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Jagmendar Singh and Others Vs. Union of IndiA. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 256 of 1959
Reported in[1960]40ITR26(P& H)
AppellantJagmendar Singh and Others
RespondentUnion of IndiA.
Cases ReferredK. S. Rashid and Son v. Income
Excerpt:
.....methods of appeal or error may not prove adequate either in point of promptness or completeness, so that a partial or total failure of justice may result, then certiorari may issued. income-tax investigation commission, the remedy provided for in article 226 of the constitution is a discretionary remedy and the high court has always the discretion to refuse to grant a writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. if the alternative remedy, which is adequate and effective, is open to the petitioners the mere fact that they chose not to avail of it cannot deprive the alternative remedy of its adequacy or effectiveness and would not on that account entitled them to claim relief under article 226. the ratio of the supreme court..........sudhi devi, wife of the deceased and petitioner no. 3rs. 10,000the assistant controller, estate duty, in his orders dated 31st of december, 1956, held this amount to be a part of the estate of the deceased; he further held that the aforesaid land gifted in favour of the petitioner and ch. sampuran singh should be deemed to pass only on the death of the deceased under section 10 of the estate duty act. it is averred that the assistant controller, estate duty, has wrongly held that the land gifted in favour of the harijans of village sura is to be admitted back. it is alleged that petitioners nos. 2, 3 and 4 being paradanashin ladies, their interests were not properly represented before the estate duty department and petitioners nos. 1 and 5 being minors when the case for the.....
Judgment:

DUA, J. - This petition under article 226 of the Constitution for a writ of certiorari or any other suitable writ or direction has been filed by five petitioners on the following allegations. Rai Bahadur Ch. Randhir Singh died on 9th of November, 1954. Before his death, on 13th of February, 1952, the deceased gifted 6/7th share of his agricultural land situated in village Durina, Tehsil Jhajjar, District Rohtak, in favour of the following persons :- 1. Jagmendar Singh, his son; 2. Smt. Sudhi Devi, his wife; 3. Smt. Chanderman Devi, his daughter; 4. Smt. Suraj Kaur Devi, wife of Ch. Sampuran Singh, son of the deceased; 5. Narishpal Singh, minor son of Ch. Sampuran Singh, through his mother; Smt. Suraj Kaur Devi, and 6. Sampuran Singh, son of the deceased.

The gifted land comprised about 754 bighas and the share of each one of the aforesaid donees was one-sixth. In addition to the above gift, the deceased had also gifted 38 bighas and 8 biswas of land situated in village Sura in favour of Harijans of that village. It is alleged that the gift made in favour of the petitioners operated as an absolute transfer of the property and the donees became full and absolute owners thereof, though the land was being managed by the deceased donor as manager and as co-sharer in the holding, 6/7th of which had been gifted by him in favour of the petitioners and Sampuran Singh. Out of the income of the land so gifted, the following amounts had been deposited by the deceased in favour of the following persons :

1.

Ch. Sampuran Singh, elder son of the deceased.

Rs. 10,138

2.

Jagmendar Singh, younger son of the deceased and petitioner No. 1.

Rs. 10,097

3.

Smt. Sudhi Devi, wife of the deceased and petitioner No. 3

Rs. 10,000

The Assistant Controller, Estate Duty, in his orders dated 31st of December, 1956, held this amount to be a part of the estate of the deceased; he further held that the aforesaid land gifted in favour of the petitioner and Ch. Sampuran Singh should be deemed to pass only on the death of the deceased under section 10 of the Estate Duty Act. It is averred that the Assistant Controller, Estate Duty, has wrongly held that the land gifted in favour of the Harijans of village Sura is to be admitted back. It is alleged that petitioners Nos. 2, 3 and 4 being paradanashin ladies, their interests were not properly represented before the Estate Duty Department and petitioners Nos. 1 and 5 being minors when the case for the assessment was started, were also not in a position to properly safeguard their interests; petitioner No. 5, Narishpal Singh, is still a minor, though petitioner No. 1 has since become major. It is also pleaded that the amount of Rs. 4,300 invested in Cash Savings Certificates by the deceased has also been wrongly included by the Assistant Controller, Estate Duty, in the property which is to pass on the death of the deceased. Shri Methan Dass Gupta, advocate, was engaged for the purpose of representing the petitioners case, but the Assistant Controller did not allow the counsel to appear before him. The following four items are also alleged in the petition to the have been wrongly held by the Assistant Controller, as per his order dated 31st of December, 1956, to be a part of the estate of the deceased which passed to the heirs on his death.

(i)

Rs. 75,545

Price of the Durina land gifted by the deceased as mentioned above.

(ii)

Rs. 4,300

Cash Savings Certificates.

(iii)

Rs. 30,235

Balance in Post Office Saving Bank in favour of Ch. Sampuran Singh, Jagmendar Singh and Smt. Sudhi Devi.

(iv)

Rs. 6,000

Price of the land gifted for charitable purposes in favour of the Harijans of village Sura.

It is next averred that the appeal filed against the order of the Assistant Controller, Estate Duty, to the Central Board of Revenue was rejected on 13th of November, 1958. This order of the Central Board of Revenue is being assailed in the present writ petition on the ground that the principles of nature justice have been violated as the petitioners were deprived of their right to be heard before the orders against them were passed, that there is error apparent on the face of the record in not concluding on the material on the record that the petitioners have become co-sharers in the holding, and that the interests of the Pardanashin ladies were not properly safeguarded. It is also asserted that the land revenue of the gifted land was paid by the petitioners themselves who had become full-fledged owners of the gifted land.

This petition is resisted by the Union of India on a large number of grounds and in paragraph 8 of the reply it is contended that the petitioners had a further remedy under section 64 of the Estate Duty Act which was proper, adequate and efficacious alternative remedy and for this reason the present petition is liable to be dismissed. Section 64 of the Estate Duty Act provides for a reference to the High Court on a question of law arising out of an order by the Board so that the High Court may express its opinion thereon. Under sub-section (4) of section 64 if the Board is of opinion that either on account of the importance of any question of law involved in the case or on account of a conflict in the decisions of different High Courts in respect of any particular question of law arising therefrom, it is expedient that a case should be stated direct to the Supreme Court, the Board is empowered to so state the case even direct to the Supreme Court. The Advocate-General submits that the Estate Duty Act itself has provided an alternative, adequate and equally efficacious remedy and that the extraordinary remedy by way of a writ under article 226 of the Constitution should on this ground be refused to the petitioners. Ch. Ram Sarup has contended that the alternative remedy is not equally efficacious and convenient because notwithstanding a reference made under section 64 the estate duty would be payable by his clients in accordance with the determination made by the Board. This, according to the counsel, makes the alternative remedy inefficacious and inconvenient. In the second place Ch. Ram Sarup submits that the decision of a reference under section 64 takes a much longer time its its disposal than a writ petition, with the result that the amount delay caused in the disposal of such references makes the remedy inadequate, inconvenient and inefficacious. In support of his contention Ch. Ram Sarup has placed reliance on Valji Korji v. Collector of Kutch, Brij Lal Suri v. State of Uttar Pradesh, Himmat Lal Hari Lal v. State of Madhya Pradesh, Kanpur Oil Mills v. Judge (Appeals), Sales Tax, Kanpur Range, Kanpur and Narain Singh v. State of Uttar Pradesh. He has also referred me to the observations contained at page 186 of Extraordinary Legal Remedies by Ferris, where it is stated that in order to be a bar, the other remedy must be adequate and that an adequate remedy is one which is equally beneficial, speedy and sufficient, not merely one which at some time in the future will bring about relief; it is further stated in this book that where the exigencies of the case are such that the ordinary methods of appeal or error may not prove adequate either in point of promptness or completeness, so that a partial or total failure of justice may result, then certiorari may issued. Ch. Ram Sarup has also relied on two unreported decisions of this Court in Civil Writ No. 57 of 1958 and Civil Writ No. 773 of 1958. The counsel emphasises that the instant case the amount of duty comes to about Rs. 35,000 and if he is bound to pay the duty, in spite of a reference having been made, then this remedy cannot be considered to be equally convenient, effective or efficacious. The learned Advocate-General meets this objection by referring me to section 70 of the Act which empowers the Controller in a fit case to allow payment of estate duty to be postponed for such period, to such extent, and on payment of such interest not exceeding 4 per cent. and on such other terms, as he may think fit. Sub-section (2) of this section further enables the accountable person to pay the estate duty in four equal yearly instalments or eight equal half-yearly instalments with interest at the rate of 4 per cent. or any higher interest yielded by the property. The counsel contends that not only is it open to the Controller in a fit case to postpone payment of estate duty but the accountable person is also entitled to make the payment in reasonable instalments, if he so desires. With respect to the argument based on delay Mr. Sikri replies that a reference under the Act is in the very first instance heard by a Division Bench and in a proper case the reference can even be made directly to the Supreme Court; he further controverts the assertion made by Ch. Ram Sarup that a reference made under the Act takes longer to be heard than a writ petition; it is in this connection emphasised that decision in proceedings for a writ is initially given by a single judge and this is appealable to a Division Bench which means that final decision in such proceedings in this Court is likely to take longer than in the proceedings by way of a reference under the Estate Duty Act.

In my opinion, the preliminary objection raised by Mr. Sikri has force and must be upheld. As observed by the Supreme Court in K. S. Rashid and Son v. Income-tax Investigation Commission, the remedy provided for in article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant a writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. In the reported case the assessee had availed himself of the remedy provided in section 8(5) of the Investigation Commission Act and a reference had been made to the High Court at Allahabad in terms of that provision which was awaiting decision. In those circumstances the Supreme Court observed that it was not proper to permit the assessee to invoke the discretionary jurisdiction of the High Court under article 226 of the Constitution. It is true that in the present case the petitioners have not chosen to utilise the provisions of section 64 of the Estate Duty Act, but that, in my opinion, is not very material and it would hardly make any real difference. If the alternative remedy, which is adequate and effective, is open to the petitioners the mere fact that they chose not to avail of it cannot deprive the alternative remedy of its adequacy or effectiveness and would not on that account entitled them to claim relief under article 226. The ratio of the Supreme Court decision clearly shows that such a remedy is adequate, convenient and efficacious so as to disentitle the assessee or the accountable person, as the case may be, to claim relief by way of a prerogative writ from this court. It must also in this connection be borne in mind that even under article 226 of the Constitution the petitioners are not as of right entitled to claim a stay order from this court with respect to the payment of estate duty. The Parliament, in its wisdom, having laid down a detailed statutory provision for affording effective relief to accountable persons, this court would, while exercising its extraordinary powers under article 226 of the Constitution, grant relief by way of stay in its discretion and only in special cases in which the normal statutory relief is not likely to meet the ends of justice. No such special circumstances has been made out in the instant case. A writ of certiorari, indisputably, cannot be granted as a matter of course and merely because the amount of duty payable is large is, by itself, hardly, a valid ground to permit the petitioners to bypass the usual statutory provision and to invoke this courts extraordinary jurisdiction of granting prerogative writs. The authorities relied upon by the counsel for the petitioners are clearly distinguishable and are no avail in face of the ratio of the Supreme Court decision in the case of K. S. Rashid & Son.

For the reasons given above, this petition fails and is dismissed with costs. Costs Rs. 100.

Petition dismissed.


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