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Lalitabai Banwarilal Vs. the Dominion of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number O.C.J. Suit No. 1396 of 1949
Judge
Reported in(1954)56BOMLR923
AppellantLalitabai Banwarilal
RespondentThe Dominion of India
Excerpt:
.....to property by person against whom no order made relating to revenue or collection of arrears of revenue-jurisdiction of high court to try suit whether barred under section 226(1) of government of india act, 1935--proviso to article 225 of constitution whether merely procedural--whether section 6(e) of general clauses act, 1897, affects applicability of article 225 of constitution to suit instituted before coming info force of constitution but coming up for disposal after coming into operation of constitution-construction of statute-statute restricting or ousting jurisdiction of superior courts how to be construed.;section 226(1) of the government of india act, 1935, does not take away the jurisdiction of the high court to try a suit for a declaration of title to property by a third..........passed by the parliament for the purpose of preventing the interference of the supreme court in revenue matters. i have no doubt that in deciding the question of the plaintiff's title i would not be interfering with any revenue matter or any order concerning collection of the same, i am not aware of any principle of construction which would lead me to the conclusion that this antiquated fossil which remained on the) statute book till our constitution came into existence should be so interpreted as to affect third parties who had nothing to do with revenue or revenue authorities. in my, judgment it would be contrary to all principles of justice to deprive third parties from seeking relief from this court by giving any wider meaning to section 226(1) of the government of india act,.....
Judgment:

Desai, J.

1. [His Lordship, after setting out the contentions of the parties, proceeded,] It was argued by Mr. R. J. Joshi for defendants Nos. 1 and 2 that the order of attachment and the prohibitory order both dated August 23, 1948, related to a matter concerning revenue or concerning collection of revenue according to the law for the time being in force. Reliance was placed on the provisions of Section 226(1) of the Government of India Act, 1935; That sub-section is as under :

Until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

2. The key stone of the argument was that the suit concerned revenue and an order for collection of income-tax dues as arrears of revenue. It is necessary, therefore, to examine the nature of the suit filed by the plaintiff. The suit is primarily and essentially for a declaration of title to property which the plaintiff claims as her own; and which title is disputed by the defendants, and particularly by defendants Nos. 1 and 2. Now, the plaintiff has nothing to do with payment of income-tax in this suit and this is not a matter concerning revenue nor is she herself concerned in anyway with any order of assessment or enforcement or collection of income-tax in pursuance of any order made against her father. That the suit was occasioned by some act done or ordered on behalf of defendant No. 1 is no doubt a factor which compelled the plaintiff to come to Court. But I do not see how the reason or motive which induced or forced the plaintiff to file this suit can affect the nature of the suit. Unless persuaded by some sound principle of law or compelled by any over-riding authority I am not prepared to read anything in Section 226(1) of the Government of India Act, 1935, as depriving this Court of the exercise of its original civil jurisdiction to try a suit for declaration of title to any property which a person claims as his own and which title is disputed by the Government.

3. Words of sufficient clarity and width in a statute may take away jurisdiction of superior Courts or this may result from the statute by necessary implication. A strong leaning neverthelss exists against the construction of a statute so as to oust or restrict jurisdiction of superior Courts when the result of refusal to exercise jurisdiction would be abdication of the same and negation of the vested rights of the subject. That a subject has always had a right to come to this Court and its predecessors for a declaration of title to any property against the Government is undis-putable and was not disputed by learned Counsel. I have, therefore, to see if there is anything in Section 226(1) which has taken away or restricted the jurisdiction of this Court to try a suit for a declaration of title by a third party who is not in any way concerned with or sought to be held liable for any arrears of revenue. It is a sound canon of construction that any statute which encroaches on the jurisdiction of the Court is subject to a strict interpretation, and it is therefore expected that if such was the intention of the Legislature care would have been taken to manifest it, if not in express words at least by clear indication and beyond reasonable doubt. Read in the light of this principle of construction, I do not see how the sub-section can be understood to affect the rights of third parties against whom no order or direction was made relating to any matter of revenue or collection of arrears of revenue. As I read it the sub-section can only apply to a person liable to pay the arrears of revenue or any person against whom any order concerning the arrears of revenue is directed. There must be some claim made against him. It is only such a person that is prevented from invoking the original civil jurisdiction of the High Court, because his claim in such a case would necessarily be concerning the arrears of revenue or any order passed concerning the collection of the same. I do not deem it necessary to go in any detail into the history of a provision of law which while not affecting the jurisdiction of the Courts in the moffusil took away the original jurisdiction of the High Courts in matters of revenue. The history begins with the practical difficulty occasioned by the fact that the Supreme Court in the Presidency Town of Calcutta , claimed to exercise jurisdiction in respect of acts done by the servants of the East India Company in collecting revenue of Bengal to which the company was entitled by virtus of the grant of 'Divani'. As the preamble to the first enactment of the Parliament in the matter, 21 Geo. III, c. 70, indicates that legislation was passed by the Parliament for the purpose of preventing the interference of the Supreme Court in revenue matters. I have no doubt that in deciding the question of the plaintiff's title I would not be interfering with any revenue matter or any order concerning collection of the same, I am not aware of any principle of construction which would lead me to the conclusion that this antiquated fossil which remained on the) statute book till our Constitution came into existence should be so interpreted as to affect third parties who had nothing to do with revenue or revenue authorities. In my, judgment it would be contrary to all principles of justice to deprive third parties from seeking relief from this Court by giving any wider meaning to Section 226(1) of the Government of India Act, 1935, than that strictly necessary having regard to the nature of the subject-matter and the language expressly used by the law-maker, Mr. R. J. Joshi drew my attention to a number of decisions but I do not think they really touch the present point. In none of those cases did the question arise of a suit by a third party not concerned with arrears of revenue. I shall only refer to two of the cases cited by Mr. Joshi. In Spooner v. Juddo (1850) 4 M. I. A. 353 their Lordships of the Privy Council in an appeal from the Supreme Court at Bombay held that by the Charter of Justice establishing the Supreme Court at Bombay that Court was prohibited (in like manner as the Supreme Court at Calcutta under 21 Geo. III, C..70) from entertaining any jurisdiction in a matter concerning revenue under the management of the Governor and council or any act done in connection with the same. In that case in November 1846 one Harkissandas was the owner and occupier of a house situated in Bazar Gate Street in Bombay. The property was liable to the payment; of an annual quit-rent called pension which formed part of the land revenue of the East India Company and there was then due to the Collector a sum of Rs. 8-3-8 on account of arrears of pension which had not been collected from the premises since the year 1827. The predecessor-in-title of Harkissandas Avas Narotamdas whose name was registered in the books of the Collector. Harkissandas appears to have purchased the property in 1836 and to have continued in possession of it up to the date of the proceedings which gave rise to the appeal to the Privy Council. No change of name, however, was made in the books of the Collector and throughout the period the name of Narotamdas appeared in the books as the registered proprietor of the property. Spooner who was the Collector of Revenue in Bombay and one of his assistants sent a subordinate officer to the house of Harkissandas to demand payment of arrears of pension. Harkissandas refused to pay the arrears and a warrant signed by Spooner was served on him. The warrant stated that the Collector was entitled by virtue of the powers conferred on him to enter into and take possession of the property in respect of which arrears of pension were claimed. Then it appears that some subordinate officers of the Collector tried to enter the house in question. They were prevented from doing so by Harkissandas who it appears became very violent and attempted to expel the officers. A scuffle ensued and Harkissandas brought an action of trespass in the Supreme Court of Bombay against the Collector and one of his subordinate officers. The defence in the suit was that the suit related to a matter which concerned revenue or an act done in the collection of revenue and therefore the Supreme Court at Bombay had no jurisdiction. That plea was ultimately accepted by the Privy Council. Relying on this decision Mr. Joshi has argued before me that in that case the act of the Collector affected a third party. I do not think Mr. Joshi is right in his submission. An examination of the report clearly shows that arrears of pension could be collected from the property itself and the Collector had a right under the laws then in force to proceed against the property in respect of any arrears of pension and that right could be enforced even against the successor-in-title. Besides, part of the arrears had accrued after Harkissandas became owner of the property. Therefore, in that case there was no question of applying the provisions of 21 Geo. III, c. 70, Section 8, which is in pari materia with Section 226(2) of the Government of India Act, 1935, to a third party who had nothing to do with revenue or the collection of revenue. I do not think Mr. Joshi's argument is in any way supported by that decision.

4. Shaikh Ahmed v. Coll. of Bombay : (1949)51BOMLR589 was another decision relied on by Mr. Joshi. In that case an application for directions in the nature of habeas corpus was made to this Court by an application under Section 491 of the Criminal Procedure Code. It was made by a person detained in custody for non-payment of income-tax dues. It was held that provisions of Section 226(1) of the Government of India Act, 1935, applied to the facts of the case and, therefore, this Court had no jurisdiction to entertain the petition presented to it. It must be noted that this was a case in which a party himself liable for non-payment of tax had come before the Court. This decision also does not carry Mr. Joshi's argument any further.

5. Then Mr. Joshi argued that in any event this Court had no jurisdiction to grant to the plaintiff reliefs sought in prayers (d) and (e) of the plaint. These reliefs are for a declaration that the order for attachment passed by defendant No. 3 is illegal and invalid and for an order by this Court that the order of attachment and the prohibitory order should be set aside. Mr. Joshi's argument was that in any event these reliefs directly concern acts alleged to have been done in the matter of collection of revenue. There is some scope for this argument. But, I have got to look primarily at the substantial nature of the suit. Since these are merely reliefs consequential to the relief by way of declaration of title, I do not think it can be said that the plaintiff in this suit seeks to question any order made for the collection of revenue. In any case the point does remain that she is not a party who is in any way concerned with or who can in any way be affected by those orders. Therefore, whatever view I take of the matter, the result must be that the plaintiff's right to claim these consequential reliefs cannot be taken away on the bar of jurisdiction,

6. There is another difficulty and indeed a serious one to the plea of bar of jurisdiction. Article 225 of the Constitution removed the bar previously imposed on the exercise of original jurisdiction by the High Court. That article is as under;

225, Jurisdiction of existing High Courts: Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of the Constitution :

Provided that any restriction to which the exercise of original jurisdiction of any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.

The proviso in express terms removes the restriction to the exercise of the jurisdiction of High Courts in matters concerning revenue. That bar, therefore, no longer survives. It is true that the Constitution had not come into force when the suit was filed, but the provisions of Section 226(1) of the Government of India Act, 1935, relate, in my opinion, entirely to matters of procedure and I have to apply the procedural law in force at the time of the trial of the suit. There is authority for the proposition that no party has a vested right to a particular proceeding or to a particular forum. The question recently came up for consideration before the Appeal Court in Shiv Bharjwan v. Onkarmal (1951) 54 Bom. L.R. 330. In that appeal one of the questions which came up for consideration of the Court was. whether the Court had jurisdiction to decide a question affecting any property which at the date of the filing of the suit was outside the territorial jurisdiction of the Court. It appears that subsequent to the filing of the suit there had been a change in legislation and the particular property in question, though outside the jurisdiction of the Court at the date of the filing of the suit, had before the suit came up for hearing for disposal by my brother Shah J. come within the jurisdiction of the Court. It was observed in the judgment of my Lord the Chief Justice that (p. 352):.the question that arises for determination is whether, notwithstanding the fact that the Court had no jurisdiction with regard to this property at the inception of the suit, this Court can try the suit with regard to this property by reason of the fact that jurisdiction was subsequently conferred on it.. .Now, I think it may be said as a general principle that no party has a vested right to a particular proceeding or to a particular forum, and it is also well settled that all procedural laws are retrospective unless the Legislature expressly states to the contrary.... This Court was bound to take notice of the change in the law and was bound to administer the law as it was when the suit came on for hearing. Therefore, if this Court had jurisdiction to try the suit when it came on for disposal, it could not refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted.

Bhagwati J. (as he then was) in a concurring judgment expressed the same view. Referring to procedural law his Lordship observed (p. 358);

There is authority for the proposition that if the law is changed at the date of the hearing, the Court should give effect to the changed law, and that it is the duty of the Court to administer the law of the land at the date when the Court is administering it.

I am bound by and am also in respectful agreement with the law so laid down. Mr. Joshi had only a feeble answer to this aspect of the case. Learned Counsel referred to Article 395 and Article 367(1) of the Constitution. They are as follows ,:

367 (1). Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.

395. The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed.

Mr. Joshi next referred to Clauses (b), (c)and (e) of Section 6 of the General Clauses Act and an argument was advanced that the effect of those clauses was that the provisions contained in Section 226(7) of the Government of India Act, 1935, continued to apply to the present suit. Loarned counsel particularly relied on Clause (e) of Section 6 of the Act. Now, as I read that clause it only means that legal proceedings or remedy provided for by any enactment in respect of any right, privilege, etc. may continue notwithstanding the subsequent repeal of that enactment as if there had been no repeal. This does not, however, mean that the subsequent enactment cannot in any manner affect those legal proceedings or that remedy. The Legislature indubitably reserves to itself and has the power to legislate in a manner which may affect those proceedings or that remedy. To accept Mr. Joshi's argument would be to say that the Legislature cannot give any retrospective operation to a statute which repeals an earlier statute. That certainly is not the meaning or effect of Section 6. Therefore, in my opinion Clause (e) of Section 6 does not in any way affect the applicability of Article 225 of the Constitution to a suit previously instituted and which comes up for disposal after the coming into operation of the Constitution. I am unable to read in any of the provisions referred to by learned Counsel anything which prevents Article 225 being applied to the present suit.

7. Another argument, also of despair, was that Article 225 is not merely procedural and should, therefore, be regarded as prospective in its operation and not retrospective. Where rights and procedure are dealt with together by any provision of law it may well be the intention of the Legislature that the old rights should be determined by the old procedure. But it seems clear to me that the proviso to Article 225 only deals with jurisdiction and cot with any rights. The strictly accurate concept would seem to be tint when any substituted procedure is followed by the Court, it does not really give retrospactive operation to the same but merely applies rules of procedure as it finds them at the time. It is true that the expression 'retrospective' is used by the highest authority in decided cases but it is also pointed out that the word when used in the context of procedural law is in itself ambiguous. Procedural law relates to process of litigation and it is rather the moans and instrument by which the aims of substantive law are attained. It also deals with the mode in which a right of action already existing is to be asserted. I shall only refer to one sentence from Salmond's Jurisprudence, 10th edn., as it is an apt answer to the present argument. It is as follows (p. 476) :

Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate to the modes in which courts fulfil their functions.

But jurisprudential considerations apart, it is quite clear that the proviso to Article 225 deals only with the question of restriction on jurisdiction previously existing and which restriction was abrogated by it. That certainly is a matter of procedure and, therefore, both on principle and on authority the plea of the bar of jurisdiction fails, [The rest of the judgment is not material to the report.]


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