Report No. 67
21.11. Meaning of "High Court".-
We next come to the court to which a reference can be made under section 57. The section contains a long list enumerating the various High Courts. There was need for such an enumeration at a time when British India comprised a few areas where there were no High Courts but only Courts of Judicial Commissioners; and, apparently, the intention was that in relation to areas where there were only Courts of Judicial Commissioners, the reference should be made to the specified High Court. For example, in relation to Ajmer and Merwara, it was provided that the reference under section 57 should be made to the High Court at Allahabad. It may be of interest to know that after a long enumeration, there was a residuary clause whereunder, in other cases, the reference was to be made to the High Court at Fort William (Calcutta).
21.12. Present practice of enumeration not convenient.-
This general structure of the section has so far been maintained, though the textual details have changed from time to time, and the legislative practice has been to substitute the name of the appropriate High Court whenever constitutional changes necessitated such a substitution. The result of this practice has been that every time when a new High Court is created or the jurisdiction of a High Court is extended over a Union Territory or a new Union Territory is created, an amendment of the section becomes necessary. In this process, the enumeration sometimes becomes incomplete also. For example, the official text of the Act, as modified upto 1st March, 1970, does not mention anything about Pondicherry, though it appears that1 as regards Pondicherry the mention of the Madras High Court has been added separately. The Union Territory of Goa, Daman and Diu also does not find a place in the present enumeration. Thus, the present practice is cumbersome, and if a simpler method could be substituted, the change would be worth considering.
1. Pondicherry (Extension of Laws) Act (26 of 1968), Schedule, Part 2, inserting section 57(ee), as follows:-
"(ee) if it arises in the Union Territory of Pondicherry, to the High Court of Madras."
21.13. Alternatives for improving the position.-
For improving the position in this regard, two alternatives could be considered. Either the enumeration of High Courts may be totally omitted, leaving the matter to be governed by the general provision in the General Clauses Act1, which provides that "High Court", used with reference to "civil proceedings", shall mean the highest civil court of appeal (not including the Supreme Court) in the part of India in which the Act or Regulation containing the expression operates. Another alternative would be to insert, for the purposes of section 57, a suitable definition of the expression "High Court". Here a precedent is furnished by the Contempt of Courts Act2, which provides that "High Court" means the High Court for a State or a Union Territory, and includes the Court of the Judicial Commissioner in any Union Territory. We prefer the latter alternative, since the first alternative-namely, relying on the General Clauses Act-may lead to a controversy whether proceedings by way of reference are or are not "civil proceedings". There is no doubt that they are; but a controversy should be avoided.
1. Section 3(25), General Clauses Act, 1897.
2. Section 2(d), Contempt of Courts etc. Act, 1971.
21.13A. Case of Union Territory.-
The question may be raised whether the adoption of either of the two alternatives1 would not mean a change in substance as regards those Union Territories in regard to which they are Courts of Judicial Commissioners.
1. Para. 21.12, supra.
21.14. In reply to this objection, it may be stated that the present section is silent as to such Union Territories, so that even now it can be argued that the Court of the Judicial Commissioner is by virtue of the General Clauses Act,1 to be regarded as the High Court for the purposes of section 57. However, even if this view is not correct, we do not see any strong reason why a reference under the Stamp Act should not be made to the Court of the Judicial Commissioner. These Courts decide various questions of law under the Code of Civil Procedure and other laws, and can be safely entrusted with the duty of deciding references under the Stamp Act. Incidentally, at present, the only such case is the Union Territory of Goa.
1. Section 2(13), General Clauses Act, 1897.
Accordingly, we have come to the conclusion that in section 57, a suitable definition of the expression "High Court" should be substituted, on the lines of the definition in the Contempt of Courts Act.1
1. Section 2(d), Contempt of Courts Act, 1971, para. 21.13, supra.
21.16. Re-draft as recommended.-
In the light of the above discussion, we recommend the following re-draft of section 57.
Re-draft of section 57
(1) The Chief Controlling Revenue Authority may state any case referred to it under sub-section (2) of section 56 or otherwise coming to its notice, and refer such case, with its own opinion thereon, to the High Court, formulating precisely the question on which opinion of the High Court is requested:
Provided that where the case involves a substantial question of law, and a party interested makes an application to the said authority without unreasonable delay for making such reference, the said authority shall make such reference.1
Explanation.-In this Chapter, "High Court" means the High Court having jurisdiction over the State or Union Territory, and, in relation to a Union Territory, includes the court of a judicial commissioner.
(2) Every such case shall, where the High Court consists of three or more Judges, be decided by not less than three Judges of the High Court to which it is referred, and in case of difference, the opinion of the majority shall prevail.2
1. Cf section 259, Income-Tax Act, 1961.
2. Cf section 96 (2), Code of Criminal Procedure, 1973.
21.17. Section 58.-
Section 58 provides that, if the High Court is not satisfied that the statements contained in a case forwarded under section 57 are sufficient to enable it to determine the questions raised thereby, the Court may refer the case back to the Revenue Authority by which it was stated, to make such additions thereto, or alternations therein, as the Court may direct in that behalf.
21.18. Under the scheme proposed1 by us in regard to section 57, a reference can also be made to the Judicial Commissioner's Court. However, the definition of "High Court" in that section (as proposed) will apply to section 58 also. No further comments are needed with reference to section 58.
1. See recommendation as to section 57.
21.19. Section 59-Introductory.-
The procedure to be followed in disposing of a case stated under section 57 is dealt with in section 59. Sub-section (1) provides that the High Court, upon the hearing of any such case, shall decide the questions raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded. Under sub-section (2), the Court shall send to the Revenue Authority by which the case was stated a copy of such judgment under the seal of the Court and the signature of the Registrar; and the Revenue Authority shall, "on receiving such copy, dispose of the case conformably to such judgment".
21.20. Section 59(2).-
It appears to us that in sub-section (2), the words "dispose of the case" are inappropriate in regard to cases where the matter has been already disposed of by the lower authority. Having regard to the wide scope1 of section 57, such a situation can conceivably arise.
1. Para. 21.7, supra.