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Jagannath Agarwalla Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberSupreme Court Appeal Nos. 11 and 12 of 1956
Judge
Reported inAIR1957Ori42
ActsConstitution of India - Article 133 and 133(1); Administration of Mayurbhanj State Order, 1949
AppellantJagannath Agarwalla
RespondentState of Orissa and anr.
Appellant AdvocateH. Mohapatra and ;R.N. Misra, Advs.
Respondent AdvocateAsst. Govt. Adv.
DispositionPetitions allowed
Cases Referred(Q) and Sriman v. Board of Revenue
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....mohapatra, j. 1. this is a petition for leave to appeal under article 133 of the constitution against a decision dated 16th november 1955 of this court in o.j.c. 401 of 1954. the petitioner alleges that he started business in january 1943 at the instance of the ex-ruler of mayurbhanj. the business was running in the name of indian chemical products, the main purpose being manufacture of industrial alcohol and essential oils.it was agreed between the petitioner and the ex-ruler of mayurbhanj that each would contribute a moiety towards the capital of the business and each would have to suffer half the loss, if any, in the business. the petitioner further alleges that after the merger of the state of mayurbhanj within the state of orissa, the business had to be closed as the petitioner had.....
Judgment:

Mohapatra, J.

1. This is a petition for leave to appeal under Article 133 of the Constitution against a decision dated 16th November 1955 of this Court in O.J.C. 401 of 1954. The petitioner alleges that he started business In January 1943 at the instance of the ex-Ruler of Mayurbhanj. The business was running in the name of Indian Chemical Products, the main purpose being manufacture of industrial alcohol and essential oils.

It was agreed between the petitioner and the ex-Ruler of Mayurbhanj that each would contribute a moiety towards the capital of the business and each would have to suffer half the loss, if any, in the business. The petitioner further alleges that after the merger of the State of Mayurbhanj within the State of Orissa, the business had to be closed as the petitioner had suffered considerable loss.

Under the provisions of the Administration of Mayurbhanj State Order, 1949, the petitioner laid his claim against the State of Mayurbhanj on 24th March 1949 before the Sub-divisional Officer Baripada, who was appointed as the Claims Officer Under the aforesaid Order. The Claims Officer eventually recommended that the petitioner was entitled to a sum of Rs. 1,37,775/13/7 1/2 with interest at four per cent per annum and submitted his report to the Administrator of the State, that is, the then Revenue Commissioner, Orissa, for confirmation of the report under Clause 9(g) of the Order.

The petitioner, however, received a letter dated 28th June 1952 issued by the Deputy Secretary Board of Revenue, Orissa, informing him that claim had been rejected by the Government as barred by limitation. He was, however, never allowed a hearing by the Administrator appointed under the provisions of the aforesaid Order before his claim was rejected on the point of limitation.

The petitioner, therefore, filed O. J. C. 401/ 54 praying for appropriate writ directing the opposite parties, that is the State of Orissa and the Board of Revenue, Orissa, to give effect to the decision of the Claims Officer and to quash the order of the Administrator as being vitiated by error apparent on the face of it and being against the principles of natural Justice.

2. The two main grounds which were pressed by Mr. Mohapatra, appearing on behalf of the petitioner, while arguing the O. J. C., were:

(i) that the decision of the Claims Officer should have gone to the Board of Revenue as such and not disposed of by a Single Member; and

(ii) that the petitioner should have been served with a notice by the Board of Revenue before his claim was rejected on the point of limitation, and, as such, the order is illegal and without Jurisdiction and it must be quashed. A Bench of this Court consisting of Panigrahi, C. J. and my learned brother Rao, J., having heard both parties at length, passed a full dressed judgment on 16th November 1955 rejecting the contentions of Mr. Mohapatra. Leave to appeal is prayed for against this judgment of the Court.

3. It will be pertinent at the outset to quote Article 133(1) (a) and (a):

'133. (1) An appeal shall lie to the Supreme Court from any judgment, decree or Unal order in a civil proceeding of a High Court in the territory of India if the High Court certifies- (a) that the amount or value of the subjectmatter of the dispute in the court of the first instance and still in dispute on appeal was and isnot less than twenty thousand rupees or such othersum as may be specified in that behalf by Parliament, by law; or x x x'

Mr. Mohapatra contends strongly that when manifestly the judgment of this Court involves directlya claim of more than one lakh, the petitioner isentitled to leave to appeal prayed for as a matterof course. Indeed, in order that the petitionerwill be entitled to leave to appeal, two essentialconditions must be fulfilled:

(i) that the decision against which leave is prayed for arises out of a civil proceeding as contemplated under Article 133; and

(ii) that the decision of the High Court is a 'judgment', 'decree' or 'final order'.

4. I will take up the point whether this decision in the O.J.C. arises out of a civil proceeding. We are aware of the position that simply because a proceeding is not a criminal one, it cannot be taken to be a civil proceeding as contemplated under Article 133. It will be relevant to quote Article 132(1), in this connexion which runs as follows:

' Article 132(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies that the cause involves a substantial question of law as to the interpretation of this Constitution.'

The Constitution therefore contemplates other miscellaneous proceedings besides civil and criminal, such as, matrimonial, admiralty etc. But the nature of the proceeding before us admit of no dubious view in the matter that it is a civil one. The petitioner had laid a claim for recovery of a sum of rupees more than a lakh against the State of Orissa on the merger of the ex-state of Mayurbhanj within the State of Orissa on the basis of a contract between himself and the ex-Ruler in the capacity as the Head of the State of Mayurbhanj.

The petitioner had based his claim on the cause of action that the ex-Ruler had made no contribution towards the capital of the business which was being carried on by the petitioner and which ran into losses of more than two lakhs and a half. This is purely a claim in assertion of a civil right, and the proceeding, in enforcement of the civil right, is a civil proceeding.

5. I will refer to, in this connexion, a Bench decision of the Patna High Court reported in Gopeshwar Prasad v. State of Bihar, AIR 1951 Pat 626 (A). There certain impartible estate in Bihar was under the management of the Court of Wards. In a proceeding arising out of an application under Article 226 for a writ of mandamus upon the Board of Revenue, Bihar, or the State of Bihar to withdraw from the management of the estate, a contention was raised that the Court of Wards Act as also the Indian Majority Act are void under the Constitution having contravened the provisions of Article 14.

It was further contended that the petitioner in the case had no reversionary or immediate interest in the impartible estate which was the subject matter of the suit. Their Lordships, in a closely reasoned judgment, held that the proceeding in which the above two contentions were raised and determined was a civil proceeding of the nature contemplated in Article 133(1).

Their Lordships had relied upon several standard authorities to come to the conclusion. In Stroud's Judicial Dictionary the word 'civil proceeding has been defined as a process for the recovery of individual right or redress of individual wrong, inclusive in its proper legal sense, of suits by the Crown'. The more important authority regarding writs where such points are raised and agitated is to be found in Halsbury's Laws of England where grant of peremptory mandamus is described as a determination of the right according to the merits of the case. In Joseph Chitty's Treatise on the Law of Prerogative of the Crown, the learned author says that there must be a specific legal right, as well as want of a specific legal remedy, in order to form an application for a mandamus and this is substantially a civil remedy for the subject.

In Stephen's Commentaries of the Laws of England it has been said that the action of Mandamus will only lie when the plaintiff has a right of action (not necessarily for damages) against the defendant & that the dividing line between the prerogative writ of mandamus and the statutory action of mandamus has not been clearly drawn but that the latter is sometimes used when it is desired to compel a local authority to levy a rate in order to satisfy the debt or other liability owing to the plaintiff.

6. I may also refer in this connexion to a decision of the Madras High Court reported in Ramayya v. State of Madras, AIR 1952 Mad 300 (B). This is an appeal under Clause 15 of the Letters Patent against the Judgment of a Single Judge in W. P. No. 176/51 by which the learned Single Judge refused to set aside the order of the State of Madras which, in its turn, set aside the order of the Regional Transport Authority and granted a Stage Coach permit for the second respondent for the route Rajahmundry to Tuni. The learned Single Judge, while deciding W. P. No. 176/51, was exercising jurisdiction under Article 226 of the Constitution. Their Lordships held:

'We do not feel any doubt regarding the question as to whether the matter involved in this appeal is a civil proceeding or not. It is not a criminal proceeding nor it is in the nature of miscellaneous proceedings such as matrimonial, testamentary, admiralty or other jurisdiction of the High Court.'

From the nature of the instant proceeding where the petitioner wanted to enforce his claim for recovery of money, we have no hesitation in our mind to come to the conclusion that the decision of this Court dated 16th November 1955 was in a civil proceeding as contemplated under Article 133(1) of the Constitution.

7. But the more important question involved in the present case is whether the impugned Judgment of this Court can be termed as any 'judgment, 'decree' or 'final order' as contemplated in the article. It has been strongly contended on behalf of the State that when the three terms are put together, each of the terms 'judgment', 'decree' or 'final order' indicates the same amount of finality, that is to say, the judgment or order of the High Court which is sought to be appealed against under Article 133 must finally dispose of the rights of the parties.

The finality must be in relation to the suit so that after the order is passed by this Court, the suit or proceeding will not still be alive and nothing remains to be determined in the ordinary course of law. It is not sufficient that by the decision of the High Court a very important and fundamental question, even going to the root of the case, is decided.

The real test is whether, after the order of this Court has been passed, anything remains still to be determined in a competent Court. Quite a number of decisions have been cited before us and I propose to discuss the most important decisions of their Lordships of the Privy Council, of the Federal Court and of the High Courts in India.

8. In the case of Firm Ramchand v. Firm Goverdhandas, AIR 1920 PC 86 (C), there were suits for the alleged breaches of certain contracts for the sale of cotton. Each contract contained an arbitration clause, and the defendants in each suit applied under Section 19 of the Indian Arbitration Act for a stay of proceedings with a view to the issues being referred to the arbitration under 'the clause. The first Court granted a stay, taut on appeal the Judicial Commissioner of Sind reversed the order and refused stay of proceedings.

But applications were made to the Judicial Commissioner for certificates under Section 109(a), or in the alternative Section 109(c) of the Civil Procedure Code with a view to appeal to the Privy Council. It is to be mentioned here that the words used in Section 109, as then existing, of the Civil Procedure Code were 'decree' or 'final order'. Viscount Cave had to give a judicial pronouncement on the interpretation of the word 'final order'.

It was pronounced that the order was final if it finally disposed of the rights of the parties and the orders, refusing stay of proceedings, did not finally dispose of these rights but left them to be determined by the Courts in the ordinary way and were not final orders. In coming to this interpretation Viscount Cave J. had to rely upon two English decisions reported in Salaman v. Warner, (1891) 1 QB 734 (D) & Bozson v. Altrincham Urban District Council, (1903) 1 KB 547 (E).

The same words of Section 109 of the Civil Procedure Code again came up before their Lordships of the Privy Council for a judicial pronouncement on their interpretation in Abdul Rahman V. D. K. Cassim & Sons, AIR 1933 PC 68 (F). Their Lordships confirmed the same view. There the plaintiff brought a suit for damages, but became insofvent during the pendency of the suit. The suit was dismissed as the Official Assignee failed to furnish the requisite security.

In appeal, however, it was held that the claim being one for damages did not vest in the Official Assignee and the appellate Court remanded the case for trial on merits. It is again this order of remand that an appeal to their Lordships of the Privy Council under Section 109 was brought.

A preliminary objection was taken before their Lordships of the Privy Council that the appeal was incompetent and the certificate was wrongly granted as the order appealed against was not a final order as contemplated under Section 109 Civil Procedure Code. It was held that the test of the finality was whether the order 'finally disposes of the rights of the parties', and where the order does not finally dispose of those rights but leaves them to be determined by the Courts in the ordinary way, the order is not final.

That the order went to the root of the suit, namely, the Jurisdiction of the Court to entertain it, is not sufficient. The finality must be a finality in relation to the suit. If after the order the suit is still alive, and the rights of the parties are still to be determined, no appeal under Section 109 is competent as it cannot be taken to be a 'decree' or 'final order'.

9. The matter came up on a similar point before the Federal Court of India in the case of Hori Ram Singh v. Emperor, AIR 1939 PC 43 (G). This was an appeal under Section 205, Government of India Act, 1935, to the Federal Court against an, order of remand by the High Court to the Sessions Judge setting aside an order of acquittal passed by the Sessions Judge. Section 205, Government of India Act, 1935 runs thus:

'An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court if the High Court certifies that the case involves substantial question of law as to the interpretation of this Act etc. ........'

The selfsame words 'judgment', 'decree' or 'final order' have been used also in our present Constitution in Article 133. The point regarding the competency of the Appeal to the Federal Court was not taken up at the Bar, but nevertheless Sulaiman J. discussed it exhaustively in his separate judgment. His Lordship had, in his judgment, referred to the above mentioned decisions of their Lordships of the Privy Council and the English decisions relied upon by Viscount Cave. Sulaiman, J. foflowed, the same view and also observed that the word 'judgment', which did not appear in Section 109, Civil Procedure Code, previously, did not mean any interlocutory Judgment and involved the same amount of finality as well. His Lordship observed:

'If in the expression 'judgment, decree or final order' in a civil case the word 'judgment' were to have the Indian sense, then it will mean the statement of the grounds in a case where either a decree or a final order exists and not in any other case, as appeal from a judgment standing by itself would have no meaning. Appeal from judgment would then indicate appeal from any finding in a case terminated by a decree or a final order.'

The meaning of the words 'judgment' or final order' is the same both in civil and criminal cases and the final observation of Sulaiman, J. is to the effect:

'I am of the opinion that the order of the High Court directing a re-hearing of the criminal 'appeal by the Sessions Court is not a judgment within the meaning of Section 205 Government of India Act.'

This opinion of Sulaiman J. was however accepted as the basis of the decision of the Federal Court in the case of Kuppuswami Rao v. The King, AIR 1949 PC 1 (H). This was an appeal against an order of remand by the High Court. The pertinent question that arose for determination by their Lordships appears In paragraph 6 of the judgment of Kania, C. J. as foflows:

'What is the meaning of 'judgment, decree or final order' of a High Court, in this section'?

His Lordship opines that the expression 'final order' has been settled by judicial decisions and accepts the view as I have discussed above. The same meaning is to be attached both in criminal and civil cases and further in order to constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way. After discussing the meaning of the words 'judgment and decree' in India and England, Kania, C. J. observed:

'In our opinion, the decisions of the Courts in India show that the word 'judgment', as In England means the determination of the rights of the parties in the matter brought before the Court.'

The final conclusion was that the order of remand was neither a judgment nor a decree nor a final order as contemplated under Section 205 Government of India Act, 1935.

10. I will refer to the last decision of the Federal Court on the subject arising out of a civil proceeding in the case of Mohd. Amin Bros. v. Dominion of India, reported in AIR 1950 PC 77 (I). The judgment was delivered by one of the most eminent Judges in India B.K. Mukherjea, J. There the appeal was directed against a Bench decision of the Calcutta High Court by which the order of Sinha, J. of the same Court directing compulsory winding up of the appellant company was set aside and the case was sent back to the trial Court to be heard on a future date in accordance with the direction contained in the Judgment.

The application for winding up was directed to be kept on the file to be taken up for hearing after the final determination of the Income-tax and Excess Profits Tax cases. The High Court granted a certificate as contemplated under Section 205(1) of the Government of India Act, 1935 on the strength of which the appeal was before their Lordships of the Federal Court.

A preliminary objection having been raised as to the competency of the appeal, their Lordships had to determine whether such an order could be termed to be a 'judgment, decree or final order' as contemplated under the said section. Accepting the view expressed in the case reported in AIR 1949 FC 1 (H), Mukherjea, J. observed that the view was a settled one. His Lordship respectfully agreed with the view expressed in the two Privy Council decisions discussed by me earlier. His Lordship observed:

'The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order.'

In the last paragraph of the judgment, his Lordship discussed about the meaning of the Words 'judgment and decree' and observed:

'If the order which is made in this case is an interlocutory order, the judgment must necessarily be held to be an interlocutory judgment and the collocation of the words 'judgment, decree or final order' in Section 205(1), Government of India Act, makes it clear that no appeal is provided for against an interlocutory judgment or order.'

11. On a consideration of the above decisions, it seems to be well settled that the three words imply the same amount of finality and also if after the order is passed the suit or proceeding is still left alive it cannot be taken to be a judgment, decree or final order; but if on the passing of the order of the High Court the matter is completely sealed and there remains nothing further to be agitated by either of the parties in respect of the self-same question of controversy, it is regarded as a final order as contemplated under Article 133.

The order in question before us satisfies all the tests laid down by very high authorities as discussed above. The High Court in negativing the two points raised by the petitioner in a reasoned judgment has completely sealed the case of the petitioner. The claim of the petitioner remains dismissed for all time. The matter cannot be reopened and nothing remains to be decided in ordinary course of law.

Under the provisions of Clause 9(h) of the said Order the right to sue on the claim is barred. I may observe here that if the High Court had accepted the contentions of the petitioner and remanded the case to be heard by the Board of Revenue after giving the petitioner full opportunity of being heard, the order of the High Court cannot be taken to be a 'judgment, decree or final order' as the matter is still left alive and remains to be decided,

12. I will illustrate my point of view with reference to some instances which frequently come within our experience. The Courts below in a particular case decided the plaintiff's case against him and dismissed the suit on the preliminary ground that it was barred by res judi-cata or limitation. If the High Court confirmed the above view, the order is a 'judgment, decree or final order' as it puts the last seal on the case by virtue of the judgment. But if the High Court reverses and remands the case it is not such a 'judgment, decree or final order' as contemplated under Article 133 as the suit is still undetermined.

I will however refer to a very recent decision of the Andhra High Court in the case of Manga-raju v. Varahalamma, AIR 1956 Andhra 47 (J), wherein Subba Rao, C. J. sitting with Krishna Rao, J. have reiterated the same view. The order against which an application for leave to appeal was filed was in connexion with a receivership question. It was an order imposing conditions on the plaintiff for withdrawing the amount which she was entitled to by a decree obtained by her. It was decided in the case that the order in question could not be taken to be a 'judgment; decree or final order' as contemplated under Article 133.

'The word judgment in the article in the context means a final judgment in the sense that it finally decides the rights of the parties'.

13. I will next proceed to notice a few other decisions cf different High Courts in India cited at the bar. The Pull Bench case of the Patna High Court Tobacco Manufacturers (India) v. The State, AIR 1951 Pat 29 (K) was on the basis of an application for leave to appeal to the Supreme Court from a decision of the said High Court arising out of a reference under Section 21(3) of the Bihar Sales Tax Act 1944. Mr. P. R. Das, appearing on behalf of the petitioner, strongly contended that the petitioner was entitled to leave under Article 133 of the Constitution.

The High Court under the provisions of Section 21 (3) of the Bihar Sales Tax Act had called upon the authorities to state a case on the points of law referred to. The High Court having answered against the petitioner, the petitioner came up with an application for leave to appeal to the Supreme Court.

The main point urged by Mr. P. R. Das was that in any event the decision of the High Court in answering the points of law raised in the case amounted to a 'judgment' as contemplated under Article 133. He distinguished the previous Special Bench decision of the Patna High Court reported in Harihar Gir v. Commr. of Income-tax, B & O, AIR 1941 Pat 225 (1) on the ground that there the leave to appeal was under the Letters Patent in which the language was substantially different. In Clause 39 of the Letters Patent, the language used was 'final judgment, decree or order.'

In the Constitution, the word 'final' was deliberately dropped down before the word 'judgment' and has been used before the word 'order'. According to Mr. P.R. Das, therefore, the judgment contemplated under the article need not be a 'final judgment' so as to determine all points of controversy between the parties and leave nothing else to be decided further. His contention was negatived. Sarjoo Prasad J. with whom Rai J. concurred and Shearer, J. differed, observed as foflows:

'Therefore, the use of the term 'judgment' or 'final judgment' in the eye of law does not bear any different significance, and the use of the word 'final' as qualifying 'judgment' is merely excauteta. It is in this orthodox and juristic sense that the term 'judgment' appears to have been used in Sections 205 and 206, Government of India Act, 1935 or for the matter of that in Article s 132, 133 and 134 of the present Constitution of India.'

In my opinion, we are not concerned in this case as to the interpretation of the words appearing in the Letters Patent except by way of discussion of some of the decisions in which leave was applied for under different Clauses of the Letters Patents constituting different High Courts. It will be sufficient for me to mention that the words appearing in the Government of India Act, 1935, and the words appearing in the present Constitution of India are exactly same and the interpretation of the words appearing in the Government of India Act have been settled by highest authorities.

14. In the Tax Cases under different taxing statutes such as, Income-tax Act, Agr. Income-tax Act, Sales Tax Act, etc., it has been pronounced that the judgment of the High Courts is after all in their advisory and consultative capacity and after answers are given on the points raised there still remains something to be done by the authorities concerned and as such they are not final. We are not pertinently concerned with such questions in the present case. In the case of Basude-vanand v. Raghubir Saran, AIR. 1954 Pat 241 (M), the executing Court allowed an objection that the execution proceedings could no longer proceed in view of Section 4(d) of Bihar Land Reforms Act and accordingly ordered the dropping of the proceedings.

In appeal, however, the High Court set aside the order of the executing Court on the ground that the objection was not valid and was also concluded by res judicata. Against this order leave to appeal was sought for under Article 133. Manifestly by this order of the High Court the matter was not finally disposed of and the execution was to proceed in its normal way even though an important issue was determined by the High Court. According to the principle that I have followed till now, this order of the High Court cannot, be a 'judgment, decree or final order' as contemplated under Article 133. Imam, Ag. C. J. in his judgment relied upon the judgments of Sir George Lowndes in AIR 1933 PC 58 (F) and of Kania C. J. in AIR 1949 PC 1 (H).

It was held that the order of the High Court was neither a 'judgment' nor a 'final order' within the meaning of Article 133. Even though there was no specific order of remand made by the High Court, the effect of the decision was to keep alive the execution proceedings. It is to be mentioned also that their Lordships in his case drew a distinction in the meaning of the word 'final order' as used in arts. 132 and 133. A simitar view was taken in a Full Bench decision of the Nagpur High Court reported in Hossen Kasan Dada (India) Ltd. v. State Govt. of M. P., AIR 1952 Nag 305 (N), where the petitioner was assessed to pay tax of Rs. 58,000/- by the Assistant Commissioner of Sales-tax.

His appeal before the Commissioner was not admitted,as he had not deposited the amount of tax as required by Section 22(1), C. P. and Berar Sales-tax Act, 1947. The petitioner applied to the High Court under Article 226 for issuing a direction to the Commissioner to admit the appeal without deposit. The application was bound to be rejected and was rejected. The point raised was whether such an order was a 'final order' within the meaning of Article 133(1)(a) so as to enable the petitioner to be allowed leave to appeal to the Supreme Court. In that case, the rights and liabilities of the parties were not before their Lordships. What was before their Lordships was the right of the petitioner to pursue the appeal without any deposit it could not be said that the order of the High Court finally disposed of the lis between the parties. The finality must be with reference to the suit itself and not merely to the question before the High Court.

15. Mr. Patnaik, appearing on behalf of the State, however places strong reliance on a decision of the Nagpur High Court reported in Shri-ram v. State of M. P., (S) AIR 1955 Nag 257 (O). It appears, on a perusal of the judgments of both the Judges who decided the case, that the facts are almost similar to the present one. The petitioner in the case made an application to the State Government of M. P. for grant of prospecting license in respect of that area.

It appears however that another man M. G. Rungta of Nagpur was also interested in a portion of the side area covered by the license in favour of the petitioner. The application for prospecting license in respect of this area in which Mr. Rungta was interested was rejected by the State Government and in review the Central Government also confirmed the order of the State Government with the modification that the license of the petitioner will be in respect of only 32 acres. The applicant then moved the High Court under Article 226 for quashing the order of the Central Government on the ground that it was against the principles of natural justice and that such an order was passed without allowing him to be heard.

The High Court held that there was no provision under which the Central Government will be compelled to hear the petitioner and therefore rejected the writ petition. Against that, a petition for leave to appeal under Article 133(1) was filed. Their Lordships held that the order of the High Court, in exercise of its writ jurisdiction under Article 226, was not a 'judgment, decree or final order' as it does not finally dispose of the rights of the parties. In order to be a 'judgment or final order', it must affect the merits of the controversy between the parties by determining some rights or liability. It was further held that the extraordinary jurisdiction vested in the High Court under Article 226 is not meant to declare any right.

It was only to ensure that the law of the land was being properly administered, and the refusal by this Court to issue the writ has only the effect of saying that this Court did not see any irregularity in the administration of the relevant law. The ratio decidendi of this decision is that the order of the High Court does not decide the merits of the case as between the parties. With very great respect, I do not agree with the view taken by their Lordships of the Nagpur High Court. I will put the illustration once more.

In a keenly contested case between the plaintiff and the defendant there were disputes of facts and law in quite a number of issues. One of the defence taken is that the suit is barred by limitation. This defence on the point of limitation is accepted by the trial Court who dismissed the suit. The dismissal is certainly a 'decree' as it finally disposed of the case, be it on a preliminary ground. The matter comes up before the High Court either in its appellate or second appellate jurisdiction. The High Court confirms the view that the suit is to be dismissed on the point of limitation. In my opinion, this is undoubtedly a 'decree' and 'final order' completely determining the litigation between the parties even though, neither of the Courts went into the merits.

In the present case, the Claims Officer allowed the petitioner's claim to the extent of more than a lakh, but it was rejected by the Administrator under the pertinent order on the ground of limitation. The judgment of the High Court confirms the view that the decision of the Administrator is not vulnerable on account of any error apparent on the face of it, nor does it viofate the principle of natural justice. Thereby the entire litigation between the parties is given a final seal. The petitioner after that is left without any remedy whatsoever to pursue in the matter of his claim. The particular order before us is not only final so far as the High Court is concerned but also finally disposes of the entire lis. The petitioner has no right to bring a suit.

16. I will also draw one of the instances which frequently comes within our experience while disposing of second appeals. All the issues on facts having been concurrently found by both the Courts below, the fate of the case depends on a simple question of law raised by the appellant which would go to the root of the case and dispose of the matter finally. The simple point of law raised by the appellant is accepted by the High Court and before it is allowed during the final hearing the High Court need not go into the other innumerable questions of facts arising in the case and concurrently found by both the Courts below. Still the decision of the High Court, in my view, must be taken to be a 'decree or final order'.

17. Besides the above consideration I may refer to a few foreign authorities in support of my view why I disagree with great respect with the decision reported in (S) AIR 1955 Nag 257 (O). Jas L. High, in his Treatise on Extraordinary Remedies, (3rd Ed. 1896) at page 481 in paragraph 512 writes as follows:

'We have elsewhere seen that at common law a writ of error would not lie to the Judgment of an inferior Court awarding or refusing a peremptory mandamus, but that in England and in most of the States of this country there has been a departure from the old rule, and writs of error are allowed. But as to the decisions of inferior Courts granting or refusing the alternative writ, the better considered doctrine is, that no writ of error or appeal will lie, the judgment of the Court being in no sense a final judgment upon a question of right between the parties. And to warrant an appeal there must be a final judgment in favour of respondent dismissing the petition; and-no such final judgment being shown an appeal will, be dismissed.

So when it is ordered that a peremptory mandamus Issue, with liberty to the related to take issue upon the allegations of the return, no appeal will be allowed from such order, since it does not determine the action. But a final judgment granting or refusing a peremptory mandamus is now held to be reviewable upon a writ of error. An appeal will not, however. He from the peremptory writ, but only from the order or judgment of the Court awarding such writ.'

The present position of law is that there is no distinction between an ordinary action and a petition for a writ of mandamus. I may quote here the case of Hartman v. Greenhow, reported In (1881) 102 US 672: 26 Law Ed 271 (P). The observations in of. (ii) at p. 273 of the report run thus:

'The judgment denying the writ of mandamus was a final determination against the claim of the petitioner to have the coupons held by him received for taxes without a deduction from their face value of the amount of the tax levied on the bonds. A mandamus in cases of this kind is no longer regarded in this country as a mere prerogative writ. It is nothing more than an ordinary proceeding or action in which the performance of a specific duty, by which the rights of the petitioner are affected, is sought to be enforced.'

Mr. Chief Justice Taney has been quoted with approval:

'It undoubtedly came into use by virtue of prerogative powers in English Crown, and was subject to regulations and rules which have long since been disused; but the right to writ and the power to issue it has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable.'

18. I will next notice two other decisions cited by Mr. Mohapatra on behalf or the petitioner, namely, 'Alien Bury & Co. v. Income-tax Officer, (S) AIR 1956 Pat 175 (Q) and Sriman v. Board of Revenue, M. P., Nagpur, AIR 1954 Nag 1 (FB) CR).

In (S) AIR 1956 Pat 175 (Q) the assessees were taxed under Section 23, Income-tax Act to an amount exceeding Rs. 20,000/-. Against the assessment order of the Income-tax Officer, the assessees without further pursuing their remedies provided in the Act came with two petitions under arts. 226 and 227 of the Constitution on the ground that the order of assessment was without jurisdiction and vitiated by error apparent on the face of the record. The two petitions were dismissed summarily by a Bench of the High Court and so the petitioners sought for a certificate of leave to appeal to the Supreme Court under Article 133 of the Constitution.

The two points raised were (i) whether it is a civil proceeding and (ii) whether the order passed by the High Court in summarily dismissing the writ applications was a 'final order' as contemplated under Article 133. The ultimate result of the case was that the petition for leave was dismissed on the ground that it was not a civil proceeding out of which the leave petition arose. But their Lordships expressed their view that the impugned order was a 'final order' as the rights of the petitioners to obtain appropriate writs or order of the High Court was finally determined by the order.

To come to this decision their Lordships had distinguished the Full Bench decision of that Court already discussed by me earlier reported in AIR 1951 Pat 29 (FB) (K). In the previous Full Bench decision according to their Lordships, the question was whether a 'judgment' which the High Court pronounced under Section 21(5) of the Bihar Sales Tax Act, that is, answering the point raised on the statement of the case by the Sales-tax authorities, was a 'judgment or final order' in the technical sense of the term.

in the case In (S) AIR 1956 Pat 175 (Q), the applications made to the High Court were never applications for reference to the High Court and were not in their advisory jurisdiction; but the applications were writ applications and the order of the High Court finally disposed of those applications. Apart from this pithy observations. Their Lordships did not consider the previous pronouncements in the Privy Council decisions and Federal Court decisions referred to by me in the earlier part of this judgment.

The next case in AIR 1954 Nag 1 (PB) (R) arose out of an application before the High Court to call upon the Board of Revenue to state a case under the provisions of Provincial Sales Tax Act. The Board of Revenue stated a case, but nevertheless the points raised having been answered against the assessee by the High Court, an application for leave to appeal was filed. The controversies before the High Court were whether the transactions in question were sales within the State and whether the provisions of the Act with regard to sales in question were intra vires. It is to be mentioned at the outset that as these questions were decided against the applicant, nothing further remained to be done by the Tribunal.

Had they been decided in favour of the applicant, all that the Tribunal would have had to do was to exclude the amount of such sales, which are already determined from the computation of turnover and to calculate the tax payable by the applicant. Their Lordships observed that this was consequential arithmetical calculation and did not involve any adjudication by the Tribunal. The main point that was decided in the case was whether the decision of the High Court in answering the points raised on the statement of the case by the sales-tax authorities was a 'judgment' under Article 132(1) of the Constitution and not under Article 133(1) as in our case.

It is clear from the Judgment that at the hearing the learned counsel for the applicant did not rely upon arts. 133 and 134, He pressed for a certificate under Article 132(1) which runs thus:

'article 132(1). An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, Whether in a civil, criminal or other proceedings, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution.'

Sen and Deo JJ. held that the term 'judgment' is used in Article 132(1) in the wider sense to Include any decision given by the High Court on a question or questions at issue between the parties to any proceeding which finally determines the rights of the parties so far as the Court is concerned. In this sense a decision under Section 23 (5) of the C. P. and Berar Sales Tax Act or under Section 66(5) of the I. T. Act is clearly a judgment. It finally determines the rights of the parties so far as the High Court is concerned though the Tribunal may have to re-open the assessment proceedings and make or order further enquiry to give effect to the decision of the High Court. The judgment according to them was in revenue proceedings and as such Article 132 applied.

Hidayatullah J. however dissented from the majority view and opined that the jurisdiction of the High Court is merely advisory and consultative and an order passed under Section 23(5) of the Sales Tax Act is neither a judgment nor a final order as it does not decide the controversy but merely gives an expression to an opinion for the guidance of the referring authority. The case is not finally disposed of and he stuck to the orthodox view regarding the definition of the words 'judgment and final order' even as they are used in Article 132. Most part of the reasons given by Deo J. in this Judgment is based upon the difference in the meaning of the word as used in the two articles. In paragraph 47 Deo J. observed:

'This controversy about final order loses its force in view of the Explanation to Article 132(1) of the Constitution.'

Article 132(1) applies to all proceedings, civil, criminal and other proceedings, and is therefore much wider to include any decision given by the High Court on a question or questions at issue between the parties in any proceeding before the High Court which finally determines the rights of the parties so far as the Court is concerned. So far as Article 132 is concerned, they have refused to accept the view that the finality is with reference to the lis In the original suit or case.

19. Giving my anxious consideration to the matter I am finally of the view that this case comes under Article 133(1)(b) or the Constitution and the petitioner therefore is allowed leave to appeal to the Supreme Court.

20. S. C. A. No. 12/1956: This was heard along with S. C. A. No. 11/1956 as both of them involve self-same points. My judgment in S. C. A. No. 11/1956 will govern this case also and accordingly the petitioner is allowed leave to appeal to the Supreme Court.

21. In conclusion, both the petitions for leave to appeal to the Supreme Court are allowed and we allow one set of hearing-fee in favour of the petitioner and we assess a sum of Rs. 250/- (rupees two hundred and fifty) representing the costs and the hearing fee.

Balakrishnarao, J.

I agree.


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