~-.

CHIEF SETI'LEMENT COMMISSIONER, REHABILITADON

DEPARTMENT, PUNJAB & ORS, ETC. v.

OM PARKASH & ORS. ETC.

B April 5, 1968

[J. C. SHAH AND V. RAMASWAMI, JJ.J

The East Punjab Evacuees (Administration of Property) Act, 1947- Definition of 'displaced perwn' in para 2(e) of Notification ssued under Rules made pursuant to s. 22(2){f) and (ft); The East Pun1ab Refugets c (Registration of Land Claims) Act 12 of 1948, s. 2(d)-Definition of 'refugees'; Person with proprty in Pakistan coming to Jnda .Prior to partition-Dying in June 1941-Shown as owner of properties in revenue records received from West Punjab-If displaced person-Whether allotment of land in India must be made in his name or in the name of /lis heirs.

.~.:;;!

N owned agricultural lands in Bahawalpur State now forming part of D Pakistan and also owned some property in Pnnjab in India. He died in June 1947 while on a visit to India in the normal course of business, leaving behind three sons, the respondents in the appeal. On the partition of India, the land in Pakistan originally owned by N and after his death by his sons, had to be abandoned. After migrating to India, the three respondents filed separate claims as displaced persons and were allotted an area of land in Punjab.

Therea'fter a complaint was filed before the Managing 'Officer that these respondents had received double E allotments. The Managing Officer, held this allegation was not substantiated but came to the conclusion that N, although he had died before the partition, must be treated as a displaced land:.holder for the purpose (j( allotment of land as his name continued to be shown in the J amabandi as the owner of the abandoned land in Pakistan.

In consequence of this finding a large portion of the land allotted to the three rcspc>ndents was cancelled by an order of the Managing Officer dated September

F 18, 1961. Appeals made by the respondents to the A>si<tant Settlement Commissioner as well as revision petitiom betfore the Chief Settlement Commissioner Punjab, were dismissed.

In dismissing the revision petilions, the Chief Settlement Commissioner relied on para. 17 of ''Tarlok Singh's Land Resettlement Manual"-1952 edition-Page 180, to the effect that "Even where a displaced land-holder in who<e name the land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased". He therefore upheld the view

G that the land could only be allotted in the name of N. The respondents then filed a writ petition against the orders of the Chief Settlement Commissioner which was allowed.

On appeal to this Court,

HELD : Dismissing the appeal,

H . The definition of a. "displaced person" in para 2(e) of the Notifica !!on of July 8. 1949, JSsued by the Custodian in accordance with provisions of the East Pnnjab Evacuees (Administration of Property) Act 1947, and the Rules made thereunder, or of a "Refugee" in Section 2(d) of the East Punjab Refugees (Registration of Land Claims) Act 12 di

1948, show that these expressions have been used in the relevant enactments \vith refereiice to a person who has migrated to India as a result of disturbances O'f fear of disturbances or the partition of the country. Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration, he could not come within the meaning of the expression "displaced person" or the word '"refugee"' under the relevant statutory enactments. N died in June, 1947, long before the partition of the country and he did not abandon or was not made to abandon his land in Bahawalpur on account of the civil disturbances or the fear df such disturbances or the partition of the country. [660 A-DJ

There WRS no force in the contention that even though N never became a refugee or a displaced land-holder, the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records. The rule in pa'ra 17 o'f "Tarlok Singh's Manual" consistently with the statutory enactments, \vould be applicable only to such persons who were land-holders at the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour.

It does not apply to a person like N who was not a displaced land-holder at the time of his death. [661 D-F]

C1v1L APPELLATE JuRISDICTION: Civil Appeal No. 937 of 1965.

Appeal from the judgment and order dated September 13. 1963 of the Punjab High Court in Civil Writ No. 841 of 1962

and Civil Appeal No. 938 of 1965.

Appeal from the order dated September 13, 1963 of the Punjab High Court in Civil Writ No. 526 of 1963 and Civil Appeal No. 1195 of 1967.

Appeal from the order dated August 6. 1964 of the Punjab F High Court in Letters Patent Appeal No. 136 of 1964.

D. R. Prem, R. N. Sachthey and S. P. Nayar, for the appellants (in C.A. No. 937 of 1965).

R. N. Sachthey, and S. P. Nayar, for the appellauts (in C.A.'s G Nos. 938 of 1965 and 1195 of 1967).

S. V. Gupte, Bhawani Lal and B. P. Jha, for respondent Nos. 1 to 3 (in C.A. No. 937 of 1965).

R. V. Pillai, for the reipondent (in C.A. No. 938 of 1965).

H. L. Mittal and Naunit Lal, for the respondents (in C.A.

No. 1195 of 1967).

A Civil Appeal No. 937 of 1965

The Judgment of the Court was delivered by

Ramaswami, J.-This appeal is brought, by certificate, from the judgment of the Punjab High Court dated September 13, 1963 in Civil Writ No. 841 of 1962.

Nanak Chand owned agricultural lands in Bahawalpur State now forming part of West Pakistan.

He also owned some property at Kot Kapura, Tehsil Faridkot, District Bhatinda now Joca'ted in India.

Nanak Chand had in normal course of business come to Bhatinda where he died in June, 194 7 leaving behind three sons, Om Parkash, Sat Narain and Ram Parshotam who are the respondents in this appeal.

As a result of the partition of India the land originally owned by Nanak Chand and after his death by his sons in Bahawalpur State had to be abandoned.

After the partition of India the three respondents migrated to India and filed separate claims in accordance with law and obtained allotment of certain area in village Kot Kapura, district Bhatinda in lieu of the land abandoned by them in Pakistan: The Revenue Authorities allotted an area measuring 206.8t standard acres in ;-il!age Kot Kapura, District Bhatinda.

After the allotment was made one Rur Singh filed a complaint before the Managing Officer that these respondents had received double allotments in village Kot Kapura.

The complaint was examined by Shri Shankar Das Katya!, Managing Officer who held that Shri Rur Singh failed to substantiate the allegation of double allotment.

But the Managing Otlicer came to the conclusion that Nanak Chand although he had died long before the partition of the country must be treated ·

as a displaced land-holder for the purpose of allotment of land.

The reason given was that his name continued to be shown in the J amabandi as the owner of the abandoned land in Pakistan.

In consequence of this finding a large portion of the land allotted to the three respondents was cancelled by the Managing Officer by his order dated September 18, 1961.

The three respondents preferred an appeal before the Assistant Settlement Commissioner and a revision petition before the Chief Settlement Commissioner Punjab but the appeal and the revision petition were both dismissed. In dismissing the revision petition the Chief Settlement Commissioner relied upon paragraph 17 of Tadok Sinah's Land Resettlement Manual, 1952 Edition, page 180 which\vas to the following effect :

"Even where a displaced land holder in whose name the lad stands in the records received from West Punjab has died, the a!Jotment is made in the name of the deceaed. In the fard taqsim, 'therefore, the entry will ?e m he name of the deceased land holder.

Possession is ordmarily given to the heirs but there must be regular

mutation proceedings before the entry in column 3 of the fard taqsim is altered in favour of the heirs." It was held by the Chief Settlement Commissioner that this para graph related to all persons who continued to be shown as owners in the revenue records irrespective of the fact whether they had died before or after migration. In other words, the Chief Settle ment Commissioner took the view that the land could only be allotted in the name of Nanak Chand even assuming that he had died in June, 1947. Against the order of the Chief Settlement Commissioner the respondents filed a Writ Petition (Civil Writ No. 841of1961) before the Punjab High Court. The Writ Peti tion was allowed by the High Court by its order dated September 13, 1963 and the orders of the Chief Settlement Commissioner dated June 8, 1962, of the Assistant Settlement Commissioner dated December 26, 1961 and of the Managing Officer dated September 18, 1961 were all quashed by the grant of a writ in th~ nature of certiorari.

It is necessary at this stage to set out the provisions of the relevant statutes.

Section 2(b) of the East Punjab Evacuee;· (Administration of Property) Act, 1947 (East Punjab Act No.

XIV of 1947) defines an "evacuee" as meaning "a person ordi narily resident in or owning property or carrying on business within the territories comprised in the Province of East Punjab, who on account of civil disturbances, or the fear of such distur bances, or the partition of the country : (i) leaves or has s:nce the first day of March 194 7, left the said territories for a place outside India, or (ii) cannot personally occupy or supervise hi' property or business." Section 4 of that Act provided that "All evacuee property situated within the Province shall vest in the Custodian for the purposes of this Act and shall continue to be so vested until the Provincial Government by notification otherwise

directs." In pursuance of the powers conferred by the rules made by the State Government under els. (f) and (ff) of s. 22(2) of the East Punjab Evacuees, (Administration of Property) Act, 1947, the Custodian issued a notification no. 4892/S on July 8, 1949 regarding the conditions on which he was prepared to grant allotment of land vested in him under' the provisions of the said Act to displaced persons.

Para 2 ( e) of this notification states :

" "Displaced person" means a land holder in the terri tories now comprised in the province of West Pun.iab or a person of Punjabi extraction who holds land in the Provinces of North-Western Frontier Province, Sind or Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakis

tan and who has since the 1st day of March, 1947, abndoned or been made to abandon his land in the

SETTLEMENT COMMR. v. OM PARKASH (Ramaswa111i, J.) 659

said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country." Section 2(d) of the East Punjab Refugees (Registration of Land Claims) Act. 1948 (East Punjab Act No. XII of 1948) states:

"2. Interpretation.-In this Act unless there is anything repugnant in the subject or context,-

( d) 'refugee' means a landholder in the territories now comprised in the Province of West Punjab, or who or whose ancestor migrated as a colonist from the Punjab since 1901 to the Provinces of North-West Frontier Province, Sind or Baluchistan or to any State

adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan, and who has since the 1st day of March, 194 7, abandoned or been made to abandon his land in the said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country;" Section 2 ( c) defines a "landholder" to mean "an owner of land: or a tenant having a right of occupancy under the Punjab Tenancy Act, 1887 (XVI of 1887) or a tenant as defined in section 3 of the Colonization of Governmell'I Lands Act, 1912 (Punjab Act V of 1912) and such other holder or grantee of land as may be specified by the Provincial Government;".

Section 2(c) of the East Punjab Displaced Persons (Land Resettlement) Act, 1949 (East Punjab Act No. XXXVI of 1949) defines a "displaced person" as follows :

" 'displaced person' means a land-holder in the territories now comprised in the Province of West Punjab or a person of Punjabi extraction who holds land in the Provinces of North-West Frontier Province, Sind or Baluchistan or any State adjacent to any of the aforesaid Provinces and acceding to the Dominion of Pakistan, and who has since the 1st day of March 194 7, abandoned or been made to abandon his land in the said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country".

Section 2(b) o.f this Act defines an "allottee" as follows :

" 'allottee' means a displaced person to whom land is allotted by the Custodian under the conditions published with East Punjab Government notification no. 4892/S, dated the 8th July, 1949, and includes his heirs, legal representatives and sub-lessees".

The main question to be considered in this .appeal is whether Nanak Chand was a 'displaced person' as defined in para 2(e) of the notification dated July 8, 1949 iir a "refugee" as defined under s. 2(d) of Act No. XII of 1948 and whether he was entitled for aliotment of land. It is manifest that the expression "displaced person" or the word "refugee" has been used in the relevant enactments with reference to a person who has migrated to India as .a result of disturbances or fear of disturbances or the partition of the country.

Therefore if a person had died before the disturbances took place or he had never migrated to India as a result of the disturbances and he died before such migration, he could not come within the meaning of the expression "displaced person'' or the word "refugee" under the relevant statutory enactments.

It is manifest in the present case that Nanak Chand died in Jun~.

1947 long before the partition of the country and he did not abandon or was not made to abandon his land in Bal)awalpur on account of the civil disturbances or the fear of such disturbances or the partition of the country: It was, however, contended by Mr. D. R. Prem on behalf of the appellants that even though Nanak Chand never became a refugee or a displaced land-holder, the allotment had to be made in his name because he was shown in the revenue records received from West Punjab as the owner of the land and there had been no mutation of the names of the respondents in the revenue records.

Reference was made in this connection to paragraph 17 of Tarlok Singh's Land Resettlement Manual which has already been quoted.

It was contended by Mr. Prem that the instructions contained in this paragraph would apply even though Nanak Chand had never become a refugee or a displaced land-holder and the allotment has to be made in his name by the revenue authorities because bis name still stands in the revenue records received from West Punjab. We are unable to accept this argument as correct.

It is not disputed that paragraph 17 of Tarlok Singb's Manual has no statutory authority but it merely embodies executive or administrative instructions for general guidance. If there is a conflict between the provisions contained in this paragraph and the statutory enactments already referred to it is manifest that the statutory provisions must take precedence and must prevail over the directions contained in para 17 of Tarlok Singh's Manual.

In this context it is essential to emphasise that under our con~ titutional system the authority to make the law is vested in the Parliament and the State Legislatures and other law making bodies and whatever legislative power the executive administration possesses must be derived directly from the delegation of the legis- 1ature and exercised. validly only within the limits prescribed. The notion of inherent or autonomous law-making power in the exe- Cutive administration is a notion that must be emphatically rejected.

As observed by Jackson, J. in a recent American case- Youngstown Sheet & Tube Co. v. Sawyer( 1 )-"With all i:ts defects delays and inconveniences men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations." In. our constitutional system, the central and most characteristic feature is the concept of the rule of law which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in the competent court. The rule of law rejects the conception of the Dual State(") in which governmental action is placed in a privileged position of immunity from control by law.

Such a notion is foreign to our basic constitutional concept.

In our opinion, however, it is possible to give a restricted interpretation to paragraph 17 of Tarlok Singh's Manual so as to make it consistent with the requirements of the statutory enactments.

The intention of para 17 is that it is applicable only to such persons who are land-holders at the time of their becoming displaced persons or refugees and who died afterwards before allotment could be made in their favour. In other words, the paragraph applies tu a displaced land-holder who dies after having become a "displaced person" within the meaning of the relevant statutory enactments referred to above.

The paragraph does not apply to a case of a person who was not a displaced land-holder at the time of his death. In the present case it is admitted that Nanak Chand never became a displaced land-holder.

On the other hand, Nanak Chand died before he became a displaced land-holder and therefore para 17 of Tarlok Singh's Manual has no application to the facts of the present case.

For these reasons we hold that this appeal has no merit and it must be dismissed with costs.

Civil Appeals Nos. 938 of 1965 & 1195 of 1967

The question arising in these two appeals is identical wilt the question of law in Civil Appeal No. 937 of 1965. For the reasons given in that judgment we hold that the decision of the High Court challenged in these appeals is correct and these appeals must be dismissed with costs.

R.K.P.S.

Appeals dismissed.

(I) 343 u. s. 579, 655.

(2) This term is deri\rcd from Fraenkel, Tile Dual State (1941).

CHIEF SETTLEMENT COMMISSIONER, REHABILITATION DEPARTMENT, PUNJAB & ORS ETC

OM PARKASH & ORS. ETC

C. SHAH

V. RAMASWAMI, JJ

s. 22(2)

s. 2(d)

West Punjab

India

Bahawalpur

Pnnjab

Pakistan

Punjab

September

F 18, 1961

Tarlok Singh

Section 2(d)

D. R. Prem

R. N. Sachthey

S. P. Nayar

S. P. Nayar

S. V. Gupte

Bhawani Lal

B. P. Jha

R. V. Pillai

H. L. Mittal

Naunit Lal

Ramaswami

Punjab High Court

September 13, 1963

Nanak Chand

Bahawalpur State

Kot Kapura

Faridkot

Bhatinda

Om Parkash

Sat Narain

Ram Parshotam

Nanak Chand

Rur Singh

Shankar Das Katya

September 18, 1961

Tadok Sinah

Section 2(b)

East Punjab Act

Section 4

s. 22(2)

July 8, 1949

Sind

Baluchistan

1st day of March, 1947

Section 2(d)

East Punjab Act

North-West Frontier Province

Dominion of Pakistan

1st day of March, 194 7

Section 2

Punjab Tenancy Act, 1887

section 3

Lands Act, 1912

Punjab Act V of 1912

Section 2(c)

East Punjab Act

1st day of March 194 7

Section 2(b)

East Punjab Government

8th July, 1949

s. 2(d)

Bal)awalpur

Prem

Tarlok Singb

Parliament

Jackson

s. 579, 655


DHULABHAI AND OTHERS

'V.

THE STATE OF MADHYA PRADESH AND ANOTHER April 5, 1968

[M. HIDAYATULLAH, C.J., R. S. BACHAWAT, C. A. VAIDIALIN•

GAM, K. S. HEGDE AND A, N. GROVER, JI.] M"lhya Bharat Sales Tax Act (30 of 1950), s. 11-lurisdiction of civil court barred-Scope of the bar.

By Notifications issued by the State Govetnment under s. S of the Madhya Bharat Sales Tax Act, 1950, sales-tax was imposed and collected from the appellants. They filed suits for refund of the tax on the ground that it was illegally collected from them being against the constitutional prohibition in Art. 301 and not saved under Art. 304(a). In Bhailal v.

State of M.P. [(1960) M.P.L.J. 601), the petitioner therein challenged in a writ petition, the levy of sales tax on the same grounds and the High Coun declared the notifications to be offensive to Art. 30 I and held that the imposition of tax was illegal. Following that decision, the !'rial court decreed the suits filed by the appellants. In appeal before the High Court it was conceded by the State that the tax. could not be imposed in view of Art. 301, but it was contended that the suits were not maintainable in view of s. 17 of the Act which provides that no assessment made under the Act shall be called in question in any court. Tue High Coun held that the suits were incompetent.

In appeal to this Court,

HELD : The suits were maintainable. [684 DJ

An enquiry into the diverse views expressed in the decisions of this Court shows that an exclusion of the jurisdiction of civil cowt is not readily to be inferred unless the following conditions apply :

(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy lo do what the civil courts would normally do in a suit.

Such provision, however. does not exclude those cases where the provisions of the patticular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. [682 A-C; 683 CJ

Secretary of State v. Mask [1940] L.R. 67 I.A. 222; Fi'rm 11/uri Subba, vY<J Chetty & Sons v. State of Andhra Pradesh, [1964) 1 S.C.R. 752 and Kera/a v. Ramoswami Iyer and Sons, [1966] 3 S.C.R. 582.

In Firm Illuri Subbttyya Chetty & Sons' case the assessee conceded G that the tax was payable and did not raise the issue before the appellate authorities under the Act. The suit for refund of tax was held not maintainable on those special facts, with reference to the addition of a.

ISA excluding the jurisdiction of civil court and the special remedies provided in ss. 12A to 120 in the Madras General Sales Tax Act, 1939.

This Court. however, did not think it necessary to pronounce any opinion on the Judicial Committee's view in the Rcleigh Investment Co. case ([1947) L.R. 74 I.A. 50) that even the vires of the provisions could be H consideted by the Tribunals constituted under the Act. Dealing with Mask & Co.'s case, it was pointed out that non-compliance with the provisions of the statute meant non-compliance with such fundamental

DHULABHAI V, MADHYA PRADESH 663

provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. [679

G-H;

680 D-D]

(2) Whore there is an expreso bar o~ the jurisdiction of the coutt, an examination of the scheme of the pal11cular Act to find the aduacy or the sufficiency of the remedies provided may be relevant but ,. not decisive to sustain the jurisdiction of the civil court. [682 DJ

Whore there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment become& aecessary and the result of the inquiry may be deciive. . In the I~

c~ it is necessary to see if the sliaute creates special .rig~~ or a liab1 lily and provides for the determination of the nt or hab11tty, !"'d further lays down that all . questions about. the said nght and habilt!Y oball be determined by the tnbunals so consltf:ujed, and whether remedies normally associated with actions in civil courts are prescribed by the said

statute or not. [682 D-F] In Provincial Government v. J. S. Basappa, [1964J 5 S.C.R. 517 it was held that the civil court had jurisdiction beca.use, at the relevant time, (a) the Madras General Sales Tax Act, 1939, did not have s. 18A (which was introduced later barring the jurisdiction of civil cou!1)

(b) the Act did not have the elaborate machinery for adequate remed< which was also introduced later, and (c) the tax was illegally collected

inorin.g the furidamental provisions of the Act.

Therefore. the observa Uon in Kera/av. ROJna.r.v01ni Iyer&: Sons that Basappa's case was wrongly decided is open to doubt. (678 D, HJ

Mis. Kamala Mills Ltd. v. State of Bombay. [1966] I S.C.R. 64 was a decision of a Special Bench holding that s. 20 <if the Bombay Sal"" Tax Aot, 1946 excluded the jurisdiction of the civil court in suits for refund of tax, in cases. where the decision of the authorities under the Act was rely an error in assessment capable of correction by the usual procedure of appeals etc. But the Dench observed, that in such cases, where the jurisdiction of the civil court is barred by providing an adequate machinery in the Act, it becomes "pertinent to enquire whether remedies normally associated with actions in civil court are presdribed by the '!Ctatute or not', and thus expressly left open the question as to how far the bar would operate in cases where the charging provision is ultra vires, [681 A-B. G; 684 C.Dl

( 3) .Challenge to the provisions of the particular Act as ultra vires canno~ be brought before Tribunals constituted under that Act.

SOS; Cm; o" Coffee Co. v. State of Mysore, 19 S.T.C. 66 (S.C.); C, T.

Senthulnathan Chettfar v. Madras, CC.A. 1045 Of 1966. dated 20th July,

1967) and Pcbbo1an Tea Co. Ltd. v. Dy. Commissioner, Lakhimp1u

11968] I S.C.R. 260; A.I.R. 1968 S.C, 271. '

(~) he~ a pru'vision is already declared unconstitutional or the t1tut1~1ty !"f any. provision is to be challenged, a suit is open.

A wnt of crtorari Illf'Y mclude a direction for refund if the claim i• clearly within the tlIIlC prescribed by the Limitation Act but it is not a compulsory remedy to .. replace a suit. [682 G-HJ

~ Stre of M.P. v. B!taila/, [1964J 6 S.C.R. 261 which confirmed the dectst<)n •n 1960 M.P.L.J. 601 this Court upheld the order of refund by the j!h urt in ill! writ jutisdiction, held that in es where a defence of lumtation was open or other facts had to be decided. the order of 8 Sup.CIJ68

refWld was not proper, and aeellpted the proposition that a suit lay in such case. without adverting to the provisions of the Act to see whether the jurisdiction of civil coun was barred either expressly or by necessary implication. Therefore, this case cannot be an authority for holding that th!'" civil court has jurisdiction to entertain such suits. [668 D---GJ

(SJ Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a ruit lies. f683 Al Bharat Kala Bhandar Ltd. v. Municipal CouncU, Dhamcngaon, [196SJ 3 s.C.R. 499.

( 6) Questions of the correctness of the assessment apart from its .constitutionality are for the decision of the authoritit\11 and a civil suit doeo not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. Io either 0390, the scheme of the particular Act must be examined because it is a relevant C enquiry. [6 83 BJ In the present case, though the Madhya Bharat Sales Tax Act contains provisions for appeal, revision, recliJication and reference to the lfi&h -Court. the notifications having been rightly declared void in the earli<i decision of the High Court, the appellants could take advantage of the fact that tax was levied without a complete charging section. Sinee the tax authorities could not even proceed to assess the party their juriadic-- D tion was affected and the case fell within categories (3) and (4) above .and not in category (2). [684 A-CJ

CIVIL APPELLATE JURISDIBTION : Civil Appeals Nos. 260 to 263 of 1967.

Appeals from the judgment and decree dated January 5, 1965 of the Madhya Pradesh High Court, Indore Bench in First Ap peals Nos. 68, 69, 71 and 70 of 1961 respectively.

M. C. Setalvad, Rameshwar Nath and Mahinder Narain, for the appellants (in all the appeals).

B. Sen and 1. N. Shroff, for the respondents (in all the appeals).

The Judgment of the Court was delivered by Hldayatullah, C.J. These are four appeals by certificate against the common judgment of the High Court of Madhya Pradesh (Indore Bench), 16 December, 1964/5 January, 1965 dismissing four suits filed by the appellants to recover sales-tax alleged to be realized illegally from them by the State of Madhya

Pradesh, the respondent in these appeals. The suits were earlier decreed by the District Judge, Ujjain. The facts in the suits are common and were as follows: The appellants are dealers in tobacco and have their place& of business at Ujjain. They purchase and sell tobacco used for eating, smoking and for preparing bldls. They get their tobacco locally or import it frQm extra-state places. The former Madhya Bharat State enacted in 1950 the Madhya Bharat Sales Tax Act {Act 30 of 1950) which came into force on May 1, 1950. Under

DHULABHAI v. MADHYA PRADESH (Hidayatullah, C.J.) 665

s. 3 of the Act every dealer whoso business in the previous year in respect of sales or supplies of goods exceeded in the case of an importer and manufacturer Rs. 5,000 and in other cases R~. 12,000 had to pay tax in respect of sales or supplies of goods effected 'in Madhya Bharat from !st May 1950. Under s. 5, the tax was a single .point tax and it was provided that the Government might by a notification specify the point of the sales at which the tax was payable. The section also fixed the minimum and maximum rates of tax leaving it to Government to notify the actual rate.

Government, in pursuance of this power, issued a number of notifications on April 30, 1950, May 22, 1950, October 24, 1953 and January 21, 1954. All these notifications imposed tax at different rates on tobacco above described on the importer, that is to say at the point of import. The tax was not levied on sale or purchase of tobacco of similar kind in Madhya Bharat. The tax was collected by the authorities in varying amounts from the appellants for different quarters. We are not concerned with the amounts. The appellants served notices under s. SO of the Code of Civil Procedure and filed the present suits, for refund of the tax on the ground that it was illegally collected from them being against the constitutional prohibition in Art. 301 and not saved under Art. 304(a) of the Constitution.

The State of Madhya Pradesh was formed on November I,

1955. In Bhai/al v. M.P.(1) the High Court of Madhya Pradesh declared the notifications to be offensive to Art. 301 of the Constitution on the ground that it was illegal to levy a tax on the

importr when an equal tax .as not levied on similar goods pro

uced m the State. The dec1smn was later confirmed on this point 1n State of M.P. v. Bhailal Bhai('). The appellants did not take recourse to the provisions of Art. 226 of the Constitution but filed their suits on December 21, 1957.

The sits were opposed by the State on the main ground that such. a suit was barred by the provisions of s. 17 of the Act which provides:

. "1 ?· Bar to certain proceedings.-Save as is provided m ~- 13, no assessment made and no order passed

undr this Act. or the rules made thereunder by the as- smg authonty, appellate authority or the Commissioner shall be called in question in any Court and save. as !s provided _i~ sections 11 and 12 no apal or application for revJSJon shall lie against any such assessment or order."

The tale also pleaded that as appeals against the assessment were pending before the Sales Tax Appeal Judge the plaintiffs were

(l) 1960 M. P. L. J. 601.

(2) [1964) 6 S. C.R. 261.

not entitled to file the suits. The District Judge, following State A of Tripura v. The Province of East Bengal(') and Bhailal Bhai Gokal Bhai v. StQ/e of M.P. (2), held that such a suit lay wheJl a I declaration was sbught that the provisions of law relating to an assessment were ultra vires, !\lld demand was made for refund of amounts illegally collected under it. On the second point the District Judge held that s. 21 of the Act which allows the Com- B missioner or the appellate authority to order refund of tax wrongly paid did not apply since no such appeal was proved to have been filed and the tax was not wrongfully paid but wrongfully realised.

On appeal by the State the High Court reversed the decision.

Before the High Court it was conceded (as it is conceded even now) that the tax could not be imposed in view of the bar of Art. 301.

The short question thus was whether the suit was barred expressly by s. 1 7 of the Act or any implication arising from the Act. The contention on behalf of the appellants was that if it was a question

O!f the correctness of the imposition within the valid framework of the statute, rules or notifications s. 17 might have operated but not when the imposition was under a void law. In the latter event tbe assessee was free to challenge the validity of the law in a civil suit and also to claim a refund

The High Court considered the matter in the light of the decisions of the Judicial Committee in Raleigh Investment Co. v.

Governor General in Council('), Secretary of State v. Mask('), Firm I. S. Chetty & Sons v. State of Andhra Pradesh('), State of Andhra Pradesh v. Firm Subbayya & Sons("), and others, and came to the conclusion that the suit was incompetent. The High Court conceded that both aspects of the case were well supported by authority. It is not necessary to enter into the reasons which weighed with the High Court because our discussion of the authorities in this judgment will clearly expose the rival views and the one preferred in the High Court.

The question that arises in these appeals has been before this Court in relation to other statutes and has been answered in different ways. These appeals went before a Divisional Bench of this Court but in view of the difficulty presented by the earlier rulings of this Court, they were referred to the Constitution Bench and that is bow they are before us. At the very start we may observe that the jurisdiction of the Civil Courts is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law. This is the purport of

(I) A. I. R. 1951 S. C. 23.

(2) 1960 M.P.L.J. 601.

(3) [l947)L:R. 741. A. SO; A. I. R. 1947 P. C. 78.

(4) [1940) L. R. 67 I. A. 222; A. I. R. 1940 P. C. !OS.

(S) (1964) IS. C.R. 752; A. I. R.1964 S. C. 322.

(6) A. I. R. 1958 Mad. S44 (F. B.).

DHULAbHAI v. MADHYA PRADESH (Hidayatulla/1, C.1.) 667

s. 9 of the Code of Civil Procedure. How s. 9 operates is perhaps best illustrated by referring to the categories of cases, mentioned by Willes, J. in Wolverhampto11 New Waterworks co. v. Hll.W

kesford( 1)-They are:

"One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to ptirsue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides, no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ....... .

The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class." Th:is view of Willes, I.· was accepted by the House of Lords in Neville v. London 'Express' Newspaper, Ltd.(').

To which category do such cases belong in India ? The controversy in India has revolved round the principles accepted in Secretary of State v. Mask(') and in Raleigh Investment Co. v.

Governor General in Council('). In the first case it was laid down by the Judicial Committee that the ouster of the jurisdiction of a Civil Court is not to be lightly inferred and can only be established if there is an express provision of law or .is clearly implied.

In the second case it was held that where a liability to tax is created by statute which gives special and particular remedies against illegal exactions the remedy contemplated by the statute must be followed and it is not open to the assessee to pursue the ordinary process of Civil Courts. To the latter case we shall refer in some detail presently. Opinion in this Court has, however, wavered as to how far to go with the dicta of the Privy Council in the two cases.

Before, however, we go into the question we may refer to State of M.P. v. Bhailal('). In that .case the notifications were

declared ultra vires Article 301 of the Constitution and not saved by Art. 304(a). It was therefore held that the portion of the tax already paid must be refunded by Government The question then posed was :

(I) [18S9) 6 C. B. (NS) 336.

(2) (1919] A.C. 368.

(2) (1940] 67 I. A. 222.

(4) [1947) 74 I. A. 50.

(5) (1964) 6 S. C.R. 261.

"The question is whether the relief of repayment has to be sought by the tax-payer by an action in a civil court or whether such an order can be made by the High Court in the exercise of its jurisdiction conferred by Art. 226 of the Constitution ?"

This Court after examining the jurisdiction under Art. 226 concluded that the High Court had the power to order refund in proceedings for a writ since complete relief could not be said to be given if 011ly a declaration were given.

The Court, however, observed:

"At the same time we cannot lose sight of the fact that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil cout or to deny defences legitimately open in such actions."

Pointing out that where a defence of limitation could be raised or other issues of fact l1ad to be tried, it was held that the Court should leave the party aggrieved to seek his remedy by the ordinary mode of a civil suit.

Therefore in those cases (there were 31 appeals before this Court) where the writ was asked for within three years, this Court upheld the order of refund by the High Court in its writ jurisdiction, but in those cases in which the parties had gone to the High Court after a lapse of 3 years, the order of refund was questioned and not approved observing that the petitioners would be at liberty to seek such relief as they might be entitled to in a Civil Court if it was not barred by limitation.

It will appear from this analysis of the case that this Court accepted the proposition that a suit lay.

This it did without adverting to the provisions of the Act there considered to see whether the jurisdiction of the Civil Courts was barred or not, either expressly or by necessary implication. This Court was, of course, not invited to express its opinion on the matter but only on whether the High Court in its extraordinary jurisdiction could order refund of tax paid under a mistake.

Having held that in some cases the High Court should not order refund, this Court merely pointed out that the civil suit would be the only other remedy open to the party. The case cannot, therefore, be treated as an authority to hold that the Civil Courts had jurisdiction to entertain such suits. -

We may now proceed to consider first the two cases of the Judicial Committee before examining the position under the rulings of this Court. In Secretary of State'" Mask(') the sole question was the jurisdiction of the civil court to entertain a s~

(I) [194CJ L. R. 67 T. A. 222.

8'.

DHULABHAI v. MADHYA PRADESH (Hidayatullah, C.J.) 669

A recover an excess amount of customs duty collected from Mask

aild Co.

The suit was filed after an appeal to the Collector of Customs and a revision taken to the Government of India under the Land Customs Act, 1924 was dismissed. The. suit was dismissed by the trial Judge on the preliminary ground that the Civil Court had no jurisdiction. An appeal by Mask and Co. to the B High Court succeeded, and there was a remit. The appeal to the Judicial Committee followed. Section 188 of the Land Customs Act, 1924 provided inter a/ia :

"Every order passed in appeal under this section shall, subject to the power of revision conferred by s. 191, be final." The Judicial Committee first made a gene'ral observation :

"It is settled law that the exclusion of the .iurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been' complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." Then it proceeded to quote s. 188 (as above) and observed :

"By Ss. 188 and 191 a precise and self-contained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts, , ._ ... " and came to the conclusion that the jurisdiction of the Civil Courts was excluC!ed. The decision of the High Court was reversed and that of the trial Judge restored.

The next case is the Raleigh Investment Co. Ltd. v. Governor General Jn Council ( 1) • 1bis was an appeal to the Privy Conncil

ro~ :'- Judgment ?f the Federal Court of India in civil appellate 1unsdict10n reversmg a decree passed by a Special Bench of the Calcutta High Court in its original civil jurisdiction.

It arose from a suit filed for recovery of a sum paid under protest pursuant to an assessment to income-tax of .the Investment Company on the ground that the computation was under a provision of the Income Tax Act which was ultra vires the Indian Legislature.

One of the defences in the suit was that whether the said provision

(I) [19471 L. R. 741.A. SO.

was u/lra vires or not, .the Civil Courts were excluded from elCcrcising their jurisdiction by s. 226 of the Governmen; of Indil Act, 1935 and s. 67 of the Indian Income Tax Act. The provision in question was held ultra vires by the High Court and it further held that neither of the two provisions was a bar to th< civil courts' jurisdiction. The Federal Court in disagreement held that s. 22() of the Government of India Act, 1935 barred tho jurisdiction and that the provision impugned was not ultra vfres.

The bar of s. 67 of the Ineome Tx Act was not pressed befor< the Federal Court.

When the case readhed the Judicial Committee, the ca; e was considered under s. 67 but not under s. 226. 'fhe Judicial Committee was of the opil)ion that s. 67 barred the jurisdiction. The Investment Company had raised the question before the Jncometax authorities that .Explanation 3 to 'Para 4(1) of the Income-tax Act 1922 was ultra vires. This was not accepted and the assessment was made.

The Investment Company filed an appeal but <lid not proceed with it and the assesst wa~ confirmed. The appellate authority' also said in its orderrhat the constitutional question could not be raised before it.

The suit was thn in- >tituted.

• Section 67 of the lndian Income-lax Act in specific -terms <lated :

""No suit shall be brought in any civil court t6 "t aside or modify any as., essmcnt made under the Act ... '"

The result of thesuit has already been slated. The-Judicial Committee considered this section and observed that the suit in form did not profess to modify the assessment.but in substance it did

>O.

The declaration that a certain provision was 11/lra vires was but a 'step.

J\ceording to the Judi9ial Committee the as.>e-<sment made under an 11/tra vires statute was not a nullity and the assessment ought to be taken to proceed on a mistake ofAaw in the course of assessment. Therefore, without going into the questiol\ whether the provision impugned was 11/tra vlres or not the Judicial comn1ittec considered. the 1n,µtter.

1; he argument was tha("the assessment was not one under ti.le Act', if effect was given to an ultra vires provision since the provision would he " nullity and non-existent. To discover the force of tile prohibition in s. 67 th.! following tests were applied:-

(al Docs the Act contain machinery by which the assessee can raise the question. of the ••ires of the provision before the special authorities ? ,

(b) This tes~ was not conclusive but one to be considered.

()·

. DHULABIIAI "· MADHYA PRADESH (Hidayatul/ah, C.l.) 671

(c) If. there was no such machlliery and yet the civil courts were barred the vires of s. 67 itself might come . in for consideration.

The Judicial Committee, however, came to the conclusion that the .

Income-tax Act gave the assessce an opportunity to raise the question under the lncome-tax Act. The provision for a case stated for the advisory opinion of the High Court was available and even if the authorities refused . to state a case, the High Court could be directly approached. The decision of the High Court was also subject to further appeal.

Thus there was adequate machinery in. the Income-tax Act. The words of s. 67 'under the Act' were construed as the

activitf of an assessing officer acting as such. That this activity took into consideration an ultra vires provision did not take the matter out of these words.

That phrase meant the provenance of the assessment, and not the accuracy 9r • correctness of the assessment or the. machinery of the Income-tax Act or the result of the activity. There was no difference between an incorrect ap D prehension of the provisions of the Income-tax Act and the invali: dity of a provision. :The Judicial Committee explained that if this were not so all questions of the correctness of the assessment nnde(. the Income-tax Act could be brought before the C9urt and tl1e section rendered otiose. The section made no distinction between

an inquiry into the merits cif the assessment and jurisdiction to .· embark on an enquiry at all. The Civil Courts' jurisdiction in either case was invoked as to the correctness of the assessment and the language of the section precluded consideration of jurisdiction in such circumstances .. The .Income-tax Act having a suitable and adequate machinery, jurisdiction to questiol\ the assess- ment otherwise than by that machinery was, therefore, held barred.

F . The Judicial Committee even doubted whether a provision such as s. 67 was at all necessary in the circumstances.

Both these cases thus appear to be decided on the basis of provisions in the relevant Acts for the correction, modification and setting aside of assessments and the express bar of the jurisdiction of the Civil Courts. The presence of a section barring the jurisdiction was the main reason and the existence of an adequate machinery for the same relief was the supplementary reason. The provision for a reference of a. question. to the High Court. was con-,_ sidered adequate to raise the issue of the validitY of any provision of law under which the taxing authorities acted.

This follows from the Raleigh Investment Co.'s case(1). Mask & Co.'s case(') was more concerned with the finality to the orders given by the Land Customs Act. Even so in the Mask & Co.'s case(2 ) room . was left for interference by the Civil Courts by observing that

(I) [1947) L. R. 74 LA. 50.

(2) (1940) L. R. 67 I. A. 222.

the Civil Courts had jurisdictio11 to examine into cases where the A provisions of the Act had not been complied with, or the statutory tribunal had not acted in conformit>: , with the fundamental principles of judicial procedures. These observations were accepted by this Court in Firm of ll/11ri Subba.vya Chetty Scnu .v.

The State of Andhra Pradesh(1) and in Kera/a v. Rama.rwaini Iyer and Sons(2). A passage from the latter case might be quoted B here:

"It is true that even if the jurisdiction of the civil court is excluded, where the provisions of tlie statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to C examine these cases." The observations of the Judicial Committee were thus completely accepted.

We may now examine how the matter was further viewed in this Court. In two other cases this Court laid down that the validity of the provisions under which the authorities act is not a matter for those authorities to decide. In Circo's Cof/u Co .. v.

State of Mysore(•) it was contended thats. 40(2) of the Myaere Sales Tax Act 1957 was ultra vires and beyond the competence of the State Legislature. This Court observed :

"t is true that a question as to the vires of section 40(2) of the Sales Tax Act was raised, but it is now settled by decisions of this Court that the question -as to the vires of a statute which a taxing officer has to administer cannot be raised before him." The same was again reiterated in C. T. Santhulnathan Chetti11r v.

Madras(') in the following words:

" ..... this Court has held, in Venkataraman and Co. v. State of Madras (60 I.T.R. 112) that the authorities under a taxing statute are not concerned with the validity of the taxing provisions and the questi()ns <1f ultra vires is foreign IQ the scope <1f-their jurisdiction. As no such point could be raised before the Income-tax authorities, neither the High Court nor the Supreme Court can go into these questions in a revision or reference from the decision of those authorities. This case was followed in Commissioner of Income-tax v. Straw Prod11Ct3

[1966, 2 S.C.R. 881]; (60 I.T.R. 156)".

(emphasis supplied)

0) 19 S. T. C. 66.

(4) C. A. 1045 of 1966 decided on 20.th July, 1967

DHULABHAI v. MADHYA PRADESH (Hidayatu//ah, C.I.) 673

.The party was left to 'appropriate proceedings' without specifying what they would be. Perhaps a suit was meant.

It follows that the question of validity .of the taxing laws is always open to the Civil Courts for it cannot be the implican of any provision to make such a decision final or that even v01d or invalid laws must be enforced without any remedy.

TherefQre, in Pabbojan Tea Co. Ltd. v. Dy. Commissioner, Lakhimp11r('), after, quoting the obsel"Vations of Viscount Simonds (Pyx Granite Co. Ltd. v. Ministry of Housing and Loe.al Govt. (1960 A.C. 260 at p. 286) ·

"It is a principle not by any means to be whittled C down that the subject's recourse to Her Majesty's Courts for determination of his rights is not to be excluded except by clear words.";

our brother Mitter added that the extreme proposition in Raleigh

Investment Co.'s case(') had not found favour with this Court.

D Our learned brother observed :

contracts' of an indivisible nature were held not to fall within the taxing provisions of the M<idras General Sales Tax Act, 1939.

Section 18-A was pleaded as a bar. It was held that since the provisions of the Madras General Sales Tax Act, 1939 were declared ullra vires in their application to 'indivisible works contracts' the action of the authorities was outside the said Act and not • U1lder the Act for the purposes of s. 18-A. The suit cwas held not barred.

Subbarao, J. (as he then. was) speaking for the majority distinguished both the Raleigh Investment Co!s case(•) and.the Comml.rsioni!r of I. T.-Punjab, North West Frontier & Delhi Provinces, Lahore

v. Tribune Trust, Lahore(') on the ground that no question of the

(!) A. I. R.19688. C. 271.

(3) (1.966] 2_ S. C. R. 229. ·,

(5) (1947) L .. R. 74 I. A. SO.

(2) [1947) L. R.74 I. A, 50.

(4) (1959J S. C.R. 379.

(6) [1947J L. R. 74. I. A. 306.

. '.--:. ' .. _ . _, __

674 ' '

SUPREME COURT. REPORTS

 (1968] 3 S.C.R. " vires of the law wa~ ra, ised in them. Referring to Raja Bahadur ,.;_ Kamakshya Narain Singh of Ramgarh v. C.I.T.(1 ) and State of

Tripura v. The Province of East Bengal(2 ); Subbarao J. pointed out that the suit W'llS hld maintainable in the latter and there was nothing in the former to support the contention .that the question ""' of ultra vires of a statutory provision could be convassed only. through the machinery provided under the statute. Referring B next to the case of . Firm of Illuri Subbayya Chetty. and Sons' case(3} the learned Judge said that the question whether s. 18.A' of the Madras. General Sales Tax Act, 1939 could apply where a particular provision of the.Sales Tax Act was ultra vires was left open (seep. 243 ). The learned Judge next quotedJhe opinion of the m(joritY in Bharat Kala Bhandar Ltd. v. M. C. Dhaman- .C gaon ) to the following effect : .

"But, with respect,' we find it difficult to appreciate . how taking into account an ultra vires provision which in law must be regarded as not being .a part of the Act at all, will make 1he assessment as one 'under the Act'.

No doubt the power to make an assessment was conferred by the Act and,. therefore, making all' assessment would be within the jurisdiction of the assessing authoririty. But. the jurisdfotion can be exercised only accord ing; as well as with reference, to the valid provisions of - the Act. When, however, the authority travels beyond the valid provisions it must be regarded as acting in excess of its jurisdiction. To give too wide a construction to the expression 'under the Act' may lead to the serious consequence of attributing to the legislature which owes its existerice itself to the Constitution, the intention of affording protection to unconstitutional activities by limiting challenge to them only by resort to the special machinery provided by it in place of the normal remedies available under t)Je Code of Civil Procedure, that is, to .. a machinery whiCh cannot be as efficacious as the one provided by the general Jaw. Such a constmction might necessitate the consideration of the very constitutionality pf the provision which contains this expression .. This aspect of the matter does not appear to have been con-.

Sidered in Raleigh Investment Co.'s case." ·

The JeaTAJed Judge next .considered whether these observations, although obiter, were departed from in Ml s. Kamla Mills Ltd. v.

The State of Bomba.v(') and came to the conclusion that that de cision did not touch upon the question whether. a suit would lie in.

(I) (1947) F. C. R.130.

(2) (19511 S. C. R, I.··

(3) [1964] I S. C.R. 752. .

(4)_ (1965] 3 S. C, R. 499 •. .

(5) (19661 I S. C. R. 64 ..

DHULABHAI v. MADHYA PRADESH (Hidayatu/lah,_ C.I.) 67 5

a case where the assessment was made on the basis of a provision which was ultra vires the Constitution (see p. 246).

Having considered these rulings the learned Judge examined the remedies provided by the Indian Income-tax Act and found that all authorities were creatures of the statute and functioned under it and could not ignore its provisions since the said Act conferred no such 'right' on them.

Whether the provisions were good or bad was not their concern. Pointing out that the reference to the High Court under the Indian Income-tax Act was confined to questions arising from the order of the Appellate Tribunal, the learned Judge observed that 'the question of ultra vlres is foreign to the scope of the Tribunals' jurisdiction' and that if such a question were raised the Tribunal could only reject it on the ground that it had np jurisdiction to decide it, and the High Court and the Supreme Court would be equally incompetent on appeal to go into the question.

The learned Judge next considered the decisions of the High Courts into which it is not necessary to go here and on the strength of some observations which supported his view, stated his view in the following words :

"The legal position that emerges from the discussion may be summarized thus : lf a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard. But an authority created by a statute cannot question the vire~ of that statute or any of the provisions thereof whereunder it functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which is ultra vires, to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil court."

As the head-note correctly states the effect of the decision was that the foundation laid by the Judicial Committee in Raleigh lfrvestment Co.'s case(') for construing the expression 'under the, Act' had no legal basis.

It may be mentioned that in Bharat Kala Bhandar(') case also it was held that there was no machinery provided in the Central Provinces and Berar Municipal Act for refund of tax assessed

(I) (1947) LR. 741. A. 50.

(2) 11965] 3 S, C. R. 499.

ahd recovered in excess of constitutional limits and that the remedy furnished by ¢hat Act w, as inadequate for enabling the assessee to challenge effectively the constitutionality or legality of assessment or levy of tax by a municipality or to recover from it what was realised under an invalid Jaw (see the judgment of Mitter, J. also in Pabbojan case(1) at page 276). In Bharat Kala Bhandar case(') it was pointed out that :

" ........ one of the corollaries flowing from the principle that the Constitution is the fundamental law of the land is that the normal remedy of a suit will be available for obtaining redress against the violation of a constitutional provision. The Court must, therefore, lean in favour of construing a Jaw in such a way as not to take away this right and render illusory the protection afforded by the Constitution."

Again in Deputy Commercial Tax Officer, Madras v. Rayalaseema Constructions(') the problem was the same as was dealt with in Venkataraman's Co. Ltd. case('). The earlier case was followed and it was held that th~ sales tax authorities having given effect to an ultra vires provision section 18-A of the Madras General Sales Tax Act, 1939 was no bar to the maintainability of the suit to recover tax paid under such an assessment since the authorities must be taken to have acted outside and not under the Madras General Sales Tax Act.

This brings us to the case of Provincial Government v. J. S.

Basappa('). There too three suits were filecl alleging 'that the goods had passed to extra state points while they were still in the possession and ownership of the seller. Since the proyerty in the goods remained in the seller till the goods had entered into other provinces, the sales could not be subjected to a tax in Madras

Presidency.

Section 11 (4) of the Madras General SaJes Tax Act, 1939 made orders of the taxing authorities final but the Act applied only to sales within the Presidency of Madras and not outside it. There was at that time no provision to oust the jurisdiction of the civil courtr.

Section 18-A of which we have spoken earlier and on which most of the cases turned, was added much later. Many of the remedies such 8$ were considered in Raleigh lnvestmelll Co.'s case(') and Venkataraman's case(') were also added at the same time as s. 18-A. The question thus had to be decided without an express provision ousting the jurisdiction of the Civil Courts and

(I) A. r. R. 1968 S, C. 271.

(2) (1965) 3 S, C. R. 499.

(3) 17 S. T. C. 505.

(4) (1966) 2 S. C. ll. 229.

(5) [1964) 5 S. C.R. 517.

(6) (1947) L. ll. 74 I. A. 50.

DHULABHAI v. MADHYA PRADESH (Hidayatu/lah, C.l.} 677

without the existence of an adequate machinery for raising such an issue before the authorities. The only provision which had to be considered was s. 11(4) which provided 'every order passed in appeal under this section, shall, subject to the powers of revision conferred by s. 12, be final.' The fundamental provisions of the Madras General Sales Tax Act, 1939 (as it then stood} were that the sales must be within the Presidency of Madras. The authoritiell ignoring these provisions held that 'outside sales' were taxable.

Relying upon the dictum of the Judicial Committee in Mask &: Co.'s case('), as applied in Firm of Illuri Subbayya Chetty's case('), this Court held that the suits were competent.

In the case of this Court last cited the following observation was made: • "It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with.

Non-compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundan1ental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void aBd this infirmity may affect the validity of the order passed by the authority in question."

The Divisional Bench relying upon this observation pointed out :

"It was thus held that the civil court's jurisdiction may not be taken away by making the decision of a tribunal final, because the civil court's jurisdiction to examine the order, with reference to fundamental provisions 6f the statute, non-compliance with which would make the proceedings illegal and without jurisdiction still remains, unless the statute goes further and state~ either expressly or by necessary implication that the civil court's jurisdiction is completely taken away.

Applying these tests, it is clear that without a provision like s. l 8A in the Act, the jurisdiction of the civil court would not be taken away at least where the action

(I) (1940) L. R. 671. A. 222.

(2) [1964J 1 S. C.R. 752.

678 SUl'RBMB COURT REPORTS

(1968) 3 S.C.R.

of the authorities is wholly outside the law and is not a mere error in lhe exercise of jurisdiction. Mr. Sastri ll)'S that we must interpret the Act in the same way u if s. l 8A was implicit in it and that s. l 8A was added eo make explicit what was already implied. We cannot agree. . The finality that statute conferred upon orders, ef assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax bn a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within the State was a matter wholly outside the jurisdic lion of the taxing authorities and in respect of such illegal action the jurisdiction of the civil court continued to subsist. In .our judgment the suits were competent."

This case was, therefore, stronger than any so far noticed because of the absence of s. 18-A and the elaborate machinery for adequate remedy 'ivas introduced later and the tax was illegally cofiected ignoring the fUndamental provisions of the Madras General Sales Tax Act, 1939.

However, in Kera/a v. Ramaswami Iyer and SoltS(.') ( altbough it was not pointed out what express provision or clear intendment in the Madras General Sales Tax Act, 1939 as it then stood, barred a civil suit) Bl13Qppa's( 2 ) case was declared to be wrongly decided. In that very case the learned Judges considered a rule which gave exemption but held that it did not give protection because it was enacted after the account period. What if it had been enacted before ? The observations in Basapptfs cue(')

that if a commodity was not taxable at all or was exempt the civil Court would have jurisdiction were, however, not accepted. It F wll$ sufficient to have said in Ramaswami lyer's case(') that exemption .or no exemption that was for the authorities to decide and not a matter for the Civil Courts. The argument of exemption was rejected by observing :

"There was in .the Travancore-Cochin General Sales Tax Act at the material ti~ no express provision which ol>Iiged the taxing authority to exClude from the computation of taxable turnover the amount of salcstax collected by the. dealers." (emphasis supplied) This reasoning 'shows that if it. had been, the suit might have been 11.eld competent. It is not necessary for us to pursue this mattet further than to say that the observation that B11.f11Ppt/11 case waS wronely decided is open to serious doubt.

(,!) [1966) 3 S. C.R. 582.

(2) )1964) 5 S. C, R. 517.

DHULABHAI v. MADHYA PRADESH (Hidayatullah, C./.) 679

This leaves for consideration only the cases Firm of lllurl Subbayya Chetty and Sons v. State of Andhra Pradesh(') and Kanl/a Mills Ltd. v. State of Bombay('). The case of Firm of 1/luri Subayya Chetty(1) arose under the Madras Genra! Sales Tax Act, 1939, and s. 18, A was pleaded to make the smt mcompetent. The transactions in respect of which tax was recovered were said to be of sales and not purchases and the latter only were to be taxed. It was held thats. 18-A barred the suit because the attempt was to set aside or modify an assessment made under the said Act. It was pointed out that any challenge to the correctness of the assessment must be made before the appellate or revisional forums under the same Act since the character of the transaction was a matter into which the appellate and revisional authorities could go. A litigant who accepted the assessment when he could call it in question by other proceedings under the same Act could not begin a suit. The expression 'under the Act' was sufficient to cover even an incorrect assessment. The assessee firm succeeded in the suit but the High Court held it barred under s. 18-A and also held against the assessee firm on the nature of the transaction.

This Court first held that there was no provision in the said Act for bringing a civil suit to question the assessment. Therefore the matter must fall in s. 18-A. This Court analysed the provisions of the said Act which provided bys. 12-A, 12-B, 12-C and 12-D for special appeals, including an appeal to the High Court, the highest Civil Court in the State, laying down further that 1!1e appeal should b7 heard by a Diyision Bench. In the light of this elaborate machmery the question of alternative remedy was approached. It was also pointed out that the assessee firm had itself included these transactions in its returns. Having conceded that the tax was payable and not having raised the issue !'efore the appellate authorities constituted under the said Act,

t was }teld at the firm could not be allowed to raise the issue m a suit. This was enough to dispose of the appeal to this Court .

. The Constitut.in Bench., however, went on to examine the rulings of the Judicial Committee in Mask & Co.'s(8) and Raleigh G l1J11estme'!t Co.'s(') cases. Dealing with the former case this Court pomted out that n<; m-comp!iance with the provisions 'of the statute meant non-comphance with such fundamental provisions of the tatute as ou.ld make the entire proceedings before the appropnate authonty illegal and withput jurisdiction. The defect of procedure must also be fundamental. In either case the defect H must make the order invalid in law and void. The Court went on to observe :

(I) [1964] l S. C. R. 752.

(3) (1940) L. R. 67 I. A. 222.

LBSup. Cl/68-4

(2) [1966) l S. C, R. 64.

(4) (1947) L. R. 74 I. A. SO.

" .... In what cases such a plea would succeed it is A Jnnecessary for us to decide in the present appeal be- . cause we have no doubt that the contention of the appellant. that on the merits, the decision of the assessing authonty was wrong, cannot be the subject-matter of a suit because s. 18-A clearly bars such a claim in the civil courts." B

Referring next to the Raleigh Investment Co.'s case(') this Court pointed out that under the scheme of the Income-tax Act, the Judicial Committee thought that a .question of vires of the provisions could also be considered, but this Court did not think it necessary to pronounce any opinion whether this assumption was well-founded or not.

This point was later considered in C Venkataraman's case( 2) by Subbarao, J. (as he then was) and we have sufficiently analysed the views of this Court. The case of Firm of 11/uri Subbayya(') may be said to be decided on special facts with additional reference to the addition of s. 18-A excluding the jurisdiction of civil court and the special remedies provided in ss. 12-A to 12-D by which the matter could be taken to D the highest civil court in the State.

This brings us to the last case on the subject. That is the Kam/a Mills case(').

That case was heard by a special Bench of 7 Judges and is of more binding value than the others. Kamla Mills Ltd. was assessed to certain sales effected between 26 January 1950 and 31 March 1951 which the taxing authorities treated as 'inside sales' and the Company claimed to be 'outside sales' as determined under the Bengal Immunity . Co.

Ltd. v.

State of Bihar and others('). The judgment in the last cited case was delivered on September 6, 1955. The period for invoking remedies under the Bombay Sales Tax Act, 1946 under which the assessment was made bad expired.

A suit was, therefore. filed to claim refund.

The Bombay Act contained s. 20 which read:

"20. Save as is provided in s. 23, no assessment made and no order passed under this Act or the rules made thereunder by the Commissioner or any person appointed under s. 3 to assist him shall be called into question in any Civil Court_, and save as it provided in sections 21 and 22, no appeal or application for revision shall lie against any such assessment or order." The suit was dismissed on the preliminary point arising from this bar. A Letter Patent appeal in the High Court of Bombay also

(1) [1947 1L. R 741. A. 50.

(2) [1966] 2 S. C.R. 229.

(3) [1964 1 S. C.R. 752

(4) [1966] 1 S. C.R. 64.

(5) !19551 2 S. C. R. 603.

...

DHULABHAI v. MADHYA PRADESH (Hidayatullah, C.J.) 681

failed.

The case came bfore this Court on a certificate. It was referred to a Special Bench because s. 20 was challenged as unconstitutional because it barred a suit even where the assessment was unconstitutional. This Court held that as there was adequate remedy to raise the question before the authorities by asking for rectification of the assessment, the section could not be said to deprive him of remedy in such a way as to render the section itself unconstitutional as was hinted in Raleigh Investment Co.'s case(') about s. 67 of the Indian Income-tax Act. We are not concerned with that question.

The next question which was considered was whether the jurisdiction conferred on the taxing au1horities included the jurisdiction to determine the nature of the transaction or was the decision about the character of the transaction, a decision on a collateral fact ? This Court held that it was the former and not the latter. Therefore the decision was held to be merely an error in assessment which was capable of correction by the usual procedure of appeals etc. The bar of s. 20 was, therefore, held to apply.

During the course of the arguments the Special Bench considered Basappa's case(2). and distinguished it from the Firm of llluri Subayya Chetty's case(3 ) on the ground that the former was not barred by s. 18-A as it did not exist. The Special Bench, however, made an observation to the following effect :

"In cases where the exclusion of the civil courts' jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such consideration would be very important,· and in conceivable circumstances, :might even become decisive.

If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lay5 down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."

The Special Bench refrained from either accepting the dictum of Mask & Co.'s case(4 ) or rejecting it, to the effect that even if jurisdiction is excluded by a provision making the decision of the authorities finJI, the Civil Courts have jurisdiction to examine into

(1) [1947! L.R. 74 I. A.50.

(2) [1964J 5 S. C.R. 517.

(3) (1964] IS. C.R. 572.

(4) (1940] L. R. 671. A. 222.

682 SUPREMB COURT llBPOllTS

(1968) 3 S.C.R.

cases where the provisions of the particular Act are not complied with.

Neither of the two cases of Firm of Illuri Subayya(1) or Kamla Mills(2) can be said to run eonnter to the series of cases earlier noticed.

The result of this inquiry into the diverse views expressed in this Court may be stated as follows :-

( 1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.

Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judi cial procedure. ·

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the par ticular Act to find the adequacy or the sufficiency o~ the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies ana the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all ques tions about the said right and liability shall be determined by the tribunals so constituted, and whether re medies normally associated with actions in Civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra v/res cannot be brought before Tribunals con stituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

( 4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open.

A writ of certiorari may include a direction for refund if the claim is clearly Vlrithin the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(I) [1964]1 S. C.R. 752.

(2) [1966) IS. C. R. 64,

DHULABHAI v. MADHYA PRADESH (Hidayatu/lah, C.J.) 683

(5) Where the particular Act contains no machinery for refund of. tax collected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.

In the light of these conclusions we have to see how the present case stands. Section 3 was the charging section. It spoke of the incidence of the tax. In consisted of several sub-sections.

These sub-sections laid the tax on dealers according to their taxi> able turnover and in the case of a dealer who imported goods into Madhya Bharat the taxable turnover was Rs. 5000 /-.

Section 4 made certain exclusions and exemptions, and section 5 prescribed the rate of tax.

That section read :

"5(1) The tax payable by a dealer under this Act shall be at a single point and shall not be less than Rs. 1-9-0 per cent. or more than 6t per cent of the taxable turnover, as notified from time to time by the Government by publication in the official gazett&.

Provided that Government may in respect of special class of goods charge tax up to 12t per cent. on the taxable turnover.

(2) The Government while notifying the tax payable by a dealer may also notify the goods and the point of their sale at which the tax is payable."

In notifying the rate provision was made for rates in respect of importers, the point of time being the import. As the import itself pootulated movement of goods, the matter fell within Article 301 and as trade and commerce is declared to be free throughout the territory of India, it became unfree by reason of the tax. The tax would therefore have ex facie offended Article 301.

This could however be avoided if the tax was saved by Article 364(a).

That required that similar goods manufactured or ' produced in Madhya Bharat had to bear an equal tax.

Such equal tax was not imposed hence the notifications were struck down as making

684 SUPIUlJm OOU&T UPO&TS

(1968) 3s.c.R.

discrimination and rendering trade and commerce unfree. This I& was the effect of. Bhailal's case(1), No doubt the Madhya Bharat Sales-tax Act contained provi sions for appeal, revision, rectification and reference to the High Court, the notifications being declared void the party could take advantage of the fact that . tax was levied without a complete charging section. This affected the jurisdiction of the tax authorities because they could nqt even proceed to assess the -party. The question was one falling in category Nos. 3 and 4 rather than in category No. 2 above. It was directly covered by the decision of

this Court in Venkataraman's case(2 ) read with Circo's Coffee Co.(') and Senthulnathan Chettiars case(') already referred to We would have considered this matter again if Venkataraman'1 C case(2) had belin doubted before but it seems to have been fol lowed in the la, st mentioned case and Pabbojan Tea Comparry'1 case("). U Ka111la Mills Ltd. case(') had not expressly left the question open we would have applied the earlier case of the Spe cial Bench but as it is we are bound not by the Special Bench de cision but by Venkataraman's case('). We must therefore allow D these appeals with costs. The judgment of the High Court is set aside and suits are decreed. The order for costs shall be as in the suit. The costs in the High Court shall be borne as incurred.

V.P.S.

(I) [1964) 6 S. C. R. 261.

(2) [1966)28.C.R.229.

(3) 19 S. T. C. 66 (S. C.).

(4) C A. IQ4S of 1966, dated 20-7-1967.

(S) A. I. R. 1968 S.C. 271.

(6) [1966) .J S. C. R. 64.

Appeal allowed.

DHULABHAI AND OTHERS

THE STATE OF MADHYA PRADESH AND ANOTHER

April 5, 1968

M. HIDAYATULLAH, C.J.

R. S. BACHAWAT

K. S. HEGDE

N. GROVER

Bharat Sales Tax Act

s. 11

Madhya Bharat Sales Tax Act, 1950

Art. 301

Art. 304(a)

Art. 30

Art. 301

s. 17

L.R. 67 I.A. 222

[1964) 1 S.C.R. 752

[1966] 3 S.C.R. 582

ss. 12A to 120

Madras General Sales Tax Act, 1939

Rcleigh Investment Co.

L.R. 74 I.A. 50

Mask & Co.

Madras General Sales Tax Act, 1939

s. 18A

Basappa

s. 20

IIlC prescribed by the Limitation Act

SJ Where the particular Act

CIVIL APPELLATE JURISDIBTION

Madhya Pradesh High Court, Indore Bench

M. C. Setalvad

Rameshwar Nath

Mahinder Narain

B. Sen

N. Shroff

N. Shroff, for the respondents (in all the appeals).

Hldayatullah

State of Madhya

Pradesh

District Judge, Ujjain

Ujjain

May 1, 1950

s. 3

Madhya Bharat

s. 5

April 30, 1950

May 22, 1950

October 24, 1953

January 21, 1954

the Code of Civil Procedure

Art. 301

Art. 304(a)

State of Madhya Pradesh

November I,

High Court of Madhya Pradesh

Art. 301

Art. 226

December 21, 1957

s. 17

sections 11 and 12

[1964) 6 S. C.R. 261

s. 21

Art. 301

s. 1

s. 17

Constitution Bench

L. R. 67 I. A. 222

s. 9

the Code of Civil Procedure

s. 9

Willes

India

To which category do such cases belong in India ?

Article 301

Art. 304(a)

(1964) 6 S. C.R. 261

Art. 226

Art. 226

Article 226

Mask

aild Co.

Customs Act

Mask and Co.

Section 188

Land Customs Act, 1924

s. 191

s. 188

Ss. 188 and 191

Calcutta High Court

s. 226

Indil Act, 1935

s. 67

s. 22()

Government of India Act, 1935

s. 67

s. 67

s. 226

s. 67

Income-tax Act 1922

Section 67

s. 67

DHULABIIAI

DHULABIIAI "· MADHYA PRADESH (Hidayatul/ah, C.l.)

s. 67

Income-tax Act

s. 67

Income-tax Act

Income-tax Act

Income-tax Act

s. 67

Raleigh Investment Co.

Customs Act

(1940) L. R. 67 I. A. 222

Myaere Sales Tax Act 1957

section 40(2)

Supreme Court

Mitter

Raleigh

General Sales Tax Act, 1939

Section 18

s. 18

Subbarao

Raleigh Investment Co!s

Raja Bahadur

Illuri Subbayya Chetty

s. 18

General Sales Tax Act, 1939

Sales Tax Act

Code of Civil Procedure

Income-tax Act

Raleigh lfrvestment Co.

Bharat Kala Bhandar

Mitter

Pabbojan

Venkataraman's Co. Ltd.

section 18

Madras General Sales Tax Act, 1939

Madras

Section 11

Madras General SaJes Tax Act, 1939

Section 18

Raleigh lnvestmelll Co.

Venkataraman

s. 18

[1964) 5 S. C.R. 517

s. 11(4)

s. 12

Mask &: Co.

Sastri

s. 18

Madras General Sales Tax Act, 1939

Ramaswami lyer

[1966) 3 S. C.R. 582

Sales Tax Act, 1939

s. 18

s. 18

s. 18

(1940) L. R. 67 I. A. 222

s. 18

C Venkataraman

s. 18

ss. 12

Kamla Mills Ltd.

26 January 1950

31 March 1951

September 6, 1955

s. 20

s. 23

s. 3

sections 21 and 22

High Court of Bombay

[1966] 2 S. C.R. 229

[1964 1 S. C.R. 752

[1966] 1 S. C.R. 64

s. 20

s. 67

Income-tax Act

s. 20

Subayya Chetty

s. 18

Vlrithin the time prescribed by the Limitation Act

Section 3

Vlrithin the time prescribed by the Limitation Act

Vlrithin the time prescribed by the Limitation Act

Section 4

section 5

Article 301

Article 301

Article 364(a)

Bhailal

No doubt the Madhya Bharat Sales-tax Act

Circo's Coffee Co.

Senthulnathan Chettiars

Pabbojan Tea Comparry'1

U Ka111la Mills Ltd.

[1964) 6 S. C. R. 261