BHAGAT RAJA v.

THE UNION OF INDIA & ORS.

March 29, 1967

[K. SUBBA RAO, C.J., J. C. SHAH, J. M. SHELAT, V. BHARGAVA

AND G. K. MITTER, JJ.J

Mines & Minerals (Regulation and Dev.elapme11t) Act, 1957, s. 30 and Rules 54 & 55 1nade under the Act--State Governnient's order refusing mining lease to one party and granting it 'to another-Central Governnient whether in deciding revision under r. 55 should pass 'speaking order.

The appellant was one of several applicants for a mmmg lease in Andhra Pradesh.

The State Government however granted it to respondent No. 3.

The appellant then filed an application in revision, under s. 30 of the Mines & Minerals (Regulation and Development) Act, 1957, read with r. 54, to the Union of India.

Respondent No. 3 filed a counter statement and the State Government filed its comments.

The appellant filed a rejoinder. The Union Government without hearing the appellant rejected his revision application, An appeal was filed before this Court. The question that fell for consideration was whether it was necessary for the Government of India to give reasons for its decision in view of the provisions of the Act and the Rules or aliunde because the decision was liable to be questioned in appeal to this Court.

HELD: (i) In exercising its powers of revision under r. SS the Central Government discharges fuiictioas which are quasi-judicial, The decisions of tribunals in India are subject to the supervisory powers of the High Court under Art. 227 of the Constitution and of appellate powers of this court under Art. 136.

Both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected' or 'dismissed'. In such a case this Court can probably only exercise its appellate jurisdiction ..,, atisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the case. This would certainly be a very unsatisfactory method of dealing with the appCal.

[308E-F; 309B-C]

If the State Government gives sufficient reasons for accepting the application of one party and rejecting that of others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reasons given are sufficient for the purpose of upholding the decision.

But when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court. in appeal may have to examine the case de novo, without anybody being the wiser for the review by the Central Government.

The same difficulty would arise where the State Government gives a number of reasons some of which are good and some are not and the Central Government gives its decision without specifying those reasons which according to it are sufficient to uphold the ordr of the State Govemn1ent.

That is why in such circumstances, what 1s known as a 'speaking order' is called for.

[309C-FJ

BHAGAT RAJA v. UNION (Mitter, J.) 303

A 'speaking order' is all the more necessary in the case of a decision under r. 55 because there is provision for new material being placed before the Central Government which was not there before the State Government, and further, because the decision, affecting important rights of parties, is given in a sui:imary manner without a hearing. eing allowed to the parties.

A party IS entitled to know why the dec1S1on has gone against him.

[320G-321B]

The absence in r. 55 of any provision for giving such reasons is not decisive of the matter in view of the above considerations.

[315H]

Shivji Nathub/Jai v. The Union of India, [1960] 2 S.C.R. 775, M.P.

Shyam Sundar lhunjhunwala, (1962] 2 S.C.R. 339 and Sardar Govindrao

v. State, [1965] I S.C.R. 678, followed.

Nandram Hunatram, Calcutta v. Union of India, A.i.R. 1966 S.C. 1922 and Commissioner of Income-tax v. K. V. Pi//iah, 43 I.T.R. 411, distinguished.

Rex v. Northumberland Compensation Appeal Tribunal Ex flprte Shaw, [1951] 1 K.B. 711, Vedachala Mudaliar v. State of Madras, AO.R.

1952 Madras 276, Ramayya v. State of Andhra, I.L.R. 1956 Andhra 712, Annamalai v. State of Madras, A.I.R. 1957 Andhra Pradesh 738 and Joseph v. Superintendent of Post Officts, Kottayam,

J.L.R.

1961 II Kerala 245, referred to.

CIVIL APPELLATE JURISDICTION ; Civil Appeals Nos. 2596 and 2597 of 1966.

Appeals by special leave from the Orders dated May 2, 1966 and June 22, 1966 of the Government of India, Ministry of Mines and Metals, New Delhi on application is filed by the appellant under Rule 54 of the Mineral Concession Rules, 1960.

S. J. Sorabji, A. J. Rana, J. R. Gagrat and B. R. Agarwal for the appellant (in both the appeals). '

G. N. Dikshit, R. N. Sachthey for S. P. Nayyar for respondent No. 1 (in both the apals). '

P. Ram Reddy and B. Parthasarathy, for respondent No. 2 (in both the appeals) .

M. C. Setalvad, B. Dutta, and 0. C. Mathur for respondent No. 3 (in both the appeals). '

The Judgment of the Court was delivered by Milter, J.

These two appeals by special leave, are limited to the question as to whether in dismissin_g a revision and confirming the order of the State of Andhra Pradesh the Union of India was bound to make a speaking order. The text of the order is the same in both the cases, the only difference being in

the situs and the area in respect of wh, ich tho lease was applied for. One of the orders runs as follows :

"New Delhi, the 22nd June, 1966".

I am directed to refer to your revision application dated 14-12-1964 and letter dated 28-1-1966 on the above subject and to say that after careful consideration of the grounds stated therein, the Central Government have come to the conclusion that there is

~- no valid ground for interfering with the decision of the Government of Andhra Pradesh rejecting your application for grant of mining lease for asbestos over an area of Ac.113-50 in Brahmanapalli village, Cuddapah District, Andhra Pradesh.

Your application for revision is, therefore, rejected."

The facts leading to the two appeals are as follows : In response to a notification dated January 8, 1964 published in the State Gazette by the Andhra Pradesh Government inviting applications under r. 5 8 of the rules framed under the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the Rules and the Act) the appellant submitted two applications in the prescribed form viz., Form "I" for areas aggregating Ac. 113-50 in village Brahmanapalli and Ac. 13-10 in village lppatta both in the district of Cuddapah for mining asbestos. Res pondent No. 3 also made similar applications on the same date.

According to the appellant. his applications complied with all the requirements of Form "I" while those of respondent No. 3 were defective in some respects.

Besides the appellant and the respondent No. 3, there was only one other person who applied for a prospecting licence which was rejected off-hand.

As between the appellant and the respondent No. 3, the Government of Andhra Pradesh preferred the latter.

The relevant portion of the order dated 19th October 1964 in respect of the village Brahmanapalli under s. 10(3) of the Act was as follows:

"As between the other applicants Sri Bhagat Raja G and M/s. Tiffin's Barytes, Asbestos and Paints Ltd., the Government prefer M/s. Tiffin's Barytes, ..... as they are having adequate general experience and technical knowledge, and are old lessees in the district, without any arrears of mineral dues to the Government.

The mining lease application of Sri Bhagat Raja for H the areas covered by the mining lea1e application of M/s. Tiffin's Barytes, Asbestos and Paints Ltd. is rejected."

BHAGAT RAJA v. UNION (Mitter, J.) 305

The text of the order with regard to village Ippatta is practically the 5ame.

The appellant filed application in revision in the prescribed fonn i.e. Fonn 'N' under s. 30 of the Act read with r. 54 to the Union of India on December 14, 1964. The appellant tried to. bring out in his revision applications that the financial condition of the 3rd respondent was extremely precarious as would be evidenced by documents, copies whereof were annexed to his petition.

The 3rd respondent filed a counter statement to the revmon application in April 1965. In March 1966 the appellant received the comments of the Andhra. Pradesh Government on his revision applications.

The appellant filed rejoinder to the counter statements of the 3rd respondent in May 1965 and to the comments of the Andhra Pradesh Government in April 1966.

He also asked for the grant of a personal hearing before the decision of the case which was not given. Ultimately, his applications were rejected by ord.ers quoted hereinabove.

Various grounds of appeal were taken in the application for special leave to appeal preferred by the appellant.

An attempt has been made therein to show that respondent No. 3 had no experience in asbestos mining, that its financial position was very unsatisfactory and that its application for mining lease was not in proper form.

A complamt was also made that in rejecting the applicant's revision applications the Union of India was bound to give reasons for its decision as it was exercising quasi .iudicial powers under s. 30 of the Act read with tT. 54 and 55, that principles of natural justice and £airplay requiring the divulgence of the grounds were violated and that a personal hearing should have been given to the appellant before the disposal of the revision applications.

We are not called upon in this case to go into the merits of the case but only to examine the question as to whether it was necessary for the Government of India to give reasons for its decision in view of the provisions of the Act and the Rules or aliunde because the decision was liable to be questioned in appeal to this Court. It is necessary to take note of a few provisions of the Act and the relevant rules framed thereunder to ascertain the scope of a party's right to apply for a lease and the powers and duties of the Government in accepting or rejecting the some. The preamble to the Act shows that its object was to provide for the regulation of mines and the development of minerals under the control of the Union of India. Under s. 4( 1) no person can undertake any prospecting or mining operations in any area, except under and in accordance with the tenns and conditions of a prospecting licence or a mining lease granted under the Act and the Rules.

Under sub-s. (2) of the section

"No prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder."

.S. 5 Jays dowp, certain conditions which a person desiring to have a mining lease must fulfil.

S. 8 provides for the period for which a mining lease may be granted.

Under s. 10( 1) an application for a mining lease has to be made to the State Government concerned in the prescribed form.

Sub-s. (3) of s. 10 runs as follows :

"On receipt of an application under this section, the State Government may, having regard to the provisions of this Act and any rules made thereunder, grant or refuse to grant the licence or lease."

Under sub-s. (2) of s. 11 a person whose application for a licence is received earlier than those of others shall have a preferential right for the grant thereof over the others. The proviso to this sub-section enacts that where applications are received on the same day, the State Government, after taking into consideration the matters specified in sub-s. ( 3), may grant the mining lease to such one of the applicants as it may deem fit. Sub-s. ( 3) specifies 4he matters referred to in sub-s. (2) and they are as follows:-

(a) any special knowledge or experience in, prospecting operations or mining operations, as the case may be, possessed by the applicant;

(b) the financial resources of the applicant; ( c) the nature and quality of the technical staff employed or to be employed by the applicant; and ( d) such other matters as may be prescribed. s. 13(1) enables the Central Government to make rules for regulating the grant of prospecting licences and mining leases.

Under s.19 any mining lease granted, riinewed or acquired in contravention of the provisions of the Act' is to be void and of no effect. Power of revision of the order of the State Government is given to the Central Government in the following terms :

"The Central Government may, of its own motion or on application made within the prescribed time by the aggrieved party, revise any order made by a State Government or other authority in exeipse of the powers conferred on it by or under this Act." Rules were made by the Central Government under s.13 of the Act known as the Mineral Concession Rules, 19~0. R.22 pres- -cribes that an application for the grant of a mining lease must be made to the State Government in Form "I" accompanied by a

J;'

DllAGAT RAJA V. UNION (Mille!', J.) 307

fee of Rs. 200/-, a deposit of Rs. 500/- and an income-~ clearance certificate.

Under r. 26 the State Government IS obliged to give reasons for refusal to grant a mining lease. Any

person aggrieved by an order made by the State Government may prefer an application for revision under r. 54 in Form 'N'. In every such application against the order of the State Government refusing to grant a mining lease, a person to whom .a. lease has been granted must be impleaded as a party. R. 55 onginally framed in 1960 was amended in July 1965. Under the amended r. 55 the position is as follows :-

" ( 1 ) On receipt of an application for revision under r. 54, copies thereof shall be sent to the State Government and to all the impleaded parties calling upon them to make such comments as they may like

to make within three months of the date of issue of the communication and if no comments are received within that period, it is to be presumed that the party omit.ting to make such comments has none to make. ( 2) On receipt of the comments 'from any party under sub-rule ( 1), copies thereof have to be sent to the other parties c, alling -upon them to niake further comments as they may like to make within one month from the date of the issue of the communication.

( 3) The revision application, the communications containing comments and counter-comments referred to in sub-rules (1) and (2) shall constitute the record of the case. .

( 4) After considering the records referred to in sub-rule ( 3), the Central Government may confinn, modify or set aside the order or pass such other order in relation thereto as it may deem just and proper." From t)le above, it will be amply clear that in exercising its powers of revision under r. 55 the Central Government mu5t take into i;:onsideration not only the material which was before the State .Government but comments and counter-comments, if any, which the parties may make rejlarding the order of the State Government.

In other words, it is open to th.e pa1 ties to show how and where the State Government had gone wrong, or, why the order of the State Government should be confinned.

A party whose application for a mining lease is turned down by the State Government is therefore given an opportunhy of showing that the State Government had taken into consideration irrelevant matters or based its decision on grounds which were not justified.

At the time when applications for a licence are made by different parties to the State Government, they are not LSSup/67-7

giYen a~ opportunity of showing any defects or demelits in the applications of the others or why their applications shuuld be preferred to others.

The State Government has to make up its ind by considering the applicatlo115 before it as to which party 1s to be preferred to the other or others.

S.11 ( 3), as already noted, prescribes the matters which the State Government must consider before selecting one out of the numerc; ius applicants.

But the po3sibility of the State Government being misled in its consideration of the matters cannot be ruled out.

It may be that a prty to whom a lease is directed to be granted has in fact no spl?C1al knwledge or experince requisite for the mining operations or 1t may be that hts financial resources have not been properly disclosed.

It may also be that the nature and quality of the technical staff employed or to be employed by him is not of the requisite standard.

En an application for revision under r. SS it will be open to an aggrieved party to contend that :the matters covered by sub-s. (3) of s. 11 were not properly examined by the State Government, or that the State Government had not before it all the available material fo make up its mind with respect thereto before granting a licence. In a case where complaints of this nature are made, of necessity, the Central Government has to scrutinise matters which were not canvassed before the State Government.

A question may arise in such cases as to whether the order of the Central Government in the form in which it was made in this case would be sufficient, specially in view of the fact that the correctness thereof may be tested in appeal to this Court.

It is now well-settled that in exercising its powers of revision under r. S5 the Central Government discharges functions which are quasi judicial : see Shivji Nathubhai v. The Union of India & Ors.(') and M. P. Industries v. Union('). In the latter case one of us (our present Chief Justice) said (at p. 471):

"The entire scheme of the rules posits a judicial procedure and the Central Government is constituted as a tribunal to dispose of the said revision.

Indeed this Court in Shivji Nathubhai v. The Union of I.nia

(supra) rules that the Central Government cxerc1s1ng its power of review under r. 54 of the Mineral Concession Rules, 1949, was acting judicially as a tribunal.

The new rule, if at all, is clearer in that regard and emphasises the judicial character of the proceeding.

If it was a tribunal, this Court under Art. 136 of the Constitution can entertain an appeal against the order of the Central Government made in exercise of its revisional powers under r. 55 of tbe Rules." (i}(I96':ji S.C.R. 775.

(2) [1966] 2 S. C.R. 466,

\ A

BHAGAT RAJA v. UNION (Mitter, J.) 309

Let us now examine the question as to whether it was incumbent on the Central Government to give any reasons for its decision on review.

It was argued that the very exercise of judicial or quasi judicial powers in the case of a tribunal entailed upon it an obligation to give reasons for arriving at a dision for or against a party. The decisions of tribunals in Indta are subject to the supervisory powers of the High Courts under Art. 227 of the Constitution and of appellate powers of this Court under Art. 136.

It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word "rejected", or, "dismissed" In such a case, this Court can probably only exercise its appellate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal. This will certainly be a very unsatisfactory method of dealmg with the appeal. Ordinarily, in a case like this, if the State Government gives sufficient reasons for accepting the application of one party and rejecting that of the others, as it must, and the Central Government adopts the reasoning of the State Government, this Court may proceed to examine whether the reaspns given are sufficient for the purpose of upholding the decision.

But, when the reasons given in the order of the State Government are scrappy or nebulous and the Central Government makes no attempt to clarify the same, this Court, in appeal may have to examine the case de novo without anybody being the wiser for the review by the Central Government. If the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying those reasons which according to it are sufficient to -uphold the order of the State Government, this Court, in al?peal, may find it difficult to ascertain which are the grounds which weighed with the Central Government in upholding the order of the State Government. In such circumstances, what is known as a "speaking order" is called for.

The order of the Central Government of June :2, 1966 is so woded as to be open to the construction that the reviewing authority was primarily concerned with finding out whether any grounds had been made out for interfering with the decision of the State Government. In other words, the Central Government was not so much concerned to examine the grounds or the reasons for the decision of the State Government but to find out whether here was any cause for disturbing the same. Prima facie the order does not show that the reviewing authority had anv thought of expressing its own reasons for m:uutaining the decision arrived at. If detailed reasons had been given by the

State Government and the Central Government had indicated clearly that it was accepting the reasons for the decision of the

State Government, One would be in a position to say that the reasons for the grant of a lease to a person other than the appellant were obvious.

But, where as here, the State Government does not find any fault or defect in the application of the unsuccessfully applicant and merely prefers another on the ground that "he had adequate general experience and technical knowledge and was an old lessee without any arrears of mineral dues" it is difficult to say what turned the scale in favour of the successful applicant excepting the fact that he was known to the State Government from before. We do not want to express any views on this but if this be a proper test, then no new entrant in the field can have any chance of success where there is an old lessee competing with him.

The order of the Central Government .does not bring out any reason for its own decision except that no ground for interference with the decision arrived at was established.

Now we propose to examine some decisions of this Court where the question as to whether the reviewing authority should give reasons for its decisions was gone into. In Harinagar Sugar Mills v. Shyam Sundar Jhunjhunwala(") this Court had to consider whether the Central Government exercising appelVate powers under s.111 of the Companies Act, 1956 before its amendment in 1960 was a tribUI)al exercising judicial functions and as such, subject to the appellate jurisdiction of this Court under Art. 136 of the Constitution and whether the Central Government had acted in excess of its jurisdiction, or acted illegally otherwise in directing the company to register the transfer or transfers in favour of the respondents. There, the articles of association of the company concerned gave the directors the right in their absolute discretion and without assigning any reason to refuse to register any transfer of shares. The directors declined to register some shares in the name of the transferees who applied to the High Court at Bombay for orders under s. 38 of the Indian Companies Act, 1913 for rectification of the share register on the ground that the board of directors had exercised their right ma/a fide, arbitrarily and capriciously. The High Court rejected tbese petitions on the ground that controversial questions of law and fact could not be tried .in summary proceedings under s. 38. The transferees request.ed the directors once more to register the shares.

On their refusal to do so, appeals were preferred to the Central Government under s.111 (3) of the Indian Companies Act, 1956 which had since come into operation. The Joint Secretary, Ministry of Finance, who heard the appeals declined to order registration of transfers

\, A ,_

BHAGAT RAJA v. UNioN (Mitter, J.) 31.l

practically on grounds similar to those put forward by the High Court of Bombay.

Thereafter, the original holder of the shares transferred some shares to his son and some to his daughter-iniaw and the transferees requested the company to register the transfers.

The directors once more refused.

Against the resolution of the directors, separate appeals were preferred by the son and daughter-in-law of the original holder of the shares. The Deputy Secretary to the Government of India set aside the resolution passed by the board of directors and directed the company to register the transfers. No reasons were however given for such order. The company came up in appeal to this Court under Art. 136 of the Constitution. According to the judgment of the majorit)' of Judges, the exercise of authority by the Central Gove.rnment was judicial as it had to adjudicate upon the rights of contesting parties when there was a !is between them.

It was observed in that case that

"If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this court under Art. 136 of the Constitution, we fail to se how the power of this court can be effectively exercised if reasons are not given by the Central Government in support of its . order."

This Court further held that there had been no proper trial of the appeals, no reasons having been given in support of the orders of the Deputy Secretary who heard them and in the result, the orders were quashed with a direction that the appeals be re-heard and disposed of according to law.

In Sardar Govindrao v. State ( 1 ) the appellants who claimed to be descendants of fonner ruling chiefs in some districts of Madhya Pradesh applied under the Central Provinces and Berar Revocation of Lan;:i Revenue Exemptions. Act, 1948 for grant of money or pension as suitable maintenance for themselves.

They held estates in two districts on favourable terms as Ja!zgirdars Maufidars and Ubaridars and enjoyed an exemption from payment of land revenue aggregating Rs. 27,828-5-0 per year. On the passing of the Act, the exemption was lost and they claimed to be entitled to grant of money or pension under the pr<;>visions of the Act. They applied to the Deputy Commissioner who forwarded their applications to the State Government.

These were rejected without any reasons being given therefor. The appellants file.ct a petition in the High Court of Madhya Pradesh under Art. 226 of the Constitutfon

for a writ of certiorari to quash the order of the State Government. l'he High Court held that the State Government "was

not compelled to grant either money or pension because the exercise of the power under s. S was discretionary and the peti

tion, therefore was incompetent." S. S (3) of the C.P. and Berar Act provided as follows :-

"The Provincial Government may make a grant of money or pension- ( i) for the maintenance or upkeep of any religious, charitable or public institution or service of a like nature, or

(ii) for suitable maintenance of any family of a descendant from a former ruling chief." S. 6 barred the jurisdiction of civil courts. It was observed b} this Court:

"The Act lays down upon the Government a duty which obviously must be performed in a judicial manner.

The appellants did not seem to have been heard at all. The Act bars a suit and there is all the more reason that Government must deal with such case in a quasi-judicial manner giving an opportunity to the claimants to state their case in the light of the report of the Deputy Commissioner.

The appellants were also entitl~ to know the reason why their claim for the grant of money or pensipn was rejected by Government and how they were considered as not falling within the class of persons who it was clearly intended by the Act to be compensated in this manner. . . . . . . . As the order of Government does not fulfil the elementary requirements of a quasijudicial process YI!: do not consider it necessary to order a remit to the High Court." In the result this Court set aside the order of the Government and directed the disposal of the case in the light of the remarks made.

In M. P. Industries v. Union(') the order of the Central Government rejcting the revision application under r. 55 of the Mineral Concession Rules was couched in exactly the samo language as the order in appeal before us (see at p. 475 of the report).

One cannot help feeling that the Ministry concerned have a special form which is to be used whenever a review application is to be rejected.

This may easily lead anyone to believe that the review is a sham and nothing but the formal observance of the power granted to the Cen !):al Government.

In that case, all the three learned Judges of this Court who heard the appeal were unanimous in dismissing it : sorne of the obser

(I) [196] I S.C.R. 466.

BHAGAT RAJA v. UNION lMitler, I.) 313

vations made bear repetition.

It was there 11rgued that if tho Central Government had to give reasons when it functioned u

a tribunal, it would obstruct the work of the Govenunent and lead' to unnecessary delays.

As to this it said by our present Chief Justice :

"The Central Government functions only through different officers and in this case it functioned through an Under Secretary.

The condition of giving reasons is only attached to an order made by the Government when it functions judicially as a tribunal in a comparatively small number of matters and not in regard to other administrative orders it passes . . ... .

Our Constitution posits a welfare State ..... .

In the context of a welfare State, administrative tribunals have come to stay. Indeed, they are the necesary concomitants of a welfare State. But arbitrariness in their functioning destroys the concept of a welfare State itself.

Self-discipline and supervision exclude or at any rate minimise arbitrnriness. The least a tribunal can do is to disclose its mind.

The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bounds.

A reasoned order is a desirable condition of judicial disposal.

. . . . If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuse of power. But, if reasons for an order are given, it will be an effective restraint on such abuse, as the order, if it discloses extraneous or

irrelvant considerations, will be subject to judicial scrutmy and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard."

It was further obseryed in that case that the position of ordinary courts of law was different from that of tribunals exercising judicial functions and it was said :

. "A Judge is traied t~ look at tings objectively, uninfluenced by cons1derallons of pohcy or expediency; but, an execul!ve officer generally looks at things from the standpoint of policy and expediency. The habit of

mind of an executive .offi6er so formed cannot be expected to change from function to function or from act to act. So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affecting the rights of parties; and the least they should do is to give reasons for their orders. Even in the case of appellate courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appellate or rcvisional court agrees with the reasoned judgment of the subordinate court or there are no legally permissible grounds to interfere with it.

But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the first tribunal is lacoruc and does not give any reasons.

That apart, when we insist upon reasons; we do. not prescribe any particular form or scale of the reasons.

The extent and the nature of the reasons depend upon case of aflirmance where the original tribunal gives hunal shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons.

What is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by reference to those given by the original tribunal. The nature and the elaboration of the reasons necessarily depend upon the facts of each case."

It must be noted however that the above view was not shared by the two other Judges of the Bench constituting this Court. It was said by them :

"For the purpose of an appeal under Art. 136, orders of Courts and tribunals stand on the same footing.

An order of court dismissing a revision application often gives no reason, but this is not a sufficient ground for quashing it. Likewise, an order of an adminstrative tribunal rejecting a revision application cannot be pronounced to be invalid on the sole ground !hat it do.es not give reasons for the rejection."

They distinguished the case of Harinagar Sugar Mills Ltd.(') on the ground that the Central Government had reversed the. deci siOL appealed without giving any. reasons and the latter did not disclose any apparent grounds for reversal and added :

"There is a vital difference between the order of reversal by the appellate authority in that case for no

(1) [19621 2 S.C.R. 339.

BHAGAT RAJA V. UNION (Mitte~. J,)

reason whatsoever and the order of affinnance by the revising authority in the present case."

As has already been :noted, the board of directors in that case did not give any reasons for the refusal to register and th~ entral Government adopting the same course reversed the decmon of the directors without giving any reasons. Clearly, the act of the Central Government there savoured of arbitrariness.· Under the articles of association of the company, the directors were not obliged to give any reasons.

Their power of refusal was unrestricted if they acted bona fide or in the interest of the company.

The reversal of their discretion clearly amounted to a finding that they had acted arbitrarily or ma/a fide and one was, left to guess the reasons of the Central Government for coming to this conclusion.

As has already been said, when the authority whose decision is to be reviewed gives reasons for its conclusion and the reviewing authority affinns the decision for the reasons given by the lower authority, one can assume that the reviewing authority found the reasons given by the lower authority as acceptable to it; but where the lower authority itself fails to give any reason other than that the successful applicant was an old lessee and the reViewing authority does not even refer to that ground, this Coun has to grope in the dark for finding out reasons for upholding or rejecting the decision of the reviewing authority. After an a tribunal which exercises judicial or quasi-judicial powers can certainly indicate its mind as to why it acts in a particular way and when important rights of parties of far-reaching consequence to them are adjudicated upon in a summary fashion, without giving a personal hearing where proposals and counter-proposals are made and examined, the least that can be expected is that the tribunal should tell the party why the decision is going against him in all cases where the law gives a further right of appeal.

On behalf of the res{Xlndents, it was contended that r. 55 whic~ provided for a revision did not envisage the filing of fresh pleadmgs and fresh material but only invited comments of the pllrties with regard to the matter before the Central Government.

It was argued that if after going through the comments and co'!nter-comments t_he Cntral Government found no reason to arnve .at a conclusion different from that of the State Governll}Cnt: 1t W'.15 not called upon to disclose any grounds for its decis10n 1~ review. Our. attention was drawn in particular tor. 26 of the Ml!leral Concession Rules which enjoined upon the State Govrnment to communicate in .writing the reasons for any .order

tefus.1g grant or ree~ a mining lease. The absence of any P.?OV1S1on Ill r. 55 for glVlng such reasons was said to be decisive 911, the.matter sindiCl\tiye of.the view of the legislature that there was no necessity fr giving reasons for the order on review. We find ounel\"e8 unable to accept this contention.

Take the case

where the Central Government sets aside the order of the State

Government without giving any reasons as in Harinagar Sugar Mills' case('). The party who loses before the Central Government cannot know why he had lost it and would be in great difficulty in pressing his appeal to the Supreme Court and this Court would have to do the best it could in circumstances which are not con

ducive to the proper disposal of the appeal. Equally, in a case where the Central Government merely affirms the order of the State Government, it should make it clear in the order itself as to why it is affirming the same. It is not suggested that the Cen trnl Government should write out a judgment as courts of law are wont to do.

But we find no merit in the contention that an authortiy which is called upon to determine and adjudicate upon the rights of parties subject only to a right of appeal to this Court should not be expected to give an outline of the process of reasoning by which they find themselves in agreement with the decision of the State Government. As a matter of fact, r. 26 considerably lightens the burden of the Central Government in this respect. As the State Government has to give reasons, the Central Govern

ment after considering the comments and counter-comments on the reasons given by the State Government should have no diffi culty in making up its mind as to whether the reasoning of the State Government is acceptable and to state as briefly as possible the reasons for its own conclusion.

Our attention was drawn to a judgment of this Court in Nand ram Hunatram, Calcutta v. Union of India('). There, one of the points made by the appellant in the appeal to this Court was that the order of the Central Government, in review, upholding the action of the State Government cancelling the mining lease grant

ed to the appellant was bad inasmuch as no reasons were given. It was pointed out in the judgment in that case that the facts there were so notorious that the reasons for the action of the State Gov ernment and the confirmation of its order by the Central Government were too obvious and could not possibly be questioned by anybody. The1e the partners of the appellant firm had fallen out among themselves and none of them was willing to spend money on the colliery with the result that the work came to a stand-still and the colliery began to get flood~. At this juncre, Govern mcnt stepped in and made pronus~ to the essenttl workmen that their wa&es would be paid and this saved the colhery. There

;1fter, the Chief Inspector of Mines was infom1ed by one of the partners of the appellant firm that the othe~ partners were pre

venting him from making payment o.r runmng expelll!es of. the colliery and that he was. not in a position to perfom1 his duties .as

an occupier. He accordingly resigned his office. Tre Manager also

---- .. .. -~-···--·--

(2) A.1.R.. \966 S.C.R. l9l2

(I) (196212 S.C.R. ,39,

E ..

G·

BHAGAT RAJA v. UNION (Mitter, /.) 317

resigned and the Sub-Divisional Officer of the district informed Government that the situation had become so alam1ing that some action on the pa1t of the Government was absolutelr necary.

In spite of notice, the partners refused to take any action with the result that the Government took over the colliery and terminated the lease.

The revision application filed before the Central Government under r. 54 of the rules was turned down without giving any reasons.

Negativing the contention of the appellant that the order of the Central Government was bad in law because no reasons were given, it was said by this Court that

'The documents on the record quite clearly establish that the colliery was being flooded as the essential services had stopped functioning and but for the timely intervention of the State Goverment the co~ liery would have been lost. In these circumstances, it is quite clear that the action of the State Government was not only right but proper and this is hardly a case in which any action other than rejecting the application for revision was called for and a detailed order was really not required because after all the Central Government was merely approving of the action taken in the case by the State Government, which stood completely vindicated . . . . .

The action of the State Government far from being arbitrary or capricious was perhaps the only one to take and all that the Central Government has done is to approve of it."

The last portion of the passage was relied upon by the counsel for the respondents in support of his argument that as the order in review is merely in confirmation of the action of the State Government reasons need not be 'given.

But the above dictum cannot be considered dissociated from the setting of the circum '1ances in which it was made.

There it was plain as a pike-staff lhat the State Government had no alternative but to cancel the lea>e : ti: absence of any reasons in the order on review could not possibly !ave aybody in doubt as to whether reasons were.

As matter ?f fact In the setting of facts, the reasons were so

~1bv1?us tat It .11'.as not necC'.ssary to set them out. There is noth· mg. in t1h1s dem1on which is contrair to M.P. Industries v.

Un!on( ).

What the decision says is that the reasons for the acuo? of the State were so obvious th.at it was not necessary, on the fact~ of the case, to repeat them m the order of the Central Government.

Ou~ attention was also drawn to another judgment of this Court in Cornmi, V; rioner of Income-tax v. K. V. Pilliah (a). One o! th~ -~~-e~~J~s .. m that case before the High Court of Mysore

(I) (1966] I, S. C. R. 466.

(2) 43 1. T R. 411.

.under s. 66(2) of the Indian Income-tax Act was, whether, on 1he facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in sustaining both the addition .of Rs. 41,142/- as income from business and Rs. 7,000/- as cash credits, nnd whether such addition did not result in double taxa- .tion. It was held by this Court that the question whether Rs. 41,142/- was liable to be taxed fell to be detennined under the first question. In respect of the other amount of Rs. 7,000/-

the Income-tax Officer had held that the explanation of the assessec was untrue and the Appellate Assistant Commissioner and the Tribunal had agreed with that view.

In this setting of facts, it •was said by this Couri:

''The Income-tax Appellate Tribunal is the final factfinding authority and normally it should record its conclusion on every disputed queftion raised before it, setting out its reasons in support of its conclusion. But, in failing to record reasons, when the Appellate Tribunal fully agrees with the view expressed by ihe Appellate Assistant

Commissioner and has no other ground to record in support of its conclusion, it does not act illegally or irregularly, merely because it does not repeat the grounds of the Appellate Assistant .Commissioner on which the decision was given against the assessee or the department.

The criticism made by the High Court that the Tribunal had "failed to perfonn its duty in merely affirming the conclusion of the Appellate Assistant Commissioner" is apparently unmeri!PA. On the merits of the claim for exclusion of the umount of Rs. 7,000/-, there is no question of law which could be said to arise out of the order of the Tribunal." The above observations were sought to be pressed into service 'by the counsel for the respondents but there is a good deal of difference between that case and the one with which we have to deal. The High Court there was merely called upon to give its opinion on the statement of facts set out by ihe Appellate Tribunal.

It was for the Income-tax Officer in the first instance to accept or reject the explanation with regard to the cash credit. It the Income- • tax Officer found the assessee's explanation unacceptable, he had to say why he did not accept it. Unless the assessee in appeal was able to point out to the Appellate autoities some flaw in the reasoning of the Income-tax Officer, 1t is not necessary for the appellate authorities to give their reasons independently.

The explanation of the assessee is either accepted or rejected; but in the case which we have before .us, the State Government has to consider the merits and demerits of the applications and to give its reasons why it prefers one to the ?ther or .others. There is a dispute between two or more contestmg parties and the reasons for

BHAGAT RAJA. v. UNION (Mitter, J.) 319'

A preferring one to the other or others may be more than one. It i&

not a question of accepting or rejecting an explanation. In our opinion, what was said in the above Income-tax case will not apply .in the case of a review by the Central Government of a decision of the State Government under the Act and the Rules.

It may be of interest to note that in Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw(') an application was mi.de in the King's Bench Division in England for an order of certiorari for the quashing of a decision reached by the Compensation Appeal Tribunal dismissing an appeal by Shaw against an award to him of compensation for loss of employment as a clerk to a Hospital Board payable under the National Health Service (Transfer of Officers and Compensation) Regulations, 1948. There the question of the practice and procedure with regard to the issue of a writ of certiorari was gone into at some length. The tribunal in that case had made a speaking order, It was contended by the co•msel for the tribunal that the King's Bench Division had no power to examine the order in the case before it on certiorari on the ground that certiorari went only to defect of jurisdiction, This was turned down and the Divisional Court held that it had jurisdiction to quash by certiorari the decision of an inferior tribunal when the latter had embodied the reasons for its decision in its order and those reasons are bad in law. For our purpose, we need only refer to the observations of Lord Goddard. C.J. at p. 724 of the report where he said :

"I think it is beneficial in this case that we should do so, not merely having regard to the facts of this case, but because so many tribunals have now been set up, all of whom, I am certain, desire to do their duty in the best way, and are often given very difficult sets of regulations and statutes to construe. It certainly must be for their benefit., and I have no doubt but that they will welcome, !ha.t this e; ourt sould be able to give guidance to them if, m makmg their orer~, they make their orders speakmg orders, so that th.is court can then consider them if they are brought before the court on certiorari."

The case for giving reasons or for making a speaking order becomes much stronger when the decision can be challenged not only by the issue of a writ of certiorari but an appeal to this court.

Counsel for the respondents referred us to the comment on this c.ase made by Sir C. K. Allen in his Law and Orders (Second EditlOn) at p. 259 to p. 261. According to the learned author the Northumberland Compensation case might be a great deterent than encouragement to speaking orders inasmuch as "the prospect

(I} (1951] 1 K.B. 71 I. ·- ,

of having their mental process set forth in literary form, might be extremely disagreeable to them" and up to the year 1956 did not seem to have assisted iireatly the means of recourse against decisions of inferior jurisdictions. Speaking for ourselves, with great respect to the learned author, we do not think that the position of the Central Government as a reviewing authority under the Mineral Concession Rules can be equated with an appellaie tribunal of the type whose decision was before the King's Bench Division in England. If the State Government is enjoined by law to give its reasons, there is no reason why it should be difficult for the appellate authority to do so. The necessity and the desirability of tribunals making speaking orders has been adverted upon by different High Courts in India. Thus in Vedachala M udaliar v.

State of Madras(') where the State Government of Madras set aside the order of the Central Road Traffic Board without giving any reasons, it was observed that

"When the policy of the Legislature is to confer powers on administrative tribunals with a duty to discharge their functions judicialJy I do not see any reason why they should be .exempted from all those safeguards inherent in its exercise of that jurisdiction. . . .

From the standpoint of fair name of the tribunals and also in the interests of the public, they should be expected to give reasons when they set aside an order of an inferior tribunal. . . . . . Further, if reasons for an order are given, there wilJ be less scope for arbitrary or partial exercise of powers and the order 'ex facie' will indicate whether extraneous circumstances were taken into consideration by the tribunal in passing the order.'.'

Refrence may also be made to Ramayya v. State of Andhra(') and Annamalai v. State of Madras(•). To the same effect is the judgment of the Kerala High Court in Joseph v. Superintendent of Post Offices, Kottayam (').

We have already commented that the order of the Central Government in this case is couched in the same language as was used in the case before this court in M.P. Industries v. Union(') in August J 965. The old rule 55 was replaced by a new rule which came into force on 19th July 1965. Whereas the old rule directed the Central Government to consider comments on the petition of review by the State overnment or other. autority nly, the new rule is aimed at calling upon all the parties mcludmg the State Government to make their commenw m the matter and the parties are given the right to make further comments on those made by

(I} A.l:R. 1952 Modras 276.

(2) 1, L.R. 1956 Andhro 712

(3) A.l.R. 1957 Andhra Pradesh 739,

(4) l.L.R. 1961·11Kerala245.

(5) [1966] l S.C.R. 466.

BHAGAT llAJA v. UNION (Mitter, J.) 321

.A the other or others. In effect, the parties are given a right to bring forth material which was not before the State Government.

It is easy to see that an unsuccessful party may challenge the grant of a lease in favour, of another by pointing out defects or demerits which did not eome to the knowledge of the State Government. The order in this case does not even purport to show that the comments B and counter-comments, which were before the Central Governme.nt in this case, had been considered. It would certainly have been better if the order of 22nd June 1966 had shown that the Central

Government had taken into consideration all the fresh material adduced before it and for the reasons formulated they thought that the order of the State Government should not be disturbed.

C In the result, the appeals are allowed and the orders of the Central Government passed on 22nd June, 1966 are set aside. The Central Government is directed to decide the review applications afresh in the light of the observations made. The appellant will get his costs throughout from the 3rd respondent.

G.C.

Appeals allowed.

BHAGAT RAJA

THE UNION OF INDIA & ORS

March 29, 1967

K. SUBBA RAO, C.J.

C. SHAH, J.

M. SHELAT

V. BHARGAVA

G. K. MITTER, JJ

s. 30

Andhra Pradesh

s. 30

Union of India

India

Central Government

Art. 227

Art. 136

[1960] 2 S.C.R. 775

(1962] 2 S.C.R. 339

Mineral Concession Rules, 1960

S. J. Sorabji

A. J. Rana

J. R. Gagrat

B. R. Agarwal

G. N. Dikshit

R. N. Sachthey

S. P. Nayyar

P. Ram Reddy

B. Parthasarathy

M. C. Setalvad

B. Dutta

0. C. Mathur

Milter

State of Andhra Pradesh

New Delhi

Government of Andhra Pradesh

Brahmanapalli village

Cuddapah District

January 8, 1964

Andhra Pradesh Government

Brahmanapalli

lppatta

Cuddapah

19th October 1964

s. 10(3)

Bhagat Raja G

Tiffin's Barytes

Asbestos and Paints Ltd.

Bhagat Raja

Ippatta

s. 30

Andhra. Pradesh Government

s. 30

Government of India

s. 4( 1)

S. 5

S. 8

s. 10( 1)

s. 10

s. 11

s. 13(1)

DllAGAT RAJA V. UNION

s. 11

Mineral Concession Rules, 1949

Art. 136

[1966] 2 S. C.R. 466

Indta

Art. 227

Art. 136

June :2, 1966

Companies Act, 1956

Art. 136

High Court at Bombay

s. 38

Indian Companies Act, 1913

s. 38

Indian Companies Act, 1956

High Court of Bombay

Art. 136

Art. 136

Madhya Pradesh

High Court of Madhya Pradesh

Art. 226

S. 6

Cen !):al Government

Art. 136

Harinagar Sugar Mills Ltd.

BHAGAT RAJA V. UNION

Harinagar Sugar Mills

Supreme Court

Central Govern

Cornmi

s. 66(2)

Income-tax Act

Income-tax Appellate Tribunal

Shaw

England

Goddard

C. K. Allen

State Government of Madras

Central Road Traffic Board

Kerala High Court

Central Governme.nt

22nd June 1966

Central

Government

22nd June, 1966


COMMISSIONER OF INCOME TAX, WEST BENGAL, A

CALCUTTA & ANR.

ANIL KUMAR ROY CHOWDHURY & ANR.

March 30, 1967

[J. C. SHAH,.:S. M. SIKRI AND V. RAMASWAMI, JJ.)

Indiall [T1come Tax Act, 1922 (11 of 1962) Ss. 33 (2), and 66- Proper person to file appeal, who is-New facts, jurisdiction of Hlgli Court.

On the success of the assessee's appeal against an assessment made by the Income Tax Officer, District I (2), the Department appealed to the Tribunal. This was filed by the Income Tax Officer, District VI, in whose jurisdiction the assessee had shifted his n!s-idencc.

The assessee objected that the appeal was incompetent as it was not filed by the Income Tax Officer who 1had made the assessment.

The Tribunal rejected the objection.

On reference, the High Court sent for the records looked into them and on new facts, answered the question against the Revenue.

In appeal by special leave

HELD.-The Income Tax Officer. District VI, had jurisdiction over the assessee and he could be directed by the Commissioner to file the appeal.

Under S. 33(2), the person who has a right to appeal is the Commissioner of Income Tax and not the Income Tax Officer. The Income Tax Officer, when he files the al'peal under the direction of the Commissioner performs merely a ministenal function.

But the Income Tax Olftcer E selected must have some concern with ihe assessee against whom the appeal is filed by the Commissioner of Income-Tax.

It may be that the Income Tax Officer who completed the original assessment would also be concerned with the appeal to be filed by the Commissioner, but it does not mean that he is exclusively so concerned.

If the case had been trans~ ferred by the Commissioner or the Board of Revenue from he Income Tax Officer who completed the assessment to another Income Tax Officer, then obviously the former officer will have no concern with the appeal.

F But if there has been no such transfer then it cannot be said that be alone is concerned with the appeal. The Income Tax Officers can have concurrent jurisdiction over some matters.

One illustration of this is prr vided by s. 64(4). [325F-H; 327D] .

Commissioner of Jnco1n.e Tax, We.\·/ Bengal, Calcutta v. S.. Sal'kar & Co. A.I.R. 1954 Cal. 613. approved.

Sardar Ba/dev Singh v.

Commi.l'sioner of Income Tax, De/Iii 40 G I.T.R. 605, followed.

R. B. L. Benarsl Dass v. C.l.T. East Punjab, 42 T.T.R. 363, disaporoved.

The High Curt exceeded its ju, ris<liction unlcr s.66. of the fncome Tax Act in fin<lmg new facts. If 1t felt any difficulty m answering the question. it should ha, e called for u supplementary statement of the H case. [325Cl

CIVIL APPELLATE JURISDICTlnN: Civil Appeal No. 205 of . 1966.

C.J. T. v. ANJL KUMAR ( Sikri, J. ) 323

Appeal from the judgment an<! order dated. May 28, 1963 of the Calcutta High Court in Income Tax Reference No. 79 of 1959.

Veda Vyasa, A. N. Kirpal, S. P. Nayyar and R. N. Sachthey, for the appellants.

A. K. Sen and B. P. Maheshwarl, for the respondents.

The Judgment of the Court was delivered by Sikri, J. This appeal in pursuance of a certificate of fitness granted by the High Court of Judicature at. Ca!cutta undr s. 66 (A)(2) of the Indian Income Tax Act, 1922, 1s drrected against the judgment of the High Court in .Income Tax Reference No. 79. of

1959. By its judgment, the High Court answered the fol!owmg question, referred to it by the Income Tax Appellate Tnbunal, against the Revenue :

"Whether on the facts and in the circumstances of the case, the appeal before the Appellate Tribunal was filed by a proper person ?" The relevant facts are stated in the statement of the case and are as follows : The respondents, hereinafter referred to as the assessee, is a Hindu Undivided family and for the assessment year 1947-48 the assessment was made by the Income Tax Officer, Dist. 1(2) on February 12, 1952. He held that the income of Rs. 1,41,851/- derived from forests in East Pakistan was not agricultural income exempt from tax under the Indian Income Tax Act,

1922. The assessee appealed to the Appellate Assistant Commissioner, who, by his order dated February 7, 1956, held that the said amount of Rs. 1,41,851 /- represented income from agriculture and was thus exempt from tax.

The Department appealed to the Income Tax Appellate Tribunal and.the appeal was filed by the Income Tax Officer, District VI, Calcutta. It appears that the assessee who formerly resided at 24/25 Beadon Row, Calcutta, shifted in 1954 to 29B, Ballygunge Circular Road, Calcutta, consequently bringing him within the jurisdiction of Income Tax Officer, District VI, Calcutta. A preliminary objection was raised before the Appellate Tribunal, on behalf of the assessee that the appeal was incompetent because it had been filed by th~ Income Tax Officer, District VI, Calcutta, and not by the Income Tax Officer, D!strict I(2), Calcutta. It was contended before the Appellate Tnbu!lal that the Income Tax Officer, District I(2), was the proper officer to file the appeal because he had made the assessment. The Appellate Tribunal rejected the contention. It held :

"The representative of the assessee conceded that the assessee was f?rmerly residing at 24 and 25, Beadon Row, Calcutta but m 1954 he shifted to 29 /B Ballygunge Circular Road, Calcutta, which is within the jurisdiction of l.5Sup Cl/ 67 -8

the Income-tax -Officer, District VI, Calcutta.

Therefore, the jurisdiction for assessment vested in the Income tax Officer, District VI in view of the provision of sec tion 64(2) of the Income-tax: Act. That being the case, we are of the view that there was no lack of competence on the part of the Income-tax: Officer, District VI to pre fer the present appeal." It will be noticed that in the facts given in the statement of the case and the reasoning of the Appellate Tribunal there is no mention of any order of transfer having been passed by the Commissioner of Income Tax: or the Board of Revenue transferring the files from the Income Tax: Officer, District I(2) to the Income Tax: Officer, District VI, Calcutta. Neither is there any mention which Commissioner of Income Tax: directed the Income Tax: Officer, District VI, Calcutta, to file the appeal.

The learned counsel for the appellants contends that the High Court erred in taking into consideration facts which were not to be found in the Statement of the Case. He says that in the penultimate para of the judgment, the High Court observed :

"The original assessment was made by the Incometax: Officer, District I{2). This officer is an officer subordinate to the Commissioner of Income-tax:, Calcutta.

The Income-tax: Officer, District VI, Calcutta, is an officer subordinate to the Commissioner of Income-tax:, West Bengal. Th_erefore, the Commissioner of Income Tax:,. Calcutta, could not transfer the case or the file to the Income-tax Officer, District VI, Calcutta. It is only the Board of Revenue which could transfer the case under section 5(7)(a). There was no such transfer by the Board of Revenue. Therefore, for all intents and purposes, it was the Income-tax: Officer, District I(2) who remained in seisin of the case and of the file." The counsel contends that there was no material in the statement of the case to find out which officer was subordinate to which Commissioner of Income Tax: and whether there was any transfer by the Board of Revenue or the Commissioner of Income Tax.

The High Court further observed :

"While the appeal before the Appellate Asista'!t Commissioner was pending, the assessee changed his residence to 29B, Ballygunge Circular Road. There was no transfer of the case or of the file to tb.e Income-tax Offi cer District VI who was the appropriate officer in the Bailygunge Cirular Road area. Therefore, it cannot be said that the Income-tax Officer, District VI ever c_ame to be in seisin of the case or the file. So far as the d1rec-

C.I.T. V, AN1L KUMAR (Sikrl, J,)

tion of the Commissioner is concerned, it is not disputed before us that a direction for filing the appeal was given to the Income-tax Officer, District VI but no order of transfer under section 5(5) read with section 5(7)(a) could be shown to us, although the original records were brought into Court."

The learned counsel urges that the High Court had no jurisdiction to send for records or look into them, and the whole judgment of the High Court is based on new facts stated by it in the penulti mate para of its judgment.

In our view, the High Court exceeded its jurisdiction under s. 66 of the Income Tax Act in finding new facts. If it felt any diffi culty in answering the. question, it should have called for a supple mentary statement of the case. We will, for the purpose of this appeal, ignore t~ following facts found by the High Court : (1) that there was no transfer of the case by the Board of Revenue; (2) that the Income Tax Officer, District 1(2) was an officer subordi nate td the Commissioner of Income Tax, Calcutta; (3) that the Income Tax Officer, District VI, was an officer subordinate to the Commissioner of West Bengal; and ( 4) that there was no transfer of the case or the file to the Income Tax Officer, District VI, who was the appropriate officer for the Ba!lygunge Circular Road area.

The answer to the question depends on the interpretation of s. 33(2) read with s. 64(2). Section 33(2) provides that "the Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner.tt It is clear from a reading of this subsection that the person who has a right to appeal is the Commissioner of Income Tax and not the Income Tax Officer. It would be noticed that the period of limitation starts from the date on which the order of the Appella~ Assistant Commissioner is communica1e4 to the Commissioner by him. It seems to us that, in this

contet, the Income Tax Officer, when he files the appeal under the direction of the Commissioner performs merely a ministerial

ction. But the question still remains whether there is any limitatiOn on the power of the Commissioner to nominate the Income Tax Officer who should file the appeal. One thing seems clear from the expression "the Income Tax Officer" and that is that the Commissioner cannot direct any Income Tax Officer.

The ex pression "the Income Tax Officer" occurs in various sections of the Act. In our view, tho expression denotes an Income Tax Offi

cer having jurisdiction over the assessee or the matter. In other words, the officer selected must have some concern with the

assessee against whom the appeal is filed by the Commissioner of Income Tax. This was also held by the Calcutta High Court in Commissioner of Income Tax, West Bengal, Calcutta v. S. Sarkar & Co. (1) Chakravarti, C.J. observed in that case :

"To my mind, the definite article "the" points_ to the Income Tax Officer who is concerned with the case at the time when the appeal is to be filed. The section does not say that the Commissioner may direct "an" Income-tax Officer."

The question then arises whether the Income Tax Officer, District VI, Calcutta, was concerned with the appeal filed on the direction of the Commissioner of Income Tax. We have already mentioned that the assessee changed his residence to 29B, Ballygunge Circular Road, Calcutta, in 1954. By the time the appeal came to be filed, the Income Tax Officer, District VI, had jurisdiction over him.

This follows from sections 64(1) and (2) which read as follaws :

"64. Place of assessment.-( 1) Where iln assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income-tax Officer of the area in which that place is situate or, where the business, professfon or vocation is carried on in more places than one, by the Income-tax Officer of the area in which the principal place of his business, profession or .vocation is situate.

(2) In all other cases, an assessee shall be assessed by the Income-tax Officer of the area in which he resides."

It was held by this Court in Sardar Baldev Singh v. Commissioner of Income Tax, Delhi(2 ) that the Income Tax Officer, t Delhi, within whose jurisdiction the assessee resided, could ini- F tiate proceedings under s. 34 to revise an assessment made by the Income Tax Officer, Lahore, for the assessment year 1944-45.

The reasoning of the High Court for rejecting the contention of the Department was this :

"Section 5(7)(a) gives power to the Commissioner to transfer a case from one officer subordinate to him to another and the Central Board of Revenue can transfer a case from one place to any other place in India. . Suppose an assessee resides at a particular place and he has been assessed by the Income tax Officer who has jurisdiction over that area, or is in the process of being assess- -eel. If he change8 his residence to another place, then under Section 64(2) the Income Tax Officer having juris-

(I) A.I.R. 1954 Cal. 613,

(2) 40 I. T. R. 605,

C.I.T. v. ANIL KUMAA (Sikri, I.)

diction over the new place of residence would acquire jurisdiction. But does that mean that the Income Tax Officer who was proceeding with the original assessment loses his jurisdiction ? If that were so, then an assessee could make his assessment impossible by constantly changing his residence during the assessment. That obviously cannot be the legal position. The legal position is that in such a case, although the officer having jurisdiction over his new place of residence acquires jurisdiction under Section 64(2), the Income-tax Officer who commenced the original assessment does not lose his jurisdiction to complete the case and the completion of the case will include the hearing of appeals or revisions against the original order of assessment."

It may be that the Income Tax Officer who completed the original assessment would also be concerned with the appeal to be filed by the Commissioner, but it does not mean that he is exclusively so concerned. If the case had been transferred by the Commissioner or the Board of Revenue from the Income Tax Officer who completed the assessment to another Income Tax Officer, then obviously the former officer will have no concern with the appeal.

But if there has been no such transfer then we are unable to appreciate why he alone is concerned with the appeal. The Income Tax Officers can have concurrent jurisdiction over some matters.

One illustration of this is provided by s. 64(4).

The High Court dissented from the decision of the Punjab High Court in R. B. L. Benarsi Dass v. C.I.T., East Punjab(').

The Punjab High Court in that case held that there was nothing ins. 33(2) to prohibit the Commissioner from directing any Income Tax Officer, other than the one wlio in fact passed the assessment order, to appeal. We consider that it is not correct to say that any Income Tax Officer can be directed to file an appeal. It must be an Income Tax Officer who has concern with the appeal.

' The High Court rightly relied on Commissioner of Income Tax, West Bengal, Calcutta v. S. Sarkar & Co.(2) in dissenting from the view expressed by the Punjab High Court in R. B. L.

Benarsi Dass v. C.I.T. East Punjab,(') but in our view the High Court et=red in holding that the facts of the present case are governed by the earlier decision of the Calcutta High Court.' In this case, on the facts found by of the Appellate Tribunal, one Income Tax Officer had passed the assessment order while another Income Tax Officer has jurisdiction over the assessee. In our view, the

(I} 42 l.T.R. 363.

(2) A.J.R. 1954 Cal. 613.

328 SUPIU!MB COURT Rl!PORTS

latter Income Tax Officer having jurisdiction over the assessec could be directed by the Commissioner to file the appeal.

In the result we set aside the judgment of the High Court and answer the question in the affirmative and in favour of the Department, but in the circumstances of the case there will be no order as to costs.

Y.P.

Appeal allowed.

COMMISSIONER OF INCOME TAX, WEST BENGAL, CALCUTTA & ANR

ANIL KUMAR ROY CHOWDHURY & ANR

March 30, 1967

C. SHAH

S. M. SIKRI

V. RAMASWAMI, JJ.

Tax Act, 1922

Ss. 33

S. 33(2)

s. 64(4)

Veda Vyasa

A. N. Kirpal

S. P. Nayyar

R. N. Sachthey

A. K. Sen

B. P. Maheshwarl

Sikri

High Court of Judicature at. Ca!cutta

s. 66

Indian Income Tax Act, 1922

February 12, 1952

February 7, 1956

Calcutta

section 5(7)(a)

Sikrl

section 5(5)

section 5(7)(a)

s. 66

Income Tax Officer, District 1(2)

Income Tax Officer, District VI

West Bengal

s. 33(2)

s. 64(2)

Section 33(2)

section 31

Calcutta High Court

Chakravarti

sections 64(1)

Income Tax Officer, t Delhi

s. 34

Lahore

Section 5(7)(a)

India

Section 64(2)

Section 64(2)

s. 64(4)

Punjab High Court