we find merit in the argument of the Appellant that the parties be relegated before the High Court for a fresh consideration of the second appeal on its own merit in accordance with law and more so, the substantial questions of law formulated by the Appellant which are as under:- “i. Whether the tenancy of Respondent No. 1 and 2 as created w.e.f. 01.09.1975 in respect of Suit premises No. 47, UB, Jawahar Nagar, Delhi – 11006 jointly in their name can be said to be joint tenancy as contemplated in the judgment AIR 1988 SC 1470 “S.C. Pandey versus G.C. Paul” which were passed in the context of joint tenancy conferred on the body of the legal heir of deceased or not? ii. Whether the Ld. Appellate Court was duty bound to address all issues and give finding therein after re-appraisal of the facts and was not competent to uphold the finding summarily as sought to be done by the judgment dated 03.02.2005 or not? iii. Whether the Ld. Appellate Court was duty bound to deal with other issues except Issue No. 6? iv. Whether the Judgment/Decree of the Ld. Appellate Court dated 03.02.2005 was perverse and in breach of its jurisdiction as the appellate court by not giving independent finding passed on re-appraisal of pleading and evidence on record? v. Whether the Ld. Appellate Court upholding other issues ought to have passed such further direction for passing of the preliminary decree of rendition of account to its logical end as appointment of Local Commissioner and its terms set lapsed by then or not?”

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                    CIVIL APPEAL NOS. 4513-4514  OF_2017
            (Arising out of SLP (Civil) Nos. 29019-29020 of 2015)

Gauri Shankar                                           …. Appellant



Versus



Rakesh Kumar and Ors.                           .... Respondents




                               J U D G M E N T



A.M.KHANWILKAR, J.



1.    The Appellant filed  a  suit  for  dissolution  of  partnership  of  a
jewellery shop and rendition of accounts against  Rakesh  Kumar  (Respondent
No. 1), Maya Devi (Respondent No. 2) and Bal Mukund  Verma  (predecessor  of
Respondents). The suit was decreed in favour of  the  Appellant  inter  alia
with a declaration that the possession of the suit shop was for the  benefit
of the Appellant and Respondent No. 1 as joint-tenants.



2.    The Respondents filed two separate appeals which were disposed  of  by
the first appellate Court vide a common judgment on 03.02.2005. In the  said
appeal, the declaration regarding the tenancy rights  of  the  Appellant  in
the suit shop was reversed on the finding that the tenancy  was  surrendered
by one partner. The first appellate court relying on the  decisions  in  the
cases of Kanji Manji Vs. Trustee of Port of Bombay[1]; H.C. Pandey Vs.  G.C.
Paul[2]; and H.C. Pandey Vs. G. C Kaul[3], opined that notice  of  surrender
of tenancy given by one of the co-tenants and a decree of possession of  the
tenanted premises passed on that  basis  will  bind  the  other.  The  first
appellate court found that the tenancy  surrendered  by  one  of  the  joint
tenants, even if without the consent of the  other,  would  bind  the  other
joint tenant.

3.    Aggrieved, the Appellant filed a second appeal before the  High  Court
of Delhi at New Delhi being RSA 146/2005. By  the  impugned  judgment  dated
02.12.2013, the second appeal was dismissed by the learned Single  Judge  on
the sole ground that the question as to whether the tenancy rights could  be
surrendered by one of the joint-tenants without the consent  or  concurrence
of the other is a question of fact and not a question of  law  much  less  a
substantial  question  of  law.  The   Appellant   filed   a   review/recall
application against the aforementioned impugned  judgment  before  the  High
Court, which was rejected on 22.08.2014. The Appellant has  challenged  both
these judgments of the High Court in the present appeals.

4.    The grievance of the  Appellant  is  that  the  Appellant  had  raised
substantial questions of law as articulated in the Memo  of  Second  Appeal,
in paragraph 8(K).  The  main  grievance  of  the  Appellant  was  that  the
Respondent No. 1 – joint-tenant had surrendered the  entire  tenancy  rights
in the suit shop without the consent or knowledge of  the  Appellant,  in  a
deceitful and fraudulent manner.  In that, the surrender of the tenancy  was
unilateral, unauthorized and collusive  between  the  landlady  who  is  the
mother of Respondent No. 1 and the new tenant  inducted  in  the  suit  shop
(original defendant No. 3 before the Trial Court) who was  none  other  than
the father of Respondent No. 1.  According to the Appellant, in the  present
case, the act of surrender of joint-tenancy by the Respondent No.  1  was  a
subterfuge and fraud played so as to defeat the rights of the  Appellant  in
the suit shop. Further, the first appellate Court, without dealing with  the
finding of fact recorded by the trial court on  this  aspect,  reversed  the
well considered view taken by the trial court.  The  first  appellate  court
merely relied upon the  decisions  which  could  be  distinguished  and  not
relevant to the specific plea taken by the Appellant.  This  grievance  made
by the Appellant has been completely glossed  over  by  the  learned  single
Judge of the High Court.  The High Court  proceeded  to  reject  the  second
appeal without addressing the real issues, by merely stating that  the  fact
as to whether the  tenancy  rights  could  be  surrendered  by  one  of  the
partners is a question of fact.

5.    We have heard the learned counsel for the  parties.  With  their  able
assistance, we have perused the relevant records and the judgments  impugned
in the present appeals.  We  agree  with  the  Appellant  that  the  learned
single Judge of the High Court  has  failed  to  refer  to  the  substantial
questions of law formulated by the  Appellant  in  the  Memo  of  Appeal  in
Paragraph 8(K). Further, the specific plea taken by the Appellant, that  the
alleged surrender of joint tenancy by Respondent No. 1 was a  deceitful  and
fraudulent act not binding on the  Appellant  nor  could  impact  the  joint
tenancy in respect of the suit shop, has  not  been  examined  by  the  High
Court. The material facts to  establish  that  plea  have  been  brought  on
record by the Appellant and duly noticed by the trial  court.  However,  the
efficacy thereof has not been  considered  either  by  the  first  appellate
Court or the  High  Court.  The  High  Court  was  obliged  to  examine  the
aforementioned pleas taken by the Appellant including that the decisions  of
this Court relied upon by the first appellate  Court  to  answer  the  issue
against the Appellant  were  inapplicable  to  the  fact  situation  of  the
present case and could be distinguished.

6.    As a result, we find merit in the argument of the Appellant  that  the
parties be relegated before the High Court for a fresh consideration of  the
second appeal on its own merit in accordance  with  law  and  more  so,  the
substantial questions of law  formulated  by  the  Appellant  which  are  as
under:-

“i.   Whether the tenancy of Respondent  No.  1  and  2  as  created  w.e.f.
01.09.1975 in respect of Suit premises No. 47, UB, Jawahar  Nagar,  Delhi  –
11006 jointly in their name can be said to be joint tenancy as  contemplated
in the judgment AIR 1988 SC 1470 “S.C. Pandey versus G.C. Paul”  which  were
passed in the context of joint tenancy conferred on the body  of  the  legal
heir of deceased or not?

ii.    Whether the Ld. Appellate Court was duty bound to address all  issues
and give finding therein  after  re-appraisal  of  the  facts  and  was  not
competent to uphold the finding summarily  as  sought  to  be  done  by  the
judgment dated 03.02.2005 or not?

iii.  Whether the Ld. Appellate Court was duty  bound  to  deal  with  other
issues except Issue No. 6?

iv.    Whether  the  Judgment/Decree  of  the  Ld.  Appellate  Court   dated
03.02.2005 was perverse and in breach of its jurisdiction as  the  appellate
court by not giving independent finding passed on re-appraisal  of  pleading
and evidence on record?

v.    Whether the Ld. Appellate Court upholding other issues ought  to  have
passed such further direction for  passing  of  the  preliminary  decree  of
rendition  of  account  to  its  logical  end  as   appointment   of   Local
Commissioner and its terms set lapsed by then or not?”



7.    We may not be understood to have formulated the above noted  questions
while remitting the second appeal. It will be open  to  the  High  Court  to
reformulate the substantial questions of law or permit the parties  to  urge
any further substantial questions of law that may require  consideration  by
the High Court.

8.    Accordingly, we set aside the judgments and orders passed by the  High
Court dated 02.12.2013 and 22.08.2014 and instead restore the second  appeal
to  the  file  of  the  High  Court  to  its  original  number   for   fresh
consideration on its own merit in accordance with  law.  The  parties  shall
appear before the High Court on 17th April, 2017 when  the  High  Court  may
assign a suitable date for hearing of the second  appeal.   We  request  the
High Court to expeditiously dispose of the second appeal.

9.    The appeals are allowed in the above terms.  No order as to costs.

                                       …..……………………………..J.
                                     (Dipak Misra)




                                              .…..…………………………..J.
                                  (A.M.Khanwilkar)


.…..…………………………..J.
                                  (Mohan M. Shantanagoudar)

New Delhi,
Dated: March 29,  2017


-----------------------
[1]

      [2] AIR   1963 SC  468
[3]

      [4] AIR 1989 SC 1470
[5]

      [6] AIE 1995 SC 676

fraud vitiates all contracts or agreements = Even if we were to ignore the false claim set up by Respondent No.1 that she had obtained the tenancy rights on this land from K.P. Gopinathan in the year 1962, admittedly when she was only 10 years old and at that time K.P. Gopinathan was not the owner of the property as his father K.P. Choyi was still alive, yet we cannot ignore the fact that in the year 1988 Respondent No.1 was having a valid licence to run an aluminium industry and was employing 9 persons. Therefore, Respondent No.1 cannot claim to fall under the category of “landless agricultural labourer”. Therefore, she had obtained the assignment order by totally mis-representing the facts and had played fraud on the authorities. The law is well settled that fraud vitiates all contracts or agreements. This is a case where fraud is writ large. It is evident that assignment was obtained in total contravention of Section 96 of the Act and, therefore, Rule 29(8) was also applicable. Hence, we are not in agreement with the view expressed by the Division Bench of the High Court of Kerala. Accordingly, the appeal is allowed.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURSIDICTION

                        CIVIL APPEAL NO.4535 OF 2017
      (Arising out of Special Leave Petition (Civil ) No.23266 of 2014)


Karunakaran                                               ..  Appellant(s)

                                   Versus

V. Padmini & Ors.                                      ..Respondent(s)



                               J U D G M E N T


DEEPAK GUPTA, J.

      Leave granted.

2.    This appeal is directed against the judgment dated  06.02.2014  passed
in Writ Appeal No.1335 of 2013, whereby the Division  Bench  of  the  Kerala
High  Court  upheld  the  judgment  passed  by  the  learned  Single  Judge,
dismissing the writ petition filed by the appellant.

3.    Briefly stated the facts of the case are that one Mr. K.P.  Gopinathan
was a landlord whose lands  came  under  the  purview  of  the  Kerala  Land
Reforms Act, 1963 (hereinafter referred to as the Act).  The land  which  is
the subject matter of the present proceedings was  declared  to  be  surplus
land by the landlord.  Originally,  Respondent  No.1  filed  an  application
claiming Kudikidappukars (tenancy)  rights  on  the  land.   This  claim  of
Respondent No.1 was rejected by the Board constituted under  the  Act,  some
time in the year  1988.   Thereafter,  Respondent  No.1  filed  applications
claiming assignment of the property measuring 8 cents in her favour  on  the
ground that she was a landless agricultural labourer entitled to  assignment
of such rights in terms of Section 96 of the Act which reads as follows:-
“96.  Assignment of lands by Land Board. (1) The Land Board shall assign  on
registry subject to such conditions and restrictions as may  be  prescribed,
the lands vested in the Government  under  Section  86  or  Section  87,  as
specified below:

the lands in which there are  kudikidappukars  shall  be  assigned  to  such
kudikidappukars;

the remaining lands shall be assigned to –

    landless agricultural labourers; and
    smallholders and other landlords who are  not  entitled  to  resume  any
land:

Provided that eighty-seven and a half per cent of  the  area  of  the  lands
referred to in clause (ii) available for assignment  in  a  taluk  shall  be
assigned to landless agricultural  labourers  of  which  one-half  shall  be
assigned to landless  agricultural  labourers  belonging  to  the  Scheduled
Castes, the Scheduled  Tribes  and  such  other  socially  and  economically
backward classes of citizens as may be  specified  in  this  behalf  by  the
Government by notification in the Gazette.


Explanation. – For the purposes of this sub-section-

    a kudikidappukaran or the tenant of a kudiyiruppu shall be deemed to  be
a landless agricultural labourer if he does not possess any other land;

    “kudikidappukaran shall include a person who was  a  kudikidppukaran  to
whom a certificate of purchase has been  issued  under  sub-section  (2)  of
Section 80C.”


xxx                          xxx                     xxx

On 23.10.1991, assignment of 6 cents  of  land  was  granted  in  favour  of
Respondent No.1 by the District Collector,  Kozhikode  and  Assignment  Deed
was  entered  into  by  Respondent  No.1  with  the  State   Government   on
12.11.1991.

4.    It would be pertinent to mention that at the time of  verification  of
the assignment, inspection of the property was  done.   It  was  found  that
from the year 1978 Respondent No.1, along with her family had been  residing
in a building which covered 6 cents  out  of  the  total  land  measuring  8
cents.  The remaining 2 cents of land was under a shed.  Therefore,  only  6
cents was assigned in favour of Respondent No.1.  Thereafter,  the  original
landlord filed O.P. No. 311 of 1992 in the High  Court  of  Kerala  claiming
that since the land was admittedly covered by a building, the same  did  not
fall under purview of  the  Act.   The  learned  Single  Judge  allowed  the
petition  and  referred  the  matter   to   the   Taluk   Land   Board   for
reconsideration of the entire case.  Thereafter, Respondent No.1 filed  Writ
Appeal No.898 of 1992 before the High Court of Kerala.  During the  pendency
of the Writ Appeal the original landlord stated that  the  matter  had  been
settled out of court and he did not want to continue with the original  writ
petition itself.  Therefore, the Division Bench set aside  the  judgment  of
the learned Single Judge and disposed of the Writ Appeal on 07.09.1993.

5.    The appellant herein challenged the assignment of the land  in  favour
of Respondent No.1 by filing a petition under Rule 29(8) of the Kerala  Land
Reforms (Ceiling) Rules, 1970  before  the  District  Collector,  Kozhikode.
The main ground raised was that Respondent No.1 had obtained the  assignment
in her favour by playing fraud and by total misrepresentation of  facts  and
hence  was  not  entitled  to  the  assignment.  He,   accordingly,   sought
cancellation of  the  assignment.   The  Collector,  vide  his  order  dated
22.08.2003 came to the conclusion that Respondent No.1 had played fraud  and
misrepresented facts and reviewed  the  Assignment  Deed  and  recalled  the
earlier order assigning the land in favour of Respondent No.1.

6.    Thereafter, Respondent No.1 filed a Writ  Petition  No.28218  of  2003
before the High Court of Kerala,  challenging  the  order  of  the  District
Collector and the learned Single Judge held that the Collector had no  power
to recall the earlier order.  He further held that even if  there  was  some
misstatement or misrepresentation that did not amount  to  fraud  and  hence
the order of assignment could not  be  recalled.   Against  this  order  the
appellant filed a Writ Appeal No. 1335 of 2013 which has been dismissed  and
hence the present appeal.

7.    The appellant in his petition before  the  District  Collector  raised
mainly four grounds, namely: (i)   Respondent No.1 had claimed that she  had
obtained the land through an oral lease from K.P.  Gopinathan  in  the  year
1962. The appellant stated that, in fact, in the year 1962  K.P.  Gopinathan
was not the owner since his father K.P. Choyi was still  alive.   Therefore,
the question of lease being executed by K.P. Gopinathan did not arise;  (ii)
 Respondent No.1 was born in the year  1952  and,  therefore,  was  only  10
years old in the year 1962 and hence the question of her obtaining  a  valid
legal lease did not arise; (iii) that the Respondent first  claimed  tenancy
rights which were rejected and, therefore, set up a  false  claim  that  she
was a landless agricultural labourer; (iv)  Respondent No.1  falsely  stated
that she was a  landless  agricultural  labourer  but  in  reality  she  was
running an aluminium industry employing 9 persons and was also paying  sales
tax and  income  tax  and  hence  the  question  of  her  being  a  landless
agricultural labourer did not arise.

8.    Para 4 of the Assignment Deed reads as follows :-

“4.   This assignment is liable to be altered or cancelled if  it  is  found
that it was obtained by false representation, mistaken facts or fraud.”

Bare perusal of this Clause shows that if  the  assignment  is  obtained  by
false representation, mistaken facts or fraud, the same is liable to be  set
aside.  We may also make reference to Rule 29 of  the  Kerala  Land  Reforms
(Ceiling) Rules, 1970 which reads as follows :-

      “29. Conditions and restrictions regarding assignment:-

xxx         xxx        xxx

(8)   The assignment of any land under Section 96  shall  be  liable  to  be
cancelled for contravention of any of the conditions  or  restrictions  laid
down in this rule and the land assigned shall be liable to be resumed by  or
at the instance of the authority which assigned the land as if such land  is
a land belonging to Government and in the  unauthorised  occupation  of  the
person then in possession or occupation, provided that no such  cancellation
shall be done  without  giving  the  party  affected  thereby  a  reasonable
opportunity of being heard.”

This provision also envisages that an assignment made under  Section  96  is
liable to be cancelled if there is contravention of any  of  the  conditions
laid down in the Rules.

9.    The learned Single Judge held that the contraventions pointed  out  by
the appellant/petitioner did not fall within the ambit of Rule 29(8).   This
finding was upheld by the Division Bench.  Section 96  of  the  Act  clearly
envisages  that  assignment  can  only  be  made  in  favour   of   landless
agricultural labourers or small holders and other landlords.  In this  case,
we are only concerned with landless  agricultural  labourers.   Even  if  we
were to ignore the false claim set  up  by  Respondent  No.1  that  she  had
obtained the tenancy rights on this land from K.P. Gopinathan  in  the  year
1962, admittedly when she was only 10  years  old  and  at  that  time  K.P.
Gopinathan was not the owner of the property as his father  K.P.  Choyi  was
still alive, yet we cannot ignore the fact that in the year 1988  Respondent
No.1 was having a valid  licence  to  run  an  aluminium  industry  and  was
employing 9 persons.  Therefore, Respondent No.1 cannot claim to fall  under
the  category  of  “landless  agricultural  labourer”.  Therefore,  she  had
obtained the assignment order by totally mis-representing the facts and  had
played fraud on the  authorities.   The  law  is  well  settled  that  fraud
vitiates all contracts or agreements.  This is a case where  fraud  is  writ
large.  It is evident that assignment was obtained  in  total  contravention
of Section 96 of the Act and, therefore, Rule  29(8)  was  also  applicable.
Hence, we are not in agreement with  the  view  expressed  by  the  Division
Bench of the High Court of Kerala.   Accordingly,  the  appeal  is  allowed.
The judgments of the learned Single Judge and the  Division  Bench  are  set
aside and the writ petition of the  appellant/petitioner  is  allowed.   The
order of  the  District  Collector  cancelling  the  Assignment  Deed  dated
22.08.2003 is restored.



...................................J.
(MADAN B. LOKUR)



....................................J.
(DEEPAK GUPTA)

New Delhi
March  28, 2017






ITEM NO.1A               COURT NO.5               SECTION XIA
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  23266/2014

KARUNAKARAN                                      Appellant(s)

                                VERSUS

V. PADMINI & ORS.                                Respondent(s)
(With Interim Relief and Office Report)

Date   :   28/03/2017         This    petition    was    called    on    for
      pronouncement of judgment today.

CORAM :                HON'BLE MR. JUSTICE MADAN B. LOKUR
                       HON'BLE MR. JUSTICE DEEPAK GUPTA

For Petitioner(s)      Mr. A. Venayagam Balan, AOR

For Respondent(s)      Mr. Raghenth Basant, Adv.
                       Mr. Mishal Johari, Adv.
                       Ms. Aanchal Tikmani, Adv.
                       Mr. Senthil Jagadeesan, AOR

                       Mr. Nishe Rajen Shonker, AOR

       Hon'ble  Mr.  Justice  Deepak  Gupta  pronounced  the  non-reportable
judgment of the Bench comprising Hon'ble Mr. Justice Madan B. Lokur and  His
Lordship.
      The appeal is allowed in terms of the signed non-reportable judgment.



(Meenakshi Kohli)                             (Sharda Kapoor)
Court Master (SH)                            Court Master (NS)
           [Signed non reportable judgment is placed on the file]

whether The Deed of Lease would be renewed on expiry of the same- bare perusal of the aforesaid section makes it very clear that the Municipality has no authority to grant a lease for a period exceeding 10 years without prior permission of the State Government. In the present case, the State Government had only granted permission to lease the land till the year 2012. Therefore, the appellant has no inherent right to claim that fresh lease be granted in its favour. Another factor which has to be considered is that the original lease was granted for running an oil mill and as on date admittedly there is no oil mill situated on the land. The leased property is a public property leased out at a very meagre rent. It cannot be utilised for a purpose other than the purpose for which it was leased out. True it is that the appellant may have been permitted to raise construction on the leased land but it is obvious that the construction to be raised should have connection with the original business of the company i.e. running an oil mill. The appellant has raised a huge commercial complex earning crores of rupees but is paying only a few hundred rupees to the Municipality. We are of the considered view that the appellant is not entitled to claim that lease deed must be renewed in his favour. The High Court of Gujarat was perfectly justified in holding that the appellant cannot claim that he is entitled to renewal of the lease deed as a matter of right. The finding of the High Court that the appellant is earning huge profits by way of rent is not denied. It has also been stated that the land is required by the Municipality for educational purposes.

                                                              NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURSIDICTION


                        CIVIL APPEAL NO.4536 OF 2017
      (Arising out of Special Leave Petition (Civil ) No.30727 of 2016)


Kundla Press and Oil Mill Pvt. Ltd.                      ..  Appellant(s)

                                   Versus

State of Gujarat & Ors.                                ..Respondent(s)



                               J U D G M E N T



DEEPAK GUPTA, J.


      Leave granted.

2.    This Civil Appeal is directed against the  judgment  dated  06.09.2016
delivered in Letters Patent Appeal No. 797 of 2016 whereby the appeal  filed
by the appellant was dismissed and the judgment of the learned Single  Judge
passed in Special Civil Application No. 352 of 2013 was upheld.

3.    The facts necessary for decision of the case are  that  28,176  square
metres of land in Savarkundla was given on lease to  the  appellant  Company
in the year 1922 for a period of 30 years for  running  an  oil  mill.   The
lease expired in the year 1952.  Thereafter, fresh lease deed  was  executed
in  favour  of  the  appellant  by  the  Administrator  of  the  Savarkundla
Municipality on 18.09.1956.  In this lease deed it  was  mentioned  that  on
this  leased  area,  there  are  factories,  residential  units,   warehouse
(godown), press factory, expeller  and  office  buildings  etc.  which  were
constructed by the appellant.  The lease deed  was  granted  for  a  further
period of 30 years.  Relevant portion of the lease deed reads as follows:

“The Deed of Lease would be renewed on expiry of the  same.   And  based  on
the conditions prevailing at that time changes in the amount of rent may  be
made by the Municipality.  The Municipality will have the right  to       do
so”

The aforesaid lease deed was to expire in the year 1982.

4.    It appears  that,  in  the  meanwhile,  the  Savarkundla  Municipality
issued two notices to the appellant company in  the  year  1976  asking  the
appellant company to handover the  land  to  the  Municipality.   A  dispute
arose since the company did  not  handover  the  possession  of  the  leased
property.  Thereafter, this dispute was referred to  the  Arbitration.   The
Arbitrator made the award in favour  of  the  company  on  11.03.1978.   The
Arbitrator held as follows:

“....The Company can carry out any sort of construction it may deem fit  and
for any purpose it may find useful for.  And the Municipality is  liable  to
grant permission for construction without laying  any  condition.   In  this
regard, as stated above, the Company has the right  to  renew  the  Deed  of
Lease and so the only question that arises is that whether the  Company  can
carry out construction on the aforesaid land or not.   This  land  has  been
given this land for its business (sic).   Therefore the  Company  can  carry
out construction over this land for its business........”



5.    The operative portion of the Award reads as follows:

“3. The Company can carry out  on  the  land  construction  which  it  deems
proper and for such use as it deems proper.  Since the  Municipality  is  an
autonomous body and the Rent Act is not applicable to the land  owned  by  a
local autonomous institution.  In case of  such  properties  the  Rights  of
Tenants and Property Owners are as per the provisions  of  the  Transfer  of
Properties Act.  The Municipality is responsible  to  grant  the  permission
for construction as per  the  permission  of  construction  granted  by  the
Company.”



The Arbitrator held that the appellant company was entitled  to  renewal  of
the lease deed and was also entitled to make construction  on  the  land  in
question connected with its business.  This  Award  was  made  Rule  of  the
Court on 26.04.1978.

6.    Though the Award was passed in favour of the company  and  the  Decree
in terms of the Award had  also  been  passed,  the  Collector,  Savarkundla
cancelled the lease deed on the ground that  the  appellant  was  trying  to
raise construction on the  land  in  question.   Thereafter,  the  appellant
filed a Writ Petition being Special  Civil  Application  No.  845  of  1978.
This Writ Petition was allowed and  the  order  of  the  Collector  was  set
aside.  Thereafter also, no lease deed was executed since  the  Municipality
did not have the power to execute the lease deed for  more  than  10  years.
Finally, on 23.10.1991, the Government of Gujarat issued an order  that  the
lease deed may be renewed for a further term of 30  years  from  01.04.1982.
In actual fact, this lease deed was only executed on 12.04.2007.    However,
this lease deed was made effective for a period of 30 years from  01.04.1982
till 31.03.2012.

7.    Shri Ashok Desai, learned senior counsel appearing for the  appellant,
submits that in view of the conditions quoted hereinabove, the appellant  is
entitled to renewal of the lease deed as  a  matter  of  right.  He  further
submits since the Municipality has permitted the appellant to construct  and
raise buildings on the  land  in  question  the  appellant  is  entitled  to
renewal of the lease.  He has candidly submitted that the  Municipality  may
charge enhanced lease rent.

8.    On the other hand, Shri Preetesh  Kapoor,  learned  counsel  appearing
for respondents submits that there can be no lease in perpetuity  in  favour
of any person.  He submits that the State Government  had  given  permission
to the Municipality to lease out land only for  a  period  of  30  years  in
terms of Section 65 (2) of the Gujarat Municipalities Act, 1963 which  reads
as follows:



“65. Powers of municipality to sell, lease, and contract.-

xxx              xxx              xxx

(2)   In the case of every lease or sale of land under  sub-section  (1)  of
section 146 and of a lease of immovable property for a  term  exceeding  ten
years and of every sale or other transfer of such  immovable  property,  the
market value of which exceeds one lakh of rupees,  the  previous  permission
of the State Government is required:

      Provided that in the case of a  lease  or  sale  of  land  under  sub-
section (1) of section 146 no such permission shall be granted if such  land
forms a street or part of a street which has been declared to  be  a  public
street under section 148.”



9.    A bare perusal of the aforesaid section makes it very clear  that  the
Municipality has no authority to grant a lease for  a  period  exceeding  10
years without prior permission of the  State  Government.   In  the  present
case, the State Government had only granted permission  to  lease  the  land
till the year 2012.  Therefore, the  appellant  has  no  inherent  right  to
claim that fresh lease be granted in its favour.

10.   Another factor which has to be considered is that the  original  lease
was granted for running an oil mill and as on date admittedly  there  is  no
oil mill situated on the land.  The leased property  is  a  public  property
leased out at a very meagre rent.  It  cannot  be  utilised  for  a  purpose
other than the purpose for which it was leased out.  True  it  is  that  the
appellant may have been permitted to raise construction on the  leased  land
but it is obvious that the construction to be raised should have  connection
with the original business of the company i.e. running  an  oil  mill.   The
appellant has raised a huge commercial complex earning crores of rupees  but
is paying only a few hundred rupees to the Municipality.

11.   We are of the considered view that the appellant is  not  entitled  to
claim that lease deed must be renewed in his favour.    The  High  Court  of
Gujarat was perfectly justified in holding that the appellant  cannot  claim
that he is entitled to renewal of the lease deed as a matter of right.   The
finding of the High Court that the appellant is earning huge profits by  way
of rent is not denied.  It has also been stated that the  land  is  required
by the Municipality for educational purposes.

12.    Having  regard  to  the  rival  submissions   and   the   facts   and
circumstances of the case, we find no merit in the appeal and  the  same  is
accordingly dismissed.



                                      ....................................J.
                                                            (MADAN B. LOKUR)



                                      ....................................J.
                                                              (DEEPAK GUPTA)

New Delhi
March 28, 2017
ITEM NO.1B               COURT NO.5               SECTION IX
(For Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  30727/2016

(Arising out of impugned final judgment and order dated  06/09/2016  in  LPA
No. 797/2016 in SCA No. 352/2013 passed by the  High  Court  of  Gujarat  at
Ahmedabad)

KUNDLA PRESS AND OIL MILL PVT. LTD.              Petitioner(s)

                                VERSUS

STATE OF GUJARAT AND ORS.                        Respondent(s)

Date   :   28/03/2017         This    petition    was    called    on    for
      prouncement of judgment today.


For Petitioner(s)      Mr. Anirudh Sharma, AOR
                       Mr. Abhaid Parikh, Adv.

For Respondent(s)      Ms. Hemantika Wahi, AOR
                       Ms. Jesal, Adv.
                       Ms. Puja Singh, Adv.

       Hon'ble  Mr.  Justice  Deepak  Gupta  pronounced  the  non-reportable
judgment of the Bench comprising Hon'ble Mr. Justice Madan B. Lokur and  His
Lordship.
      The  appeal  is  dismissed  in  terms  of  the  signed  non-reportable
judgment.


(Meenakshi Kohli)                             (Sharda Kapoor)    COURT
MASTER                                   COURT MASTER

           [Signed non-reportable judgment is placed on the file]

the auction notice under Section 85 of the Himachal Pradesh Public Moneys (Recovery of Dues) Act, 1973 (hereinafter be referred to as "the Act") issued consequent to his failure to repay the two loans availed for purchase of a truck and establishing an industry for manufacture of steel trunks.- The Act provides for recovery of certain dues as arrears of land revenue by sending a certificate to the Collector, mentioning the sum due requesting that the sum together with costs may be recovered. The High Court erred in holding that the H.P. Public Moneys (Recovery of Dues) Act, 2000 repealing the earlier Act did not contain any provision that the remedy was without prejudice to the rights under any other law. The proceedings in a Suit and recovery under the Act as arrears of land revenue are under different laws governed by different procedures. A Suit is instituted in a Court of law and is governed by the Code of Civil Procedure while the proceedings under the Act are before the executive statutorily empowered. In C.C.E. vs. Ramdev Tobacco Company, (1991)(2)SCC 119, the distinction was noticed as follows :- "6.......There can be no doubt that ‘suit’ or ‘prosecution’ are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one......" That the proceedings in a Suit could not be equated with a certificate proceeding was further noticed in ESI Corpn. vs. C.C. Santhakumar, (2007) 1 SCC 584, observing :- "25.......Therefore, it cannot be said that a proceeding for recovery as arrears of land revenue by issuing a certificate could be equated to either a suit, appeal or application in the court......" The High Court factually erred in holding that the trunk loan was time barred because the Appellant took no steps for recovery of the dues from 1996 till 2002 overlooking the Certificate dated 3.9.1994. In conclusion, it is held that the proceedings in a Suit are essentially different from proceedings under the Act. The withdrawal of the Suit was no bar to proceedings under the Act. There was no bar under the Act to the proceedings. There had been no abandonment of claim by the Appellant. It would be contrary to public policy to prevent the Appellant from recovering the loan. The recovery proceedings were not time barred. The order of the High Court is held to be unsustainable and is set aside. The auction notice dated 13.01.2005/15.01.2005 under Section 85 of the Act shall now proceed in accordance with law and be concluded at the earliest expeditiously.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.661 OF 2008


Himachal Pradesh Financial Corporation             … Appellant

                             Versus

Anil Garg and others                               … Respondents


                                  JUDGMENT


NAVIN SINHA, J.

      The Appellant is aggrieved by order dated 4.10.2005 allowing the  writ
petition of the Respondent, setting aside the auction notice  under  Section
85 of the Himachal Pradesh  Public  Moneys  (Recovery  of  Dues)  Act,  1973
(hereinafter be referred to as "the Act") issued consequent to  his  failure
to repay the two loans availed for purchase of a truck and  establishing  an
industry for manufacture of steel trunks.

2.    The Respondent has remained unrepresented  despite  valid  service  of
notice.

3.    Learned Senior Counsel Shri J.S. Attri, on behalf  of  the  Appellant,
submits that the High Court has erred by inferring abandonment of the  claim
by withdrawal of the Suit.   The  withdrawal  was  made  to  initiate  fresh
proceedings under the Act, as it provided for a more  speedy  and  effective
remedy, under a special law. The absence of any liberty  in  the  withdrawal
order is not relevant. There was no bar under the Act  to  the  proceedings.
The remedy under Section 3(1)(d)(iv) of the Act was independent and  without
prejudice to any other mode of recovery under any law for the time being  in
force, and which will include a Suit. The High  Court  had  wrongly  applied
the principle of ‘public policy’ to restrain recovery of a public loan.  The
doctrine of election had no application in the facts of the case.

4.    The High Court erred on facts in holding that  the  proceedings  under
the Act for recovery of the trunk loan was initiated only in the year  2003,
and that nothing had been done by the Appellant from  1996  till  2002  thus
making the claim time barred. The recovery certificate had  been  issued  by
the Collector as far as back 3.9.1994. It  was  stalled  by  the  Respondent
filing writ petitions before the High Court.  The  High  Court  had  granted
liberty to the Appellant for proceeding afresh in accordance with law.

5.    We have considered the submissions, as also perused the  materials  on
record.

6.    The Respondent applied  for  a  loan  of  Rs.1.90  lakhs  in  1989  to
purchase a Swaraz Mazda truck and executed a hypothecation  deed.  Repayment
schedule commenced from  10.1.1990  culminating  on  10.7.1994.  Rs.10,000/-
only was repaid on 6.3.1991.  The  vehicle  was  seized  on  6.5.1991  under
Section 29 of the State Finance Corporation Act, 1951 and  auction  sold  on
4.9.1991 for a sum of Rs.1.46 lakhs.   A Money Suit  was  filed  before  the
Senior Sub Judge, Shimla for recovery of the balance of Rs.1,25,270/-  along
with future interest and costs. The Suit was withdrawn on  12.12.1995  under
Order 23, Rule 1 of the Code of Civil Procedure stating that  the  Appellant
desired to proceed under the Act.  The  Suit  was  dismissed  as  withdrawn.
Recovery Certificate was then issued under the Act on 19.4.1996  for  a  sum
of Rs.1,94,283/- followed by a warrant of arrest.

7.    The Respondent thwarted the Certificate proceedings by filing  a  Suit
before the Senior Sub Judge, Shimla contending that  the  fresh  proceedings
were barred due to withdrawal of the Suit without any liberty, and that  the
claim was time barred. An interim-order was  obtained,  but  ultimately  the
Suit was dismissed for non-prosecution on 21.5.2001.

8.     Another  loan  of  Rs.30,000/-  was  availed  by  the  Respondent  on
15.12.1988 for  a  trunk  industry  and  a  hypothecation-deed  executed  in
respect of property bearing Khata/Khatuni No.102/347,  Khasra  No.1014.  The
last installment of the  loan  was  payable  on  10.1.1996.  The  Respondent
remitted Rs.4,000/- in May 1991 and Rs.1,000/- in November 1991.  A  request
was made before the Collector for recovery certificate  on  12.11.1992,  and
the Certificate was issued on 3.9.1994.  The  Respondent  objected  that  no
prior notice was given and that the proceedings were time barred.

9.    The Respondent instituted C.W.P. No. 1102  of  2002  before  the  High
Court questioning both the  recovery  proceedings.  The  writ  petition  was
allowed on technical grounds with liberty to the  Appellant  for  proceeding
afresh in accordance with law. Fresh show cause notices were then issued  in
respect of the two loans on 26.11.2002 and 2.11.2002 respectively,  followed
by fresh recovery certificates on 10.3.2003 for  recovery  of  Rs.5,50,165/-
and Rs.61,503.92/- respectively.

10.   The Respondent again filed C.W.P. No.136 of  2005  pursuant  to  which
the impugned order came to be passed.

11.   The  High  Court  relying  on  Sarguja  Transport  Service  vs.  State
Transport Appellate Tribunal, AIR 1987 SC 88,  held  that  the  Suit  having
been withdrawn unconditionally for inexplicable  reasons,  and  without  any
liberty granted under Order 23 Rule 1 of the Code  of  Civil  Procedure  for
initiating appropriate legal proceedings, it amounted to abandonment of  the
claim for the truck loan. It would be contrary to public  policy  and  abuse
of the process of law to allow any fresh proceeding for the  same  cause  of
action. The doctrine of election was also invoked. The loan with  regard  to
the trunk industry was held to be time barred as no  action  was  taken  for
recovery from 1996 till 2002.

12.   The factum of loan is not in dispute.  No  explanation  was  furnished
why the installments were not repaid and the loan  closed.  A  pittance  was
repaid. The loan was disbursed from public funds of the tax  payers'  money.
The Respondent was a trustee for the loan amount.  It  could  not  become  a
windfall  for  him.  All  attempts  by  the  Appellant  for  recovery   were
successfully  thwarted  by  the  Respondent  by  either  filing  a  Suit  or
successive writ petitions. The sanguine  confidence  of  the  Respondent  is
also reflected by his failure to appear in the present  proceedings  despite
valid service of notice.

13.   The question whether there has been an abandonment  of  the  claim  by
withdrawal of the Suit is a mixed question  of  law  and  fact  as  held  in
Ramesh Chandra Sankla vs. Vikram Cement, (2008) 14 SCC 58.  The language  of
the order for withdrawal will not always be  determinative.  The  background
facts will necessarily have to be examined for a proper and  just  decision.
Sarguja  Transport  Service  (supra)  cannot  be  applied  as  an   abstract
proposition or the ratio applied sans the  facts  of  a  case.  The  extract
below is considered relevant observing as follows :-
“9……While the withdrawal of a writ petition filed in a  High  Court  without
permission to file a fresh writ petition may not bar other remedies  like  a
suit……..”


14.   The application for withdrawal  stated  that  it  was  being  done  to
pursue remedies under the Act. Undoubtedly the  proceedings  under  the  Act
are more expeditious for recovery as compared to a Suit, which after  decree
is required to be followed by Execution proceedings. Section 3(1)(d)(iv)  of
the Act provided that the remedy under  it  was  without  prejudice  to  any
other remedy available under any other law. The Appellant, therefore,  never
intended to abandon its claim by withdrawing the Suit. The language  of  the
withdrawal order cannot be determinative without considering the  background
facts.

 15.  The bar under Order 23 Rule 1 would apply only to  a  fresh  Suit  and
not proceedings under the Act. In Sarva  Shramik  Sanghatana  vs.  State  of
Maharashtra, (2008) 1 SCC 494, the application under  Section  25-O  of  the
Industrial Disputes Act, 1947 for closure of undertaking  was  withdrawn  as
attempts were made for settlement of the matter. Settlement not having  been
possible, the Management filed  a  fresh  application.  It  was  opposed  as
barred under Order 23 of the Code  of  Civil  Procedure  since  the  earlier
application was withdrawn unconditionally with no liberty  granted,  relying
on Sarguja Transport Service (supra).  The  argument  was  repelled  holding
that the proceedings under the Industrial Disputes Act were not a  Suit  and
that withdrawal was bonafide to explore amicable settlement. It  was  not  a
withdrawal made malafide or for Bench hunting holding as follows:-
"22. No doubt, Order 23 Rule  1(4)  CPC  states  that  where  the  plaintiff
withdraws a suit without permission of  the  court,  he  is  precluded  from
instituting any fresh suit in respect of the same  subject-matter.  However,
in our opinion, this provision will apply  only  to  suits.  An  application
under Section 25-O(1) is not a suit, and hence, the said provision will  not
apply to such an application."


16.   In Vikram Cement (supra) the earlier petition  was  dismissed  as  not
pressed  and  the  second  application  was  opposed  as  not  maintainable.
Dismissing the objection it was observed as follows:-
"65. It is thus clear that it was not a case of abandonment or giving up  of
claim by the Company.  But, in  view  of  the  office  objection,  practical
difficulty and logistical problems, the petitioner Company did  not  proceed
with an “omnibus” and composite petition against several workmen  and  filed
separate petitions as suggested by the Registry of the High Court.”


17.   The Act provides for recovery of  certain  dues  as  arrears  of  land
revenue by sending a certificate to the Collector, mentioning  the  sum  due
requesting that the sum together with  costs  may  be  recovered.  The  High
Court erred in holding that the H.P. Public Moneys (Recovery of  Dues)  Act,
2000 repealing the earlier Act  did  not  contain  any  provision  that  the
remedy was without  prejudice  to  the  rights  under  any  other  law.  The
proceedings in a Suit and recovery under the Act as arrears of land  revenue
are under different  laws  governed  by  different  procedures.  A  Suit  is
instituted in a Court of law and is governed by the Code of Civil  Procedure
while the proceedings under the Act are  before  the  executive  statutorily
empowered.  In C.C.E. vs. Ramdev  Tobacco  Company,  (1991)(2)SCC  119,  the
distinction was noticed as follows :-
 "6.......There can be no doubt  that  ‘suit’  or  ‘prosecution’  are  those
judicial or legal proceedings which are lodged in a court  of  law  and  not
before any executive authority, even if a statutory one......"


18.    That  the  proceedings  in  a  Suit  could  not  be  equated  with  a
certificate  proceeding  was  further  noticed  in  ESI  Corpn.   vs.   C.C.
Santhakumar, (2007) 1 SCC 584, observing :-
"25.......Therefore, it cannot be said that a  proceeding  for  recovery  as
arrears of land revenue by issuing a certificate could be equated to  either
a suit, appeal or application in the court......"



19.   The phrase ‘public policy’ is not capable of  precise  definition.  In
P.Rathinam v. Union Of India, (1994) 3 SCC 394, it was observed:-
"92. The concept  of  public  policy  is,  however,  illusive,  varying  and
uncertain. It has also been  described  as  “untrustworthy  guide”,  “unruly
horse” etc...."

Broadly it will  mean  what  is  in  the  larger  interest  of  the  society
involving questions of righteousness, good conscience and  equity  upholding
the law and not  a  retrograde  interpretation.  It  cannot  be  invoked  to
facilitate a loanee to avoid legal obligation for repayment of a loan.   The
loanee has a  pious  duty  to  abide  by  his  promise  and  repay.   Timely
repayment ensures facilitation of the loan  to  others  who  may  be  needy.
Public policy cannot  be  invoked  to  effectively  prevent  a  loanee  from
repayment unjustifiably abusing the law.  Invocation  of  the  principle  of
doctrine of election in the facts of the case was completely misconceived.

20.   The High Court factually erred in holding  that  the  trunk  loan  was
time barred because the Appellant took no steps for  recovery  of  the  dues
from 1996 till 2002 overlooking the Certificate dated 3.9.1994.



21.   In conclusion,  it  is  held  that  the  proceedings  in  a  Suit  are
essentially different from proceedings under the  Act.   The  withdrawal  of
the Suit was no bar to proceedings under the Act.  There was  no  bar  under
the Act to the proceedings.  There had been no abandonment of claim  by  the
Appellant.  It would be contrary to public policy to prevent  the  Appellant
from recovering the loan.  The recovery proceedings were  not  time  barred.
The order of the High Court is held to be unsustainable and  is  set  aside.
The auction notice dated 13.01.2005/15.01.2005 under Section 85 of  the  Act
shall now proceed in accordance with law and be concluded  at  the  earliest
expeditiously.

22.   The appeal is allowed.
                                                            ………………………………….J.
                                                              (Ranjan Gogoi)



                                                           ……….………………………..J.
                                                               (Navin Sinha)
New Delhi,
March 28, 2017

whether "premium" collected by the appellant-Company on its subscribed share capital is “capital employed in the business of the Company" within the meaning of Section 35D of the Act so as to enable the Company to claim deduction of the said amount as prescribed under Section 35D of the Act? = Section 35D(3) of the Act with which we are concerned in these appeals reads as under: “Where the aggregate amount of the expenditure referred to in sub- section(2) exceeds an amount calculated at two and one-half percent- (a) of the cost of the project, or where the assessee is an Indian company, at the option of the company, of the capital employed in the business of the company, the excess shall be ignored for the purpose of computing the deduction allowable under sub- section(1); [Provided that where the aggregate amount of expenditure referred to in sub- section(2) is incurred after the 31st day of March, 1998, the provisions of this sub-section shall have effect as if for the words “two and one-half per cent”, the words “five percent” had been substituted.]* *Ins. by the Finance(No.2) Act, 1998(2) of 1998), sec,14(b)(w.e.f. 1-4- 1999)” 15) The expression "capital employed in the business of the company" is defined in the Explanation appended to the Section in clause (b) which reads as under: “(b) “capital employed in the business of the company” means- (i) in a case referred to in clause(i) of sub-section(1), the aggregate of the issued share capital, debentures and long term borrowings as on the last day of the previous year in which the business of the company commences; (ii) in a case referred to in clause(ii) of sub-section(1), the aggregate of the issued share capital, debentures and long term borrowings as on the last day of the previous year in which the extension of the industrial undertaking is completed or, as the case may be, the new industrial unit commences production or operation, in so far as such capita, debentures and long term borrowings have been issued or obtained in connection with the extension of the industrial undertaking or the setting up of the new industrial unit of the company;”- Section 78 of the Companies Act which deals with the "issue of shares at premium and discount" requires a Company to transfer the amount so collected as premium from the shareholders and keep the same in a separate account called "securities premium account". It does not anywhere says that such amount be treated as part of capital of the company employed in the business for one or other purpose, as the case may be, even under the Companies Act. In the light of foregoing discussion, we find no merit in these appeals. The appeals thus fail and are accordingly dismissed.

                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.2162 OF 2007


M/s Berger Paints India Ltd.          ….Appellant(s)

                                   VERSUS

C.I.T., Delhi-V                        …Respondent(s)

                                    WITH

                        CIVIL APPEAL No.2163 OF 2007


M/s Berger Paints India Ltd.          ….Appellant(s)

                                   VERSUS

C.I.T., Delhi-V                        …Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    These appeals are filed against the final judgment  and  orders  dated
15.05.2006 passed by the High Court of Delhi at New  Delhi  in  Appeal  Nos.
ITA No. 799 of 2004 and 797 of 2004 whereby the  High  Court  dismissed  the
appeals filed by the  appellant  herein  arising  out  of  the  order  dated
26.04.2004 and 25.08.2004 passed by the Income Tax Appellate  Tribunal,  New
Delhi(hereinafter   referred   to    as    "the    Tribunal)    in    I.T.A.
No.2307/Del/2000(Assessment       Year       1996-97)       and       I.T.A.
No.1434/Del/2001(Assessment Year 1997-98) respectively.
2)    In order to appreciate the issue involved  in  these  appeals,  it  is
necessary to state few relevant facts infra.
3)    The appellant  is  a  Limited  Company  engaged  in  the  business  of
manufacture and sale of various kinds of paints.  For  the  Assessment  Year
1996-97,  the  appellant  (assessee)  filed  their  income  tax  return  and
declared the total income at Rs.3,64,64,527/-.  It was, however, revised  to
Rs.3,58,92,771/- and then again revised to  Rs.  3,57,26,644/-.  The  return
was then processed by the Assessing Officer(in short “A.O.”)  under  Section
143 (1B) of the  Income Tax Act (hereinafter referred to as  “the  Act”)  at
an amount of Rs.3,63,03,128/-.
4)    A notice was issued by the A.O.  to  the  appellant  (assessee)  under
Section 143(2) of the Act which called upon the appellant to explain  as  to
on what basis the appellant had claimed in the return a deduction under  the
head “preliminary expenses” amounting to Rs.7,03,306/-  being  2.5%  of  the
"capital employed in the business of the company" under Section 35D  of  the
Act.
5)     The  appellant  (assessee)  replied  to  the  notice.  The  appellant
(assessee) contended therein that it had issued shares on a  premium  which,
according to them, was a part of the capital  employed  in  their  business.
The appellant, therefore, contended that it was on this  basis,  it  claimed
the said deduction and was, therefore, entitled  to  claim  the  same  under
Section 35D of the Act.
6)    The A.O. did not agree with the explanation given  by  the  appellant.
He was of the view that the expression "capital employed in the business  of
the company" did not include the "premium amount" received by the  appellant
on share capital. The A.O. accordingly calculated  the  allowable  deduction
under Section 35D of the Act at Rs.1,95,049/-  and disallowed the  remaining
one by adding back to  the  total  income  of  the  appellant  for  taxation
purpose.
7)    The appellant, felt aggrieved, filed appeals before  the  Commissioner
of Income Tax (appeals). The Commissioner was of the  view  that  since  the
"capital employed" consists of subscribed capital, debentures and long  term
borrowings, any  "premium" collected by the appellant-Company on the  shares
issued by it should also be included in the said expression and  be  treated
as the capital contributed by the shareholders. The  Commissioner  also  was
of the view that the share premium account, which is  shown  as  reserve  in
the balance sheet of the Company, was in the nature of the capital  base  of
the Company and hence deduction under Section 35D of the Act was  admissible
with reference to  the  said  amount  also.  Accordingly,  the  Commissioner
allowed the appeals,  set  aside  the  order  of  A.O  and  disallowance  of
Rs.5,08,257/- made by the A.O. and, therefore, deleted  the  said  sum.   In
other  words,  the  Commissioner  allowed  the  deduction  claimed  by   the
appellant of the entire amount under Section 35D of the Act.
8)    The Revenue, felt aggrieved, filed appeals before  the  Tribunal.  The
Tribunal  allowed  the  appeals  and  reversed  the  view   taken   by   the
Commissioner of Income Tax (Appeals). The Tribunal  held  that  the  premium
collected by the appellant-Company on the share capital did  not  tantamount
to "capital employed in the business of the Company" within the  meaning  of
Section 35D(3) of the Act.
9)    It is against these orders, the Company-assessee  felt  aggrieved  and
filed two separate appeals under Section 260A of the  Act  before  the  High
Court. By impugned judgment/orders, the High  Court  dismissed  the  appeals
and affirmed the orders of the Tribunal.
10)   Felt aggrieved, the Assessee-Company has filed  these  appeals  before
this Court.
11)   The short question that falls for consideration in  these  appeals  is
whether "premium" collected  by  the  appellant-Company  on  its  subscribed
share capital is “capital employed in the business of  the  Company"  within
the meaning of Section 35D of the Act so as to enable the Company  to  claim
deduction of the said amount as prescribed under Section 35D of the Act?
12)   Heard Mr. Radha Shyam Jena, learned counsel for the  appellant-Company
and Mr. Mukul Rohtagi, learned Attorney General for the respondent.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find no merit in the appeals.
14)   Section 35D(3) of the  Act  with  which  we  are  concerned  in  these
appeals reads as under:
“Where  the  aggregate  amount  of  the  expenditure  referred  to  in  sub-
section(2) exceeds an amount calculated at two and one-half percent-
(a) of the cost of the project, or
where the assessee is an Indian company, at the option of  the  company,  of
the capital employed in the business of the company,  the  excess  shall  be
ignored for the purpose of computing  the  deduction  allowable  under  sub-
section(1);

[Provided that where the aggregate amount of expenditure referred to in sub-
section(2) is incurred after the 31st day of March, 1998, the provisions  of
this sub-section shall have effect as if for the  words  “two  and  one-half
per cent”, the words “five percent” had been substituted.]*
*Ins. by the Finance(No.2) Act,  1998(2)  of  1998),  sec,14(b)(w.e.f.  1-4-
1999)”

15)   The expression "capital employed in the business of  the  company"  is
defined in the Explanation appended to  the  Section  in  clause  (b)  which
reads as under:
“(b) “capital employed in the business of the company” means-
(i) in a case referred to in clause(i) of sub-section(1), the  aggregate  of
the issued share capital, debentures and long  term  borrowings  as  on  the
last day of  the  previous  year  in  which  the  business  of  the  company
commences;
(ii)  in a case referred to in clause(ii) of sub-section(1),  the  aggregate
of the issued share capital, debentures and long term borrowings as  on  the
last day of the previous year in  which  the  extension  of  the  industrial
undertaking is completed or, as the case may be,  the  new  industrial  unit
commences production or operation, in so far as such capita, debentures  and
long term borrowings have been issued or obtained  in  connection  with  the
extension of the industrial  undertaking  or  the  setting  up  of  the  new
industrial unit of the company;”

16)   The Division Bench of the High Court in the  impugned  order  examined
the question lucidly. The learned Judge T.S. Thakur,  J.  (as  His  Lordship
then was and later became CJI) speaking for the Bench held as under:
“6.   A careful reading of the above would show  that  in  the  case  of  an
Indian company like the  appellant,  the  aggregate  amount  of  expenditure
cannot exceed 2.5% of the capital employed in the business of  the  Company.
The crucial question, therefore, is as to what is meant by capital  employed
in the business of the Company for it is the  amount  that  represents  such
capital that would determined  the  upper  limit  to  which  the  amount  of
allowable deduction can go.  The expression  has  been  given  a  clear  and
exhaustive definition in the explanation to sub-section 3.  It reads as:

“(b)………………………………………………………………………………………”

“7.  The above clearly shows that capital employed in the  business  of  the
company is  the  aggregate  of  three  distinct  components,  namely,  share
capital, debentures and long term borrowings as on the dates relevant  under
sub-clauses(i) and (ii) of Clause(b) of  the  explanation  extracted  above.
The term ‘long term borrowing’  has  been  defined  in  clause  (c)  to  the
explanation.  It is nobody’s else that the premium collected by the  Company
on the issue of shares was a long term borrowing either  in  fact  or  by  a
fiction of law.  It is also nobody’s case that the premium collected by  the
Company was anywhere near or akin to a debenture.  What  was  all  the  same
argued by the counsel for the appellant was that premium was a part  of  the
share capital and had therefore to be reckoned as ‘capital employed  in  the
business of the  company’.   There  is,  in  our  view,  no  merit  in  that
contention.  The Tribunal has pointed out that  the  share  capital  of  the
Company as borne out by its audited accounts is limited to  Rs.7,88,19679/-.
  The  company’s  accounts  do  not  show  the  reserve   and   surplus   of
Rs.19,66,36,734/- as a part of its issued, subscribed and paid  up  capital.
It is true that the surplus amount of Rs.19,66,36,734/- is taken as part  of
share holders fund but the same was not a part  of  the  issued,  subscribed
and paid up capital of the Company.  Explanation to Section  35D(3)  of  the
Act does not include the reserve and surplus of the Company  as  a  part  of
the capital employed in the business of the Company.  If the  intention  was
that any amount other than the  share  capital,  debentures  and  long  term
borrowings of the Company ought  to  be  treated  as  part  of  the  capital
employed in the business of the company, the Parliament would have  suitably
provided for the same.  So long as that has not been done  and  so  long  as
the capital employed in the business of the Company  is  restricted  to  the
issued share capital, debentures and long term borrowings, there is no  room
for holding that the premium, if any, collected by the Company on the  issue
of its share capital would also constitute a part of  the  capital  employed
in the business of the Company for purposes of deduction under Section  35D.
 The Tribunal was, in that  view  of  the  matter,  perfectly  justified  in
allowing the appeal filed by the Revenue and restoring the order  passed  by
the Assessing Officer.”

17)   We are in complete agreement with the view taken  by  the  High  Court
quoted  supra   as,   in   our   considered   opinion,   the   well-reasoned
judgment/order of the High Court correctly explains the true meaning of  the
expression employed in sub-section3(b) of Section 35D read with  Explanation
(b) quoted above, calling no interference in the appeals.
18)   In our considered opinion also, the "premium amount" collected by  the
Company on its subscribed issued share capital is not and cannot be said  to
be the part of  "capital employed in the business of the  Company"  for  the
purpose of Section 35D(3)(b) of the Act and hence the appellant-Company  was
rightly held not entitled to claim any deduction in relation to  the  amount
received towards premium from its various shareholders on the issued  shares
of the Company.
19)   This we say for more than one reason. First, if the intention  of  the
Legislature were to treat the amount of  "premium" collected by the  Company
from its shareholders while issuing the shares to be the part of    "capital
employed  in  the  business  of  the  company",  then  it  would  have  been
specifically said so in the Explanation(b) of sub-section(3) of Section  35D
of the Act. It was, however, not said.
20)   Second, on the other hand, non-mentioning of the words  does  indicate
the legislative intent that the Legislature did not  intend  to  extend  the
benefit of Section 35D  to  such  sum.  Third,  these  two  reasons  are  in
conformity with the view taken by this Court in the case of Commissioner  of
Income Tax, West Bengal vs. Allahabad Bank Ltd., (1969) 2 SCC 143.   wherein
the question arose as to whether an amount of  Rs.45,50,000/-   received  by
the assessee (Bank) in cash as "premium" from its  various  shareholders  on
issuing share on premium is liable to be included in their paid  up  capital
for the purpose of allowing the assessee to claim rebate under  Paragraph  D
of Part II of the first Schedule to the Indian Finance Act 1956.
21)   It was noticed therein that Part II -  paragraph  D  while  specifying
the rates of super tax had added an Explanation, which reads as under:

Explanation.—For the purposes of para D of this part—
(i) the expression ‘paid-up capital’ means the paid-up capital  (other  than
capital entitled to a dividend at a fixed rate) of the  Company  as  on  the
first day of the previous year relevant  to  the  assessment  for  the  year
ending on 31st day of March, 1957, increased by  any  premiums  received  in
cash by the company on the issue of its shares, standing to  the  credit  of
the share premium account as on the first day of the previous year ….”
                             (Emphasis supplied)

22)   This Court speaking through the learned Judge J.C. Shah,  J.  (as  His
Lordship then was and later became CJI) after examining  the  issue  in  the
context of Para D  read  with  its  Explanation  held  that  “share  premium
account” was liable to be included in the paid up capital for  the  purposes
of computing rebate. One of the reasons to allow  such  inclusion  with  the
paid up capital was that such inclusion was permitted by the specific  words
in the Explanation. Such was, however, not the case here.
23)   As rightly pointed out by the learned Attorney General  appearing  for
the Revenue, the Companies Act provides in its Schedule V- Part II  (Section
159) a Form of Annual Return, which is  required  to  be  furnished  by  the
Company having share capital every year. Column  III  of  this  Form,  which
deals with capital structure of  the  company,  provides  the  break  up  of
"issued shares capital break up". This column does not  include  in  it  the
"premium amount collected by  the  company  from  its  shareholders  on  its
issued share capital". This is indicative of the fact that  such  amount  is
not considered a part of the capital unless it is specifically  provided  in
the relevant section.
24)   Similarly, as rightly pointed out, Section 78  of  the  Companies  Act
which deals with the  "issue of shares at premium and discount"  requires  a
Company  to  transfer  the  amount  so  collected  as   premium   from   the
shareholders and keep the same in  a  separate  account  called  "securities
premium account". It does not anywhere says that such amount be  treated  as
part of capital of the company employed in the business  for  one  or  other
purpose, as the case may be, even under the Companies Act.
25)   In the light of foregoing  discussion,  we  find  no  merit  in  these
appeals. The appeals thus fail and are accordingly dismissed.

………...................................J.
                                  [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 28, 2017
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