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Lakshmi Lal and ors. Vs. Bhagwat Singh Mehta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberMisc. First Appeal No. 23 of 1950
Judge
Reported inAIR1952Raj22
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 115; Mewar Proceedings of the Special Commissions Validating Act, 1944 - Sections 4 and 6; Specific Relief Act, 1877 - Sections 45; Constitution of Mewar, 1947 - Articles 1, 13, 18 and 18(2)
AppellantLakshmi Lal and ors.
RespondentBhagwat Singh Mehta and ors.
Appellant Advocate Jeewan Singh, Adv.
Respondent Advocate Mahavir Chand, Adv. for Respondent No. 3; Mansha Ram, Govt. Adv.
DispositionPetition partly allowed
Cases ReferredJanardhan Reddy v. The State of Hyderabad
Excerpt:
- - our opinion with respect to list a is that because various persons had deposited amounts with the partnership firm, and if any partner does not repay the amount, it would be contrary to the best traditions of 'sahukars',therefore, it seems proper and convenient that the three partners should clear off the accounts of 'lenden' according to the list, and whatever may be left in balance may be distributed between the parties according to their shares. ' the mehkama khas recommended on the 3rd of may, 1940, that if their report was acceptable to his highness, shri jawan singh ranawat and shri moti lal bohara be directed to enforce the recommendations. it may be pointed out that all relevant facts should be mentioned in a petition of this nature, and counsel should not pick and choose.....bapna, j. 1. this case has come up before the full bench of this court, as there was a difference of opinion between two learned judges of the old rajasthan high court, and under section 22(2)(b) of the united state of rajasthan high court ordinance, 1948, the case was referred by the learned judges to a pull bench. the case had been pending before the old rajasthan high court, and has come by transfer to this court under section 49 of the rajasthan high court ordinance (no. xv of 1949). 2. the relevant facts are that there was a firm ummaid mal dharam chand carrying on money lending and other business at udaipur, in which there were four partners, viz., roshan lal, lakshmi lal, fateh lal, and omkar lal. the first two had one-third share each, and the last twohad the remaining one-third.....
Judgment:

Bapna, J.

1. This case has come up before the Full Bench of this Court, as there was a difference of opinion between two learned Judges of the old Rajasthan High Court, and under Section 22(2)(b) of the United State of Rajasthan High Court Ordinance, 1948, the case was referred by the learned Judges to a Pull Bench. The case had been pending before the old Rajasthan High Court, and has come by transfer to this Court under Section 49 of the Rajasthan High Court Ordinance (No. XV of 1949).

2. The relevant facts are that there was a firm Ummaid Mal Dharam Chand carrying on money lending and other business at Udaipur, in which there were four partners, viz., Roshan Lal, Lakshmi Lal, Fateh Lal, and Omkar Lal. The first two had one-third share each, and the last twohad the remaining one-third share. Disputes having arisen among the partners, they approached hiS hiGHNESS the Maharaja of Udaipur for dissolution of partnership and winding up of its affairs. By an order dated 'Sawan Sud' 9 'Samwat' 1993, four officers, viz,, Shri Jagannath Singh Menta, Shri Balwant Singh Kothari, Shri Jawan. Singh Ranawat, and Shri Dal Chand Agarwala, were appointed to settle the matter between the parties, Some of these officers were unable to act, and the matter was finally referred, to Shri Jawan Singh Ranawat, Shri Gamer Singh, Shri Jagannath Singh Mehta, and Shri Moti Lal Bonara. These gentlemen, however, thought it proper to take an agreement from the parties that they would agree to whatever might be decided by these gentlemen as arbitrators. The arbitrators gave a preliminary award on 22-12-1938, in which various objections of the parties were decided, and they submitted their opinion to the Mehkama Khas with a recommendation that three lots be made of the assets in accordance with the award, and as regards the liabilities, each of the partners should undertake to pay to such of the creditors as were related to him. The arbitrators submitted, their report to the Mehkama Khas of Mewar where the parties were directed to produce agreed lists of lots; but as the parties could not agree, the matter was referred again to His Highness, who ordered the Mehkama Khas to re-submit the papers with their opinion. Thereafter, four lists were prepared. Three of these lists related to the assets of the firm for distribution between the partners. The fourth list contained the detail of the liabilities, and certain assets were reserved in it, which after realization, were to be utilized towards satisfaction of the liabilities. This list is known as list A, and the relevant recommendation, when translated, is as follows:

'Our opinion with respect to list A is that because various persons had deposited amounts with the partnership firm, and if any partner does not repay the amount, it would be contrary to the best traditions of 'Sahukars', therefore, it seems proper and convenient that the three partners should clear off the accounts of 'lenden' according to the list, and whatever may be left in balance may be distributed between the parties according to their shares.'

The Mehkama Khas recommended on the 3rd of May, 1940, that if their report was acceptable to His Highness, Shri Jawan Singh Ranawat and Shri Moti Lal Bohara be directed to enforce the recommendations. The aforesaid two gentlemen were appointed Commissioners to carry out the recommendations of the Mehkama Khas. Sometimes afterwards, Shri Bhagwat Singh Mehta and Shri Keshari Singh Ranawat were appointed Commissioners in place of the previous officers. These Commissioners proceeded to realize the assets reserved in list A, and to pay off the creditors mentioned in that list; but it was found that the assets reserved, though nominally kept at a figure higher than the debts to be paid actually fetched a less amount. The Commissioners accordingly passed an order on the 19th of June, 1946, that as the assets of list A were not sufficient to pay off the creditors in full, each of the partners should produce certain amounts, and if he did not do so, the amounts would be realized by attachment and Hale of his property. The amounts fixed for each party were different, as certain adjustments were made by the Commissioners as became necessary in distributing the assets of the partnership among the parties according to the three lots, which had been approved by the parties and the Mehkama Khas.

3. On the 28th of June, 1947, Lakshmi Lal and Paten Lal made a petition to the High Court ofUdaipur for a writ of 'certiorari', (a) declaring that the realization of the assets mentioned in list A by tne Commissioners was invalid, (b) prohibiting the Commissioners from making payments to creditors contrary to the preliminary award dated 22-12-1938, and the order of the Mehkama Khas, dated 3-5-1940, (c) prohibiting the Commissioners from realizing the assets, or paying off the creditors, mentioned in list A without the consent of the petitioners, and (d) promoting the Commissioners from realizing any amount from the petitioners in addition to the assets reserved in list A for payment to the creditors.

4. It was mentioned in the petition that the petitioners had filed an appeal against the order of the Commissioners before the prime Minister, as provided by Section 6 of the Mewar Proceedings of the Special Commissions Validating Act (No. XVII of 1944), but it had been dismissed.

5. The Commissioners by their reply dated the 17th of July, 1947, raised a plea that under the Mewar proceedings of the Special Commissions Validating Act, 1944, their proceedings could not be challenged in any Court. They also pleaded that whatever directions had been given by them were in accordance with the order of the Mehkama Khas, dated the 3rd of May 1940. The petition was also opposed by Roshan Lal who was later made a party.

6. The petition came up. for hearing before Dhanopiya, Actg. C.J. He dismissed the petition holding, 'inter alia', that the Proceedings of the Special Commissions Validating Act was not 'ultra vires', the legislature, as contended for the petitioners, and that as the Commissioners were functioning in an executive capacity and not as a judicial tribunal, a writ could not be issued.

7. On appeal to a Division Bench, Gupta, J., agreed with the opinion of Dhanopiya, Actg. C.J., While Mehta, J., was of opinion that although the Mewar Proceedings of the Special Commissions Validating Act was valid, the Commissioners were acting in a judicial capacity, and they had acted in excess of their jurisdiction in so far as they had called upon the partners to contribute certain sums beyond the assets reserved in list A for payment to creditors. He was of opinion that a writ of prohibition should be issued calling upon the Commissioners not to ask the partners to pay any amount of money beyond what might be available in list A.

8. Owing to the said difference of opinion, the case was to be laid before a Full Bench of the old Rajasthan High Court, and it came to this Court by transfer under Section 49 of Ordinance No. XV of 1949, as aforesaid.

9. Learned counsel for Roshan Lal, and learned Government Advocate, who appeared for the Commissioners, raised certain preliminary objections, viz.,

(1) that certain important facts and intermediate proceedings had been concealed while making this petition, and on that ground alone this petition should be thrown out;

(2) that the petitioners had filed a revision against the order of the Commissioners, dated 19th June, 1946, which had been dismissed by the High Court of Udaipur;

(3) that the petitioners had filed a petition for a writ under Section 45 of the Specific Belief Act as adapted in Mewar, and the said petition had been dismissed;

(4) that the petitioners had filed a civil suit claiming the same reliefs, and that suit was pending in a civil Court;

(5) that the proceedings by the Commissioners could not be called in question before any civil Court under Section 4 of the Proceedings of the Special Commissions Validating Act.

10. On the merits, it was contended that the Commissioners had acted entirety in accordance with the order of the Mehkama Khas dated 3rd May, 1940, and that under the said order a duty had been cast on the Commissioners to pay off the creditors, and the direction to divide any balance of the assets remaining after payment of creditors involved a corresponding direction that, if the assets were insufficient, the Commissioners could call upon the partners to produce equal amounts for payment to the creditors. It was explained that the difference in the amounts called for from the parties was due to adjustments of accounts arising out of the distribution of the lots among the partners.

11. Learned Government Advocate also raised an objection as to the maintainability of the petition on the grounds (1) that a certified copy of the order of the Commissioners dated 19th June, 1946, which was being challenged had not been produced along with the petition, and (2) that the order of the Prime Minister rejecting the appeal on the 4th of July, 1946, was final when passed, and could not be reopened now.

12. So far as the non-production of the copy of the order is concerned, it may be pointed out that the Commissioners, at any rate, could not claim any want of knowledge of that order, since it were they who had passed the order, and it must appear on the file of the proceedings before the Commissioners. Learned Government Advocate, when questioned, could produce the order from the file of the Commissioners, which had been handed over to him by them along with the instructions in the case.

13. The first preliminary objection was not raised before the Single Judge, and it is too late now for the respondents to raise it. The important facts, which are alleged to have been concealed, are those which are the subject of preliminary objections Nos. 2 to 4, and since they have to be dealt with on the merits, it would be improper to throw out the petition on this preliminary point. Learned counsel for the petitioners, when questioned, stated that he did not mention those facts in his petition as he did not consider them relevant to the petition. It may be pointed out that all relevant facts should be mentioned in a petition of this nature, and counsel should not pick and choose in a matter like this, since it may be that what learned counsel may think to be irrelevant may turn out to be very relevant in the case. In the case of 'U.C. Rekhi v. The Income-tax Officer', AIR (38) 1951 Simla 1, it was observed that

'Uberima fides' is essential where an application is made for a rule 'nisi' for a writ of prohibition, and therefore if there is a suppression of material facts in the applicant's affidavit the Court will refuse the writ without going into the merits.'

As stated above, the two Courts having gone into the merits already, and this Full Bench having also heard the case at great length, it would be improper not to deal with the merits in this case.

14. As to the second objection, the point was taken in the reply by Roshan Lal in para. 7 of the additional pleas, but no date of the decision of the revision was mentioned, nor was a copy of the judgment filed in this case. One would not be surprised if the High Court of Udaipur declined to interfere under Section 115 of the Code of Civil Procedure, as the opening words of that Section are that

'the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court.'

The Commissioners, even if they were acting as Presiding Officers of a Court, were not subordinate to the High Court, as under Section 6 of Act No. XVII of 1944, an appeal was directed to lie from the order of the Commissioners to the Prime Minister, whose decisions were declared to be final. The dismissal of the revision petition by the High Court of Udaipur while it had no jurisdiction to interfere, cannot be a bar to the present petition.

15. The third objection needs more consideration. It may be said that in this case also, while the objection has been taken in para, 6 of the additional pleas by Roshan Lal, and para 6 of the reply of the Commissioners, a copy of the judgment was not produced. The Specific Relief Act was promulgated in Mewar as Act No. XVIII of 1942, and Section 45 was so adapted as giving the High Court of Udaipur power to issue orders mentioned in Section 45 of the Indian Specific Relief Act. This section empowered the High Court of Udaipur to issue writs of prohibition or 'certiorari' or 'mandamus' within its territorial jurisdiction, and if such an application had been dismissed, the present petition would not He. But it transpired during the course of arguments that that petition had been withdrawn after the coming into force of the Constitution of Mewar, and no decision was given on that petition on the merits. Learned counsel for the appellants stated that it was withdrawn on the 25th of June, 1947, and the present petition was filed three days later on the 28th of June, 1947, as it was considered that the powers of the High Court had been widened under the Constitution. It was not denied by the opposite party that the petition under Section 45 of the Specific Relief Act had been withdrawn without decision on the merits.

16. The fourth objection that the petitioners had instituted a suit for identical reliefs in a civil Court was further augmented by an argument that if on the showing of the petitioners themselves they had an alternative remedy, the High Court should refuse to issue any kind of writ. The pleas taken in this connection by the two respondents are not identical. The Commissioners say in para 6 of their additional pleas that the suit, which had been filed by the petitioners in the District Judge's Court, had been dismissed, while para. G of the reply of Roshan Lal is to the effect that the suit was pending in the Court of the District Judge, and the 15th of April, 1948, was the date of hearing. A copy of the plaint was again not produced in this case; but learned counsel for the respondents was allowed to read the relief para from his brief, and it was stated that the prayer was that a declaration might be issued that the Commissioners or the Government had not been authorised to settle or adjust the dealings between the firm Ummaid Mal Dharam Chand and Rikhab Deo Factory at Fatchnagar, or to compel the plaintiffs to make payment for that purpose. This suit was said to have been filed some time in 1945. In the first place, Section 4 of Act No. XVII of 1944 appears to act as a bar to such a suit. The relevant portion of that section clearly says that

'no proceedings conducted or order made by the Commissioners or the Government before or after the passing of this Act in cases specified in Schedule 1 (Ummaid Mal Dharam Chand's case being mentioned in the Schedule), shall be called in question in any proceedings before any civil Court on, the ground that the said Commissioners or the Government had no jurisdiction to conduct such proceeding or to make such order.'

That section, therefore, clearly barred the jurisdiction of a civil Court to question the order of theCommissioners or the Government on the ground that they had no jurisdiction to make the order. It was conceded by learned counsel for the respondents that in their written statement before the District Judge a plea had been taken that the Court had no jurisdiction to entertain that suit. We are of opinion that the alternative remedy of a suit was not open to the petitioners in this case. Even in cases where an alternative remedy exists, the jurisdiction of this Court to issue a writ of prohibition in a proper case is not barred. The statement of law on this subject appears in para 1397 of Halsbury's Laws of England, Hailsham Second Edition, Volume 9, as follows:

'The Court, in deciding whether or not to grant a writ of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction, or any appeal lies against such absence or excess. Similarly the fact that an appeal on the merits of the case has already failed, or that the party applying for prohibition has himself initiated the proceedings in the inferior Court, is not material to the decision of the Court to grant or to refuse the writ.'

17. On the merits, the jurisdiction of the Commissioners to issue the order of the 19th of June, 1946, was challenged on two grounds, viz., (1) that the very appointment of the Commissioners had been invalidated by the coming into force of the Mewar Constitution on the 23rd of May, 1947, and (2) that the order of the Commissioners in so far as it called upon the partners of the firm Ummaid Mal Dharam Chand to make contributions from their pockets in addition to what had been reserved in list A for the payment of creditors was in excess of the jurisdiction with which they bad been vested by competent authority. It was contended that the dispute between the parties related to the dissolution of the partnership firm and winding up of its affairs, and the suit, if filed by any of the parties, was cognizable by a civil Court, and that action of His Highness the Maharana of Mewar in appointing a commission was an executive act unauthorized by any law, and with the dawn of democratic era, the appointment and proceedings of such commissions were sought to be validated by Act No. XVII of 1944; but that Act also became inconsistent with the Merwar Constitution, and lost its force. Reference was made to Articles I, XIII and XVIII of the Merwar Constitution.

18. Article I, Clause (1) of the Constitution of Mewar declared the Constitution to be the Supreme Law of Mewar, which would override all laws whether constitutional or otherwise as were inconsistent with it. Under Article XIII, Clause (1), it was provided that

'no person shall be deprived of his life or property without due process of law, nor snail any person be denied equality before the law within the territories of Mewar'.

Article XVIII, Clause (i), declared that

'the judicial power of the State shall be vested in the High Court of Udaipur and in such subordinate Court as the Legislature from time to lime establish'.

19. It was contended that the provisions of Act No. XVII of 1944 were inconsistent with the Constitution in so far as, while Article XVIII of the Constitution of Mewar declared the judicial power of the State to be vested in the High Court of Udaipur, section 6 of Act No. XVII of 1944 made the orders of the Commissioners appealable to the Prime Minister whose decision was to be final, and this was clearly inconsistent with the Constitution more so as the Commissioners were declared to possess all the powers of a civil Court under Clause(3) of section 6 of Act No. XVII of 1944. It was also contended that in asking the petitioners to deposit certain amount of money amounted to depriving him of their property without due process of law, as Act No. XVII of 1944 went so far as to say in the later part of Section 4 that the orders of the Government or Commissioners made before the passing of the Act could not be challenged in a civil Court on the ground that such proceedings or orders were opposed to the provisions of any law, custom or usage for the time being in force. It was urged that the proceedings up to the passing of the award on 22-12-1938 were by consent of the parties as being by arbitrators who had been appointed by the parties; but that the subsequent proceedings, including the order of the Mehkama Khas dated 3rd May, 1940, which were confirmed by His Highness, were invalid as the Mehkama Khas purported to pass orders in a judicial matter which should have gone to a court of law. It was also urged that provision as to equality before the la win Article XIII of the Constitution of Mewar was also infringed, as their case alone was to be dealt with under Act No. XVII of 1944 by the Commissioners.

20. There is no doubt that Section 6 of Act No. XVII of 1944 was contrary to Article XVIII of the Constitution of Mewar by which the judicial power of the State was declared to be vested in the High Court of Udaipur or such subordinate Court as the Legislature from time to time established. Section 6 of Act No. XVII of 1944 in effect purported to vest the Prime Minister with judicial power in the State. Section 6, therefore, would be invalid from the date of the Constitution. But it does not follow that the entire Act would be invalid as the provisions of section 6 can be separated from the remainder of the Act,

21. As to Article I of the Constitution it is prospective and not retrospective. Therefore, what had been a valid appointment or order prior to the Constitution would not become invalid simply because such order could not be passed after the enforcement of the Constitution. The appointment of a commission by His Highness to deal with a civil matter is something unparalleled in any democratic State governed by law; but in Mewar it appears that executive interference in judicial matters must have been common, and that accounts for the passing of Act No. XVII of 1944. Whatever may have been the position prior to the Act, the commissions appointed before the Act were declared to have been appointed under the Act by Clause (iii) of Section 3, and Clause (ii) of the same section empowered the Government to appoint a Commissioner or Commissioners to decide the cases mentioned in the Schedule, and section 4 prevented any civil Court from challenging any previous order of the Government or Commissioners in that behalf. If any law provided for the constitution of a Special Court for deciding any particular case, there is nothing inherently illegal in that procedure. Under Article XXIV, all the laws in force on the date of enforcement of the Constitution were to be deemed to have been made by or under the Constitution, and in so far as they were consistent with the provisions were declared to continue in force until amended or repealed by the appropriate legislative authority. The creation of a special Court has not been shown to be inconsistent with any provision in the Constitution. It may be pointed out that under Clause (ii) of Section 3 of Act No. XVII of 1944, the Commissioners' powers were declared to be the powers of a Civil Court, and under section 5 the procedure to be followed by the Commissioners was declared to be the Code of Civil Procedure.

22. As to Article XIII, the first portion says no more than that the action by which any person is to be deprived of his liberty or property has to be justified under some law. The Commissioners apparently were acting under the powers conferred upon them by Act No. XVII of 1944. As to whether they have exceeded the jurisdiction or not will be considered later. The second portion of Article deals with equality before the law. It is not absolute equality which is guaranteed under the Constitution, since by the very nature of things all men are not equal. What is provided is that a particular class of persons to which any enactment may apply are to be dealt with equally. It is not contended that the several partners of the firm Ummaid Mal Dharam Chand are being treated unequally in this case.

23. In our opinion, the provisions of Act No. XVII of 1944, except section 6, have thus not been shown to be inconsistent with the Constitution of Mewar, and have not been rendered invalid with the enforcement of the said Constitution.

24. The other objection that the Commissioners have exceeded their jurisdiction is more substantial. Having read the order of Mehkama Khas dated 3rd May, 1940, which had been approved by His Highness and which has been stated in the earlier part of this judgment, it is quite clear to us that the proposal of the arbitrators that each partner should take upon himself the liability of such of his creditors as were his relations was modified by the Mehkama Khas on the ground that it would affect the 'Sahukari usage, if someone of the partners did not pay up the creditors, and it seems to have been not without hesitation that a recommendation was made for satisfaction of the creditors out of certain assets reserved for that purpose, and it also appears that the Mehkama Khas had no doubt that the reserved assets would be more than sufficient to pay up the creditors, since at the end it is stated that any amount which remains after paying off the creditors should be distributed between the partners. It is difficult to think, as contended by the opposite party, that the last portion of the recommendations involved the further consequence that if the assets were insufficient, the partners could be called upon to contribute out of the assets received by them for payment of the creditors. In a suit for dissolution and winding up of affairs, such a procedure would be unheard of, and it would be left to the creditors to enforce their claims in a Court of law, should the partners fail to meet such claims on demand. There would also be opportunity for the debtors to dispute any claim or raise certain pleas which may act as a bar for the enforcement of the claim. The entire procedure in this case appears to have been to circumvent the Courts, and for this the present petitioners are also not free from blame, since it was on their petition that the commission was appointed by His Highness. A certified copy of that petition and the order of His Highness dated 'Sawan Sud 9, Samwat' 1993, are on the record. Be that as it may it would not be legitimate to presume any delegation of authority to the Commissioners in excess of what appears in the order itself. As stated above, the Mehkama Khas order does not contemplate the contingency where the assets would fall short of the debts to be paid to the creditors. In our opinion, in asking the partners to contribute from their pockets to pay up the creditors after the utilization of the assets reserved for that purpose was an act in excess of the jurisdiction of the Commissioners.

25. The view taken by the Acting Chief Justice, Mr. Dhanopiya, and concurred by Justice Gupta that the Commissioners appointed or deemed to have been appointed under Act No. XVII of 194 do not constitute a judicial tribunal is not correct. In the first place, the Act itself by Section 3(ii) confers on the Commissioners all the powers of a civil court, and the fact that an appeal against the orders of the Commissioners was directed to lie to the Prime Minister cannot change the nature of the functions which were entrusted to the Commissioners under the Act. In any case, the tribunal was a quasi judicial tribunal, and the High Court having powers to issue writs had authority to interfere. It may be observed that the restriction on the civil courts under Section 4 of Act XVII of 1944 to question the validity of the orders of the Commissioners does not prohibit the High Court from correcting the errors of the Commissioners by issue of proper writs or orders or directions as held in a recent judgment of this Court in 'Mewar Textile Mills Ltd. v. The Industrial Tribunal, Writ Petition No. 21 of 1951, D/- 10-8-51. In that case an Industrial Tribunal had been constituted by the Government under Section 7 of the Industrial Disputes Act (XIV of 1947), and its validity was Challenged by a petition for writ of prohibition. On behalf of the Government, reliance was placed on Section 9 of the Act, which laid down that

'no order of the appropriate Government appointing any person as a member of a Board, Court or Tribunal shall be called in question in any manner.'

It was observed in dealing with that plea that

'Section 9 of the Industrial Disputes Act cannot take away the jurisdiction of this Court conferred on it by Article 226 of the Constitution of India.'

Article XVIII, Clause (2), of the Mewar Constitution conferred powers similar to those described in Article 226 of the Constitution of India on the High Court of Udaipur.

26. It now remains to consider the other objection raised on behalf of the Commissioners. Learned counsel for the Commissioners relied on two Supreme Court judgments, viz., 'Keshavan v. The State of Bomba'y', A.I.R. (38) 1951 S. C. 128 and 'Janardhan Reddy v. The State of Hyderabad', A.I.R. (38) 1951 S. C. 217, and argued that the order of the Commissioners dated 19th of June, 1946, and the order of the Prime Minister dated 4th July, 1946, were final when they were passed, and could not be reopened later on by the promulgation of the Constitution of Mewar in 1947. In the first case it was observed by their Lordships of the Supreme Court that

'Every Statute is 'prima facie' prospective unless it is expressly or by necessary implication made to have retrospective operation. Before the Constitution of India came into force, there was no such thing as fundamental right. As the fundamental rights became operative only & from the date of the Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on & from the date those rights come into being. Therefore Article 13(1) can have no retrospective operation but is wholly prospective. If an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void, with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned.'

In the second case, their Lordships observed that

'The provisions of Article 32(2) of the Constitution of India were not intended to operate retrospectively, & therefore something which was legally good on 25-1-1950 cannot be held to have become bad on 26-1-1950. Where, therefore, the judgment of the High Court of Hyderabad affirming the convictions & sentences of the petnrs. had acquired finality in the fullest sense of theterm before 26-1-1950, no one could question the validity of the convictions at the date when the Constitution of India came into force.'

27. These are indeed very learned observations emanating from high authority; but the present case is distinguishable on facts. In the case of Janardhan Reddy, the sentences had been passed and confirmed by the High Court, and what remained was the execution of those sentences. Similarly, in the first case, the petitioner Keshavan Madhava Menon was alleged to have committed an offence under the Press (Emergency Powers) Act, 1931, and it was argued that tne said enactment had become void on the enforcement of the Constitution of India, as it infringed upon certain fundamental rights of free speech mentioned in Articles 19 and 13 of the Constitution of India. Their Lordships of the Supreme Court, while stating the law to be as mentioned above, observed that there was no fundamental right that a person would not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts were concerned, the law existed, notwithstanding that it did not exist with respect to the future exercise of fundamental rights. In the present case, what the Commissioners have ordered is to ask for contribution from the various partners for the purpose of paying off the creditors. No order of payment to any creditor has yet been alleged to have been made, and if, as stated by the petitioners, some amount has been realized from them, it is lying with the Commissioners, and an appropriate order for its distribution will now be made. The order which cannot be questioned is the order of 3rd May, 1940, which was valid when it was made, and what is sought to be challenged in these proceedings is that the Commissioners who had a delegated authority to carry out the orders of 3rd May, 1940, have exceeded their jurisdiction. It has not been argued, and could not have been argued, that the Commissioners' powers were, in any way, in excess of the order of the Mewar Mehkama Khas, dated 3rd May, 1940. The fact that the Prime Minister of Mewar declined to interfere on appeal does not bar the jurisdiction of this Court to interfere, since, as stated above, notwithstanding the provisions barring the jurisdiction of a civil court or the declaration of the order of the Prime Minister to be final, the powers of the High Court of Udaipur even with reference to Section 45 of the Mewar Specific Relief Act then in force were wide enough to interfere in a case where a judicial tribunal had acted in excess of the jurisdiction conferred upon it.

28. The order of the Commissioners dated 19th of June, 1946, in so far as it directed the petitioners to contribute towards the payment of creditors beyond the assets reserved for such purpose is, therefore, declared to be without jurisdiction, and is hereby set aside. The Commissioners are hereby prohibited from recovering from the ex-partners of the firm Ummaid Mal Dharam Chand any amount beyond what was reserved in list A for payment to creditors and if any amount has been recovered, to return the same to the person from whom it had been recovered.

29. This disposes of relief (d) in the petition. The prayer for other reliefs cannot be granted. The sale of the shares and other assets for payment of the creditors was authorized under order dated 3rd May, 1940, and prayers (a) and (c) cannot be accepted. As to relief (b) it was not shown in what manner the Commissioners have acted contrary to the orders of 22-12-1938 and 3-5-1940 beyond what has been discussed above in connection with relief (d). It was urged during the course of arguments that while under the award of the arbitrators, a certain mode of accountingin respect of dealings between the partnership and Fatehnagar factory was indicated, the Commissioners had not made up accounts in that manner but had accepted the correctness of the debt due to the factory as given in list A. It has, however, not been stated what difference it would make in the result by making accounts in the manner suggested by the petitioners.

30. The petition is allowed as aforesaid. As the petitioners have only partially succeeded, they will receive only half the costs from Roshan Lal.


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