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Nathuram Weljibhai Vyas Vs. Laxmibai Lunkaranji Chandak - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberSpecal Civil Application No. 837 of 1979
Judge
Reported in[1983]139ITR948(Bom)
ActsIncome Tax Act, 1961 - Sections 54, 137, 138, 138(1) and 138(2); Central Provinces and Berar Letting of Houses and Rent Control Order, 1949
AppellantNathuram Weljibhai Vyas
RespondentLaxmibai Lunkaranji Chandak
Appellant AdvocateC.G. Madkholkar, Adv.
Respondent AdvocateR.S. Lambat, Adv.
Excerpt:
direct taxation - jurisdiction - section 13 (3) of central provinces and berar letting of houses and rent control order, 1949 and section 138 of income tax act, 1961 - dispute over ownership of property - rent controller ordered income tax officer to be witness and to produce documents regarding assessment of petitioner - petitioner challenged order of rent controller - rent controller entitled to issue summons to income tax officer in exercise of power under section 13 (3) - petitioner has no right under section 138 to challenge such order - order of rent controller maintainable. - - (b) where a person makes an application to the commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made under this act or the indian income-tax.....joshi j.1. the respondent claiming to be the owner of the house occupied by the petitioner and claiming that the petitioner was occupying the said house as a tenant filed an application before the rent controller, wardha, for permission to terminate the tenancy of the petitioner under clause 13(3)(ii) and clause 13 (3)(vi) of the c.p. and berar letting of houses and rent control order, 1949 (hereinafter referred as 'the rent control order'). in that proceedings, the petitioner denied that the respondent was the owner of the house, as also that the petitioner was occupying the same as a tenant; on the contrary the petitioner contended that he was occupying the house as an owner, he and his father having prescribed title to the suit house by their adverse possession. the existence of the.....
Judgment:

Joshi J.

1. The respondent claiming to be the owner of the house occupied by the petitioner and claiming that the petitioner was occupying the said house as a tenant filed an application before the Rent Controller, Wardha, for permission to terminate the tenancy of the petitioner under clause 13(3)(ii) and clause 13 (3)(vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred as 'the Rent Control Order'). In that proceedings, the petitioner denied that the respondent was the owner of the house, as also that the petitioner was occupying the same as a tenant; on the contrary the petitioner contended that he was occupying the house as an owner, he and his father having prescribed title to the suit house by their adverse possession. The existence of the relationship of landlord and tenant between the parties were thus alleged by the respondent, but was denied by the petitioner, and, naturally, its became an issue in the proceedings. The respondent filed an application before the Rent Controller for summoning the ITO together with the returns filed by the petitioner, it seems, with the idea of proving from those returns that certain payments as rent for the suit house were shown by the petitioner in those returns. The petitioner filed an objection to the production of these documents and to the examination of the ITO contending that the returns, documents and statements made and filed by an assessee before the ITO were strictly confidential documents and they could not be made use of in a court unless permitted by the I.T. Act. It was contended that under s. 138 of the I.T. Act, 1961, the disclosure of information made to the ITO is prohibited, and such a disclosure can be made only in cases governed by s. 138 of the Act and, therefore the non-applicant tenant, i.e., the present petitioner, was objecting to the production of the documents by the ITO. The rights granted by s. 138 of the I.T. Act had to be protected and respected by the court, the petitioner contends that this objection of the petitioner was orally rejected by the Rent Controller; he did not pass any written orders; the petitioner then applied for stay of proceedings to enable the petitioner to approach this court, but the Rent Controller also orally rejected that application of the petitioner. The Rent Controller, then issued a summons to the ITO, for appearing as a witness, and also directed him to produce the documents. By this writ petition under art. 226 of the Constitution the petitioner has challenged this act of the Rent Controller. Wardha, and he has prayed of the issues of a writ of mandamus, or any other proper writ or direction quashing the oral order passed by the Rent Controller rejecting the petitioner's objection, and for issue of a direction to the Rent Controller. Not to issue any summons to the ITO, Wardha, either for the production of document or for examining him as a witness.

2. It would seem that a prayer for the issue of a writ of prohibition or a writ of certiorari would have been more appropriate in the circumstances, the Rent Controller, Wardha, however, has not been impleaded as a party to this proceeding.

3. In his arguments Mr. Madkholkar for the petitioner preferred to take up first the contention that the Rent Controller has no jurisdiction to issue a summons to a witness either for appearance before him as a witness, or to produce any document before the Rent Controller. Mr.Madkholkar contended that the Rent Controller is not a 'court'. The is only a Tribunal created under a subordinate legislation for a particular purpose, and as such his substantive or procedural powers are governed by the legislation creating that Tribunal. It was pointed out that the Rent Control Order was made by the Provincial Govt. of the then Central Provinces and Berar in exercise of the powers conferred on the Provincial Govt. under s. 2 of the C.P. and Berar Regulation of Letting of Accommodation Act, 1946 (hereinafter referred to as 'the Act'). The Act itself was a transitory provision, (though it has since been continued till now), as is apparent from s. 1(3) of the Act which enacts :

'It shall cease to operate on such date as the Provincial Government may, by notification, appoint in this behalf.'

4. Then it was pointed out that the only substantive provision of the Act was s. 2, which is as follows :

'2. Regulation of letting and sub-letting, etc. - The Provincial Government may, by general or special order which shall extend to such areas as the Provincial Government may, by notification, direct, provide for regulating the letting and sub-letting of any accommodation or class of accommodation whether residential or non-residential, whether furnished or unfurnished, and whether with or without board, and in particular :-

(a) for controlling the rents for such accommodation either generally or when let to specified persons or classes or in specified circumstances,

(b) for preventing the eviction of tenants or sub-tenants from such accommodation in specified circumstances,

(c) for requiring such accommodation to be let either generally, or to specified persons or classes of persons, or in specified circumstances, and

(d) for collecting any information or statistics with a view to regulating any of the aforesaid matters.'

5. It was under this provision that the Rent Control Order had been made. Mr. Madkholkar also drew my attention to another important provisions of the Act, namely, s. 9, which is in the following terms :

'9. Power for securing compliance of orders. - Any authority under an Order made under section 2 may, if the said Order so provides, take or cause to be taken, such steps and use, or cause to be used, such force as may, in the opinion of such authority, be reasonably necessary for securing compliance with, or for preventing or rectifying any contravention of such order or for the effective exercise of such power.'

6. Here it was pointed out that the important words in s. 9 of the Act were 'if the said Order so provides'. So, even the power given under s. 9 of the Act was itself made contingent upon the order made under s. 2 of the Act, containing such specific power. Turning to the provisions of the Rent Control Order, Mr. Madkholkar drew my attention to clause 2(1) of the Rent Control Order which defines the term 'Controller' to mean 'an officer appointed to exercise the powers of the Controller under this Order.' Mr. Madkholkar then took me through the various provisions of the Rent Control Order. It was pointed out that there is no specific provision in the Rent Control Order giving the Rent Controller the power to summon witnesses, or, to exercise, in this respect, the same powers as are conferred on a Civil Court under the CPC. It was pointed out that clause 27 of the Rent Control Order is almost the only provision that makes a reference to the CPC, but that is only for purpose of service on any person of an order made under clause 24 or clause 24A of the Rent Control Order. This provision, therefore, did not empower the Rent Controller to issue summons to any witness to appear before him as a witness, or to produce any document before him. It was also pointed out that clause 28 of the Rent Control Order is another provision conferring some power. That clause is as follows :

'28. (1) The Collector may take or cause to be taken such steps and use or cause to be used such force, as may, in his opinion, be reasonably necessary for the purpose of securing compliance with or for preventing or rectifying any contravention of this Order or for the effective exercise of such power.

(2) The Collector or any officer authorised by a General or special order in writing in this behalf by the Collector may, with a view to securing compliance with this Order,....

(a) require in writing any landlord or tenant to give information in his possession in respect of any house belonging to a tenant or occupied by such landlord, as the case may be;

(b) enter after giving reasonable notice in writing, any premises for verification of an information received in respect of which he has reason to believe that a contravention of this Order has been committed.'

7. It was pointed out that the power is conferred under clause 28 (1). Reproduced above, to take any steps necessary for the 'effective exercise of such power', on the Collector, and not on the Controller, and, therefore, the Controller cannot claim under clause 28 (1) to have the power to summon witnesses, it was pointed out that under several other enactments creating Tribunals for exercising powers under the particular enactment, there were specific provisions in the enactment conferring on the Tribunal so created, powers under the CPC of under some other procedural enactments, for specified purposes, including the summoning of witnesses of production of documents. In this respect, reference was made to ss. 102, 106A, 109(2) and 111(2) of the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, 1958, to s. 30 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, to s. 15(2) of the Bombay Village Panchayats Act, 1959, to s. 27 (2) of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1962, and to s. 21(7) of the Maharashtra Municipalities Act, 1965. There was no such provisions in the Rent Control Order. There was not even any reference to the summoning of witness. Clause 18A refers only to the manner of issuing notices of parties or to non-applicants. It was contended that the issue of a summons to a witness was an act of authority. It was a command to the witness to appear before the authority, and, therefore, before a summons to a witness could be issued by a particular authority, it must be shown that there was such a power conferred on the authority by the enactment creating the authority itself. In the absence of any such specific conferring provision in the Rent Control Order itself, because of the specific terminology of s. 9 of the Act, such a power to summon a witness could not be read, by implication, as having been conferred on the Controller under the Rent Control Order. It was pointed out that it has been observed by this court in Navinchandra v. Md. Akbar Khan [1960] M. LJ 49 that there could not be any implied curtailment of the powers of review conferred on the Collector under clause 21(2a) of the Rent Control Order by reason of any analogy drawn from the provisions of O. 47, r. 1 of the CPC. Therefore, argued Mr. Madkholkar, there could not also be any similar implied enlargement of the powers of the Controller, on the analogy of the provisions of the CPC in the matter of summoning witness or production of documents through witnesses, in the absence of any such specific provision in the Rent Control Order.

8. Mr. Madkholkar argued that a Rent Controller is only a Tribunal and not a 'court'. For this purpose Mr. Madkholkar drew assistance from certain reported decision viz., Mathura Prosad Rajgharia v.Kanailal Mulick. : AIR1968Cal170 , Firm of S. Mohd. Ali and Sons v. Madhavarao : AIR1964AP132 , Bijai Narain Singh v. State of U.P. : AIR1970All241 [FB] and Sailaja Kanta Mitra v. State of West Bengal : AIR1971Cal137 . Therefore, it was urged, the provisions of the CPC do not apply to enquiries by the Controller under the Rent control Order. In consequence, it was urged, the Controller, acting under the provisions of the Rent Control Order, had no power to issue a summons to any person, either to appear before him as a witness, or to produce any document. Therefore, in this particular case, the action of the Rent Controller, Wardha, in issuing a summons to the ITO, requiring him to appear before him as a witness, and produce the returns submitted by the petitioner, was without jurisdiction, requiring this court to quash the same.

9. Mr. Madkholkar contended that if the first contention discussed above was acceptable, the second contention would not really arise for consideration. Assuming that this court came to a conclusion that the Rent Controller did have an authority to issue summons to the ITO, requiring him to produce the requisite documents before the Rent Controller, then, Mr. Madkholkar contended, the provisions of s. 138 of the I.T. Act, 1961 (as amended by Act No. 5 of 1964) afforded a complete protection to the petitioner against disclosure of the information submitted by the petitioner in his income-tax returns.

10. I would prefer to examine the second contention of Mr. Madkholkar first. It is true that under the provisions of s. 54 of the Indian I.T. Act, 1922, as also under s. 137 of the I.T. Act, 1961, as it stood, prior to the amendment thereof by Act No. 5 of 1964, there was such complete protection against a disclosure of information, available to the assessee. But s. 137 of the I.T. Act, 1961, was deleted by the amending Act No. 5 of 1964, and after that amendment the only protection available to the assessee in this respects is the limited protection under s. 138 of the I. T. Act, 1961. Section 138 of the I.T. Act, 1961, as it stands now after the amendment of 1964, is as follows :

'138. (1)(a) The Board or any other income-tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to :-

(i) any officer, authority or body performing any functions under any law relating to the imposition of any tax, duty or cess, or to dealings in foreign exchange as defined in section 2 (d) of the Foreign Exchange Regulation Act, 1947 (7 of 1947); or (ii) such officer, authority or body performing function under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify by notification in the Official Gazette in this behalf and such information relating to an assessee in respect of any assessment made under this Act or the Indian Income-tax Act, 1922, (11 of 1922) as may in the opinion of the Board or other income-tax authority be necessary, for the purpose of enabling the officer, authority or body to perform his or its functions under that law.

(b) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made under this Act or the Indian Income-tax Act, 1922, (11 of 1922), on or after the first day of April 1, 1960, the Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of the assessment only, and his decision in this behalf shall be final and shall not be called in question in any court of law.

(2) Notwithstanding anything contained in sub-section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors, by order notified in the Official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order.'

11. Clearly, the present case does not fall under sub-s. (1) of s. 138. It has not been shown to me that sub-s. (2) of s. 138 of the I.T. Act, 1961, is attracted by reason of any notification by the Central Govt. in the Official Gazette. Even if there be any such notification prohibiting a disclosure of information from the assessment return of the petitioner or prohibiting a production of those returns, under s. 138(2) of the I.T. Act, 1961, the ITO could take the necessary objection when appears as a witness before the Rent Controller. Clearly s. 138 reproduced above has no reference to the power of the court or any other authority to summon any income-tax authority, for producing certain documents before the summoning court or authority. Please see in this respect the observations of Dharmadhikari J in H. N. Malak v. Aziz S. Yusuf : [1974]94ITR276(Bom) with which I respectfully concur. It is clear then, that s. 138 of the I.T. Act, 1961, does not afford any protection to the petitioner in the manner contended.

12. That brings me to the first contention of Mr. Madkholkar that the Rent Controller has no jurisdiction to summon any witness for appearing before the Rent Controller as a witness or for production of document and, therefore, naturally the Rent Controller had no power to issue summons to the ITO, Wardha, to appear before the Rent Controller as a witness or to produce before the Rent Controller the relevant income-tax returns submitted by the petitioner. It has at once to the conceded that there is no express provision in the Rent Control Order conferring any such power on the Rent Controller. Nor is there any provision in the Rent Control Order, specifically conferring on the Rent Controller the powers of a Civil Court under the CPC for summoning of witnesses or for production of documents. It may also be stated at once that the Rent Controller acting in an enquiry under clause 13(3) of the Rent Control Order, is not a 'court' under the CPC. In Haji Zakeria Suleman v. Collector Yeotmal, : AIR1963Bom233 , a Division Bench of this court was examining the question whether the Rent Controller has the power to dismiss in default an application made to him, and thereafter to restore the same. In this respect the court observed at p. 234 :

'Now, we may say at once that we are in agreement with the view taken by the appellate authority that there is no inherent power in the Rent Controller or in the Rent Control Authorities is dismiss an application for default of to restore it. Inherent power can only be implied in the Civil Courts having general jurisdiction but where, as here, special authorities are constituted under a special statute and for special object, it is not possible to imply inherent powers in them. We must turn to the statute itself to find a power either in its express terms or by necessary implication.'

13. In Diwalibai Damjibhai Bhatti v. Jaikumar Gopaldas Jain : AIR1969Bom393 , the same question came up for decision before Abhyankar J. and in p. 394, it has been observed :

'The authorities under the Rent Control Act are quasi-judicial tribunal adjudicating upon civil rights of parties...'

14. An examination of the several provisions under the Rent Control order shows that in certain cases the Rent Controller is required to hold 'an enquiry'. Clause 4 of the Rent Control Order is in the following terms :

'4. When on a written application by the landlord or tenant the Controller has reason to believe that the rent of any house within his jurisdiction is insufficient or excessive, as the case may be, he shall hold such enquiry as may be necessary and record a finding.'

15. Cls. 5, 6 and 7 require the Rent Controller to determine the fair rent in such a dispute, having due regard to certain circumstances enumerated in these clauses. Clause 12 is in the following terms :

'12. Any dispute between the landlord and the tenant in regard to any increase of rent claimed under cls. 9, 10 and 11 shall be decided by the Controller.'

16. Under clause 13(2) a landlord who seeks to obtain permission under sub-clause (1) of clause 13 i.e., for a determination of tenancy of his tenant by a notice, is require to apply in writing to the Controller in that behalf. Then clause 13(3) provides that the Controller shall grant the requisite permission to the landlord to give the notice to the tenant to determine the tenancy, if 'after hearing the parties' the Controller is satisfied about the existence of the circumstance enumerated in any of the nine items mentioned in clause 13(3). Under the proviso below clause 23(1) where the landlord has, in the intimation given under clause 22 stated that he needs the house for his own occupation, 'the Collector shall, if satisfied after due enquiry that the house is so needed, permit the landlord to occupy the same'. This last provision refers to the powers and duties of the Collector and not the Controller. It is clear then that the Controller in certain cases is required to hold such enquiry as may be necessary, in certain cases he is required to decide the dispute between the landlord and tenant and when the landlord has made an application for permission to give a notice of termination of the tenancy of his tenant, under clause 13(2) read with clause 13(1), then the Controller is required to 'hear the parties' before passing the order on the application. Naturally, for 'hearing the parties', a notice to the tenant, the opposite party would be necessary though it is not specifically provided for. Yet, the provision for such a notice to the opposite party, i.e., the tenant, could certainly be implied from the very provisions of clause 18A which are as follows :

'18A. (1) Every written application to the Rent Controller shall be accompanied by as many true copies thereof on the plain paper as there are non-applicants.

(2) Every notice issued by the Rent Controller to the parties shall be by registered post.

(3) Every notice issued by the Rent Controller to a non-applicant shall be accompanied by a copy of the written application filed before him.

(4) Every notice referred to in sub-clause (3) shall specify a date before which the non-applicant shall file a reply to the application before the Rent Controller.'

17. It may be noted that the word used in clause 18A is 'notice' and not 'summons' and the notices contemplated under clause 18A are to the opposite parties in the proceedings before the Rent Controller, i.e., to the 'non-applicants' and not the third parties. In the whole Rent Control Order there is no provision for the issue of a 'summons' to any person, that is, either to the party to the proceeding or to a third person. There would seem to be an essential difference between a 'notice' and a 'summons'. A notice is merely an intimation to the party to whom the notice is addressed that a certain proceeding would be conducted before the authority issuing the notice on a certain date. It is not a command to the (addressee of the) notice to appear before the authority issuing the notice on the date mentioned in the notice. That choice would be left to the person to whom the notice is addressed. A summons, on the other hand, is a command to appear before the authority issuing the summons on the date mentioned in the summons. In that view the use of the word 'notice' in clause 18A and the absence of any provision for the issues of a summons, either to a party to the proceeding or to any third person, in the Rent Control Order have also to be noticed.

18. Of course the power 'to hold an enquiry', 'to decide a dispute' and 'to hear the parties' would necessarily imply the recording of evidence of the parties and of the witness which the rival parties may produce before the Rent Controller. This power would follow by necessary implication, since, it has been held :

'The authorities under the Rent Control Act are quasi-judicial tribunals adjudicating upon civil rights of parties.' See Diwalibai Damjibhai Bhatti v. Jaikumar Gopaldas Jai : AIR1969Bom393 .

In Sharad v. Collector, Akola [1963] Mah LJ Note No. 28 a Division Bench of this court observed that the proceedings contemplated under the Rent Control Order are not administrative proceedings, they are in the nature of quasi-judicial proceedings; therefore if any enquiry has to be held and decision given under any of its clauses, the authorities must follow the normal procedure that officers are expected to follow in quasi-judicial enquiries. That entails that the officers concerned must issue notice to both the parties and a fair opportunity must be given to them to plead their cases and lead evidence if they choose to lead; if such opportunity is not given, there would be failure of natural justice. To record evidence of parties and witnesses produced before the Rent Controller by the parties is one thing, that power would be implied in the power to hold the enquiry and in the direction to 'hear the parties', but the power to summon a person, not present before the Rent Controller, would be a different type of power. Can even such a power be implied where it has not been specifically conferred on the Rent Controller under the provisions of the Rent Control Order

As observed earlier, the question that arose before a Division bench of this court in Haji Zakeria Suleman v. Collector, Yeotmal, : AIR1963Bom233 , was whether the Rent Controller has the power to dismiss for default an application made to him and thereafter, the power to restore the same. Though there was no such specific provision the court read it in the Rent Control Order by necessary implication by reason of the rule of interpretation stated at page 105 of Craies on Statute Law, 5th Edn., p. 105 :

'If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the courts are at liberty to infer that the statute by implication empowers that detail be carried out.'

19. Here Mr. Madkholkar contends that this rule of interpretation cannot be of assistance in the present case; he argues that where the principal power is specifically granted by the statute a subsidiary power held to be essential, may be implied, though not expressly granted by the statute. He argues that the Rent Control Order did grant the power to the Rent Controller to dismiss in merits an application presented under clause 13(2) read with clause 13(3) of the Rent Control Order; therefore, the subsidiary power to dismiss on default could be implied, though not granted in specific terms by the Rent Control Order. For this interpretation of the rule quoted above, Mr. Madkholkar relies on the observation of Abhyankar J., in Diwalibai Damjibhai Bhatti v. Jaikumar Gopaldas Jain, : AIR1969Bom393

'In may opinion, the Rent Control authorities have entirely missed to appreciated the principle on which this court held that an application dismissed in default was liable to be inquired into the registered if the Rent Control authority was satisfied that there was good cause for non-appearance. As pointed out by the Division Bench of the court by which I am bound the jurisdiction to dismiss an application for default of appearance or to proceed ex parte against a party who fails to enter appearance is implicit in the jurisdiction to entertain and adjudicate upon the claims made before it by the parties in proceedings under the Rent Controller Order. The jurisdiction is not traceable to its inherent powers but is implicit in the power to decide the case itself.'

20. It would seem to me that the true limits of the application of the rule of interpretation quoted from Craies on Statute Law have been more properly stated by the Supreme Court in Sub-Divisional Officer, Sadar v. Shambhoo Narain Singh, : [1970]1SCR151

'It is well recognised that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the court must the satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and to merely that it is convenient to have such a power.'

21. If the Rent Controller acting in an enquiry under clause 13 (3) of the Rent Control Order is specifically required to 'hear the parties', i.e., to record the evidence of the parties and the evidence of the witnesses which the parties may choose to adduce, (as held in Sharad v. Collector of Akola [1963] M LJ 28, it would seem to me that the power to summon a witness at the instance of the party would be necessarily implied in the power to 'hear the parties'. It is an essential requirement, because in a particular case, a party may be unable to produce the particular witness he desires to be examined before the Rent Controller except on a summons from the Rent Controller. That was precisely the situation in the present case. The respondent could not have produced the ITO, Wardha, before the Rent Controller, Wardha, by any private arrangement or by private request to the ITO. He could be produced only on a summons from the Rent Controller. To hold that the Rent Controller had no such implied power to issue the summons though he had the power 'to hear the parties' would be a contradiction in terms. This is then not a case of a mere convenience, it is a case of an essential requirement and, therefore, there would be an implied grant of the power by reason of the rule of interpretation quoted earlier from Craies on Statute Law.

22. The same rule of interpretation came up for consideration before the Supreme Court in Assistant Collector of Central Excise v. National Tobacco Co. of India Ltd. : 1978(2)ELT416(SC) . The following observations of the Supreme Court in paras. 30 and 31 of the reported judgment in that case would seem to be of assistance in the present case (at p. 2573) :

'30. It is true that rule 10A seems to deal only with collection and not with the ascertainment of any deficiency in duty or its cause by a quasi-judicial procedure. If, however, it is read in conjunction with section 4 of the Act, we think that a quasi-judicial proceeding, in the circumstances of such a case, could take place under an implied power. It is a well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. See Craies on Statute Law, fifth edition, p. 105.

31. The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the provisions of section 4 of the Act read with rule 10A of the Central Excise Rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning and applicability of r. 10A. The High Court's view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law, it must be performed in that mode or not at all. This rule flows from the maxim : 'Expressio unius est exclusio alterius'. But, as was pointed out by Wills J. in Colquhoun v. Brookes [1888] 21 QBD 52 , this maxim 'is often a valuable servant, but a dangerous master.....' The rule is subservient to the basic principle that courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these....',

23. In my view the Rent Controller, Wardha, had the jurisdiction to summon the ITO, Wardha, as a witness, as also to issue the summons to the ITO, Wardha, to produce before the Rent Controller the required documents.

24. It only remains to be pointed out that the petitioner had not taken the objection before the Rent Controller, Wardha, in the manner in which it is taken in the present writ petition. Before the Rent Controller, Wardha, the only objection taken by the petitioner by his written application dated March 6, 1979, was to the production of documents of the ITO as being violative of the protection granted to the petitioner under s. 138 of the I.T. Act, 1961. The petitioner never took the objection before the Rent Controller, Wardha, that the Rent Controller had no power or jurisdiction to issue summons to a witness to appear before the Rent Controller as a witness or to produce the documents indicated in the summons. That was a new case made out of the first time before this court. It has also to be pointed out that although a writ of mandamus or 'any other proper writ or direction' was claimed as against the Rent Controller, Wardha, and a certain direction was specifically prayed for, for being issued to the Rent Controller, Wardha, the Rent Controller, Wardha, has not been impleaded as a party to this writ petition. As observed earlier, if the writ petition were to this case would be either a writ of prohibition or a writ of certiorari, and in that case the Rent Controller, Wardha, would be a necessary party, and these writs could not have been issued without his being made a party in this writ petition. This writ petition must then fail. The rule is discharged with costs and the stay granted earlier shall stand vacated.


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