Mar,; h 30.

SUPREME COURT REPORTS

S.A. VENKATARAMAN

THE UNION OF INDIA AND ANOTHER.

[MuKHERJEA, S. R. DAs, BHAGWATI,

[1954]

JAGANNADHA DAS and VENKATARAMA AYYAR JJ.]

Constitution of India, art. 20(2)-Enquiry made under Public Servants (Inquiries) Act, 1850-Whether amounts to prosecution and punishment within the meaning of art. 20(2).

Held, that an enquiry made and concluded under the Public Servants (Inquiries) Act, 1850 (Act XXXVII of 1850), does not amount to prosecution and punishment for an offence as contemplated by art. 20(2) of the Constitution.

Maqbool Hussain v. The State of Bombay ([1953] S.C.R. 703); Willis on Constitutional Law, p. 528; and Shenton v.

Smith ([1895] A.C. 229); Venkata Rao v. The Secretary of State for India (64 I.A. 55); Government of India Act, 1935, s. 240 (3); referred to.

CRIMINAL No. 72 of 1954.

ORIGINAL

JURISDICTION : Petition

Petition under article 32 of the Constitution for the enforcement of fundamental rights.

A. K. Basu, K. S.

Jayaram and C. R. Pattabhiraman (R. Ganapathy and C. V. L. Narayan, with them) for the petitioner.

M. C. Setalvad, Attorney-General for India and C. K. Daphtary, Solicitor-General for India (Porus A. Mehta and P.

Gokhale, with them) for respondent No. 1.

1954. March 30.

The Judgment of the Court was delivered by

MuKHERJEA J.-This is a petition under article 32 of the Constitution, praying for a writ, in the nature of certiorari, for calling up the records of certain criminal proceedings started against the petitioner by the Special Judge, Sessions Court, Delhi, and for quashing the same on the ground that these proceedings are without jurisdiction, having been commenced

in violation of the fundamental right of the petitioner guaranteed under article 20(2) of the Constitution.

The petitioner was a member of the Indian Civil Service and till lately was employed as Secretary to the Ministry of Commerce and Industries in the Government of India.

Certain imputations of misbehaviour by the petitioner, while holding offices of various descriptions under the Government of India, <:ame to the notice of the Central Government ar:d the latter being satisfied that there were prima facie good grounds for making an enquiry directed a formal and public enquiry to be made as to the truth or falsity of the allegations made against the petitioner, in accordance with the provisions of the Public Servants (Inquiries) Act of 1850.

The substance of the imputations was drawn up in the form of specific charges and Sir Arthur Trevor Harries, an ex-Chief Justice of the Calcutta High Court, was appointed Commissioner under section 3 of the said Act to conduct the enquiry and report to the Government, on the result of the same, his opinion on the several articles of charge formulated against the petitioner.

The order of the Central Government directing the enquiry is dated the 21st February, 1953.

The charges were drawn up under six heads with various sub-heads under each one of them.

The first charge alleged that the petitioner was guilty of misbehaviour inasmuch as he showed undue favour to Messrs.

Millars Timber and Trading Company Limited in the matter of issue of import and export licences, by abusing his position as a public servant in the discharge of his duties, that 1s, by accepting illegal gratification or valuable things for import and export licences recommended or to be recommended by him.

The second charge was to the effect that the petitioner accepted or obtained valuable things for himself and other members of his family, without paying for them, on different dates from Messrs. Millars Timber and Trading Company Limited for recommending their applications for import licences and export permits.

The fourth and the fifth charges

S. A. V ""'ataraman v.

Th. Union of India and Another.

Mukhtrjea J.

S. A. V enkata

ram an v.

The Union of India and Another.

Mukhe>jeaJ.

were similar in nature to charges 1 and they related to the petitioner's dealings firm known as Sunder Das Saw Mills.

2 except that with another

The enquiry proceeded in the manner laid down in the Public Servants (Inquiries) Act.

The charges were read out to the petitioner and his plea of "not guilty" was formally recorded.

Evidence was adduced both by the prosecutor and the defence and the witnesses on both sides were examined on oath and crossexamined and re-examined in the usual manner.

The Commissioner found, on a consideration of the evidence, that four of the charges under various sub-heads were proved against the petitioner and submitted a report to that effect to the Government on the 4th of May, 1953.

By a letter dated the 15th of May, 1953, the Government informed the petitioner that, on careful consideration of the report, the President accepted the opinion of the Commissioner and in view of the findings on the several charges arrived at by the latter, was provisionally of opinion that the petitioner should be dismissed.

Opportunity was given to the petitioner by this letter in terms of article 311 (2) of the Constitution to show cause against the action proposed to be taken in regard to him and it was stated that any representation, which he might desire to make, would be taken into consideration before the final order was passed.

The pet1t1oner, it seems, did make a representation which was considered by the Government and after consultation with the Union Public Service Commission the President finally decided to impose the penalty of dismissal upon the petitioner.

The order of dismissal was passed on the 17th of September, 1953. On the 23rd February, 1954, , the police submitted a charge-sheet against the pet1t10ner before the Special Judge, Sessions Court, Delhi, charging him with offences under sections 161/165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act and upon that, summons were issued by the learned Judge directing the petitioner to appear before his court on the 11th of March, 1954.

It is the legality of this proceeding that has been challenged

, ,/

before us in this writ petition.

The petitioner's case, in substance, is that the proceedings that have been started against him are without jurisdiction inasmuch as they amount to fresh prosecution for offences for which he has been prosecuted and punished already and this comes within the prohibition of article 20(2) of the Constitution.

The sole point for our consideration is, whether in the events that have happened in this case, there has been a violation of the fundamental right of the petitioner under article 20(2) of the Constitution which would justify the issue of a writ for enforcement of the same?

The scope and meaning of the guarantee implied in article 20(2) of the Constitution has been indicated with sufficient fullness in the pronouncement of this court in M aqbool Hussain v. The State of Bombay ( 1 ) • The roots of the principle, which this clause enacts, are to be found in the well established rule of English law which finds expression in the maxim "Nemo debet bis

vexari" -a man must not be put twice in peril for the same offence. If a man is indicted again for the same offence in an English court, he can plead, as a complete defence, his former acquittal or conv:ction, or as it is technically expressed, take the plea of "autrefois acquit" or "autrefois convict".

The corresponding provision in the Federal Constitution of the U.S.A. is contained in the Fifth Amendment, which provides inter alia : "Nor shall any person be subjected for the same offence to be put twice in jeopardy of life and limb".

This principle has been recognised and adopted by the Indian Legislature and is embodied in the provisions of section 26 of the General Clauses Act and section 403 of the Criminal Procedure Code.

Although these were the materials which formed the background of the guarantee of the fundamental right given in article 20(2) of the Constitution, the ambit and contents of the guarantee, as this court pointed out in the case referred to above, are much narrower than those of the common law rule m England or the doctrine of "double jeopardy" in the American

(•) [1953] S.C.R. 703.

S. A. Venkataraman

The Unum of

India and Another.

Mukherjea ].

S. A. Venkata--

ram an v.

The Union of India and Another.

MuldmjeaJ.

Constitution. Article 20(2) of our Constitution, it is to be noted, does not contain the principle of "autrefois acquit" at all.

It seems that our Constitution makers did not think it necessary to raise one part of the common law rule to the level of a fundamental right and thus make it immune from legislative interference.

This has been left to be regulated by the general law of the land.

In order to enable a citizen to invoke the protection of clause (2) of article 20 of the Constitution, there must , have been both prosecution and punishment in respect of the same offence.

The words "prosecuted and punished" are to be taken not distributively so as to mean prosecuted or punished.

Both the factors must co-exist in order that the operation of the clause may be attracted.

The position is also different under the American Constitution. There the prohibition is not against a second punishment but against the peril in which a person may be placed by reason of a valid indictment being presented against him, before a competent court, followed by proper arraignment and plea and a lawful impanelling of the jury. It is not necessary to have a verdict at ail(').

It has also been held by this court in M aq boo!

Hussain's case(' ) that the language of article 20 and the words actually used in it afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence.

In that case the proceedings were taken under the Sea Customs Act before a Customs authority who ordered confiscation of goods.

It was held that such proceedings were not "prosecution'', nor the order of confiscation a "punishment" within the meaning of article 20(2) inasmuch as the Customs authority was not a court or a judicial tribunal and merely exercised administrative powers vested in him for revenue purposes. (I) Vide Willis on Constitutional law, p. 528.

(2) [1953] S.C.R. 703.

The facts of this case are no doubt different and the point that requires determination is, whether the petitioner can be _said to have satisfied all the conditions that are necessary to enable him to claim the protection of article 20(2).

The charges, upon which the petitioner is being prosecuted now, are charges under sections 161 and 165 of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act.

We will assume for our present purpose that the allegations upon which these charges are based are substantially the same which formed the subjectmatter of enquiry under the Public Servants (Inquiries) Act of 1850.

The question narrows down to this : whether the petitioner had already been (1) prosecuted and (2) punished _for these offences ?

Mr. Basu, appearing on behalf of the petitioner, contends that his client was, in fact, prosecuted for these identical offences before the Commissioner appointed under Act

XXXVII of 1850.

This, it is argued, was not a mere departmental enquiry of the type referred to in Maqbool Hussain's case(1 ). The Commissioner was a judicial tribunal in the proper sense of the expression.

He had to adjudicate on the charges judicially, on evidence, recorded on oath, which he was authorised by law to administer.

The prosecution was conducted by a prosecutor appointed under the Act, charges were read out to the accused person and his plea was taken ; witnesses on both sides were examined on oath and they were cross-examined and re-examined.

The Commissioner had all the powers of a court; he could summon witnesses, compel production of relevant documents and punish people for contempt.

At the close of the enquiry, the Commissioner did record his finding against the petitioner on some of the charges.

He had undoubtedly no power to impose any punishment and had only to forward his report to the Government. Under section 22 of the Act, however, the Government was entitled to pass such orders within its authority, as it considered proper and in exercise of this authority the President did impose upon the petitioner the penalty of dismissal.

(r) [1953) S.C.R. 703.

S. A. Venkataraman v.

The Union of India and Another.

Mukherjea J.

S. A. Venkataram an v.

The Union of India and Anothtr.

Mukheriea ].

It is immaterial, it is argued, for the purpose of article 20(2) of the Constitution that the prosecution was before one authority and punishment was inflicted by another.

The petitioner was both prosecuted and punished and he is sought to be prosecuted on the same charges over again.

This constitutes, according to the learned counsel, a clear violation of the guarantee implied in article 20(2) of the Constitution.

The questions raised are undoubtedly of some importance and require to be carefully examined.

It is true that the Commissioner appointed to make an enquiry under Act XXXVII of 1850 is invested with some of the powers of a court, particularly in the matter of summoning witnesses and compelling the production of documents and the report, which he has to make, has to be made on legal evidence adduced under sanction of oath and tested by cross-examination.

But from these facts alone the conclusion does not necessarily follow that an enquiry made and concluded under Act XXXVII of 1850 amounts to prosecution and punishment for an offence as contemplated by article 20(2) of the Constitution.

In order to arrive at a proper decision on this point, it is necessary to examine the entire background of the provisions relating to enquiry into the conduct of public serv.i!llts and to ascertain the exact scope and purpose of the enquiry as is contemplated by Act XXXVII of 1850 and the ultimate result that flows from it.

It is a well established principle of English law that, except where it is otherwise provided by a statute, all public officers and . servants of the Crown hold their appointments at the pleasure of the Crown.

Their services can be terminated without ass1gmng any reason and even if any public servant considers that he has been unjustly dismissed, his remedy is not by way of a law suit but by an appeal of an official or political character(t ). This principle of law was applied in India ever since the advent of British rule in this country and the servants in the employ of the East India Company also came within the purview of this

(1) Vide Shenton v. Smith [1895] A.G. 229.

rule.

It is to be remembered that it was during the period of the East India Company that the Public Servants (Inquiries) Act was passed in 1850.

The object of the Act, as stated in the preamble, was to regulate enquiry into the behaviour of public servants, not removal from service without the sanction of the Government.

The enquiry was quite optional with the Government and did not affect in any way the powers of the Government to dismiss its servants at pleasure and this was expressly provided by section 25 of the Act, the wording of which is as follows :

"Nothing in this Act shall be construed to affect the authority of the Government to suspending or removing any public servant for any cause without an enquiry under the Act."

After assumption of the Government of India by the Crown, this rule of English common law continued unaltered till 1919 when section %B was introduced by the amended Government of India Act of that year.

Sub-section ( 1) of section 96B of the Government of India Act, 1919, runs as follows :

"Subject to the provisions of this Act and of rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed .................... "

Thus one restriction imposed by this section upon the unfettered right of the Government to dismiss its servants at its pleasure, was that no servant could be dismissed by any authority subordinate to that by which he was appointed. The section by its opening words also makes the exercise of the power subject to the rules made under the Act and it was in pursuance of the provision of section 96-B(Z) that the Civil Service (Classification, Control and Appeal) Rules were framed which with the later amendments are in force even now.

Part XII of these rules deal with Conduct and Discipline of Civil Servants and rule 49 of this part lays down that the different penalties provided

S. A. Venkaa ..

raman

Tk Union of India and Another.

Mukherjea J.

S. A. Venkata raman v.

The Union of India and Another.

Mukhujea J.

by the different clauses of the rule may, for good and sufficient reasons, be imposed upon members of the services comprised in clauses (1) to (5) in rule 14. These penalties include, amongst others, censure, withholding of increment, dismissal, reduction in rank and removal. Rule 55, which finds a place in the same chapter, lays down the procedure to be followed before passing an order of dismissal, removal or reduction in rank against any member of the service.

No such order shall be passed unless the person concerned has been informed, in writing, of the grounds on which it is proposed to take action against him and has been afforded an adequate opportunity of defending himself.

An enquiry has to be made regarding his conduct and this may be done either in accordance with the provisions of the Public servants (Inquiries) Act of 1850 or in a less formal and less public manner as is provided for in the rule itself.

These rules have no statutory force and it was held by the Privy Council that when an officer was dismissed from service without complying with the provisions of these rules, he had no right of action against the Crown('). In other words, the rules, which were not incorporated in a statute, did not impose any legal restriction upon the right of the Crown to dismiss its servants at pleasure.

The position was altered to some extent m the Government of India Act, 1935, and in addition to the restriction imposed by section 96-B ( 1) of the Government of India Act, 1919, that a civil servant could not be dismissed by an authority subordinate to that by which he was appointed, a further statutory provision was made( 2 ), that a civil servant could not be dismissed or reduced in rank unless the person concerned was given a reasonable opportunity of showing cause against the action proposed to be taken against him.

Article 311(2) of the present Constitution has further added the word "removal" after "dismissal" and

(I) Vi de V enkata Rao v. The Secretary of State for India, 64 I.A. 55.

(2) Vide section 240 (3) of the Government of India Act, 1935.

before "reduction in rank" and thus in all the three cases which are covered by rule 55 of the Civil Services Rules, a civil servant has now a constitutional right to claim a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

As the law stands at present, the only purpose, for which an enquiry under Act XXXVII of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him, prior to giving him a reasonable opportunity of showing cause, as is required under article 311(2) of the Constitution. An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses.

It is a matter of convenience merely and nothing else.

It is against this background that we will have to examine the material provisions of the Public Servants (Inquiries) Act of 1850 and see whether from the nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence.

It may be pointed out that the words "prosecution" and "punishment" have no fixed connotation and they are susceptible of both a wider and a narrower meaning ; but in article 20(2) both these words have been used with reference to an "offence" and the word "offence" has to be taken in the sense in which it is used in the General Clauses Act as meaning "an act or omission made punishable by any law for the rime being in force." It follows that the prosecution must be in reference to the law which creates the offence and the punishment must also be in accordance with what that law prescribes.

The acts alleged to have been committed by the petitioner in the present case and on the basis of which the charges have been framed against him do come within the d~nition of "offences" described in sections 161 and 16' of the Indian Penal Code and 9-98 S.C. India/59

S. A. V tnkata~

raman v, Tm Union of India and Anothtr.

MukhMjea].

S. A. Venkata~

rama11

The Union of India and Another.

Muklurjea J.

section 5(2) of the Prevention of Corruption Act. The Public Servants (Inquiries) Act does not itself create any offence nor does it provide any punishment for it.

Rule 49 of the Civil Services Rules mentioned above merely speaks of imposing certain pnalties upon public servants for good and sufficient reas<ms.

The rule does not mention any particular offence and obviously can create none. It is to enable the Government to come to the conclusion as to whether good' '. and sufficient reasons exist, within the meaning of rule 49 of the Civil Services Rules, for imposing the penalties of removal, dismissal or reduction in rank upon a public servant that an enquiry may be directed under Act XXXVII of 1850.

A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so.

The subject-matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses.

The mere fact that the word "prosecution" has been used, would not make the proceeding before the Commissioner one for prosecution of an offence. As the Commissioner has to form his opinion upon legal evidence, he has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents.

These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than a mere fact finding enquiry.

This is conclusively established by the provisions of sections 21 and 22 of the Act.

At the close of the enquiry, the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made.

This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement.

The opinion is not even binding on the Government.

Under section 22 of the Act, the Government can, after

receipt of the report, call upon the Commissioner to take further evidence or give further explanation of his opinion.

When Special Commissioners are appointed, their report could be referred to the court or other authority to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take.

Then again neither section 21 nor section 22 of the Act says anything about punishment.

There 1s no power in the Commissioner even to express any opinion about punishment and section 22 on! y contemplates such order as the Government can pass in its capacity as employer in respect to servants employed by it. As has been said already, an order of dismissal of a servant cannot be regarded as a punishment for an offence punishable under particular sections of the Indian Penal Code or of the Prevention of Corruption Act. A somewhat analogous case would be that of a member of the Bar whose name is struck off the rolls on grounds of professional misconduct, in exercise of disciplinary jurisdiction by the proper authority.

The professional misconduct might amount to a criminal offence, but if we are to accept the petitioner's contention as correct, the man cannot be prosecuted for it, even though the authority inflicting the penalty of removal was not a competent court to investigate auy criminal charge nor was the punishment imposed in exercise of disciplinary jurisdiction a punishment for an offence.

In our opinion, therefore, in an enquiry under the Public Servants (Inquiries) Act of 1850, there is neither any question of investigating an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by the law which makes that act or omission an offence.

The learned Attorney- General raised a point before us that the test of the guarantee under article 20(2) is whether the person has been tried and punished, not for the same act, but

S. A. V enkataraman

The Unionoj'

India and Another.

Mul:/zer.iea ].

S.A, V .nkataram an v.

Tho Union of

India and Anoth<r.

Mu!; Mr.iea ].

for the same offence and his contention is that the offences here are different, though they may arise out of the same acts.

In the view that we have taken this question does not arise for consideration at all. It is also not necessary to express any opinion on the question raised by the learned counsel for the petitioner as to whether for the purpose of attracting the operation of article 20(2) the punishment must be imposed by the same authority before which the prosecution was conducted.

The result is that, in our opinion, the petition fai1s and is dismissed.

Petition dismissed.

S.A. VENKATARAMAN

THE UNION OF INDIA AND ANOTHER

MuKHERJEA

S. R. DAs

Constitution of India

art. 20(2)

art. 20(2)

art. 20(2)

Government of India Act, 1935

s. 240

article 32

A. K. Basu

S.

Jayaram

C. R. Pattabhiraman

R. Ganapathy

C. V. L. Narayan

M. C. Setalvad

C. K. Daphtary

Porus A. Mehta

P.

Gokhale

article 32

Special Judge, Sessions Court, Delhi

article 20(2)

Indian Civil Service

Ministry of Commerce and Industries

Government of India

Central Government

Arthur Trevor Harries

Calcutta High Court

section 3

21st February, 1953

Union of India

S. A. V enkata

Sunder Das Saw Mills

4th of May, 1953

15th of May, 1953

article 311

Union Public Service Commission

17th of September, 1953

23rd February, 1954

sections 161

Indian Penal Code

section 5(2)

Prevention of Corruption Act

11th of March, 1954

article 20(2)

article 20(2)

article 20(2)

section 26

General Clauses Act

section 403

article 20(2)

England

S. A. Venkataraman

Unum of

India

S. A. Venkata--

Article 20(2)

article 20

Hussain

article 20

Customs Act

article 20(2)

Vide Willis

article 20(2)

sections 161 and 165

Indian Penal Code

section 5

Prevention of Corruption Act

Basu

Maqbool Hussain

section 22

Mukherjea

S. A. Venkataram

article 20(2)

article 20(2)

article 20(2)

India

East India Company

section 25

Government of India Act

section 96B

Government of India Act, 1919

section 96

S. A. Venkaa

S. A. Venkata raman

Mukhujea

section 96

Government of India Act, 1919

Article 311(2)

section 240

Government of India Act, 1935

article 311(2)

article 20(2)

General Clauses Act

sections 161 and 16

Indian Penal Code

S. A. Venkata~

Muklurjea

section 5(2)

Prevention of Corruption Act

Indian Penal Code

Prevention of Corruption Act

sections 21 and 22

section 22

section 21

section 22

section 22

Indian Penal Code

Prevention of Corruption Act

article 20(2)

S.A, V .nkataram

Union of

India

article 20(2)


S.C.R.

SUPREME COURT REPORTS 565

below observe that it is common knowledge that since the end of the war land, particularly around Calcutta, has increased enormously in value and might still further increase very considerably in value when the pace of industrialisation increases. Any principle for determining compensation which denies to the owner this increment in value cannot result in the .ascertainment of the true equivalent of the land appropriated.

We accordingly hold that the latter part of proviso

(b) to section 8 of the impugned Act which fixes the market value on December 31, 1946, as the maximum compensation for lands acquired under it offends against the provisions of article 31 (2) and is unconstitutional and void. The appeal is dismissed with costs.

Appeal dismissed.

Agent for the appellant : P. K. Bose.

Agent for respondents Nos. 1, 2 and 3 : S. C.

Banerjee.

Agent for the intervener: C. H. Rajadhyaks?a.

WARYAM SINGH AND ANOTHER v.

AMARNATH AND ANOTHER.

[MEHR CHAND MAHAJAN C.J., B. K.

MuKHERJF.A, S. R. DAs, VIVIAN BosE and

GHULAM HASAN JJ. J Constitution of India, art,·. 227 and 241-High Court-Whether conferred power of judicial superintendence-Rent Controller and District fudge-Whether Tribunals within the meaning of art. 227-East Punjab Urban Rent Restriction Act (III of 1949) as extended to Himachal Pradesh, s. 13(2)(i), Proviso- Non-payment of arrears of rent on first hearing of application for ejectment-Legal effect thereof.

The Court of the Judicial Commissioner of Himachal Pradesh exercises jurisdiction in relation to the \Vhole of the territories of Himachal Pradesh.

The Rent Control and the District Judge exercising juris diction under the East Punjab Rent Restriction Act, 1949, are certainly tribunals if not courts within the meaning of art. 227 of the Constitution and they' function within the territories of

TM State of

West Bengal and Othtrs.

Patanjali Sastrf

C.J.

Jan. 19.

.Wal)'atn Singh and Another

Amarnath and

Anoti, er.

Das].

Himachal Pra<lesh.

Therefore art. 227(1) rca<l with art. 241 amfcrs on the Court of the Judicial Com1nissioner po\ver of superinten<lencc over such tribunals.

The \VorJs "in relation to vvhich" in art. 227 ( 1) qualify the \vorJ "territories'' and not the \Vords "courts an<l tribunals".

1here is no force in the contention that cl. (2) of art. 227 only confers on the 1-Iigh Court adn1inistrative superintendence over the subordinate courts and tribunals because cl. (2) of the :i.:ticle is expressed t(; be \vithout prejudice to the generality of tho(! provisions in cl. (1).

The po\ver of superinten<lence conferred by art. 227 should be exercised inost sparingly and only in appropriate cases in order to keep the subordinate courts \Vithin the bounds of their authority and not for correcting: 111crc errors.

Tn vic\V of the a<linitted failure by the tenants to pay the rent as pro\'illed by the rent dcc<l or at the first hearing of the cuurt under the pn.i\iso to s. 13(2)(1) the lo\Vcr courts had actd arbitrarily in refusing to 111ake an order for cjcctment against the tenants \\ho ha<l not done \Vhat was incumbent on them to do under the la\V an<l thereby refused to exercise jurisdiction vested in the1n by la\V and it \Vas a case \vhich called for interference hy the Court of Judicial Co1nmissioner and it acted quite properly in doing so.

Moti Lal v. The State through Shriniati Sagratvati

(I.L.R. 119521 1 All. 558 at p. 567) and Dalmia fain Airways Ltd. v.

Sukumar :\lukherjee (A.LR. 1951 Cal. 193) referred to.

C1v1L

APPELLATE JuR1so1cTIO'<: Civil Appeal No. 64 of 1953.

Appeal by special leave from the JuJgment anJ Decree, dated the 29th November, 1951, of the Court of the Judicial Commissioner for Himachal Pradesh at

Simla in Civil Revision No. 52 of 1951.

Gopal Singh for the appellants.

S. C. Isaacs (Amar Nath Chana, with him) for the respondents. 1954.

January

19. The Judgment of the Court was delivered by DAs J .-This is an appeal by special leave against the order made on the 20th November, 1951, by the Judicial Commissioner of Himachal Pradesh in proceeJings instituted by the respondents under '1rticles 226 and 227 of the Constitution of India.

There is leading up no substantial to the present dispute appeal. as to The the facts appellants

...

were tenants of a , certain shop premises situate in Solan Bazar in the district of Mahasu in Himachal Pradesh.

On the 11th October, 1947, they had executed a rent deed by which they agreed to pay an annual rent of Rs. 175 payable as to Rs. 50 on the 1st of Baisakh an<l as to the balance of Rs. 125 in the month of October, in default of which payments the respondents, as landlords, would be entitled to recover the whole of the said rent in one lump sum. The tenancy crated by the rent deed was only for one year in the first instance but it provided that if the tenants desired to continue in occupation they must execute a further rent deed before the expiration of the said term.

The appellants never executed any further rent deed but held over and continued in

-0ecupatin of the demised premises.

The appellants Jell into arrears with the payments .of rents due for the years 1948 and 1949 and the respondents ma& applications to the Rent Controller for eviction of the appellants under section 13 (2) (i) of the East Putijab Urban Rent Restriction Act, 1949, as extended to Himachal Pradesh. The appellants, however, paid up the arrears of rent into court and claimed the benefit of the proviso to section 13(2) (i). The daim was allowed and the said applications were , dismissed accordingly on the 18th December, 1950.

The appellants again fell into arrears with the payment ofrent due for the year 1950. On the 26th December, 1950, the respondents served on the appellants a notice calling upon the latter to pay whole of the said rent forthwith but the appellants failed to do

o. The respondents thereupon, on the 2nd January, 1951, filed an application under section 13 (2) (i) for the eviction of the appellants on the ground of nonpayment of rent .

Thereafter, on the 10th January, 1951, the appellants made an application to the Rent Controller for the fixation of a fair rent under section 4 of the said Act.

On the 25th January, 1951, the appellants filed their . written statements in the proceedings under section 13

W aryam Singh

and Anotlur ,., Arnarnath and

Another.

Das].

Waryam Singh

and Anoth1r

Amanwtk and

Analhtr.

Das].

(2) .(i) admitting the non-payment of rent and the receipt of the notice but pleaded (i) that the respondents' application was barred by reason of the rejection of the previous applications for eviction made by the respondents and (ii) that the present application could not be entertained in view of the pendency of their application for fixation of a fair rent under section 4 of the said Act.

On the 20th February, 1951, the Rent Controller framed the following issues :- ( 1) Whether the application in question was not entertainable in view of the judgment of the District Judge, dated the 18th December, 1950 ? Onus on defendants.

(2) If issue No. 1 is not proved, had the opposite party (tenants) not paid the rent and as such were they liable to be ejected ? Onus on plaintiffs.

(3) Have the opposite party already filed an application in the said court for the fixation of rent and are they, therefore, not liable for ejectment pending the decision on the application and what is its effect on the said application ? Onus on defendants.

By his judgment, dated the 29th May, 1951, the Rent Controller held that as the previous applications related to non-payment of rents for the years 1948 and 1949 the present application which was founded on non-payment of rent for 1950 was not barred under section 14 of the said Act but, although the fact of rent being in arrears was admitted, the Rent Controller did not think fit to make an order directing the appellants to put the respondents in possession of the demised premises. The reasons given by him were as follows:-

"Regarding the non-payment of the rent when the plea of the teaant is only that he is waiting for the fixation of fair rent by the Rent Controller there is not enough ground for ejectment. A civil suit for the recovery of the rent would have been a more appropriate method of obtaining that rent.

I therefore dismiss the suit.

The parties should bear their own costs."

The respondents preferred an appeal to the District.

Judge of Mahasu under section 15 of the said Act.

The learned District Judge dismissed the appeal observing- "On behalf of the landlord it was urged that under section 13(2) of the Punjab Urban Rent Restriction Act, as applied to Himachal Pradesh, the Controller, if it came to the finding that rent had not been paid, had no option but to direct the tenant to put the landlord in possession. Undoubtedly, that is the correct legal position, but in the present case the non-payment of rent was due to a misapprehension of the legal position created by the tenant filing an application for fixing fair rent. I, therefore, think that this case can be distinguished and does not fall within section 13 (2), Punjab Urban Rent Restriction Act."

The respondents moved the Judicial Commissioner, Himachal Pradesh, under articles 226 and 227 of the Constitution of India for setting aside the order of the District Judge.

The learned Judicial Commissioner held that in view of the admitted failure to pay the rent as provided by the rent deed or at the first hearing of the court under the proviso to section 13 (2) (i) the courts below had acted arbitrarily in refusing to make an order for ejectment against the tenants who had not done what was incumbent on them to do under the law and that such a situation called for interference by the court of the Judicial Commissioner in order to keep the subordinate courts within the bounds of their authority. He accordingly set aside the orders of the courts below and allowed the application for ejectment but gave the appellants three months' time for vacating the premises.

The appellants have now come up before this court on appeal by special leave obtained from this court.

Learned advocate appearmg m support of this appeal urges that the learned Judicial Commissioner acted wholly without jurisdiction inasmuch as

(1) the Rent Controller or the District Judge exercising powers

7-9± S. C.India/59

i-Varyam Singh

and Another v.

Amarnath and Another.

Das].

Waryam Singh

and Another v.

Amarnath and Another.

Das].

under the Act was not amenable to the jurisdiction of the High Court and, therefore, article 227 confers no power on the court of the Judicial Commissioner over the Rent Controller or the District Judge, and (2) that article 227 read with article 241 confers no power of judicial superintendence on the court of the Judicial Commissioner.

Re. 1.-Tht court of the Judicial Commissioner of Himachal Pradesh exercises jurisdiction in relation to the whole of the territories of Himachal Pradesh. The Rent Controller and the District Judge exerc1smg jurisdiction under the Act are certainly tribunals, if not courts, and they function within the territories of Himachal Pradesh. Therefore, article 227(1) read with article 241 confers on the court of the Judicial Commissioner power of superintendence over such tribunals.

The words "in relation to which" obviously qualify the word "territories" and not the words "courts and tribunals".

Re. 2.-The material part of article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the article also to tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are tribunals cannot and has not been controverted.

The only question raised is as to the namre of the power of superintendence conferred by the article.

Reference is made to clause (2) of the article in support of the contention that this article only confers on the High Court administrative superintendence over the subordinate courts and tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court. In this connection it has to

be remembered that section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior court which was not otherwise subject to appeal or revision. The idea presumably was to nullify the effect of the decisions of the different High Courts referred to above.

Section 224 of the 1935 Act has been reproduced with certain modifications in article 227 of the Constitution.

It is significant to note that sub-section (2) to section 224 of the 1935 Act has been omitted from article 227. This significant omission has been regarded by all High Courts in India before whom this question has arisen as having restored to the High Court the power of judicial superintendence it had under section 15 of the High Courts Act, 1861, and section 107 of the Government of India Act, 1915. See the cases referred to in Moti Lal v. The State through Shrimati Sagrawati(1 ). Our attention has not been drawn to any

case which has taken a different view and, as at

pesent advised, we see no reason to take a different v1ew.

This power of superintendence conferred y <trticle 227 is, as pointed out by Harries C.J., m Dalmia Jain Airways Ltd. v. Sukumar Mukherjee(•), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower courts in refusing to make an order for ejectment acted <trbitrarily. The lower courts realised the legal position but in effect declined to do what was by section 13 (2)

(i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therrfore, a case which called for an interference by the court of the Judicial Commissioner and it acted

(t) l.L.R. [r952] I All. 558 at p. 567. (2) A.LR.195r Cal. r93.

• 1954

Waryam Singh

and Another

V• Amarnath and Another.

Das].

1954 •

1¥ aryam Singh

and Another ,.

Amarnalh and

Another.

1953 bee. 18.

quite properly in doing so. In our opinion there is no ground on which in an appeal by special leave under article 136 we should interfere. The appeal, therefore, must stand dismissed with costs.

Appeal dismissed.

Agent for the appellants : M. M. Sinha.

Agent for the respondent: K. L. Mehta.

BABURAO SHANTARAM MORE

THE BOMBAY HOUSING BOARD AND

ANOTHER. [PATANJ ALI SASTRI C. J., s. R. DAS, VIVIAN BosE, GHULAM HASAN and

JAGANNADHADAS JT.J Constitution of India, art. 14-Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act LVII of 1947), s. 4- Bombay Housing Board (Amendment) Act (Bombay Act XI of 1951) inserting new s. 3-A in Bombay Housing Board Act (Act LXIX of 1948)-Whether ultra vires the Constitution.

Held, that neither s. 4 of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act LVII of 1947) nor the new s. 3-A inserted in Bombay Housing Board Act, (Act LXIX of 1948) by the Amending Act (Bombay Act XI of 1951) is ultra vires art. 14 of the Constitution.

The facts and argurnents are sufficiently stated in the Judgtnent.

ORIGINAL JullisnicnoN PETITION No. 271 of 1952 : Petition for special leave to appeal No. 108 of 1952.

Petition under article 32 of the Constitution and petition for special leave against the Judgment and Order stated the 7th July, 1952, of the High Court of Judicature at Bombay (Chagla C. J. and Gajendragadkar J.) in Civil Revision Application No. 567 of 1952. /. B. Dadachanji for the petitioner.

M. C. Setalvad, Attorney-General for India, and C.

Daphtary, Solicitor-General for India (Porus A. Mehta, with them) for the respondents .

1953. December 18. The Judgment of the Court was delivered by DAs J.

Calcutta

section 8

December 31, 1946

article 31

Agent for the appellant : P. K. Bose

S. C.

Banerjee

C. H. Rajadhyaks?a

WARYAM SINGH AND ANOTHER

AMARNATH AND ANOTHER

MEHR CHAND MAHAJAN C.J.

S. R. DAs

GHULAM HASAN JJ.

Constitution of India

art. 227

East Punjab Urban Rent Restriction Act

s. 13(2)(i)

art. 227

.Wal)'atn Singh

art. 227(1)

art. 241

art. 227

art. 227

art. 227

s. 13(2)(1)

Gopal Singh

S. C. Isaacs

Amar Nath Chana

Constitution of India

Mahasu

Himachal Pradesh

11th October, 1947

section 13

section 13(2)

18th December, 1950

26th December, 1950

section 13

10th January, 1951

section 4

25th January, 1951

section 13

W aryam Singh

Arnarnath

Waryam Singh

section 4

20th February, 1951

29th May, 1951

section 14

section 15

section 13(2)

section 13

Punjab Urban Rent Restriction Act

articles 226 and 227

Constitution of India

section 13

Amarnath

article 227

article 227

article 241

article 227(1)

article 241

article 227

section 107

Government of India Act, 1915

India

section 107

section 15

High Courts Act, 1861

section 107

Government of India Act, 1915

Government of India Act, 1935

section 224

Section 224

Section 224

article 227

section 224

article 227

section 15

High Courts Act, 1861

section 107

Government of India Act, 1915

Shrimati Sagrawati(1

Harries

section 13

Waryam Singh

aryam Singh

Amarnalh

article 136

M. M. Sinha

K. L. Mehta

BABURAO SHANTARAM

PATANJ ALI SASTRI

s. R. DAS

Constitution of India

art. 14

s. 4

Bombay Act XI of 1951

s. 3

Bombay Housing Board Act

s. 4

s. 3

Bombay Housing Board Act

Bombay Act XI of 1951

art. 14

article 32

Chagla C. J.

Gajendragadkar

B. Dadachanji

M. C. Setalvad

C.

Daphtary

Porus A. Mehta


Dwarkadas Shrinivas of Bombay v.

The Sholapur

spinning and Weaziing Co. Ltd.,

and Others.

Jan. 22.

SUPREME COURT REPORTS [1954)'

to our Parliament to deprive a person of his property merely by passing an Act. The two parts of the article form an integral whole and cannot be disassociated from each other.

The result is that I agree with the order proposed by my learned brother.

Appeal allowed.

Agent for the appellant : /. N. Shroff.

Agent for respondents Nos. 1 to 4 and 6 to 8 Rajinder Narain.

Agent for respondent No. 9 : G. H. Rajadhyaksha.

K. S. RASHID AND SON

ti.

THE INCOME-TAX INVESTIGATION

COMMISSION, ETC.

(With connected appeals)

[MEHR CHAND MAHAJAN C. J., MuKHERJEA, S. R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]

Constitution of India, art. 226-/urisdiction of Punjab High Court to issue writs to Income-tax Investigation Commission located in Delhi-Remedy under art. 226-Discretionary-Taxation on Income (Investigation Commission) (Act XXX of 1947), ss. 5 and 8(5).

The Punjab High Court has jurisdiction to issue a writ under art. 226 of the Constitution to the Income-tax Investigation Commission located in Delhi and investigating the case of the petitioner under 5 of the Taxation on Income (Investigation Commission) Act, 1947, although the petitioners were assessees within the U. P. State an<l their original assessments were made by the Income-tax authorities of that State.

Article 226 of the Constitution confers on all the High Courts new and very wide powers in the matter of issuing writs which they never possessed before.

There are only two limitations placed upon the exercise of such powers by a High Court ; one is that the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued by the court cannot run beyond the territories subject to its jurisdiction. The other is that the person or authority to whom

the High Court is em.powered to issue writs "must be within those tertitories" and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. , The remedy provided in art. 226 of the Constitution is a discretionary one and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere.

Ryots of Garabandho v. Zamindar of Parlakimedi (70 I.A. 129) and Election Commission v. Saka Venkata Subba Rao [1953] S.C.R. 1144 referred to.

C1v1L

APPELLATE JuR1so1ct10N :

CIVIL

APPEALS Nos. 118 to 121 of 1952. (Appeals under article 133 ( 1) ( c) of the Constitution of India from the Judgment and Order dated the 10th August, 1950, of the High Court of Judicature, Punjab at Simla (Khosla and Kapur JJ.) in Civil Miscellaneous Nos. 256, 260, 261 and 262 of 1950).

Dr. Bakshi Tek Chand (T. N. Sethi, with him) for the appellants.

M. C. Setalvad, Attorney-General for India (Poru!

A. Mehta, with him) for the respondents.

1954. January, 22. The Judgment of the Court was delivered by MuKHERJEA J.-These four consolidated appeals, which have come before us, on a certificate granted by the High Court of Punjab under article 133 (1) (c) of the Constitution, are directed against one common judgment of a Division Bench of that court dated the 10th August, 1950, by which the learned Judges dismissed four analogous petitions, presented on behalf of the different appellants, claiming reliefs under articles 226 and 227 of the Constitution, in respect of certain income-tax investigation proceedings commenced against them under Act XXX of 1947. It appears that a partnership firm carrying on business under the name and style of K. S. Rashid & Son was started on the 5th of May, 1934, the partners being three in number to wit K. S. Rashid Ahmed, Saeed Ahmed, his son, and Mrs. Zafar Muhammed, his mother. Mrs. Zafar Muhammed died on the 7th of January, 1946, and as a result of her death the partnership stood dissolved. Immediately on the day following,

1'. S. Rashid

and Son v.

The Income-tax

Investigation Commission, etc._

Mukherjea ] •.

K. S. Rashid and Son

V• The Iiicometax

Investigation -Commission, etc.

Mukherjea J

that 1s to say on the 8th of January, 1946, a new firm was started bearing the same name, with the two surviving partners of the original firm an~ one Saeeda Begum, a daughter of K. S. Rashid, as the third partner. On the 31st of December, 1947, the Central Government referred the cases of. this firm, as well as of the individuals constituting it, to the Income-tax Investigation Commission for enquiry and report under section 5 of Act XXX of 1947, presumably on tl1e ground that there had been substantial evasion of payment of income-tax in these cases.

The authorised official appointed under section 5 ( 4) ( 3) of the Act, who figures as respondent No. 2 .in all these appeals, in due course started investigation in these cases and the appellants' complaint is, that contrary to the provisions of the Act, he extended his investigations to a period subsequent to the 31st March, 1943, up to which date the income-tax assessment in all these cases was completed. A petition embodying this complaint was made to the authorised official on the 8th of April, 1949, but no order was passed on the petition, as the Commission was expecting an early change of law in this respect. The law was amended by an Ordinance dated the St:1 o' July, 1949, but the appellants still contended that the amendment was neither retrospective in its operation, nor did it enable the authorised official to carry on his investigation beyond the 31st March, 1943. The account books, however, were shown to the oflicial under protest.

On the 17th September, 1949, three applications were fi:ed before the Commission, one with regard to the affairs of Mrs. Zafar Muhammed stating that no investigation could take place in regard to her as she was already dead ; the second with regard to the affairs of Saeeda Begum on the ground that she being a new partner and not having been assessed before, was not subject to the jurisdiction of the Commission ; while the third application was to the effect that the new firm, which came into existence on the 8th of January, 1946, could not have its affairs enquired into at all under the provisions of the Act. After that, in June, 1950, four miscellaneous petitions were filed, (being C. M. Cases Nos. 259 to 262

of 1950) on behalf of the appellants, before the High Court of Punjab, and the prayers made therein were of a three-fold character. It was prayed in the first piace that a writ of prohibition might be issued to the Commission and the authorised official directing them not to proceed with the investigation of cases referred to the Commission under section 5 of Act XXX of 1947.

The second prayer was for a writ in the nature of certiorari for quashing the proceedings already wmmenced. The third and the alternative claim was that the proceedings before the Commission might be revised under article 277 of the Constitution and suitable orders passed as the justice of the case WOJ!ld require. Upon these petitions, rules were issued on the 25th of July, 1950, after a report from the Investigation Commission had been called for. On behalf of the respondents, who resisted these petitions, certain preliminary points were raised in bar of the petitioners' claim. It was contended in the first place that the petitioners being assessees belonging to U. P., their assessments were to b~ made by the Income-tax Commissioner of that State and the mere fact that the location of the Investigation Commission was in Delhi would not confer jurisdiction upon the Punjab High Court to issue writs under article 226 of the Constitution. The second objection was that the Act itself being of a special nature which created new rights and liabilities, the remedies provided for in the Act itself for any breach or violation thereof were the only remedies which could be pursued by the aggrieved parties and article 226 or 227 of the Constitution would not be available to the petitioners. The third ground taken was that the court could not give relief to the petitioners because of sections 5(3) and 9 of Act XXX of

1947. These contentions found favour with the learned Judges who heard the petitions, and although' they did not express any final opinion on the third point raised, they dismissed the applications or the petitioners on the first two grounds mentioned above. It is against these orders of dismissal that the . present appeals have been taken to this .court and Dr. Tek Chand, whG appeared on behalf of the appellants, has aailed the

i954

k. s. Rashid" and Son

V• The Income:.tax'

Investigation Commission, etc ..

Mukherjea J~

K. s. Rashid

and Son

V• The lncometa~

lnvest1"gatio11 Commission, tic

MukMrjea J.

propriety of the decision of the High Court on both the points.

So far as the first point is concerned, which relates to the question of jurisdiction of the Punjab High Court to issue writs of certiorari or prohibition in these cases, the learned Judges based their decision entirely upon the pronouncement of the Judicial Committee in the well known case of Ryots of Garabandho

v. Zamindar of Parlakimedi(' ). The question for consideration in that case was, whether the High Court of Madras had jurisdiction to issue a writ of certiorari in respect of an order passed by the Collective Board of Revepue, as an appellate authority, in certain proceedings for settlement of rent between the Zamindar of Parlakimedi and the Ryots of certain villages within his estate situated in the district of Gan jam which was wholly outside the limits of the Presidency town of Madras. The question was answered in the negative. The Judicial Committee laid down that the three Chartered High Courts of Calcutta, Madras and Bombay had powers to issue, what were known as the high prerogative writs, as successors to the Supreme

Courts which previously exercised jurisdiction over these Presidency Towns ; but the exercise of the powers under the Charter was limited to persons within the ordinary original civil jurisdiction of the three High Courts, and outside that jurisdiction it extended only to 'British subjects' as defined in the Charter itself.

It was held that the Supreme Court of Madras had no jurisdiction under the Charter which created it to , correct or control a country court of the the East India Company deciding a dispute between Indian inhabitants of the Ganjam district about the rent payable for land in that district ; and no such power was given by any subsequent legislation to its successor, the High Court.

A contention seems to have been raised on behalf of the appellants that the jurisdiction to issue writs could be founded on the fact that the office of the Board of Revenue, which was the appellate authority in the matter of settlement of rents, was located within the town of Madras

(!) 70 I.A. 129.

and the order complained of was made in that town and reliance was placed in this connection upon the case of Nundo Lal Bose v. The Calcutta Corporation('), where a certiorari was issued by the Calcutta High 'Court to quash an assessment made by the Commissioners of the town of Calcutta on a certain dwelling house. This contention was repelled by the Judicial Committee with the following observations: "The question is whether the principle of that case can be applied in the present case to the settlement of rent for land in Ganjam, merely on the basis of the location of the Board of Revenue, as a body which is ordinarily resident or located within the town of Madras, or on the basis that the order complained of was made within the town. If so, it would seem to follow that the jurisdiction of the High Court would be avoided by the removal of the Board of Revenue beyond the outskirts of the town, and that it would never attach but for the circumstance. that an appeal is brought to, or proceedings in revision taken by, the Board of Revenue. Their Lordships think that the question of jurisdiction must be .regarded as one of substance, and that it would not have been within the competence of the Supreme Court to claim jurisdiction over such a matter as the present by issuing certiorari to the Board of Revenue on the strength of its location in the town. Such a view would give jurisdiction to the Supreme Court, in the matter of the settlement of rents for ryoti .holdings in Ganjam between parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the .matter at first instance."

It is on the basis of these observations of the Judi- Cial Committee that the learned Judges have held that the mere location of the Investigation Commission in Delhi is not sufficient to , confer jurisdiction upon the Punjab High Court to issue a writ in the present case.

It is said that the petitioners are assessees within the U. P State and their original assessments were made by the Income-tax Officers of that State.

(1) I.L.R, !! Cal. 275, ,.

1954 .

K. $.Rashid

and Son

V• The Iizcome~Jax

Inve5tigation Commission, etc.

Mukherjea ]•

K. S. Rashid and Son

The Income-tax

Investigation Commission, et&•

MukherJea J.

The subsequent proceedings, which had to be taken in pursuance of the report of the Investigation Commission, would have to be taken by the Income-tax authorities in the U. P., and if a case had to be stated, it would be stated to the High Court at Allahabad.

Taking, therefore, as the Privy Council had said, that the question of jurisdiction is one of substance, it was held that no jurisdiction in the preoent case could be vested in the Punjab High Court, for that jurisdiction could be avoided simply by removal of the Commission from Delhi to another place.

This line of reasoning does not appear to us to be proper and we do not think that the decision in the Parlakimedi's case(1 ) is really of assistance in determining the question of jurisdiction of the High Courts in the matter of issuing writs under article 226 of the Constitution. The whole law on this subject has been discussed and elucidated by this court in its recent pronouncement in Election Commission v.

Venkata Rao(') where the observations of the Judicial Committee in Parlakimedi's case, upon which reliance has been placed by the Punjab High Court, have been fully explained. It is to be noted first of all, that prior to the commencement of the Constitution the powers of issuing prerogative writs could be exercised in India only by the High Courts of Calcutta, Madras and Bombay and that also within very rigid and defined limits. The writs could be issued only to the extent that the power in that respect was not taken away by the Codes of Civil and Criminal Prncedure(') and they could be directed only to persons. and authorities within the original civil jurisdiction of these High Courts. The Constitution introduced a fundamental change of law in this respect. As has been explained by this Court in the case referred to above, while article 225 of the Constitution preserves to the existing High Courts the powers and jurisdictions which they had previously, article 226 confers, on all the High Courts, new and very wide powers

(1) 70 I.A. 129.

(2) [1<53] S. C.R. u44.

(3) Vi de in this connection Besant v. T!te Advocate General of Madras~

46 I. A. 176.

in the matter of issuing writs which they never possessed before. "The makers of the Constitution" thus observed Patanjali Sastri

C.J. in delivering the judgment of the court, "having decided to provide for certain basic safeguards for the people in the new 'et up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights, and, finding that the prerogative writs, which the courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the State's sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. 'for any other purpose' being also included with a view apparently to place all the High Courts in this country in so;;, ewhat the same position as the Court of King's Bench in England." There are only two limitations placed upon the exercise of these powers by a High Court under article 226 of - the Constitution; one is that the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction'', that is to say, the wri'ts issued by the court cannot run beyond the territories subject to its jurisdiction.

The other limitation is that the person or authority to whom the High Court is empowered to issue writs "must be within those territories" and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is with reference to these two conditions thus mentioned that the jurisdiction of the High Courts to issue writs under article 226 of the Constitution is to be determined.

The observations of the Judicial Committee in Parlakimedi's case(') have strictly speaking no direct bearing on the point. It is true as the Privy Council said in that case that the question of jurisdiction must be regarded as one of substance, but the meaning and implication of this observation could be ascertained onlv with reference to the context of

(1) 70I. A. 129 .. 1 I-~~ S, Q, I,(5g

,954

K. S.Rashid

and Son

V• The Income-tax

InvestigaJion Commission, etc.

Muk/urjta J

r;. s. Ra.rhid

and Son

V• /The Income-tax

lnvl!stigation Commission, tic.

Mukheriea J•

the facts and circumstances of that case.

As was pointed out by this court in the case referred to above ( 1 ) : ''Their Lordships considered, in the peculiar situation they were dealing with, that the mere location of the appellate authority alone in the town of Madras was not a sufficient basis for the exercise of jurisdiction whereas both the subject matter, viz., the settlement of rent for lands in Ganjam, and the Revenue Officer authorised to make the settlement at first instance were outside the local limits of the jurisdiction of the High Court. If the Court in Madras were recognised as having jurisdiction to issue the writ of certiorari to the appellate authority in Madras, it would practically be recognising the court's jurisdiction over the Revenue Officer in Ganjam and the settlement of rents for lands there, which their Lordships held it never had. That was the 'substance' of the matter they were !king at." In our opinion, therefore, the first contention raised by Dr. Tek Chand must be accepted as sound and the view taken by the Punjab High Court on the question of jurisdiction cannot be sustained.

So far as the second point is concerned, the High • Court relies upon the ordinary rule of construction that where the legislature has passed a new stature giving a new remedy, that remedy is the only one which .could be pursued. It is said that the Taxation on Income (Investigation Commission) Act, 1947, itself provides a remedy against any wrong or illegal order of the Investigating Commission and under section 8

(5) of the Act, the aggrieved party can apply to the appropriate Commissioner of Income-tax to refer to the High Court any question of law arising out of such order and thereupon the provisions of sections 66 and and 66-A of the Indian Income-tax Act shall apply with this modification that the reference shall be heard by a Bench of not less than three Judges of the High Court. We think that it is not necessary for us to express any final opinion in this case as to whether section 8 (5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for

(1) A.I.R. 1953 S.C. 210, 214; [1953] S.C.R. 1144.

...

under article 226 of the Constitution. For purposes of this case it is enough to state that the remedy provided for in article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. So far as the present case is concerned, it has been brought to our notice that the appellants before us have already availed themselves of the remedy provided for in section 8(5) of the Investigation Commission Act and that a reference has been made to the High Court of Allahabad in terms of that provision which is awaiting decision. In these circumstances, we think that it would not be proper to allow the appellants to invoke the discretionary jurisdiction under article 226 of the Constitution at the present stage, and on this ground alone, we would refuse to interfere . with the orders fuade by the High Court.

Dr. Tek Chand argues that the Income-tax authorities have not referred all the matters to the High Court which the appellants wanled them to do. But for this there is a remedy provided in the Act itself and in case a proceeding occasions a gross miscarriage of justice, there is always the jurisdiction in this court to interfere by way of special leave. In the result, we dismiss the appeals but in the circumstances of the case make no order as to costs.

• Appeals dismissed .

Agent for the appellant : Rajindef' Narain . • Agent for the respondents : R. H. Dhebar .

K. S. RaJhid

and Son

The Income-tax

Investigation Commission, etc.

Mukheijea J.

N. Shroff

Rajinder Narain

G. H. Rajadhyaksha

K. S. RASHID AND SON

THE INCOME TAX INVESTIGATION COMMISSION, ETC

MEHR CHAND MAHAJAN

MuKHERJEA

S. R. DAs

VIVIAN BosE

GHULAM HASAN JJ.

Constitution of India

art. 226

art. 226

ss. 5 and 8(5)

Punjab High Court

art. 226

Delhi

Article 226

art. 226

article 133

Constitution of India

Khosla

Kapur

Bakshi Tek Chand

T. N. Sethi

M. C. Setalvad

Poru!

A. Mehta

High Court of Punjab

article 133

10th August, 1950

articles 226 and 227

K. S. Rashid

5th of May, 1934

K. S. Rashid Ahmed

Saeed Ahmed

Zafar Muhammed

S. Rashid

Income-tax

Investigation Commission

K. S. Rashid

8th of January, 1946

Saeeda Begum

31st of December, 1947

Central Government

section 5

section 5

31st March, 1943

8th of April, 1949

St:1 o' July, 1949

17th September, 1949

section 5

article 277

of July, 1950

U. P.

article 226

article 226

sections 5(3) and 9

Tek Chand

Mukherjea

K. s. Rashid

MukMrjea

High Court of Madras

Bombay

Supreme

Supreme Court of Madras

East India Company

Ganjam district

Calcutta

Calcutta High 'Court

Ganjam

Supreme Court

K. $.Rashid

Iizcome~Jax

K. S. Rashid

U. P.

article 226

Parlakimedi

India

article 225

article 226

Patanjali Sastri

England

article 226

article 226

K. S.Rashid

Income-tax

InvestigaJion Commission

Income-tax

lnvl!stigation Commission

section 8

sections 66

Income-tax Act

section 8

article 226

article 226

section 8(5)

High Court of Allahabad

article 226

Rajindef' Narain

R. H. Dhebar

K. S. RaJhid

Income-tax

Investigation Commission

Mukheijea