To appreciate the point arising in this case the facts must be set out in some detail.
Messrs. Hans Raj Gupta and Co., Chawri Bazar, Delhi, applied to the Appellate Tribunal, Income-tax, under Section 66(1) of the Income-tax Act, 1922, hereinafter referred to as the Act, to refer to the High Court of Judicature at Lahore questions of law arising out of the order passed by that Tribunal but the Appellate Tribunal refused to state the case on the ground that no question of law arose from that order. Messrs. Hans Raj Gupta and Co., then applied to the High Court of Judicature at Lahore under Section 66(2) of the Act, to require the arising from the order of the Appellate Tribunal to the High Court under Section 66(2) of the Act. Upon that application a Division Bench of the Lahore High court issued notice to the Appellate Tribunal.
Now on the division of the Punjab the case was sent by the Lahore High Court to this Court, but considering the provisions of Article 13(2)(a) of the High Courts (Punjab) Order, 1947, the records of that case were returned to the Lahore High Court for a decision on the application by that court.
On April 9, 1948, Messrs. Hans Raj Gupta and Co., applied under Section 151 of the Civil Procedure Code to this court for recalling the records of Civil Miscellaneous No. 44 of 1946 from the Lahore High Court and then deciding the petition under Section 66(5) of the Act on the ground that this Court had jurisdiction to hear the case. That application was registered in this Court as Civil Miscellaneous No. 54 of 1948 in Civil Miscellaneous No. 44 of 1946. The case came up before Diwan Ram Lall, C.J., on April 21, 1948, when his Lordship rejected the application in limine.
After waiting for about two years Messrs. Hans Raj Gupta and Co., have again applied to this Court under Section 151 of the Civil Procedure Code praying that this Court may recall the records of Civil Miscellaneous No. 44 of 1946 from the Lahore High Court and decide that case itself, upon this petition Soni, J., ordered :-
'Notice to Commissioner of Income-tax only on the question of jurisdiction of this Court to hear the case. Early date.'
Pursuant to the notice issued by this Court to the Income-tax Commissioner Mr. Sarv Mittra Sikri. Advocate, has appeared in this Court for the Commissioner of Income-tax.
Mr. Sikri urges that considering that an application covering the point raised in Civil Miscellaneous No. 131 of 1950 has already been decided by this Court on April 21, 1948, the present petition is not competent. As set out above, the present petition is textually the same with minor alterations as the petition which was registered in this Court as Civil Miscellaneous No. 54 of 1948 in Civil Miscellaneous No. 44 of 1946. That being so, the order passed by this Court on April 21, 1948, is not open to reconsideration in these proceedings.
But quite independently of the objection set out in the preceding paragraph I see no merits in this petition. By Section 1 of the Indian Independence Act, 1947, two independent Dominion were set up in India. By Section 4 the old Punjab became two separate Provinces. Section 9 of the Act empowered the Governor-General to make provision or order for bringing the provisions of the Independence Act into effective operation. Now, under Section 9 of the Act the Governor-General on August 11, 1947, promulgated the High Courts (Punjab) Order, 1947, and the Articles of that Order to which reference may be made are Articles 3, 5 and 13.
By Article 3 this High Court was constituted. Article 5 defined the jurisdiction of this Court and the only limitation on the powers of this Court was territorial. Indeed, the powers conferred on this Court were the same as the Lahore High Court had regarding its original, appellate or other jurisdiciton. Considering that this case arose in the State of Delhi, this Court has jurisdiction under Article 5 of the Order. Article 13(2), however, provides that notwithstanding anything contained in the High Courts (Punjab) Order, 1947, proceeding which, immediately before August 15, 1947, were pending in the High Court at Lahore on its original side shall be heard and determined by that proceeding on the original side of the High Court at Lahore. On this point a number of authorities were referred to at the hearing before me. Of them Chief Commissioner of Income-tax, Madras v. North Anantapur Gold Mines, Ltd. and Venkataratnam v. Secretary of States may be seen. In Chief Commissioner of Income-tax, Madras v. North Anantapur Gold Mines, Ltd., Wallis, C.J., said :-
'Now, the issuing of the writ of mandamus to secure the performance of a public duty where no adequate remedy existed by action or otherwise was, it seems to me, clearly an exercise of original jurisdiction. It was a proceeding originating in the Court issuing it, and might be directed in proper case to any class of public officer, executive or judicial. It must also be regarded as having been within the original jurisdiction of the Supreme Court because that Court because that Court had no appellate jurisdiction. Similarly, I think that the substituted jurisdiction to issue orders under Section 45 of the Specific Relief Art is original jurisdiction.'
A similar point arose in Venkataratnam v. Secretary of State. In that case Venkatasubba Rao, J., said :-
'Then is the jurisdiction in certiorari original I think the question must be answered in the affirmative. By Section 34 of the Judicature Act of 1873 (corresponding to Section 55 of the present Act of 1925), to the Queens Bench Division of the High Court were assigned All causes and matters......... which would have been within the exclusive cognizance of the Court of Queens Bench in the exercise of its original jurisdiction. This is explained thus in the Supreme Court of Practice : Matters within the exercise of its original jurisdiction at the commencement of this Act included the supervision of decision s of inferior tribunals generally by certiorari : See the Supreme Court Practice, 1928, p. 1610.'
With great respect I follow the rule laid down in Chief Commissioner of Income-tax, Madras v. North Anantapur Gold Mines, Ltd. and Venkataratnam v. Secretary of State and find that an application filed in the High Court under Section 66(2) of the Act for a writ of mandamus to the Income-tax Commissioner to state the cast to the Court is a proceeding on the original side of the High Court. Finding as I do that Civil Miscellaneous No. 44 of 1946 pending on August 15, 1947, in the High Court of Judicature at Lahore was a proceeding on the original side of that Court, this petition fails and is dismissed.