State of Uttar Pradesh Vs. Dr. Vijay
Anand Maharaj  INSC 109 (26 March 1962)
26/03/1962 SUBBARAO, K.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.(CJ) AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1963 AIR 946 1963 SCR (1) 1
RF 1965 SC 507 (19) R 1971 SC2337 (4) RF 1981
SC1786 (8,103,139) RF 1986 SC1272 (100) F 1992 SC1981 (8)
Agricultural Income-tax-Review of
proceedings--Proceedings, if include writ proceedings-U.P. Agricultural
Income-tax Act, 1949 (U.P. III of 1949) as amended by U.P Act No. XIV of 1956,
s. 11-Rules of Court Ch. VIII, r.5-Letters Patent Allahabad High Court, cl.
10--Constitution of India, Art. 226.
The respondent, who owned agricultural
properties in the different districts of Uttar Pradesh, was assessed to agricultural
income tax by the Additional Collector of Banaras.
On challenge by way of a petition under Art.
226 of the Constitution, assessment was quashed by the Allahabad High Court on
the ground that the assessing authority had no ,jurisdiction to assess. Under
s. 6 of the U.P. Act No. XIV of 1956 the assessments by the Additional
Collector were validated and a party to the proceedings under Agricultural
Income-tax Act was given the right to move the Court or authority within the
prescribed period to review the proceedings where in the assessments had been
set aside on the ground that the assessing authority had no jurisdiction to
make the assessment. By s. 11 the authority or court so moved was bound to
review the order. The State of Uttar Pradesh applied to the High Court for
review of its earlier order quashing the assessment. The single judge of the
High Court held that s. II of the Act did not apply to writ proceedings under
Art. 226 of the Constitution. On appeal the Division Bench held that the order
for the single judge did not amount to a 'judgment' under Ch. VIII r.5 cl.10 of
the Letter Patent and the Rules of Allahabad High Court and that s. 11 of the
Act did not apply to proceedings. by way of a writ before the High Court. On
appeal by special leave by the State it was contended that the Division Bench
was wrong and by an additional statement of case it was sought to be urged that
the application for review should be treated as one under order 47 of the Code
of Civil Procedure, 2 Held (per Sinha, C. J, Subba Rao, Ayyangar and Aiyar,
jj.), that under cl. IO of the Letters Patent of the Allahabad High Court and
the Rules of the Court the expression 'judgment' would even on the narrow view
of the expression include the order in the present case whereby the statutory
right given to the party was finally negatived and that the Division Bench was
in error in holding that it was not a 'judgment'.
Held, further, that the proceeding under Art.
226 of the constitution were neither 'proceedings' under the Act nor
proceedings on the basis of the Act.
The proceedings under Art. 226 of the
Constitution were independent and original proceeding and not a continuation of
the assessment proceedings.
Venkataratnam v. Secretary of State for
India, (1930) I.L.R.53 Mad. 979, Ryots of Garabandha v. The Zamindar of
Parlakimedi I.L.R. 1938 Mad. 816, Ramayya v. State of Madras, A.I.R. 1952 Mad.
300, Moulvi Hamid Hassan Nomani v.
Banwarilal Coy. (1947) II M.L.J. 32, Budge
Budge Municipality v. Mangru (1952) 57 C.W.N.25 and Satyanarayanamurthi v. 1.T.
Appellate Tribunal, A.I.R.1957 Andhra 123, referred to.
The Act had to be interpreted consistently
with the Constitution and there was no power in the State Legislature to compel
the High Court to act in a particular way in exercise of its jurisdiction under
Art. 226 of the Constitution. Section, II could only apply to cases 'Where any
court or authority other than the High Court in exercise of its jurisdiction
under Art. 226 of the Constitution, had decided the matter.
Held, further, that construing shall' in s.
II of the Act as `may' would defeat the very provisions of the Act.
Held, also, that the contention that the
application under s.11 of the Act may be treated as one order 47 of the Code of
Civil Procedure, was highly belated and further there were many possible
objections to such a course and it cannot be acceded to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 25 of 1961.
Appeal by special leave from the judgment and
decree dated November 26, 1957, of the Allahabad High Court in Special Appeal
No. 235 of 1957.
3 C.B. Agarwala and C. P. Lal, for the
H. N. Sanyal, Additional Solicitor General of
India, S. K. Kapur, Bishamber Lal and. K. K. Jain, for the respondent.
1962. March 26. The Judgment of Sinha, C.J.,
Subba Rao and Ayyangar, JJ. was delivered by Subba Rao, J., Mudholkar, J.,
delivered separate Judgment.
SUBBA RAO, J.-This appeal by special leave is
directed against the judgment and order of a division Bench of the Allahabad
High Court confirming those of a single Judge of that court dismissing the
application filed by the appellant to review the order of the High Court dated
November 22, 1958.
The facts leading up to the filing of this
appeal may be briefly stated. The respondent held certain zamindari and
agricultural properties in different districts of the State of Uttar Pradesh.
On December 22, 1952, the Additional Collector, Banaras, in exercise of the
powers conferred on him under the provisions of the U. P. Agricultural IncomeTax
Act (Act III of 1949), assessed the respondent to an agricultural income-tax of
Rs. 99,964-12-0 for the year 1359 fasli. On September 30, 1955, the respondent
filed a petition before the High Court under Art. 226 of the Constitution for
quashing the said order on the ground that the Additional Collector, Banaras,
had no jurisdiction to make the said assessment. 'On November 22, 1955,
Mehrotra J., allowed the writ petition quashing the said assessment.
The State of Uttar Pradesh did not prefer an
appeal against the said order and allowed it to become final. On February 9,
1956, the State of Uttar Pradesh promulgated an Ordinance, being Ordinance No.
11 of 1956, which was subsequently replaced by U. P. Act No. XIV of 1956, Under
the provisions of the Ordinance, the assessments made 4 by the Additional
Collector were retrospectively validated and, under s.6 thereof, a right was
conferred upon any party to the proceedings under the U.P. Agricultural
Income-tax Act, 1948, (hereinafter called the principal Act), wherein any
assessment made by an Additional Collector or Additional Assistant Collector
was set aside merely on the ground that the assessing authority had no
jurisdiction to make the assessment, to apply within 90 days from the date of
the commencement of the said Ordinance for a review of the said, proceedings in
the light of the provisions of the Ordinance, and a statutory injunction was
imposed upon a court to review the said order accordingly. Pursuant to the
provisions of s.6 of the said Ordinance, on March 14, 1956, the appellants
filed an application in the High Court at Allahabad for review of its order
dated November 22, 1956.
Subsequently as stated earlier, the.
Ordinance was replaced by the U. P. Act XIV of 1956 hereinafter called the Act.
In the course of the judgment we shall refer only to the provision of the Act.
The said application was heard, in the first instance, by Mehrotra, J.,. and he
held that s. II of the Act, which corresponds to s.6 of the Ordinance, did not
entitle the appellant to file an application for review of an order made by the
High Court under Art. 226 of the Constitution. The appellant's petition was
dismissed on that ground. The appellants preferred an appeal against the said
order to a division Bench of that court. Nootham, C.J., and Srivastava, J., who
heard the appeal, dismissed it on two grounds, namely, (1) under Ch. VIII r.5
of the Rules of Court, a special appeal against an order of a single Judge of
the court can be maintained only if that order amounts to a
"Judgment," and an order refusing an application for review not being
a "Judgment" cannot be the subject of an appeal, (2) on merits, that
is on the construction of s. II of the Act, the view taken by Mehrotra, J. was
correct. The present appeal, as already stated, was preferred against the said
5 Mr. C. B. Aggarwala, learned counsel for
the appellants, has raised before us the following points: (1) The order of
Mehrotra, J.,, dismissing the application for review of his earlier order is a
,Judgment within the meaning of Ch. VIII r. 5 of the Rules of Court and,
therefore, an appeal lies against that order to a division Bench of that court.
(2) The terms of s. 11 of the Act are comprehensive enough to take in an order
made by the High Court under Art. 226 of the Constitution quashing the order of
assessment and even if there is some lacuna, the provisions shall be so
construed as to carry out clear intention of the Legislature. (3) In any view,
the application for review filed by the appellants could be treated as one
filed under Order 47 of the Code of Civil Procedure, and the earlier order
reviewed on the ground that there is an error apparent on the face of the
record,. We shall take the questions in the order they were argued.
The first question is whether an appeal Jay
against the order of Mehrotra, J., rejecting the application for review filed
by the appellants to a division Bench of the High Court. Chapter VIII r.5 of
the Rules of Court provides for an appeal against an order of a single judge.
Under that rule a special appeal against an order of a single judge of the
court can be maintained only if that order amounts to a "judgement".
That rule gives effect to cl. 10 of the letters Patent for the High Court of
Allahabad, which gives a right _ of appeal against a judgment of a single judge
subject to the conditions mentioned therein. The said cl.10 corresponds to
cl.15 of the letters Patent for the High Courts of Calcutta, Bombay and Madras.
The scope of the expression "judgment" came under the judicial
scrutiny of the various High Courts: there is a cleavage of opinion on that
question. We shall briefly no"-,ice the leading decisions of the various
High Courts on the subject. Couch, C.J., 6 in The Justices of the Peace for
Calcuttu v. The Oriental Gas CO. (1) defines the word "judgment" in
el. 15 of the Letters Patent thus:
"We think 'judgment' in clause 15 means
a decision which affects the merits of the question between the parties by
determining ,some right or liability. It may be either final, or preliminary,
or interlocutory,, the difference between them being that a final judgment
determines the whole cause or suit and a preliminary or interlocutory judgment
determines only a part of it, leaving other metters to be determined".
The same High Court in Hadjee Ismael v.
Hadjee Mahommed (2 ) held that an appeal lay under the said clause from an
order refusing to set aside an order granting leave to sue to the plaintiff
under cl.12 of the Letters Patent. Therein Couch, C.J., observed:
"It is not a mere formal order, or an
order merely regulating the procedure in the suit, but on that has the effect
of giving a jurisdiction to the court it otherwise would not have. And it may
fairly be said to determine some right between them, viz., the right to sue in
a particular Court, and to compel the defendants who are not within its
jurisdiction to come in and defend the suit, or if they do not, to make them
liable to have a decree passed against them in their absence." The Bombay
High Court followed the Calcutta view. The leading judgment of the Madras High
Court is that in Tuljaram v. Alagappa (3), where it was held that an order of a
single Judge in the Original Side refusing to frame an issue asked for by one
of the parties is not a 'judgment' within (1) (1872) 8 Beng. L.R. 433, 452.
(2) (1874) 13 Beng. L.R. 91, 101.
(3) (1912) 1.L.R. 35 Mad, 1, 7, 15.
the meaning of cl.15 of the Letters Patent.
White, C.J., laid down the following tests:
"The test seems to me to be not what is
the form of the adjudication, but what is its effect in the suit or proceeding
in which it is made. If its effect, whatever its form may be, and whatever be
the nature of the application on which it is made, is to put an end to the suit
or proceeding so far as the Court before which the suit or proceeding is
pending is concerned, or if its effect, if it is not complied with, is to put
an end to the suit or proceeding, I think the adjudication is a 'judgment'
within the meaning of the clause." Referring to the decisions of the
Calcutta High Court the learned Chief Justice proceeded to state:
"On the other hand I am not prepared to
say as was held in The Justices of the Peace for Calcutta v. The Oriental Gas
Company (1) and in Sonbai v. Ahamedbhai Habibhai (2), it must be a decision
which affects the merits by determining some right or liability. think the
decision may be a judgment for the purposes of the section though it does not
affect the merits of the suit or proceeding and does not determine any question
of right raised in the suit or proceeding.
Krishnaswami Ayyar, J., observed much to the
"I would only stop here to remark that a
decision which determines the cause or proceeding so far as the particular
court is concerned, though it refused to adjudge the merits, must also be
deemed to be a judgment:
far otherwise the rejection of a plaint for
defect of form or insufficiency of Court (1) (1872) 8 Beng. L.R. 433.
(2) (1872) 9 B.H.C.R. 398.
8 fee or a return of it for want of
jurisdiction would be outside the definition of the learned Chief Justice which
could hardly have been his meaning. I may also observe that the
"Part" which is determined may be a part of the claim separable from
the rest or a determination of liability generally though the actual measure of
liability may be a matter of account".
The Lahore High Court generally followed the
view expressed by the Madras High Court. The Allahabad High Court in Muhammad
Naim-Ullah Khan v. Ihsan-Ullah Khan (1) expressed the view that an order which
is not appealable under 0.43 r. 1 of the Code of Civil Procedure is not
appealable under cl.
10 of the Letters Patent. This view has been
followed by a division Bench of the same High Court in Tirmal Singh v. Kanhayia
Singh (2). But the said decisions do not attempt to lay down a definition of
the.. expression "judgment" in the Letters Patent. The Nagpur High
Court-in Manohar v. Baliram(3) by a majority, after considering the case-law on
the subject, laid down the following definition.
Hidayatullah, J., who delivered the leading
judgment, laid down the test at p. 522 thus:
"A judgment means a decision in an
action whether final, preliminary, or interlocutory which decides either wholly
or partially, but conclusively in so far as the Court is concerned, the
controversy which is the subject of the action. It does not include a decision
which is on a matter of procedure, nor one which is ancillary to the action
even though it may either imperil the ultimate decision or tend to make it
effective. The decision need not be immediately executable per 88 but if left
untouched, must result inevitably without anything further, save the
determination of (1)  1. L. R. 14 All. 226 (2)  1. L. R. 45 All.
(3) 1. L. R. 1952 Nag. 471.
9 consequential details, in a decree or
decretal order, that is to say, an executive document directing something to be
done or not to be done in relation to the facts of the controversy. The
decision may itself order that thing to be done or not to be done or it may
leave that over till after the ascertainment of some details but it must not be
interlocutory having for its purpose the ascertainment of some matters or
details prior to the determination of the whole or any part of the controversy."
The foregoing brief analysis of judgment shown that the definition given by the
Madras High Court is wider than that given by the Calcutta and Nagpur High
Courts. It is not necessary in this case to attempt to reconcile the said
decision or to give a definition of our own, for on the facts of the present
case the order of Mehrotra, J., would be a judgment within the meaning of the
narrower definition of that expression.
The appellants filed an application to review
the order of the High Court quashing the order of assessment made by the
Additional Collector. It was alleged in the affidavit that the impugned
assessment had been validated under the Ordinance and that the applicants had
the right to have the order of Mehrotra, J., reviewed in the light of the provisions
of s. 6 thereof. The assessee denied that the appellants had any such right.
The appellants' statutory right to have the order of the High Court reviewed
was denied by the other side and was put in issue before the High Court. The
relevant provisions of the Act read :
Section 2. "In Section 2 of the U. P. Agricultural
Income Tax Act, 1948 (hereinafter called the Principal Act), for clause (4),
the following shall be and be deemed always to have been substituted10
"(4-a) 'Collector' shall have the meaning as in the U, P. Land Revenue
Act, 1901, and will include an Additional Collector appointed under the said
Act." Section 10. Validation-(1) For the removal of doubts it is hereby
declared that(a) in rule 18 of the, U. P. Agricultural Income Tax Rules, 1949,
the expression "Collector" and "Assistant Collector in-charge of
a sub-division" shall respectively include and be deemed always to have
included an "Additional Collector" and an "Additional Assistant
Collector in-charge of a sub divisional".
(b) all orders, actions or proceedings taken,
directions issued or jurisdiction exercised or in accordance with the
provisions of the Principal Act or of any rule framed there under prior to the
amendment of that Act by 'Section 2 of this Act shall be deemed to be as good
and valid in law as if Section 2 aforesaid had been in force at all material
(2) Where any question arises as to the
validity or legality of any assessment made by an Additional Collector
in-charge of a subdivision or by an Additional Collector in purported exercise
of the powers under Section 14 or of the rules framed under clause (c) of sub
section (2) of Section 44 of the Principal Act, the same shall be determined as
if the provisions of Section 2 of this Act had been in force at all material
Section 11 Review of Proceedings :-Where
before the commencement of this Act any court or authority had, in any
proceedings under the Principal Act, set aside any assessment made by an
Additional Collector or 11 Additional Assistant Collector in-charge of a
subdivision merely on the ground that the assessing authority had no
jurisdiction to make an assessment, any party to the proceedings may, at any
time within ninety days from the date of commencement of this Act apply to the
Court or authority for a view of the proceedings in the light of the provisions
of this Act, and the Court or authority to which the application is made shall
review the proceedings accordingly and make such order, if any, varying or
revising the order previously made as may be necessary to give effect to the
pro. visions of the Principal Act as amended by Sections 2 and 8 of this Act.
Under the aforesaid provisions the
assessments made by the Additional Collector were retrospectively validated and
a right was conferred on a party to the proceedings under the Principal Act,
wherein the assessments were set aside merely on the ground that the assessing
authority bad no jurisdiction to make an assessment, to apply to the court to
have that order reviewed. A statutory injunction was also issued to the court
which set aside the assessment on the ground of want of jurisdiction to review
its order and to give effect to the provisions of the Principal Act, as amended
by ss. 2 and 4 of the Act, that is to say, a fresh right has been conferred
upon a party to the earlier proceedings to have the previous order set aside
and to have decision from the court on the basis of the amended Act.
This is a valuable and substantive right
conferred upon a party to the proceeding.
On the rival contentions, the question of the
fresh right conferred upon a party to the proceeding and the jurisdiction of
the court to enforce the said right would be in issue and any decision thereon
could legitimately be said to be a decision determining the rights of parties.
But for the 12 amending Act, the order of the High Court admittedly would have
become final; but, because of the amending Act there was, a controversy whether
the binding decision could be reopened and the rights of the parties decided in
accordance with the amending Act. The decision of Mehrotra, J., dismissing the
application was certainly a decision denying the right of the appellants
alleged to have been conferred under the amending Act. We therefore, hold that
the order of Mehrotra, J., dismissing the application, filed for review of his
earlier order, on the ground that s. 11 of the Act did not confer any such
right on the appellants was a 'judgment' within the meaning of cl.10 of the
Letters Patent as well as Ch.VIII r.5 of the Rules of Court. If so, we must
hold that the division Bench of the High Court went wrong in holding that no
appeal lay against the order of Mehrotra, J.
Even so, the appellants would not be entitled
to succeed, unless we hold, differing from the High Court, that s.11 of the Act
confers a right on the appellants to have the order of Mehrotra, J., reviewed.
We have already extracted the provisions of a. 11. Section 11 is in two parts:
the first part of the section confers a right on a party to the proceedings
under the Principal Act to apply to the court or authority for a review of the
proceeding in the light of the provisions of the Act within 90 days from the
commencement of the Act, and the second part issues a statutory injunction on
such a court or authority to review the proceedings accordingly and to make an
order as may be necessary to give effect to the provisions of the Principal
Act, as amended by ss.2 and 4 of the Act. The first question, therefore, is
whether the order of Mehrotra, J., in an application under Art. 226 of the
Constitution was in any proceeding under the Principal Act. Obviously a
petition under Art. 226 of the Constitution cannot be a proceeding under the
Act: it is a proceeding 13 under the Constitution. But it is said, relying upon
certain passages in Maxwell on the Interpretation of Statutes, at p, 68, and in
Crawford on "Statutory Construction' at p. 492, that it is the duty of the
Judge "to make such construction of a statute as shall suppress the
mischief and advance the remedy," and for that purpose the more extended
meaning could be attributed to the words so as to bring all matters fairly
within the scope of such a statute even though outside the letter, if within
its spirit or reason. But both Maxwell and Crawford administered a caution in
resorting to such a construction. Maxwell says at p.68 of his book:
"The construction must not, of course,
be strained to include cases plainly omitted from the natural meaning of the
words." Crawford says that a liberal construction does not justify an
extension of the statute's scope beyond the contemplation of the Legislature.
The fundamental and elementary rule of construction is that the words and
phrases used by the Legislature shall be given their ordinary meaning and shall
be constructed according to the rules of grammar. When the language is plain
and unambiguous and admits of only one meaning, no question of construction of
a statute arises, for the Act speaks for itself. It is a well recognized rule
of construction that the meaning must be collected from the expressed intention
of the Legislature. So construed, there cannot be two possible views on the
interpretation of the first part of the section. Learned counsel suggested that
we should read the relevant portion of the first part thus:
"in any proceedings to set aside any
assessment made on the basis of the Principal Act". To accept this
argument is to rewrite the section. While the section says that the order
sought to be reviewed is that made in a proceeding under 14 the Principal Act,
the argument seeks to remove the qualification attached to the proceeding and
add the same to the assessment. The alternative argument, namely, that without
changing the position of the words as they stand in the section, the expression
,on the basis of" may be substituted for the expression "under"
does Dot also yield the results expected by the learned counsel. It cannot be
held with any justification, without doing violence to the language used, that
a proceeding under Art. 226 of the Constitution is either one under the
Principal Act or on the basis of the Principal Act, for it is a proceeding
under Art. 226 of the Constitution to quash the order on the ground that it was
made in violation of the Act. An attempt is then made to contend that a
proceeding under Art. 226 of the Constitution is a continuation of the
proceedings before the Additional Collector and, therefore, the said proceedings
are proceedings under the Act. This leads us to the consideration of the
question of the scope of the proceedings under Art. 226 of the Constitution.
Article 226 confers a power on a High Court
to issue the writs, orders, or directions mentioned therein for the enforcement
of any of the rights conferred by Part III or for any other purpose. This is
neither an appellate nor a provisional jurisdiction of the High Court. Though
the power is not confined to the prerogative writs issued by the English
Courts, it is modeled on the said writs mainly to enable the High Courts to
keep the subordinate tribunals within bounds. Before the Constitution, the
chartered High Court, that is, the High Courts at Bombay, Calcutta and Madras,
were issuing prerogative writs similar to those issued by the King's Bench
Division, subject to the same limitations imposed on the said. writs. In
Venkataratnam v. Secretary of State for India(1), (1) (1930) I.L.P.. 53 Mad.
15 a division Bench of the Madras High Court,
consisting of Venkatasubba Rao and Madhavan Nair, JJ,; held that the
jurisdiction to issue a writ of certiorari was original jurisdiction. In Ryots
of Garabandha v. The Zamindar of Parlakimedi (1), another division Bench of the
same High Court, consisting of Leach, C. J., and Madhavan Nair J., considered
the question again incidentally and came to the same conclusion "and held
that a writ of certiorari is issued only in exercise of the original
jurisdiction of the High Court. In Ramayya v. State of Madras (2), a division
Bench, consisting of Govinda Menon and Ramaswami Oounder, JJ,, considered the
question whether the proceedings under Art. 226 of the Constitution are in
exercise of the original Jurisdiction or revisional jurisdiction of the High
Court, and the learned Judges held that the power to issue writs under Art. 226
of the Constitution is original and the jurisdiction exercised is original
jurisdiction. In Moulvi Hamid Hassan Nomani v. Banwarilal Boy (3), the Privy
Council was considering the question whether the original civil jurisdiction
which the Supreme Court of Calcutta possessed over certain classes of persons
outside the territorial limits of that jurisdiction has been inherited by the
High Court. In that context the Judicial Committee. observed.
"It cannot be disputed that the issue of
such writs is a matter of original jurisdiction".
The Calcutta. High Court, in Budge Budge
Municipality v. Mangru(4) came to the same conclusion, namely, that the
jurisdiction exercised under Art. 226 of the Constitution is original as
distinguished from appellate or revisional jurisdiction; but the High Court pointed
out that the jurisdiction, though original, is a special jurisdiction and
should not be (1) I.L.R 1938 Mad. 816. (2) A.I.R. 1952 Nad. 300.
(3) (1942) It M. L. J. 32, 35. (4) (1952) 57
C. W. N. 2S.
16 confused with ordinary civil jurisdiction
under the Letters Patent. The Andhra High Court in Satyanarayanamurthi v. 1. T.
Appellate Tribunal (1) described it as an extraordinary original jurisdiction.
It is, therefore, clear from the nature of the power conferred under Art. 226
of the Constitution and the decisions on the subject that the High Court in
exercise of its power under Art. 226 of the Constitution exercises original
jurisdiction, though the said jurisdiction shall not be confused with the
ordinary civil jurisdiction of the High Court. This jurisdiction, though
original in character as contrasted with its appellate and revisional
jurisdictions, is exercisable throughout the territories in relation to which
it exercises jurisdiction and may. for convenience, be described as
extraordinary original jurisdiction. If that be so, it cannot be contended that
a petition under Art. 226 of the Constitution is a continuation of the
proceedings under the Act.
There is another insurmountable difficulty in
accepting the construction suggested by learned counsel. Under the second part
of the section a party to the earlier proceedings may within the prescribed
time apply to the court or authority for a review of the proceedings in the
light of the provisions of the Act, and the court or authority to which the
application is made shall review the proceedings accordingly, and make such
order, if any, varying or revising the order previously made as may be
necessary to give effect to the Principal Act, as amended by s. 2 of the Act.
Should it be held that this section applies to an order made by a High Court
under Art. 226 of the Constitution, the statutory mandatory injunction issued
under the second part of the section to the High Court to make an order in a
particular way would be constitutionally void. Under the Constitution the
Legislature of a (1) A. 1. R. 1957 Andhra 123.
17 State derives its authority to make laws
under Art. 245 of the Constitution, which reads:
(1) "'Subject to the provisions of this
Constitution, Parliament may make laws for the whole or any part of the
territory of India, and the, Legislature of a State may make laws for the whole
or any part of the State." Article 245 is, therefore, subject to Art. 226
of the Constitution. It follows that no law made by the Legislature of a State
can be in derogation of the powers of the High Court under Art. 226 of the
Constitution. It is well settled that Art. 226 confers a discretionary power on
the High Courts to make or issue appropriate orders and writs for the
enforcement of any of the rights conferred by Part III of the Constitution or
for any other purpose.
While Art. 226 confers a discretionary power
on the High Court, the second part of s. 11 of the Act enjoins on the High
Court to make an order in a particular way. We should not give such a
construction to the section as would bring it into conflict with Art. 226 of
the Constitution and which ,would have the effect of invalidating it to that
On the other hand, the construction adopted
by us would be consistent with the second part of the section, for, if the
first part is confined only to an order made by any court or authority, other,
than the High Court in exercise of its jurisdiction under Art. 226 of the
Constitution, both the parts fall in a piece, and we would not only be giving a
natural meaning to the express words used in the section but we would also be
saving the section from the vice of constitutional invalidity.
Learned counsel for the appellants seeks to
got over this obvious difficulty by contending that the word "shall"
may be treated as 'may" so that the discretion of High Court under Art.
226 may be maintained. Alternatively, he contends that the second part of the
section comprises two parts-the 18 first empowers an aggrieved party only to
file an application, and the second imposes a statutory duty, and that the
first may conveniently be served from the second and its validity to that
extent sustained. The first argument is contrary to the express words used and
the intention of the Legislature. If we read "shall" as ','may"
the same discretion will have to be given even to authorities, and courts other
than the High Court, with the result the purpose of the section would be
defeated. On the other hand, if the expression "shall" is given its natural
meaning, the section carries out the intention of the Legislature, viz., the
mandatory injunction imposed on courts and authorities to restore the
assessment declared invalid. The decisions cited by the learned counsel in
support of his construction are not of any help, for they were based upon the
construction of the relevant provisions under consideration in those cases. The
second argument, if accepted, would be rewriting the section. While the
dominant intention of the Legislature is to issue a mandatory injunction on the
courts or authorities to review their orders on a suitable application made to
them, we would be deleting it and thus defeating the object of the Legislature.
For the foregoing reasons, we have no hesitation in holding that, on a plain
reading of the clear words used in the section, it does not apply to an order
made by the High Court under Art. 226 of the Constitution.
Lastly it is contended that even if s. 11
does not apply, we should treat the application filed by the appellants before
the High Court as one made under Order 47 of the Code of Civil Procedure. There
are. many objections for allowing the appellants to do so at this very late
stage of the Proceedings. The application was filed only under s. 11 of the Act
and no attempt was made either before Mehrotra, J., or before the division
Bench of the High Court to ask for an amendment 19 or to sustain the petition
under Order 47 of the Code, of Civil Procedure; nor did the appellants raise
this plea in the petition filed for special leave or even in the statement of
case as originally filed by them. After the case was argued for sometime on an
observation casually made by the Court, time was taken and for the first time
this plea was taken in the additional statement of case filed by the appellants.
This is, therefore, a highly belated attempt to convert the application filed
on one basis into that on another. Further, the plea, if allowed, is not so
innocuous or smooth sailing as it appears to be, but is brimming with many
controversial questions. It raises the following questions : (1) Whether the
application treated as one made under order 47 of the Code of Civil Procedure
was within time ; (2) if it was out of time, could the delay be excused without
the appellant filing an application for excusing it and giving valid reasons
for the same ; (3) whether an order made by the High Court in exercise of its
powers under Art. 226 of the Constitution could be reviewed under Order 47 of
the Code of Civil Procedure, and, if not, under s. 151 of the said Code ; (4)
whether the amendment 'of an Act with retrospective effect could be treated as
an error on the face of the record or as a sufficient cause within the meaning
of Order 47 of the Code of Civil Procedure for reviewing the final orders and
decrees made by courts on the basis of the law obtaining at the time the said
orders or decrees were made ; and (5) if the order of Mehrotra, J., was one
made under Order 47 of the Code of Civil Procedure, would an appeal lie to a
division Bench of the High Court under Order 43 of the Code. We do not propose
to express any opinion on the aforesaid questions.
It would be enough to say that we are not
justified to allow the appellants to convert their petition to one made under
Order 47 of the Code of Civil Procedure at this very late stage, in view of the
In the result we hold that the order of the
High Court is correct. The appeal fails and is dismissed with costs.
MUDHOLKAR, J.-I agree with my learned brother
that the appeal should be dismissed for the reasons stated in his judgment. I,
however, express no opinion on the question regarding the maintainability of
the appeal under the Letters Patent against the decision of a single Judge in a
case of this kind.