nor any ground set out in support of the said contention and most probably either the attention of the High Court was not drawn to this ground or it was not urged before the High Court at the hearing of the writ petition. At the hearing of these Appeals, the said Appellants have made an application to amend their writ petition setting out elaborately their grounds and reasons in support of the said contention and have applied for leave to amend their said writ petition in case their Appeal succeeds and their writ petition is sent back to the High Court for reconsideration. They have also prayed for the State of Uttar Pradesh to be added as Respondent No. 5 to the said writ Petition.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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The Appellants in the other Appeal have also similarly prayed for the amendment of their writ petition in case they succeed in their Appeal. The question whether these applications should be granted or not falls to be considered only if these Appeals are allowed. It will be convenient to see the relevant provisions of the Act before we turn to the Trilok Singh & Co. 's Case. Clause (g) of Section 3 defines "family" as follows: "(g) 'family ', in relation to a landlord or tenant of a building, means, his or her (i) spouse, (ii) male lineal descendants, 393 (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her. and includes, in relation to a landlord, any female having a legal right of residence in that building". What is pertinent to note about this definition is that a son in law and a daughter in law are not expressly included in this definition.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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Section 11 of the Act prohibits a person from letting any building except in pursuance of an allotment order issued under Section 16. Sub Sections 2 and 4 of Section 12 provide as follows: "(2) In the case of a non residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. "(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub section (1), or sub section (2), or sub section (3), sub section (3 A) or sub section (3 B), shall, for the purposes of this Chapter, be deemed to be vacant," Section 13 provides that where a landlord or tenant ceases to occupy a building or part thereof, no person is to occupy it in any capacity on his behalf or otherwise than under an order of allotment or release under Section 16 Section 15 casts a duty on every landlord or tenant to give intimation of vacancy to the District Magistrate. Under Section 16, the District Magistrate may, by an order, require the landlord to let any building which is or has fallen vacant or is about to fall vacant, or a part of such building, to any person specified in the order (called the allotment order) or may release the whole or any part of such building in favour of the landlord. Under the proviso to Section 16(1), in the case of a vacancy referred to in section 12(A), the District Magistrate is to 394 give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a) of section 16(1), that is before making an allotment order. This proviso was inserted by the 1976 Amendment Act.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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Strangely enough, in the case of release of the premises to the landlord the proviso does not require any such opportunity to he given to the tenant who would be the person affected by that order. Sub section (2) of section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord Under sub section (4) of section 16, where the allottee or the landlord has not been able to obtain possession of the building allotted or released to him, as the case may be, the District Magistrate, on an application made to him in that behalf, may by order evict or cause to be evicted any person named in that order as well as every other person claiming under him or found in occupation, and may for that purpose use or cause to be used such force as may be necessary and put or cause to be put the allottee or the landlord in possession of the building or part thereof. Sub section (5) of Section 16 provides as follows: "(5) (a) Where the landlord or any other person claiming to be a lawful occupant of the building or any part thereof comprised in the allotment or release order satisfies the District Magistrate that such order was not made in accordance with clause (a) or clause (b), as the case may be, of sub section (l), the District Magistrate may review the order: Provided that no application under this clause shall be entertained later than seven days after the eviction of such person. (b) Where the District Magistrate on review under this sub section sets aside or modifies his order of allotment or release, he shall put or cause to be put the applicant, if already evicted, back into possession of the building, and, may for that purpose use or cause to be used such force as ; may be necessary. " Under sub section (7) of Section 16, every order made under that Section, subject to any order made under Section 18, is to be. final, Under Section 18, as substituted by the 1976 Amendment 395 Act, no appeal lies against any order of allotment, reallotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge on any one or more of the following grounds, namely: (a) that the District Magistrate has exercised a jurisdiction not vested in him by law: (b) that the District Magistrate has failed to exercise a jurisdiction vested in him by law; (c) that the District Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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On such application being made, the revising authority may confirm or rescind ` the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks fit. Sub section (3) of section 18 provides that where an order of allotment or reallotment or release is rescinded, the District Magistrate shall, on an application made to him in that behalf, place the parties back in the position which they would have occupied but for such order or such part thereof as has y been rescinded, and may for that purpose use or cause to be used such force as may be necessary. Prior to the substitution of section 18 by the 1976 Amendment Act, that section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, reallotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. Under section 34(8), for the purpose of any proceedings under the Act and for purposes connected therewith the authorities under the Act are to have such power and follows such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed by rules made under the Act. The Uttar Pradesh Urban Buildings (Regulation of Letting, 396 Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under section 12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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The inspection of the building, so far as possible, is to be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of such objection. Any objection received is to be decided after consideration of any evidence, which the objector or any other person concerned may adduce. Rule 10 prescribes the procedure for allotment of a building where an application for allotment is made. The material portion of sub rule (6) and of proviso (a) to that subrule are relevant and may be reproduced. These provisions are as follows: "(6).
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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a person who is deemed to have ceased to occupy a building within the meaning of Section 12(2), shall not be allotted that or any other non residential building for a period of two years from the date of such. deemed cessation: Provided that (a) If the District Magistrate is satisfied in a case referred to in Section 12(2) that the admission of partner or new partner is bona fide transaction and not a mere cover for subletting, he shall, if any application had been made in that behalf before the admission of such partner or new partner, allot the non residential ; building in question afresh to the newly constituted or reconstituted firm; X X X 397 Under Rule 19, where an allotment or release of a building or part thereof is ordered under section 16(1) on the ground inter alia of deemed vacancy within the meaning of section 12, no such order is to be executed until after the expiration of fifteen days from the service upon the occupant of a notice to vacate that building or part thereof, as the case may be. We will now turn to Trilok Singh & Co. 'section case. The facts in that case were that an application for release was made by the landlords in respect of certain residential premises of which the appellant firm claimed to be the tenant. A Senior Inspector was directed to inspect the premises and make a report. According to the report, the premises were in occupation of three persons, two of whom claimed to be the partners of the appellant firm.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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The report stated, "After hearing the parties it would be proper to take further action". On receipt of the report, the Rent Controller passed an order "Let the vacancy be notified" without granting any hearing to the appellant firm. The appellant firm thereupon filed a writ petition in the High Court of Allahabad challenging the said order on the ground that it was passed in violation of the principles of natural justice. The said writ petition was rejected summarily on the ground that it was premature and the proper remedy for the appellant firm was to approach the Rent Controller under section 16(5) (a) of the Act for review of the said order. In appeal, this Court upheld the order of the Allahabad High Court. This Court held that by reason of section 16(2) no order bf release could be passed under clause (b) of section 16(1) unless the District Magistrate was satisfied that the building was required by the landlord bona fide for occupation by himself or any member of his family or for any of the purposes specified in sub section (2) of section 16.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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The Court further stated P that under clause (a) of section 16(5), where the landlord or any other person claiming to be a lawful occupant of the building comprised in the order of allotment or release satisfied the District Magistrate that such an order was not made in accordance with clause (a) or clause (b) of section 16(1), the District Magistrate could review his order and if on review he set aside or modified the order of allotment or release, he was empowered to put the applicant, if already evicted back into possession. The Court further observed that section 18 gave a right of appeal against an order of allotment or release and that any person aggrieved by such an order could prefer an appeal to the District Judge and if the order of allotment or release was varied or rescinded by the District Judge in appeal the 398 District Magistrate had under section 18(2) the power to place the parties back in the position which they would have occupied but for such order. The Court further pointed out that the Act did not provide for a hearing at the stage when the District Magistrate passed an order of allotment or release but any person aggrieved by such an order was entitled to ask the District Magistrate to review his order and if in the meanwhile any person in possession of the building had been evicted, the District Magistrate had the power, if he set aside or modified the order of allotment or release, to put the applicant back in possession The Court held (at page 945): "Thus, in the first place, it was unnecessary for respondent ; I to hear the appellants before notifying the vacancy be cause ' under the scheme of the U P. Rent Act, an order notifying the vacancy does no injury and causes no prejudice to the interests of any party. A notification of the vacancy is a step in aid of an order of allotment or release and it is only when such an order of allotment or release is passed that the landlord or the tenant, as the case may be, can have a grievance. Orders of allotment and release are, in the first instance, reviewable by the District Magistrate himself an`d an order passed by the District Magistrate under section 16 is appealable under section 18." The Court then summarized the conclusion it had reached as follows: "The Act thus contemplates successive opportunities " being afforded to persons whose interests are likely to be affected by any order passed by the District Magistrate.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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Putting it briefly, an order notifying the vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce. Secondly, if an order of allotment, or release is passed under section 16, following upon the notification of a vacancy, the aggrieved person can file a review application. Thirdly, as against an order passed under section 16, there is a right of appeal under section 18. " We find it difficult to reconcile ourselves to the decision in Trilok Singh & Co. 's Case. The Court 's attention was not drawn 399 in that case to Rule 8 of the said Rules Rule 8 to which we have adverted earlier is the one as substituted by Notification No. 1995/XXlX E 55 (A) 75 dated May 25, 1977.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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The original rule, however, was to the same effect and under it also the conclusion reached by the Rent Control Inspector contained in his report of the inspection of the building was required to be posted on the notice board of the office of the District Magistrate for the information of the general public, and the order of allotment could not be passed before the expiration of three days from the date of such posting and, if in the meantime any objection was received, not before the disposal of such objection. The District Magistrate was, therefore, not justified in immediately directing the vacancy to be notified and this act on his part was a clear violation of the statutory requirements of Rule 8 and had the result of depriving the appellant firm of an opportunity of hearing which Rule 8 conferred upon it. On this ground alone the appellant firm should have succeeded. The observation of this Court in Trilok Singh & Co 's case that it was unnecessary for the District Magistrate to hear the Appellants before notifying the vacancy does not, therefore, appear to be correct. It equally does not appear to be correct to hold that an order notifying the vacancy did no injury and caused no prejudice to the interests of any party because an order notifying the vacancy could be objected to and if any objections were filed, they would have to be decided after considering the evidence that the objector or any other person concerned might adduce and that after an order of allotment or release was passed following upon the notification of vacancy, the aggrieved person could file a review application or an appeal under section 18. In so holding the Court appears to have overlooked that the stage for objecting to a vacancy being notified was not after it was notified but, as provided by Rule 8, before it was notified and that under the said Rule 8 the notification of vacancy could only be after the objections were heard and disposed of.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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This Court itself pointed out in that case that the Act did not provide for a hearing at the stage when the District Magistrate passed an order of allotment or release. In such an event, it can hardly be said that a review or an appeal against an order of allotment or release was an adequate remedy. As the very provisions for review and appeal show, if the order appealed against or sought to be reviewed is varied or rescinded, the appellant or the person seeking review, if evicted is the meanwhile, is to be restored back in possession. How the fact of being evicted or even the danger of 400 it can cause no prejudice, particularly in these days of acute shortage of accommodation, is something we are not able to appreciate. It is also difficult to understand how a party who has no right to appear at the original hearing of an application could be said to have a right of review or an appeal against an order passed on that application. From the very nature of things, a right to defend an application in the first instance is a very different matter from a right to seek a review of the order on that application or a right of appeal against that order.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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In its very nature and scope, an original hearing differs substantially from a review or an appeal. A party applying for review or an appellant cannot as of right lead evidence. Further, it is he who comes before the authority challenging an order passed to his prejudice and is not in the same position as the party against whom an order is sought in the first instance. The correctness of Trilok Singh & Co. 's case is, therefore, open to doubt. Apart from this, the position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by section 18 has been substituted by a right of revision on the grounds set out in the substituted section 18 and which are the same as those on which a revision lies to the High Court under section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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The scope of revision under section 18 is, therefore, much narrower than in the case of an appeal. Under the proviso to section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub section (4) which includes a deemed vacancy under section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an 401 order of release made under clause (b) of section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no vacancy.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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This would apply equally where an order of release is made. Further, the revision which is provided for under section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. In fact, as would appear from the order dated September 30, 1981, of the Rent Control and Eviction Officer in Civil Appeal No. 8552 of 1983, the Allahabad High Court has held that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. The tenant has thus no adequate or effective remedy against an order notifying a vacancy. Further, it should be borne in mind that under Rule 10 (6) a tenant who is deemed to have ceased to occupy a building under section 12(2) is not entitled for a period of two years from the date of such deemed vacancy to the allotment of the same or any other non residential building.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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In our opinion, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under Article 226 or 227 of the Constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be premature. In the view that we take, those Appeals will have to be allowed and the writ petitions of the Appellants will have to be heard by the High Court on merits. As mentioned earlier, the Appellants have applied for amendment of their respective writ petitions. Without expressing any opinion on the merits of the contentions sought to be raised in the proposed amendments, we feel that the amendments sought to be made are of such a nature that they require to be considered and dealt with by the High Court. 402 In the result, we allow both these Appeals and reverse the judgment and set aside the order passed by the High Court.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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We further direct the High Court to rehear on merits the writ petitions filed by the Appellants. We also allow the application for amendment of both these writ petitions. The Appellants will amend their respective writ petitions in terms of the applications for amendment made by them within one month of the receipt by the High Court of the order of this Court. The High Court will thereupon issue notice in each of these two writ petitions to the newly added State of Uttar Pradesh. The State of Uttar Pradesh will be at liberty to file a counter affidavit within four weeks of the receipt of such notice. The original respondents to the writ petitions will also be at liberty to file a supplementary counter affidavit within four weeks from the date of receipt by them of the notice that the writ petitions have been amended.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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The High Court will thereafter endeavour to dispose of these writ petitions as expeditiously as possible. Pending disposal of the writ petitions by the High Court, there will be a stay of further proceedings for allotment or release of the concerned premises and the Appellants will not be dispossessed from the premises they are occupying. In the circumstances of the case, there will be no order as to the cost of these Appeals. M.L.A. Appeals allowed.
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Under Section 12(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act), a tenant of a non residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in clause (g) of Section 3 of the Act does not expressly include a son in law or a daughter in law. In each of the two appeals, the appellant/tenant admitted into his partnership firm his son in law and 'or daughter in law, as the case may be. There upon, the landlord respondent in each appeal filed an application for release of his non residential building in his favour on the ground that there was a deemed vacancy under Section 12(2) of the Act. The Rent controller held that there were deemed vacancies in respect of the two premises and ordered such deemed vacancies to be notified. The appellants/tenants filed applications to set aside the said orders directing notification of deemed vacancy and for permission to urge their objections and to contest the said applications for release. The Rent Controller negatived the contentions of the appellants and ordered such vacancies to be notified. The appellants/tenants filed writ petitions in the High Court under Article 226 of the Constitution challenging the two orders notifying deemed vacancies under sub Section (2) of Section 12 of the Act. The High Court, relying upon a judgment of a two Judge Bench of the Supreme 385 Court in Trilok Singh & Co. vs District Magistrate, Lucknow, the amendment of the Act by Uttar Pradesh Urban Buildings (regulation of Letting, Rent and Eviction) Amendment Act 1976 (for short, the 1976 Amendment Act), dismissed both the petitions as pre mature holding that where a release of a building is sought, the matter lies only between the District Magistrate and the landlord and no other person has a right to object to the release of the premises to the landlord. Hence these appeals. Allowing the appeals and directing the High Court to `rehear on merits the writ petitions filed by the appellants. the Court. ^ HELD: 1(i) Under the proviso to Section 16(1), in the case of a vacancy referred to in Section 12(4), the District Magistrate is to give an opportunity to the landlord or the tenant, as the case may be, of showing that the said Section is not attracted to his case before making an order under clause (a) of Section 16(1), that is, before making an allotment order; This proviso was inserted by the 1976 amendment Act. Strangely enough, in the case of release of the premises to the landlord, the proviso does not require any such opportunity to be given to the tenant who would be the person affected by that order. Sub section (2) of Section 16 sets out the circumstances in which a building or any part thereof may be released to the landlord. Under Sub section (7) every order made under that Section, subject to any order made under Section 18, is to be final. Under Section 18 as substituted by the 1976 Amendment Act, no appeal lies against any order of allotment, re allotment or release but any person aggrieved by a final order of allotment, re allotment or release may, within fifteen days from the date of such order, prefer a revision to the District Judge. On such application being made, the revising authority may confirm or rescind the final order of allotment, re allotment or release or may remand the case to the District Magistrate for rehearing and, pending revision, may stay the operation of such order on such terms as he thinks lit Prior to the substitution of Section 18 by the 1976 Amendment Act, that Section provided for an appeal to the District Judge by a person aggrieved by an order of allotment, re allotment or release and where such order was varied or rescinded in appeal, the District Magistrate had the power, on p an application made to him in that behalf, to place the parties back in the position which they would have occupied but for such order or such part thereof as was varied or rescinded and to use or cause to be used for that purpose such force as may be necessary. [393H; 394A B; H; 395A; D P] 1(ii). The Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent and Eviction) Rules, 1972, prescribe the procedure for ascertainment of vacancy and for allotment or release of premises. Under Rule 8, before he makes any order of allotment or release in respect of any building which is alleged to be vacant under S.12 or to be otherwise vacant or to be likely to fall vacant, the District Magistrate is required to get the building inspected. The facts mentioned in the inspection report are, wherever practicable, to be elicited from at least two respectable persons in the locality and the conclusion of the inspection report is to be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment is not to 386 be passed before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of suck objection. Any objection received is to be decided after consideration of any evidence which the objector or any other person concerned may adduce [396A D] 2(i) The position under the Act as amended in 1976 is greatly changed and the right of appeal which was granted by S.18 has been substituted by a right of revision on the grounds set out in the substituted Section 18 and which are the same as those on which a revision lies to the High Court under Section 115 of the Code of Civil Procedure, 1908. While in an appeal, findings of fact can also be challenged on the ground that the evidence was not properly appreciated, in revision the only question would be whether the District Magistrate had exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The scope of revision under Section 18 is. therefore. much narrower than in the case of an appeal [400E F] 2(ii). Under the proviso to Section 16(1), which was inserted by the 1976 Amendment Act, the District Magistrate is required in the case of a vacancy referred to in sub Section (4) which includes a deemed vacancy under Section 12(2) to give an opportunity to the landlord or the tenant, as the case may be, of showing that Section 12(4) is not attracted to his case before he makes an order of allotment under clause (a) of Section 16(1). Thus, this proviso gives a right of hearing to the tenant before an order of allotment is made. The proviso, however, does not apply in the case of an order of release made under clause (b) of Section 16(1). Even in the case of an application for allotment, it is doubtful whether a tenant whose objections to notification of a deemed vacancy have been negatived and thereafter the vacancy has been ordered to be notified could be permitted to reagitate the same contentions because such contentions would be barred by principles analogous to res judicata. In such an event, it would be difficult to say that he can exercise his right of review on the ground that there was no p vacancy. This would apply equally where an order of release is made. Further, the revision which is provided for under Section 18 is against an order of allotment or release and not against a notification of vacancy and an issue, which was concluded earlier and on the basis of the finding on which the District Magistrate had proceeded to allot or release the premises, cannot be reagitated in revision. Thus, the scheme of the Act would show that a tenant of premises in whose case it is found that there is a deemed vacancy has no efficacious or adequate remedy under the Act to challenge that finding. A petition under article 226 or 227 of the constitution of India filed by such a tenant in order to challenge that finding cannot, therefore, be said to be pre mature.
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What is the summary of this judgment?
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vil Appeal No. 2043 (NM) of 1989. From the Judgment and Order dated 28.11.1988 of the Customs. Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E.A. No.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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3302/87A in Order No. 558/88 A. K. Parasaran, Attorney General, A.K. Ganguli and P. Parmeshwaran for the Appellant. Soli J. Sorabji, section Ganesh, R. Narain, P.K. Ram and D.N. Mishra for the Respondent.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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The following Judgments of the Court were delivered SABYASACHI MUKHARJI, J. This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act ') from the judgment and order of the Cus toms, Excise & Gold (Control) Appellate Tribunal, New Delhi, (hereinafter called 'the Tribunal ') date 28th November, 1988. M/s. Ponds India Ltd., (hereinafter referred to as 'the respon 482 dent ') used to manufacture talcum powder and face powder falling under tariff item 14F of the Central Excise Tariff, which are now under sub heading No. 3304.00 and were clear ing the same on payment of duty. The assessee claimed deduc tion of cost of packing for transportation in respect of small packings of 15, 18, 20, 30, 40 & 100 gms.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was approved provisionally by the office of the Asstt. Collector of Central Excise, Pondicherry. The said approval was by an order dated 10th December, 1985. It is alleged that it was later noticed that the small packs were first packed in dozen and then packed in secondary packings for easy transportation to the wholesale dealer, and it was found that the secondary packings were a must for delivery to the wholesale dealers, (emphasis indicated). The Asstt. Collector came to the conclusion that the amount as claimed by the respondent was not deductible as per this Court 's decisions in respect of postmanufacturing expenses.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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In the premises, a show cause notice was issued to the respondent on October 30, 1986 and a demand was made for the differen tial duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 for the period from December 2, 1985 to May 31, 1986. The Asstt. Collector by his order dated Febru ary 27, 1987 disallowed the respondent 's claim for exclusion of the cost of packing of transportation and thus rejected its claim. He inter alia, observed as follows: "Therefore, I consider that the cost of sec ondary packings viz, card board cartons are rightly includible in the assessable value of items mentioned in PL No. 405/85 86 and 406/85 86 dated 10.12.85 under Section 4(4)(d)(i) of the, and the provisional assessments are to be finalised accordingly. The assessees are also liable for payment of differential duty of Rs.3,46, 15 1.92 as demanded in the show cause notice cited under Section 11A of the read with rule 9B of the Central Excise Rules, 1944. "
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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There was an appeal to the Collector of Customs which was disposed of by an order dated 15th September, 1987. It is necessary to set out the said observations of the Collec tor, in view of the contentions sought to be raised in these matters. He, inter alia, observed as follows: "I have carefully considered the submission of the appellants made in their grounds of appeal and repeated during 483 personal hearing. I find that the appellant 's claim is solely based on the judgment of the Hon 'ble Supreme Court in the case of Godfrey Philips and which has been followed by differ ent High Courts also from time to time. First of all, it is necessary to consider whether the goods sold by the appellants viz. talcum powder and face powder required an outer carton packing for purpose of safety in trans it, which was the case before the Hon 'ble Supreme Court in case of M/s Godfrey Philips.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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It cannot be disputed that talcum powder and face powder are packed either in metal con tainers or in plastic packing also of card board packings, which are inner cartons and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. In the Hon 'ble Supreme Court 's judgment, it is stated that the corru gated fibre board containers are employed only for purpose of avoiding damage or injury during transit. But that is not as in the case of the appellants. There is no likelihood of any damage or injury to the tins or the plas tic containers employed as a primary packing even if the goods are transported without the outer packing. Unlike cigarettes, even damp ness is not going to affect the goods because they are hermetically sealed when put in the primary packing.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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Therefore, the ratio of the judgment of Hon 'ble Justice Pathak which is quoted by the appellants is not available in the case of different goods which are not perishable aS cigarettes are. The second point is that cigarettes are sold by carton of 200 cigarettes each, even in wholesale trade. That is not the case in the appellant 's wholesale trade where the goods are sold by number of dozens and in some cases by numbers of tins or other packings which are primary packing (this was seen from the invoice produced during personal hearing). Therefore, it cannot be said that the outer cartons are employed only for the purpose of avoiding damage or injury to the goods during transit. In view thereof, the Hon 'ble Supreme Court 's decision in the case of MRF becomes applicable. In case of talcum powder and face powder, it is necessary to put the dozen cartons inside the outer cartons, for giving delivery whether at the factory gate, or at a place of delivery other than the factory gate, because it is not convenient for the wholesale dealers to col lect the goods in dozens ' packing.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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Wholesale trade is not generally in quantities less than a dozen. Therefore, even while giving 484 delivery by the wholesale dealers, to other dealers, the outer carton is necessary as otherwise it will become difficult for him to give such delivery of 50 dozens or 100 dozens of the goods. It is not disputed that the outer carton packing is the packing in which the goods are cleared from the factory, and are put into the stream of wholesale trade.. the ratio of the Godfrey Phi lips case is not applicable in the appellant 's case. I find that the talcum powder and face powder are cleared in the master carton pack ing in the factory and it is in that packing the same are put in the stream of wholesale trade. Further, I do not find that the master cartons are employed solely for purpose of protecting the goods during transit. But the same are used for giving delivery in wholesale trade by the appellants.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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Therefore, the order of the Asstt. Collector, including the cost of master cartons in assessable value of the goods is correct and proper and needs no interference. That being the only point for determination in appeal, the appeal is reject ed. " There was an appeal to the Tribunal. It was contended on behalf of the respondent herein before the Tribunal that the only question for determination was, whether the cost of third stage packing, the outer carton, intended for trans port can be included in the assessable value. It was pleaded that all goods were cleared from the factory in the outer cartons with the smaller carton containing dozen containers of powder.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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It was further contended that the facts of this case were same as in the case of cigarettes dealt with by this Court in Union of India & Ors. vs Godfrey Philips India Ltd., ; It is contended that in view of the said decision of this Court, cost of cartons was included only if packing was necessary.for the sale of goods in the wholesale market. It is submitted that it was not so necessary for sale. The Tribunal noted that the question of inclusion of cost of secondary packing in Sec tion 4(4)(d)(i) of the Act, be it at the first stage, second or third stage of packing, has to be decided in each case depending upon the facts applicable. The Tribunal found that so far as the smaller carton is concerned, the inclusion of the cost of the same in the assessable value was not in dispute and the appellants have conceded that the value is includible following the ratio of the judgment of this Court. It also noted that it was nobody 's case that the number of tins contained in the smaller carton constitute retail packing rather than wholesale packing.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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The Tribunal felt that the only question to be decided was, whether the goods packed in the smaller cartons could be sold to the wholesale buyer in the course of wholesale trade at the 485 factory gate without the outer carton in which the number of smaller cartons were packed. It is important to emphasise this question in view of the contentions raised in this appeal. The case of the revenue was that since the goods were sold in lots packed in the bigger outer cartons, the value of the same should be included for the purpose of assessment. According to the Tribunal, there was however, no plea, raised by the revenue as to the capability or other wise of the sale of powder tins in the wholesale market in the smaller cartons described as the inner outer. The Tribu nal noted that in the facts of the instant case, the talcum powder packed in tin containers is in no danger so far as the contamination of the powder is concerned and the pack ing, it was pleaded before them, was required for the pur pose of preventing damage to the tin containers which were sophisticated in nature taking into account the product being marketed, and it recorded that inner cartons contain 12 tins or so which is a wholesale packing and it was not made out that the smaller carton was not sufficient to protect the tins or that the sale could be made in the course of wholesale trade at the factory gate. There was no plea on record that the smaller carton is flimsy and not sufficient for the purpose of marketing the tins and their storage in the course of wholesale trade.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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What is the summary of this judgment?
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the Tribunal referred to the observations of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ;, and following the same came to the conclusion that the cost of outer or bigger cartons in which the smaller cartons containing powder tins are packed, is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. The outer cartons were held to be for the purpose of transport of the goods and were not required for the sale of the goods at the factory gate. The revenue seeks to challenge this basis. What is to be included in the value, has to be deter mined in terms of section 4(4)(d)(i) of the Act. The ques tion has been examined from all points of views by this Court.
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The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty. The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction. The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986. The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim. The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal. The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.;, and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market. The Tribunal however relying on the decision of this Court in Union of India & Ors. vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade. Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act. Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act. [485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. [490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen. The same are then put in the master carton for purpose of delivery to wholesale dealers. [490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach. Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included. [491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed. The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner. [492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value. The clause makes no distinction between primary and secondary packing or further subsequent packing. [492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market. [493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.
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