DWARKANATH, HINDU UNDIVIDED FAMILY A v.

INCOME-TAX OFFICER, SPECIAL CIRCLE, KANPUR

ANDANR.

Marcil 29, J 965

(K. SUBBA RAO, J.C. SHAH ANDS. M. SIKRI, JJ.)

Iudian Income-tax Act (11 of 1922), s. 33A(2)-Commissioner's powe-r of rev:sion-lf administrative or quasi-judiciaL--"Deponent's own knowledge", meaning of

Pursuant to the direct10ns of the Income-tax Appe:late Tr; bunal, the Income-tax Office;·, determined the assessce's capital gains under

1. 12B or the Income-tax Act. 19n. He did not, however, make any order under s 2.1(31 of the Act, nor did he issue a notice or demand under s. 29 or the Act. The assessee filed an application before the Commissioner of Income-tax. under s. 33Al:!) of the Act, for rev:s1ng the computation made by the Income-tax Officer drav.<ng his zttcntton to a der•s10n of the Bombay High Court in Baiinath s case. (1957) 31 l.T.R 643. as to how the capital gams should be a"rertained.

That decision was based upon a consideration of the very documents vlhich \1.:crc the basis of the asscssees claim. The Commissionc>r

dismissed the revision petition as not rnr..intainable. as v.ell as on merits, 1gnor1ng the Bombay decision. Meanv.:h1le, the asscssee filed an application requesting the Income-tax Officer to issue a notice of demand under s. <!9, to enzble him to file an appeal, but the Officer declined lo dv so. The '-SSC'sscc filed a \\rit application in the lligh Court for issu.ng appropriate \\; Tits to the Commissioner and thr Income-tax Olfirt'I', but the High Court d"missed it in lim.ne.

In his appeal to this Court, the asst•ssee contended that (i) the High Court erred ii) holding that the aflidav.t filed in support or the writ pct.lion was not in accordance \\'Ith law, £nd that even if there were any defects the High Court should have given him an opportunity to rectt!y them. and (ii) the fl, gh Court erred :n distinguishing the Bombay decision and in hold:ng that there was no force in the rev; sion tiied before the Comrn:ssioner, and that, the High Ccurt should have directed the Comm:ssioner to entertain the revision and d!spose of it in accordance with !av.· by g1v:ng suitable directions to the Income-tax Officer. The respondent ra:sed a preliminary objection that as the order of the Comrn:ssioner v.as an admmistrative act, Art. 226 of the Const:tution could net be invoked.

HELD: (i) As no appeal lay to the App<'llate Assistant Commissioner aga1ns_t the calcuaLons made by the Income-tax Officer, the Comm:ssioner had po\vcrs under s. 33A(2) to revis1~ the Incometax Officer's order. The jurisdiction cor.ferrcd en the Commissioner by the sect\on is a judicial one. The nature of the jurisd; ction and the rights decided carry with them necessarily the duty to act judicially in dispos:ng of the rev1s1on. Further, the fact that a D1v1sion Bench of one of the High Courts in India had taken a view in favour or the assessee, indicated that the question raised v.as arguable.and required serious consideration. Therefore_. a '""'rit of certiorari quashing the order of the Commissioner dismissing the assessec's revision petition should be issued. [544E-G; 548\)] ' 638

l>WARKANATH V. I. T. O. (Subba /loo, J.) 537

Sitalpore Colliery Concern Ltd. v. Union of India,

(1957) 32 I.T.R. 26, Additional Income-tax Officer, Cuddapah v. Cuddapah Star Transport Co. Ltd. (1960) 40 I.T.R. 200 and Suganchand Saraogi v.

Comm:ssioner of Income-tax, (1964) 53 I.T.R. 717, overruled.

Even if the Commissioner onlv made an adminislrative crder in refusing' to give any dii-ection to t'he Income-t£.x Officer, the assessee would st!ll be entitled to approach the High Court under Art. 226, and a writ of mandamus directing the Incometax Officer to discharge his statutory duty of passing the order and issuing the notice of demand in accordance with law. should be issued. [546C-E]

(ii) The affidav:t filed on behalf of the assessee was complete and ccmpl'ed with the rules made by the mgh Court. The affidavit spoke only of matters which 1,~:ere \vithiil the deponent"s own knowledge, because, the phrase "deix>nent'sown kno\yledge" is wide enough to comprehend the kn a\\· ledge derived from a perusal of relevant documents.

Even if the affidav; t was defective in any manner, the High Court instead of dismissing the petition in !imine should have given the assessee, a reasonable opportunity to file a better affidavit. [547F-G, HJ .

(iii) The High Court was also in error in hclding that the deci- •ion <>f the Bombay High Court was given on different facts, for the facts in both cases were the same and they arose out of the same transaction. (5488-C] ·

QVIL APPELLATE JURISDICTION: Civil Appeal No. 62 of 1964.

Appeal by special leave from the judgment' and decree dated July 28, 1959 of the Allahabad High Court in Civil Miscellaneous Writ No. 2071 of 1959.

A. V. Viswanatha Sastri, Ramesh war Nath, S. N. A nd/ey and P. L. Vohra. for the appellant.

Gopa/ Singh and R. N. Sachthey, for the respondents.

The Judgment of the Court was delivered by Sobba Rao, J. The facts leading up to this appeal may briefly be narrated. Gujarat Collon Mills Co. Ltd., hereinafter called the Company. is a limited company having its registered office at Ahmedabad. In the year l 938 the Company appointed Messrs. Pira Mal Girdhar Lal & ( o .. hereinafter called the Agency Firm, as its Managing Agents. On February 28, 1938, a formal agreement was entered into between the Companv and the Agency Firm.

The said Agency Firm was formed under an instrument of partner ship dated Februorv 26. 1938, with 11 partners-3 of them are compendiously described as the "Bombay Group" and the remaining 8 of them as the "Kanpur Group". With certain variations in the constitution of the Agency Firm. the said firm functioned as the Managin!? Agents of the Company till September 1946.

In September 1946 chareho!din(! of the partners of the Agency firm in the Company was as follows: Kanpur Group Bombay Group

32.500 shares. 26,362 shares.

SUPREM~ COliRT JU~PORT~ (191i5] 3 8.C.R.

Because of certain differences between the partners, they decided among themselves to sell lhcir shares and to surrender their Managing Agency. On September 7, 1946, the said 11 partners etered into an agreement with the firm of Messrs. Chhuttu Ram & Sons of Bihar, hereinafter called the Purchaser Firm. Under that agree

ment it was provided that 65012 shares held by the 11 partners of the Agency firm. directly or through their nominees, should be sold to the Purchaser Firm at Rs. 65 per share and that the Agency Firm should before November 15. 1946, resign its office of Managina Agency of th: Company. It was a condition of the agreement that it should have operation only after the Purchaser Firm or its nominees were appointed as the Managirg Agents of the Company.

On October 30, 1946, the Company 'lleld its General Body Meeting and accepted the resignation of the Agency Firm and by another resolution appointed the Purchaser Fi'rm as the Managing Agents in its stead. In terms of the agreement, the Purchaser Firm paid for the entire shareholding of the partners of the Agency Firm at Rs. 65 per share. The appellant is a Hindu undivided family. Its karta was one Dwarkanath and the present karta is his son Ramji Prasad. The said family was one of the 11 partners of the Agency Firm belonging to the Kanpur Group. Out of the total shareholding the appellant held 11.230 shares. It received the price for the said shares at the rate of Rs. 65 per share.

It was assessed to income-tax for the year 1948-49 and the Income-tax Officer by his order dated June 5. 1952. assessed the excess amount of Rs. 2.98,909 realized by the assessce under the head "income from business", i.e., the difference in the amount for which it purchased the shares and that for which it sold them. On appeal, the Appellate Assistant Commissioner of Income-tax confirmed the same. On further anneal. the Income-tax Appellate Tribunal. Delhi Bench. held that the said receipt had to be taxed as "'capital gains" under s. 12B. of the Income-tax Act, 1922, and directed the lrcometax Officer to modify the assessment in accordance with its order. The assessee made an application under s. 35 of the Income-tax Act to the Tribunal for further directions and the Tribunal. by its order dated March 26, 1954. amended its previous Nder dated August 3. 1953, by substituting the word "processed" in place of the word "assessed" in its previous order. The assessee raised various contentions before the Income-tax Officer, inter alia, that the said income was not liable to he taxed under s. 12B of the Income-tax

Act under the head "canital gains" and that in any case in order to determine the amount of capital gains the market value of the >hares only should he taken into consideration, as the price ot Rs. 65 per share included also the consideration for the relinquishment of the managing agency rights The Income-tax Officer rejected the said contentions of the assessee.

He re-determined the assessable income under the heading "capital gains" but did not

issue a notice of demand as prescribed iri s. 29 of the Income-tax ,-\, t. After making an infructuous attempt to get suitablC directions

DWARKANATH v. I. T. o. (Subba Rao, J.) 539

from the Appellate Tribunal, on March 5, 1956, the assessee filed an application before the Income-tax Officer to issue a notice of demand under s. 29 of the Income-tax Act so that it might prefer an appeal against the same to the appropriate authority. But the Income-tax Officer refused to issue any such notice. The assessee preferred an appeal against that order to the Appellate Assistant Commissioner under s. 30 of the Income-tax Act and that was dismissed on March 8, 1957; on the ground that it was not maintainable. Meanwhile on September 27, 1956, the appellant filed an aoolication before the Commissioner of Income-tax under s. 33A(2) of the Income-tax Act for revising the order of the Income-tax Officer dated September 28, 1955. On March 28. 1959, the Commissioner dismissed the revision oetition on two grounds, namely,

(j) that it was not clear whether the revision petition under s. 33A of the Income-tax Act was maintainable, and (ii) on merits. It may be noticed that long before the revision petition was dismissed, the appeal filed by the assessee against the order of the Income-tax

Officer to the Appellate Assistant Commissioner was dismissed on March 8, 1957. On November 18, 1957, the attention of the Commissioner was also dra"m to the fact that the Bombay High Court in the case of a reference to that Court at the instance of the Bombay Group held that the market value of the shares should be taken into consideration to ascertain the excess realized on the sale of the shares of the assessee for the purpose of capital gains tax. The Commissioner ignored that decision in dismi,, ing the revision. Thereafter, on July 28. 1959, the assessee filed Writ Application No. 2071 of 1959 in the High Court of Judicature at Allahabad, inter alia, for a writ of certiorari or any other direction or order of like nature to quash the order of the Income-tax Commissioner, Lucknow, dated March 28. 1959, and the Order of the Income-tax Officer dated September 28, 1955, and for a writ of mandamus or any other order or direction of the like nature directing the Commissioner to pass a fresh order in accordance with the decision of the Bombay High Court and direct the Incometax Officer to pass a fresh order in accordance with law and to issue a notice of demand as required by s. 29 of the Income-tax Act. The High Court dismissed the said application in limine mainlyon the following three grounds: (1) the affidavit filed in support of the writ petition was highly unsatisfactory and on the basis of such an affidavit it was not possible to entertain the petition; (2) the facts given in the affidavit were incomplete and con- B fused; and (3) even on merits, there was no force in the rcvjsion petition. Hence the appeal.

Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, contended that the affidavit filed in support of the petition was in accordance with law. and. that, even if there were any defects, the Court should have given an opportunity to the appellant to rectify them; and that the High Court should have held

MO BUPR!!:llE COURT REPORTS

[1965} 3 8.C.B.

that the rev1S1on against the order of the Income-tax Officer to the Commissioner was maintainable under s. 33A of the Act, as the appeal against that order to the Appellate Assistant Commissioner was not maintainable and that it should have directed the Commissioner to entertain the revision and dispose of it in accord ance with law <; lirecting the Income-tax Officer to issue a notice of dema id under s. 29 of th~ Income-tax Act. He further contended that the High c,, urt wer.t wrong in holding that the facts in the Bombav decision were different from those in the present case, for the facts in both the cases were the same and in fact they arose out of the same transaction. namely. the sale of the shares by the Agency Firm to the Purchaser Firm.

Mr.

Gopal Singh, learned counsel for the Revenue, while supporting the order of the High Court raised a preliminary objection. namelv. that the order of the Commissioner under s. 33A of the Income:tax Act was administrative act and. therefore, no writ of certiorari would lie to the High Court to quash that nrder under Art. 226 of the Constitution.

We shall first take the preliminary objection. for if we maintain it. no other question will arise for consideration. Article 226 of the Constitution reads:

" ......... every High Court shall have power. throughout. the territories in relation to which it exercises jurisdiction. to issue to any person or authority. including in appropriate cases any Government, within those territories directions. orders or writs, includinc writs in the nature of habeas corpus, mandamus. prohibition. quo warranto and certiorari. or any of them, for the enforcemert of any of the rights conferred by Part Ill anl! f.Jr any other purpose."

This article is couched in comprehensive phraseology and it exfacie confers a wide power on the High Cmrts to reach injustice wherever it i.~ founct. The Constitution designedly used a wide language in describing the nature of the power. the purpose for which and the person or authoritv aeainst whrim it can be exercised. it can iS<Ue writ' in the ntt; re of prero.gativc writs as under: stood in Enland; hut the scope of those writs also is widened hv the use of the expression "nature"'. for the said exnression docs no"t equate the writs that can be issued in India with those in England. hut onlv draws an analogy from them. That apart. High Courts

ca~ alsri issue direction' orders or writs other than the r"rcrogative wnts. It enables the Hi.eh Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to cqu:llc the scope of the power of the High Court under Art. 226 of the C<>nstitution with that of the Engi.ish Courts to

D'lfillUN.lTK v. I. T. o. (Subbii Rao, J.) i4J

issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast

country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this

is not to say that the High Courts can function arbitrarily under this article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by the Court in Basappa v. Nagappa(') and P. !. Irani v. Stale of Madras(').

But we are satisfied that this case falls directly within the confines of the certiorari jurisdiction as understood in England. It is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act. It is, therefore, necessary to notice the distinction between the said two categories of acts. The relevant criteria have been laid down witk clarity by Atkin, L.J., in King v.

Electricity Commissioners('), elaborated by Lord Justice Scrutton in ]?.ex v. London County Council(') and authoritatively restated in Province of Bombay v.

Kusaldas S. Advani('). The said decisions laid down the followin£ conditions to be complied with: (!) The body of persons must have legal authority; (2) the authority should be given to determine questions affecting the rights of subjects; and (3) they should have a duty to act judicially. So far there is no dispute. But in decided cases, particularly in India, there is some mixing up of two different concepts, viz .. administrative tribunal and administrative act.

The question whether an act is a judicial act or an administrative one arises ordinarily in the context of the proceedings of an administrative tribunal or authority. Therefore, the fact that an order was issued or an act emanated from an administrative tribunal would not make it anytheless a quasi-judicial act if the aforesaid tests were satisfied. The concept of a quasi-judicial act has been conceived and developed by English Judges with a view to keep the administrative tribunals and authorities within bounds. Parker, J .. in R. V. Manchester Legal Aid Committee(') brought out the distinction between judicial and administrative acts very vividly in the following passage:

"The true view. as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be impossible, and. indeed, inadvisable, to define exhaustively ....... When, on the other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy. the duty to act judicially may arise in the course of arriving at that decision. Thus, if in order to arrive at the decision. the

(') [1965] I S.C.R. 250.

(') [1924] I K.B. 171.

(') [1950] S.C.R. 621.

(') [1962] 2 S.C.R. 169.

(') [193!] 2 K.B. 215. 1'1 [1952] 2 Q.ll. <13, 428.

L/PlN)4SCf-

SUPREME COURT REPORTS Ll965) 3 8.0.B.

body concerned had to consider proposals and objections and consider evidence, then there is the duty to act judicially in the course of that inquiry .......................... .

Further, an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of and are not in accordance with the practice of a court of law ........................................ ..

If on the other hand, an administrative body in arriving at its decision at no stage has before ii any form ,,. lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially".

The relevant principles have been succinctly stated in llalsbury's Laws of England, 3rd Edn., Vol. 11, at pp. 55 and 56 thus:-

"lt is not necessary that it should be a court: an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have nne of the formalities of, and arc not in accordance with the practice of, a court of law. It is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition. A body may be under a duty, however, to act judicially (and subject to control by means of these orders) although there is no form of /is inter partes before it: it is enough that it should have to determine a question solely on the fact• of the particular case, solely on the evidence before it, apart from questions or policy or. any other extraneous considerations"'.

"Moreover an administrative body, whose decision is aeluatcd in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision ........ .If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form of /is and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially"

These are innumerable decisions of this Court where it issued a

writ of certiorari to quash a quasi-judicial act of an administrative tribunal or authority. This Court set aside the order of the Andhra H Pradesh State Government approving the order of nationalisation of road transport made by the Andhra Pradesh Road Transport Undertaking in Gul/apal/i Nn!!eswara Rao v. Andhra Pradesh State

Road Transport Corporation('), the order of the Examination

(') [19S9] Supp. I S.C.R. 319.

DWARKANATH v. I. T. o. (Subba Ra-0, J.) 543

Committee cal).celling the examination results on the ground that it did not give opportunity to the examinees to be heard beforei the order was 'made in Board of High School and Intermediate Education, U. P .. Allahabad v. Ghanshyam Das Gupta('), and the order of tqe Revenue Board made in a revision petition against the order of the Deputy Commissioner impounding the document ·.vithout hearing the aggrieved party in The Board of Revenue, U.P.

v. Sardarni Vidyawati('). In all these cases the Government, the Examination Committee and the Board of Revenue were administrative bodies, but the acts impugned were quasi-judicial ones, for they had a duty to act judicially in regard thereto. The law on the subject may be briefly stated thus: The provisions of a statute-may enjoin on an administrative authority to act administratively or judicially. If the statute expressly imposes a duty on the administrative body to act judicially, it is a clear case of a judicial act.

But the duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inflexible rule of guidance.

With this background let us look at the relevant provisions of the Income-tax Act.

Section 33A(2). The Commissioner may, on application by an assessee for revision of an order under this Act passed by any authority subordinate to the Commissioner, made within one year from the date of the order (or within such further period as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period), call for the record of the proceeding in which such order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, and, subject to the prnvisions of this Act, pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit.

Provided that the Commissioner shall not revise any order under this sub-section if-

(a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made, the time within which such appeal may be made has not expired,

(t) [196.:!] Slipp. 3 S.C.R. 36. (') [1962] Supp. 3 S.C.R. 50

IUPHlflC COUAT a•POllTS

(1966] 3 S.C, R.

or, in the case of an appeal to the Appellate Trihunal, the asseasec has not waived his right of appeal, or

(b) where an appeal a11ainst the order has been made to the Appellate Assistant Commissioner, the appeal is pending before the Appellate Assistant Commissioner, or

(c) the order has been made the subject of an appeal to the Appellate Tribunal.

Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee.

Under this sub-section an as.sessee may apply to the Commissioner for revision of an order under the Act by an authority subordinate to him. Such application shall be filed within one year from the date of the order or within such further period as the Comml-l sioner may think fit to allow. On receipt of such an application the Commissioner may call for the record of the proceeding in which such order was made and make such enquiry or cause such enquiry to be made. After such enquiry he can make an order not to the prejudice of the assessee but to his benefit. Such revision is not maintainable if the time prescribed for an appeal against such an order to the appropriate authorities has not expired or if an appeal against such an order is pending before the appropriate authorities. The scope of the revision is, therefore, similar to that prescribed under different statutes. Prima facie the jurisdiction conferred under s. 33A(2) of the Act is a judicial one. The order that is brought before the Commissioner affects the right of the assessee.

It is implicit in revisional jurisdiction that the revising authority shall give an opportunity to the parties affected to put forward their case in the manner prescribed. The nature of the jurisdiction and the rights decided carry with them neces.sarily the dutv to act judicially in disposing of the revision. The fact that the Commissioner cannot make an order to the prejudice of an assessee docs not possibly .change the character of the proceeding. Though the Commissioner may not change the order of the inferior authority to the prejudice of the assessee. he may not give the full relief asked for by the asses.see.

But it is said that the Commissioner exercising jurisdiction under s. 33A of the Act is only functioning as an administrative authority and all his orders made thereunder partake that character.

Reliance is placed 0<1 the decision of the Judicial Committee in Co111111issioner of /11co111e-ta.x, Puniab. N.W.F. & Dd!ri Provinces.

Lahore v. Tribune Trmt. Lahore('). There, the Judicial Committee held that the assessments. which were duly made hv the Income-tax

fl} (10..i) L.H. 7-1. l.A. :Jn6, 317, 31S.

llWARK"NATH 1'. I. T. o. (Subba Rao, J.) 5411

Officer in the proper exercise of his duty, were not a nullity, bu~ were validly made and were effective until they were set aside; and that a reference to the High Court did not lie from an order. under s. 33 of the Act unless that order was prejudicial to the asscssee in the sense that he was in a worse position than before the order was made. But the Board incidentally made the following observations:

"On the contrary, s. 33 follows a number of sections which determine the rights of the assessee and is itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action on such review. It appears that, as a matter of convenience, a practice has grown up under which the commissioner has been invited to act "of his own motion", under the section. and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention, which lies at the ro0t of the third question and is vital to the respondent's case, that it affords a claim to relief".

Continuing the same idea that Board observed;

"The Comn1issioner may act under s. 33 with or without invitation of the asscssee: if he does so without invitation, it is clear that, if he does nothing to worsen the position of the assessee, the latter can acquire no right: the review may be a purely departmental matter of which the assessee knows nothing. If, on the other hand, the commissioner acts at the invitation of the assessee and again does nothing to worsen his position, there is no justification for giving him a new right of appeal".

These observations were made in the context of a question hether a reference would lie to the High Court against an order of the Commissioner. But the question whether the order of the Commissioner under s. 33 of the Act was a judicial or a quasi-judicial act subject to the prerogative writ of certiorari was neither raised nor decided in that case: that question was not germane to the enquiry before the Board, for the appeal did not arise out of any order made in a writ of certiorari. Section 33, which was considered by the Privy Council was repealed by the Amending Act of 1939i but by Act XXIII of 1941 the revisional powers of the Commissioner were restored. Section 33-A took the place of s. 33 with certain modifications. Sub-section (!) of s. 33A provided for the Commissioner acting suo motu; and sub-s. (2) thereof. on the application of the assessee. Under this section the Commissioner can exercise the revisional jurisdiction subject to the conditiolllJ mentioned therein. While s. 33 only provided for the suo motu exercise of the jurisdiction, s. 33A enables an assessee to apply to the Commissioner to revise the order of his subordinate oflicer.

SGPRE'.'iF. COURT R>:PORTS [IUG5] 3 s.t:.11.

Some of the High Court>, under the impression that the Privy Council held that the act of the Commissioner was an administrative one, ruled that a writ of certiorari would not lie to quash the order of the Commissioner un:lcr s. 33A of the Act: sc~ Sitalpore Colliery Concern Ltd. v. Union of India('); Additional Income-tax Officer, Cuddapah v. Cuddapah Star Transport Ca.

Ltd.('); and Suganchand Saraogi v. Commissioner of Income-tax, Ca/cul/a('). They did net consider the scope of the revision bef11re the Commissioner and whether the crdcrs made thereunder satisfied the well settled tests of "judicial act" laid down by this Court.

In our view, for the reJsons mentioned by us earlier. the said judgments were decided wrongly.

That apart, on the assumption that the order of the Commissioner under s. 33-A of the Act was an administrative enc, the respondent would not be in a better position. What the appellant complains is that the Income:tax Officer in terms of s. 29 of the Act is under an obligation to issue a demand notice. If the said contention was correct, he did not discharge the duty imposed on him by the statute. If the Commissioner only made an administrative order in refusing to give any direction to the Income-tax Officer, it would not exonerate the said officer from discharging his statutory duty.

In that event the asscssec would certainly be entitled t•l approach the High Court under Art. 226 of the Constitution for the issue of a writ of mandam11.1 ,,. other appropriate direction to the Incometax Officer to discharge his statutory duty. We, therefore. reject the preliminary objection of the respondents.

The High Court mainly dismissed the writ petition on the ground that the affidavit tiled in support of the writ pct; lion was highly unsatisfactory and that on the basis of such an affidavit it was not possible lo entertain the petition. In exercise of 1r.e powers conferred by Art. 225 of the Constitution nJ of other powers enabling it in that behalf the High Court of AlrJhabad framed the Rules of Court. Chapter XXII thereof deals wilh lhe procdurc to be followe:l in respect of a preceding under Art. 226 of the Constitution olher than a writ in the nature of Jwbea' corpu,. The relevant rule is sub-r. (2) of r. I of Ch. XXII, which reads:

"The applicalion 'hall set out concisely in numbered paragraphs the facls upon which lhe applicant relics an~ the grnunds upon which the Court is asked to issue a direction. order or writ. and shall conclude wilh a prayer stating clearly. so for as circumstances permit. the exact nature of the relief sought. The applicalion shali be accompanied by an affidavit or affidavits in pro:if of the facts referred ro in the application. Such affidavit or affidavi1s shall be restricled to matters which are within the deponenl's own

knowledge" . . Pl (1957) 32° l..T.R. 2A.

(1) [1\Jlil~ .JJ LT.H. 7li.

!'I I 1960) 40 !.T.R. 2tl0.

1nr.\Hl\.\:\.\'111 I'. I. T. o. (Suhba ll'fo, J.) 547

The appliation tiled in the High Court certainly complied with the provisions of sub-r. (2) of r. I of Ch. XXII of the Rules of Court of the Allahabad High Court. It set out concisely in numbered paragraphs the facts upon which the applicant relied, the grounds on which the Court was asked to issue the direction and the exact nature of the relief sought. But it is said that the affidavit filed in support of 1he application did not speak to matters which were within the deponent's own knowledge. Dhruva Das, the deponent of the affidavit, is a relative of the petitioner and he also looked after the case on his behalf as his pairokar and was fully conver- £ant with the facts. He solemnly affirmed and swore as follows:

"I Dhruva Das, aforesaid deponent do hereby solemnly affirm andswear that the contents of paras I, 2, 3 and 50 partly are true to my personal knowledge, that the contents of paras. 4, 5, 6, 7, 8, 9, IO, 11, 12, 13, 14, 15, 16, 20. 21, 25, 27, 29 partly, 31, 32, 34, 37, 38, 41, 42, 44 are based on 46 and 50 partly and paras 17, 18, 19, 22, 23, 24, 26, 28, 29, partly 30, 33, 35, 36, 39, 40, 43, 48 partly are based on perusal of the record, those of paras 47, 48 partly 49 and

50 partly are based on legal advice, which I believe to be true, that no part of this affidavit is false and nothing material has been concealed in it".

In paragraphs which are based on a perusal of the record the deponent .referred to the relevant orders of the Income-tax authorities and also to the relevant agreements and the copies of the said orders and agreement were also annexed to the affidavit as schedules. It is not clear from the schedules whether certified copies or

the original of the orders received by the appellant were filed. The said agreements and the orders afford sufficient basis to appreciate the case of th_e appellant and for disposing of the same. "Deponent's own knowledge" in r. 1(2) of Ch. XXII of the Rules is wide enough to comprehend the knowledge of the appellant derived from a perusal of the relevant documents; and the affidavit in express terms disclosed and specified the documents, the source of the appellant's knowledge. He swore in the affidavit that the documents annexed to the affidavit were true copies of public documents. If they are certified copies of public documents, they prove themselves; if they are original of the orders sent to the appellant, the deponent, as his agent, speaks to their receipt. It is, therefore, not correct to say that the facts stated in the affidavit are nqt based on the deponent's knowledge. The. other facts alleged in the affidavit are only intro:luctory in nature and if they are excluded the result will not be affected. That apart, if the affidavit was defective in any manner the Hi2h C0urt. instead of dismissing the petition in limine, should have given the appellant a reasonable Opportunity to file a better

affi:lavit complying with the provisions of r. I of Ch. XXII of the Rules. We cannot, therefore, agree with the High Court that the petition was liable to be dismissed in limine in view of the alleged defects in the affidavit.

548 Sl:l'RE!>!E cotRT REPORTS

[1965) 3 S.C.R

Nor can we agree with the High Court that the facts given in the al!idavit are incomplete and confused. On the other hand. a careful perusal of the affidavit, along with the documents annexed thereto, discloses clearly the appcllant"s case: it gives the neces sary facts and the reliefs sought for. We do not find any missing link in the narrative of facts or any confusion in the nature of the reliefs asked for.

We cannot also agree with the High Court that the decision of the Bombay High Court in Baiinath Chat11rbl1u; v. Commis sinner of lncometax, /Jombav City l/('I was given on diiTernt fact' and that it ws impossible to contend that any part of the money paid by Messrs. Chaturam & Sons was really compenstion for the mana2i11g agency rights. 1 he Bmbay decision was given in the conte't of the dispute between. the Bombay Group and the Incometax authorities and was b<1scJ upon the consideration of the very documents which are the basis of the appellant\ tlaim.

We do not propo., e to express any opirnon on the correctness or otherwise of that decision. But. the fact that a Division Dench of one of the High Courts in India had taken the view in favoar of the appellant indicates that the question raised is. in our view. an arguable one and it requires serious consideration.

We are satisfied that this is not a case where the High Court should have dismissed the writ petition in limine. We find in the decree issued by the High Court that Sri Gopal Debari appeared on behalf of the opposite parties; presumably he appeared as the appellant must have issued notice in terms of r. 1(4) of Ch. XXII of the Rules. Ile th•t as it may, the High Court did not finally decide two important questions that really arose for consideration before it, namely: (i) whether a revision lay to the Commissioner under s. 33-A(2) of the Act against the order or the Income-tax Officer; and (ii) whether the Income-tax Officer should have issued a demand under s. 29 of the Act. If a revision lay to the Commissioner, the Commissioner should have considered the second ques tion before dismissing it. Therefore, the question is whether a revision lay to the Commissioner under s. 33-A(2) of the Act. A revision does not lie to the Commissioner against an IJrder where an appeal against that order lies to the Appellate Assistant Commissioner but has not been made and the time within which such an appeal may be made has not expired or where an appeal against the order has been made, it is pending before him. It follows that if no appeal lie. against the order an officer to the Appellate As, istant

Commissioner, the Commissioner can revise that order under s. 33-A of the Act. In the present case, pursuant to the directions of the Tribunal, Delhi Bench, the Income-tax Officer determined the auessec'1 capital gains under s. 12-B of the Act; but the Incomc- •x Officer did not make any order under s. 23(3) of the Act. nor

(') (1957) 11 !.T.R. Ma.

DWARJ:ANATH v. r. T. o. (Subba Rao, J.) 549

did he issue a regular notice of demand as prescribed under s. 29 of the Act. The result was, no appeal lay against the computation made by the Income-tax Officer to the Appellate Assistant Commissioner. Indeed, on March 8, 1957, the Appellate Assistant Commissioner rejected the appeal filed by the appellant as being not maintainable. As no appeal lay to the Appellate Assistant Commissioner against the calculations made by the Income-tax Officer, the Commissioner had certainly power to revise the said order.

On March 5, 1956, the appellant filed an application requesting the Income-tax Officer to issue a notice of demand as required by s. 29 of the Act. But the said Officer declined to issue the notice of demand. The question is whether he was bound to issue a notice of demand under s. 29 of the Act. Section 29 of the Act reads: ... "When any tax, penalty or interest is due in consequence of any order passed under or in pursuance of this Act, the Income-tax Officer shall serve upon the assessee or other person liable to pay such tax, penalty or interest a notice of demand in the prescribed form specifying the sum so payable''.

Under this section, if a tax is due in consequence of an order from an assessee, the Income-tax Officer is under a duty to serve on him a notice of demand. Pursuant to the directions given by the Tribunal the Income-tax Officer made fresh calculations under the head 'capital gains' and ascertained the amount due from the assessee. In the circumstances, pursuant to the said calculation, he should have passed an order and issued a notice of demand to the assessee. In not doing so, it must be held that the Income-tax Officer did not discharge his duty which he was bound to do under the Act; with the result he had become amenable to a writ of mandamus directing him to do what he should have done under the Act.

In the result, the order of the High Court is set aside and we issue a writ of certiorari quashing the order of the Commissioner and a writ of mandamus directing the Income-tax Officer to pass an order and issue a notice in accordance with law. The appellant will have his costs throughout.

Appeal allowed.

DWARKANATH, HINDU UNDIVIDED FAMILY

K. SUBBA RAO, J

C. SHAH ANDS. M. SIKRI, JJ.

Iudian Income-tax Act

s. 33A(2)

Income-tax Act

s 2

s. 29

s. 33A

Bombay High Court

Baiinath

Art. 226

s. 33A(2)

India

Art. 226

Allahabad High Court

A. V. Viswanatha Sastri

Ramesh war Nath

S. N. A

P. L. Vohra

Gopa/ Singh

R. N. Sachthey

Sobba Rao

Gujarat Collon Mills Co. Ltd.

Ahmedabad

Pira Mal Girdhar Lal

February 28, 1938

Februorv 26. 1938

Kanpur Group Bombay Group

September 7, 1946

November 15. 1946

October 30, 1946

Dwarkanath

Ramji Prasad

Kanpur Group

June 5. 1952

s. 12B

Income-tax Act, 1922

s. 35

Income-tax Act

March 26, 1954

August 3. 1953

s. 12B

s. 29

s. 29

Income-tax Act

s. 30

Income-tax Act

March 8, 1957

September 27, 1956

s. 33A(2)

Income-tax Act

September 28, 1955

March 28. 1959

s. 33A

Income-tax Act

November 18, 1957

Bombay Group

July 28. 1959

High Court of Judicature at Allahabad

Lucknow

s. 29

Income-tax Act

s. 33A

s. 29

Income-tax Act

Bombav

Gopal Singh

s. 33A

Art. 226

Article 226

Enland

England

Art. 226

Atkin

Scrutton

Parker

[1962] 2 S.C.R. 169

Andhra H Pradesh State Government

Section 33A(2)

Trihunal

s. 33A(2)

s. 33A

Subba Rao

s. 33

s. 33

s. 33

s. 33

Section 33

Section 33

s. 33

s. 33A

s. 33

s. 33A

s. 33A

s. 33

s. 29

Art. 226

Art. 225

High Court of AlrJhabad

Art. 226

Suhba ll'fo

Dhruva Das

Baiinath Chat11rbl1u

Chaturam & Sons

Gopal Debari

s. 33

s. 29

s. 33

s. 33

s. 12

s. 23(3)

s. 29

5, 1956

s. 29

s. 29

Section 29


BRUrijl)ABAN NAYAK

ELECTION COMMISSION OF INDIA AND ANOTHER February 12, 1965

IP. B. GAJENDRAGADKAR, C. J., M. HIDAYATULLAH, RAGHUBAll

DAYAL, S. M. SIKRI AND V. RAMASWAMI, JJ.J Constitution of India, Art. 192(1) and (2)1-Who can raise question B as to disqu.aLification of sitting member-Whether question has to be raised on floor of the Assembly and referred to the Governor by Speaker-Enquiry to be held by Governor or Election Commission?

The appellant was elected •to the Orissa Legislative Assembly in 1961. In 1964 respondent No. 2 made a complaint to the Governor alleging that the appellant had incurred a disqualification subsequent to his election as contemplated in Art. 191(1) (e) of the Constitu- C tion read with s. 7 of the Representation of the People Act (Act 43 of 1951). The Chief Secretary Orissa forwarded the said complaint •to respondent No. 1, the Election Commission of India, under the instructions of the .Governor, requesting it to make enquiry into the complaint and give its opinion. Accordingly respondent No. 1 served notice on the appellant and called upon him to submVt his reply. The appellant challenged the jurisdiction of D resporu:l!ent No. 1 to conduct the enquiry and filed a writ petition in the High Court. On its being dismissed he appealed to this Court by special leave.

It was contended on behalf of the appellant that no question untler Art. 192(1) had arisen in the case as a question relating to the disqualification of a member under Art. 191(1) (e) could not be raised by an ordinary citizen. It was urged that considering the E context of Art. 192 and the provisions of Art. 199 the question could only be raised on the floor of the House and thereafter referred to the Governor by the Speaker of the Assembly. It was further con tended that only the Governor who had to give the decision could hold the enquiry, and the Election Commission was only to give its opi.n'on on the materials forwarded to it by the Governor.

F HEl; D: (i) The argument that no question had arisen under Art. 192(1) could not be accepted. What Art 192(1) requires is that a question should anise; how ft arises, by whom it is raised, in what circumstances it is ra'sed are not relevant for the purpose of the application of this clause. f59 Hl The wortls in Art. 192(1) that "the question shall loe referred for the decision of the Governor" merely emnhasise that any ques- G tion of the type contemplated in the said clause shall be decided by the Governor and Governor alone: no other authority, including the courts, can decide it. If the intention was that the question must be raised first in the legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Art. 192(1) would have been worded in an entirely different manner. f59 B-Cl H The object of Art 192 is that no member wh\> has incurred a disqualification under Art. 191 (1) should be allowed •to con1Jinue as a member. The Constitution itself in /\rt 190(3) provides for the vacation of the seat of such a member. Further it is in the interests of the member's constituency that no loµger being en titled to the status of a m"mber, he should be removed. In view

of these considerations a citizen is certainly entitled to make a complaint to the Governor about the <lisqualification incurred by a member under Art. 191(1). f59 E-Gl

(ii) The enquiry for the purpose of the decision under Art. 192 has to be held by the Election Commission and not by the Governor. When the Governor pronounces his decision under Art. 192(1) he is not require<l to consult his Council of Ministers; he has merely to forward 'the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". It is the opinion of the Election Commission which is in substance decisive, and it is legitimate that the Commission should proceed to try the complaint before it gives its opinion. f60 D-Hl [Legislation to vest Election Commlssion with powers of. a Commission under the Commissions of Enquiry Act, 1952, recommended. l f62 Bl

CIVIL APPELLATE )JuRISDIOTION: Ci; vil Appeal No. 50 of 1965.

Appeal by special leave from the order dated January 6. 1965 of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ No. 8-D of 1965.

M. C. Setalvad, Ravinder Narain, J. B. Dadachanji and

0. C. Mathur, for the appellant.

C. K. Daphtary, Attorney-General, S. V. Gupte, Solicitor- General, B .. R. L. Iyengar and R. H. Dhebar, for the respondent No. !.

Santosh Chatterjee, B. B, Ratho and M. L. Chhibber, for respondent No. 2.

The Judgment of the Court was delivered by

Gajendragadkar, C.J. The principal question which this appeal F by special leave raises for our decision relates to the construction of Article 192 of the Constitution. The said question arises in this way. The appellant Brundaban Nayak was eledted to the Legislative Assembly of Orissa from the Hinjili Constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State. On August 18, 1964, G respondent No. 2, P. Biswal, applied to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under Art. 19l(l)(e) of the Constitution read with section 7 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). In his application, respondent No. 2 made several allegations in support of his con- H tention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly. On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint. to respondent No. I, the Election Commission of• India, under the instructions of the Governor. In this communication, the Chief Secretary stated thl!t a question had arisen under Article I 9 I (I) of the Constitution whether the member in

BRUNDABAN v. ELECTION COMMISSION (Gajendragq.dkar, 0.J.) 55

A question had been subject to the disqualification alleged by respondent No. 2 and so, he requested respondent No. l in the name of the Governor to make suoh enquiries as it thinks fit and give its opinion for communication to the Governor to enable him to give a decision on the question raised.

B On November 17, 1964, respondent No. 1 served a notice on. the appellant forwarding to him a copy of the letter received by it from respondent No. 2 dated the 4th November, 1964. Thenotice intimated to the appellant that respondent No. l proposed to enquire in the matter before giving its opinion on the Governor's.

c reference, and, therefore, called upon him to submit on or before the 5th December, 1964, his reply with supporting affidavits and documents, if any. The appellant was also told that the parties;

would be heard in person or through authorised counsel at 10-30 A.M. on the 8th December, 1964, in the office of respondent No. I in New Delhi.

On December l, 1964, the appellant sent a telegram to respondent No. 1 requesting it to adjourn the hearing of the matter.

On the same day, he also addressed a registered letter to respondent No. l making the same request. Respondent No. 2 objected to the request made by the appellant for adjourning the hearing of the complaint. On December 8, 1964. respondent No. l took up this matter for consideration: Respondent No. 2 appeared by his counsel Mr. Chatterjee, but the appellant was absent. Respondent No. 1 took the view that an enquiry of the nature contemplated by Art. 192(2) must be conducted as expedtiously as possible, and so, it was necessary that whatever his other commitments may be, the appellant should arrange to submit at least his statement in repliy to the allegations made by respondent No. 2, even if he required some more time for filing affidavits and I or documents in support of his statement. Even so, respondent No. 1 gave the appellant time until the 2nd January, 1965, 10-30 A.M. when it ordered that the matter would be heard.

On January 2, 1965, the appellant appeared by his counsel Mr. Patnaik and respondent No. 2 by his counsel Mr. Chatterjee.

On this occasion, Mr. Patnaik raised the question about the maintainability of the proceedings before respondent No. 1 and its competence to hold the enquiry. Mr. Chatterjee repelled Mr.

Patnaik's contention. Respondent No. 1 over-ruled Mr. Patnail-'s contention and recorded its conclusion that it was competent to hold the enquiry under Art. 192(2). Mr. Patnaik then asked for adjournment and made it clear that he was making the motion for adjournment without submitting to the jurisdiction of respondent No. I. In view of" the attitude adopted bv Mr. Patnaik, respondent No. 1 took the view that it would be pointless to adjourn the proceedings. and so, it heard Mr. Chatterjee in support of the case of respondent No. 2. After hearing Mr. Chatterjee respondent No. I reserved its orders on the enquiry and noted that its

opinion would be communicated to the Governor as early as A possible.

When matters had reached this stage before respondent No. 1, the appellant. moved the Punjab High Court under Art. 226 of the Constitution praying that the enquiry which respondent No. 1 was holding, should be quashed on the ground that it was B incompetent and without jurisdiction. This writ petition was summarily dismissed by the. said High Court on January. 6, 1965.

Thereafter, the appellant applied to this Court for special leave on January 8, 1965, and special leave was granted to him on January 14, 1965. The appellant then moved this Court for stay of further proceedings before respondent No. 1, and the said C prayer was granted. When special leave was granted to the appellant, this Court had made an order that the preparation of the record and the filing of statements of the case should be dispensed with and the appeal should be heard on the paper-book filed along with the special leave petition and must be placed for hearing within three weeks. That is how the matter has come before D us for final disposal.

Since the Punjab High Court had dismissed the writ petition filed by the appellant in limine, neither of the two respondents had an opportunity to file their replies to the allegation made by the appellant in his writ petition. That is why both respondent No. I and respondent No. 2 have filed counter-affidavits in the E present appeal setting out all the relevant facts on which they wish to rely. The appellant has filed an affidavit-in-reply.

All these documents have been taken on the record at the time of the hearing of this appeal. It appears from the affidavit filed by Mr. Prakash Narain, Secretary to respondent No. I, that when notice issued by respondent No. I on the 17th November, 1964, F was served on the appellant, through oversight the original complaint filed by respondent No. 2 before the Governor of Orissa and the reference made by the Governor to respondent No. I were not forwarded to the appellant. At t]le hearing before us, it is not disputed by the appellant that a complaint was in fact made by respondent No. 2 before the Governor of Orissa and that the Governor had then referred the matter to respondent No. I for its opinion.

Let us then refer to Article 192 which falls to be construed in the present appeal. Before reading this article, it is relevant

to refer to Art. 191. Article 191(1) provides that a person shall H be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if, inter alia, he is so disqualified by or under any law made by Parliament. There are four other disqualifications prescribed by clauses (a) to (d) with which we are not concerned in the present appeal. It is the disqualification prescribed by clause (e) on which respondent No. 2 relies in support of the complaint made by him

BRUNDABAN v. ELECIION COMMISSION \Gajendragadkat, G.J.) li7

to the Governor. As we have already indicated, respondent No. 2's case is that the appellant has incurred the disqualification under Art. 19l(l)(e) read with s. 7(d) of the Act, and this disqualification has been incurred by him subsequent to his election.

It is well-settled that the disqualification to which Art. 191(1) refers, must be incurred subsequent to the election of the member.

This conclusion follows from the provisions of Art. 190(3)(a).

This Article refers to the vacation of seats by members duly elected. Sub-Article (3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the dis qualifications mentioned in clause (!) of Art. 191, his seat shall thereupon become vacant. Incidentally, we may add that oorresponding provisions with regard to the disqualification of members of both Houses of Parliament are prescribed by Articles 10 I, 102

and 103 of the Constitution. It ha> been held by this Court in Election Commission, India v. Saka Venkata Subba Rao and Union of India-Intervener/that Articles 190(3) and 192(1) are applicable only to disqualifications to which a member beoomes subject after being elected as such. There is no doubt that the alilegations made by respondent No. 2 in his complaint before the Governor, prima facie, indicate that the disqualification on which respondent No. 2 relies has arisen subsequent to the election of the appellant in 1961.

Reverting then to Art. 192, the question which we have t<> decide in the present appeal is whether respondent No. I is entitled to hold an enquiry before giving its opinion to the Governor as required by Art. 192(2). Let us read Art. 192:-

"(I) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before gi'ving any decision on any such question, the Governor shall obtain the opinion cf the Election Commission and shall act according to such opinion".

Mr. Setalvad for the appellant contends that in the present case, no question can be said to have arisen as to whether the appellant has become subject to any of the disqualifications mentioned in clause (I) of Art. 191, because his case is that such a question can be raised only on the floor of thf Legislative Assembly and can be raised by members of the.Assembly and not by an ordinary citizen or voter in the form of a comolaint to the Governor. Mr. Setalvad did not dispute the fact that this contention has not been taken by the appellant either in his writ oetition before the High Court or even in his application for special leave before this Court. In fact, the case sought to be made out by the appellant in the present proceedings appears to be that though a question may have arisen about

(') [195~1 8.C~R. 1144.

his d1squali!ication, it is the Governor alone who can hold the en- , qUJry and not responJent No. I. Even s:i, we have allowed Mr. .'Setalvad to raise this point, becaase it is purely a question of law depending upon the construction of Art. 192(1).

In support of his argument, Mr. Setalvad refers to the fact thal Art. 192 occurs in Chapter Ill of Part VI which deals with the State Legislature, and he invited our attention to the fact that under Art.

I \1\1\3) which deals with a question as to whether a Bill introduce:! in the Legislature of a State which has a Legislative Council is a Money Bill or not. the decision of the Speaker of the Legislative Assembly of such State thereon shall be fin,!. He uges that just as the question ccntemplated by Art. 199(3) can be raised only on the ttoor of the House, so can the question about a subsequent disqualification of a member of a Legislative Assembly be raised on the floor of the House and nowhere else. He concedes that whereas the question contemplated by Art. 199(3) has to be decided by the Speaker and his decision is final, the authority to decide the question under Art. I 92(1) is not vested in the Speaker, but is vested in the Governor. In other words, the context in which Art. 192(! i occurs is pressed into service by Mr. Setalvad in support of his argument.

Mr. Setalvad also relies on the fact that Art. 192(1) provides that if any question arises, it shall be referred for the decision of the E Governor and this clause, . says Mr. Setalvad, suggests that there should be some referring authority which makes a reference of-the question to the Governor for his decision. According to him. this referring authority, by necessary implication, is the Speaker of the

Legislative Assembly. There is another argument which he has advanced Defore us in support of this construction. Article 192(2) requires that whenever a question is referred to the Governor, he shall obtain the opinion of the Election Commission and Mr.

Setalvad suggests that it could not have been the intention of the Constitution to requlre the Governor to refer to the Election Commission every question which is raised about an alleged disqualification of a member of a Legislative Assembly even though such a question may be patently frivolous or unsustainable.

We are not impressed by these arguments. It is significant that the !irst clause of Art. 192(1) does not permit of any limitations such as Mr. Se!alvad suggests. What the said cla\!Se requires is that a quest10n should arise; how it arises, by whom it is raised, in what C!fcumstances it is raised, are not relevant for the purpose of the application of this clause. All that is relevant is that a question of the type mentioned by the clause should arise; and so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part of Art. 192(1) is plainly inconsistent with the words used in the said clause.

BRUNDABAN "· ELEcrrION CullMlSSION (Gajendragadkar, O.J.) 59

Then as to the argument based on the words "the question shall be referred for the decision of the Governor", these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision.

These words merely emphasise that any question of the type contemplated by clause (I) of Art. 192 shall be decided by the Governor and Governor alone; no other authority can decide it, nor can the decision of the said question as such fall within the jurisdiction of the Courts. That is the significance of the words "shall be referred for the decision of the Governor". If tho intention was that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Art. 192(1) would have been worded in an entirely different manner. We do not think there is any justification for reading such serious limitations in Art. 192(1) merely by implication.

It is true that Art. 192(2) requires that whenever a.. question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art.191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art. 191(1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a

subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2).

Therefore, we must reject Mr.

Setalvad's argument that a question has not arisen in the present proceedings as required by Art. 192(1).

The next point which Mr. Setalvad has raised is that even if

11 question is held to have arisen under Art. 192(1), it is for the Governor to hold the enquiry and not for the Election Commission.

He contends that Art. 192(1) requires the question to be referred to the Governor for his decision and provides that his decision shall be final. It is a normal requirement of the rule of law that a person

who decides should be empcwered to hold the enquiry which would A enable him to reach his decision, and since the Governor decides the question, he must hold the enquiry and not the Election Commission.

That, in substance, is Mr. Setalvad's case. He concedes that Art. 192(2) requires that the Governor has to pronounce his decision in

accord.rne with tlie opinion given by the Election Commission; that is a Constitutional obligation imposed on the Governor. He. how- :S ever, argues that the Election Commission which has to give an opinion, is net competent to hold the enquiry, but it is the Governor who should hold the enquiry and then forward to the Election Commission all the material collected in such an enquiry to enable it to fcrm its opinion and communicate the same to the Governor. c We are satisfied that this contention also is not well-founded.

The scheme of Article 192(]) and (2) is absolutely clear. The decision on the question raised under Art. 192(1) has no doubt to' be pronounced by the Governor. but that decision has to be in accordance with the opinion of the Electicn Commission. The object of this provision clearly is to leave it to the Election Commission to decide D the matter, though the decision as such wauld formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Art. 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself; he has merely to forward the question to the Electidn Commission for its opinion, and as soon as the opinion E is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the Legislative Assembly, the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals F constituted by the Election Commission. Similarly, all complaints in respect of disqu1Jificaticms subsequentlv incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. J 92(1) 8nd (2) is borne in mind, there woulc be no difficulty in rejecting Mr.

Setalvad's contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied H that respondent No. I acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof.

Mr. Setalvad faintly attempted to argue that the failure of respondent No. I to furnish the appellant with a copy of the complaint made by responde; it No. 2 before the Governor and of the

BRUNDABAN v. ELECTI<JN COMMISSION (Gajendragadkar, O.J.) 61

order f reference passed by. the Governor forwarding the said complaint to respodent No. l, rendered the proceedings before respondent No. l illegal. This contention is plainly misconceived.

As soon as respondent No. l received the complaint and the order of reference which was communicated to it by the Chief Secretary to the Government of Orissa, it was seized of the matter and it was plainly acting within its jurisdiction under Art. 192(2) when it served the notice on the appellant. As we have already indicated, it was through oversight that the two documents were not forwarded to the appellant along with the notice, but that cannot in any sense affect the jurisdiction of respondent No. l to hold the enquiry. In fact, as respondent No. 2 has pointed out in his affidavit, the fact that a reference had been made by the Governor to respondent No. l was known all over the State, and it is futile for the appellant to suggest that when he received the notice from respondent No. l, he did not know that a complaint had been made against him to the Governor alleging that subsequent to his election, he had incurred a disqualification as contemplated by Art. 191 (l)(e) of the Constitution read with s. 7(d) of the Act. It would have been better if the appellant had not raised such a plea in the present proceedings.

In this connection, we ought to point out that so far the practiee followed in respect of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under Art: 192(2) and Art. 103(2). In fact, the learned Attomey-

General far respondent No. 1 stated before us that though on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President under Art. 103(2) or to the Governor under Art. 192(2), no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively under Art. 103(1) and Art. 192(1). He suggested that the main object of the appellant in taking such a plea was to prolong the proceedings before respondent No. !. In the first instance, the appellant asked for a long adjournment and when that request was refused by respondent Noc !, he adopted the present proceedings solely with the object of avoiding an early decision by the Governor on the complaint made against the appellant by respondent No. 2. We cannot say that there is no substance in this suggestion.

There is one more point to which we may refer before we part with this appeal. Our attention was drawn by th~ learned. Attorney- General to the observations made by the Chief Election Commissioner when he rendered his opinion to the Gavernor on May 30, 1964, on a similar question under Art. 192(2) in respect of.the alleged disqualification of Mr. Biren Mitra, a member of the Onssa Legislative Assembly, "Where, as in the present case": oberved the Chief Election Commissioner, "the relevant facts are m ~1sute and can only be ascertained after a proper enquir~, the Co1!1m1ss1on ~ds Itself in the unsatisfactory position of havmg to give a dec1S1ve

L/B(D)2SCI-6

opinion en the basis 9f such affidavits and documents as may be A produced before it. by interested. parties. It is desirable that the Election Commission should be vested with. th(l powers of a commission under the Commissions of Enquiry Act, 1952, such as the

powr to summon witnesses and .examine them on oath, the power to compel the production of documents, and the power to issue commiss ; ons for the examination of witnesses". We would like to invite B

1 the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under Art. 103(2) or. Art. 192(2) appears to be genuine, and so Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf.

The result is, the appeal fails and is dismissed with costs. In view of the fact that the present proceedings have unnecessarily protracted the enquiry before respondent No. l, we suggest that respondent No. 1 should prO'Ceed to consider the matter and forward its opinion to the Governor as early as possible .. It is hardly neces, D sary to point out that in case the allegations made against the appellant are found to be valid, and the opinion of respondent No. l is in favour of the Cl\Se set out by respondent No. 2, complications may arise by reason of the Constitutional provision , prescribed by Art. 190(3). In view of the said provision, it is of utmost importance that complaints made under Art. 192(1) must be disposed of as E expeditiously as possible.

Appeal dismissed.

IP. B. GAJENDRAGADKAR

M. HIDAYATULLAH

DAYAL

S. M. SIKRI

V. RAMASWAMI, JJ

Constitution of India

Art. 192(1)

Art. 191(1)

s. 7

Representation of the People Act

Art. 192(1)

Art. 191(1)

Art. 192

Art. 199

Election Commission

Art. 192(1)

Art 192(1)

Art. 192(1)

Art. 192(1)

Art 192

Art. 191

Art. 191(1)

Art. 192

Art. 192(1)

M. C. Setalvad

Ravinder Narain

J. B. Dadachanji

C. Mathur

C. K. Daphtary

S. V. Gupte

B .. R. L. Iyengar

R. H. Dhebar

Santosh Chatterjee

B. B, Ratho

M. L. Chhibber

Gajendragadkar

Article 192

Brundaban Nayak

Ganjam district

August 18, 1964

P. Biswal

Art. 19

section 7

Representation of the People Act, 1951

Orissa Legislative Assembly

September 10, 1964

Government of Orissa

Election Commission of• India

Gajendragq.dkar

November 17, 1964

December l, 1964

December 8, 1964

Chatterjee

Art. 192(2)

2nd January, 1965

January 2, 1965

Patnaik

Chatterjee

Patnaik

Patnail-

Art. 192(2)

Punjab High Court

Art. 226

January. 6, 1965

January 8, 1965

January 14, 1965

Prakash Narain

Orissa

Article 192

Art. 191

Article 191(1)

Parliament

Art. 19

s. 7(d)

Art. 191(1)

Art. 190(3)(a)

Art. 191

Articles 10

Union of India

Articles 190(3) and 192(1)

Art. 192

Art. 192(2)

Art. 192

Article 191

Setalvad

Art. 191

.'Setalvad

Art. 192(1)

Art. 192

Art. 199(3)

Art. 199(3)

Article 192(2)

Art. 192(1)

Se!alvad

Art. 192(1)

BRUNDABAN

Art. 192

Art. 192(1)

Art. 192(1)

Art. 192(2)

Art. 192

Art. 190(3)(a)

Art. 191(1)

Art. 192(2)

Art. 192(1)

Art. 192(1)

Art. 192(1)

Art. 192(2)

Article 192(])

Art. 192(1)

Electicn Commission

Art. 192(1)

Electidn Commission

Art. 192(2)

Art. 191

s. 7(d)

Art. 103(2)

Attomey-

Art. 103(2)

Art. 192(2)

Art. 103(1)

Art. 192(1)

Noc

May 30, 1964

Art. 192(2)

Biren Mitra

Onssa Legislative Assembly

Commissions of Enquiry Act, 1952

Art. 103(2)

Art. 192(2)

Art. 190(3)

Art. 192(1)