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C. Dhanalakshmi Ammal Vs. the Income-tax Officer, Ii Additional City and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Reported in(1957)2MLJ567
AppellantC. Dhanalakshmi Ammal
RespondentThe Income-tax Officer, Ii Additional City and ors.
Cases Referred and Raghavacharyulu v. Venkata Ramanuja Charyulu
Excerpt:
- .....namely, (1) that the order sought to be appealed is not an order passed by this court in a civil proceeding, and (2) in any event it is not a final order, and (3) the requirement as to the valuation of the subject-matter involved is also not satisfied as it cannot be said that the value of the subject-matter of the dispute is not less than rs. 20,000. nor can it be said that the order involves directly or indirectly some claim or question respecting property of the like amount or value. mr. m.k. nambiar for the petitioner tried to meet all these objections. the questions raised are not free from difficulty and after careful consideration we have come to the conclusion that the petitioner is not entitled to leave to appeal to the supreme court as of right under article 133(1) of.....
Judgment:

P.V. Rajamannar, C.J.

1. This is an application for leave to appeal to the Supreme Court of India against an order passed by this Court dismissing a petition filed under Article 226 of the Constitution by the petitioner. In that petition she prayed for the issue of a writ of mandamus restraining the Income-tax Officer, Second Additional City Circle, Madras, the Collector of Nilgiris district, and the Tahsildar of Coonor from proceeding to attach, or to bring to sale the petitioner's properties for the realisation of the alleged income-tax arrears of her husband, Tharani Singh Gramani, and in particular from proceeding with the sale of Benhutty Estate, in the Nilgiris district.

2. The facts material for this petition may be briefly stated : For the recovery of arrears of income-tax due from the petitioner's husband a certificate was issued by the Income-Tax Officer to the Collector of Nilgiris under Section 46(2) of the Indian Income-Tax Act. The Collector in pursuance of this certificate proceeded to attach the property described as Benhutty Estate for the realisation of the said arrears. It is common ground that this estate was purchased in the name of the petitioner under a deed of sale, dated 1st September, 1947. Nevertheless the property was sought to be attached because according to the Income-Tax Department though the ostensible title stood in the name of the petitioner, she was only a benamidar and that the real owner was the defaulting assessee, her husband. The petitioner alleged that there was no provision in the Madras Revenue Recovery Act which enabled the Collector to attach and sell any land other than the land of the defaulter and land which is registered in the name of someone other than the defaulter could not be deemed to be the land of the defaulter. The Court agreed with that contention of the petitioner but on behalf of the respondents it was contended that in exercise of the additional powers conferred on the Collector under the proviso to Section 46(2) of the Income-Tax Act, the powers of a Civil Court for the purpose of the recovery of an amount due under a decree, the Collector was entitled to attach a property ostensibly standing in the name of a person other than the defaulter on the ground that it really belonged to the defaulter. With this contention this Court agreed. Learned Counsel for the respondents also intimated to the Court that the attachment in this case would be treated as an attachment under the provisions of the Code of Civil Procedure and that the petitioner would be entitled to prefer a claim if she chose to. In view of this this Court dismissed the writ petition also observing that party who felt aggrieved by the decision of the Collector on such a claim made by the petitioner would have the right of a suit under Order 21, Rule 63 of the Civil Procedure Code. The result of the dismissal of the writ petition by this Court was to allow the attachment made by the Collector to continue and enable the parties, that is, both the department and the petitioner to take such steps as they were entitled to in law. This Court never went into the question of title of the petitioner to the attached property. The application for leave to appeal is made under Article 133(1) of the Constitution. The petitioner stated that the value of the subject-matter of the dispute in the writ petition and still in dispute on appeal to the Supreme Court is over Rs. 20,000 and that the matter involves a substantial question of law. The application was opposed by Mr. Rama Rao Sahib, Special Counsel for the Income-Tax Department. He raised three objections, namely, (1) that the order sought to be appealed is not an order passed by this Court in a Civil proceeding, and (2) in any event it is not a final order, and (3) the requirement as to the valuation of the subject-matter involved is also not satisfied as it cannot be said that the value of the subject-matter of the dispute is not less than Rs. 20,000. Nor can it be said that the order involves directly or indirectly some claim or question respecting property of the like amount or value. Mr. M.K. Nambiar for the petitioner tried to meet all these objections. The questions raised are not free from difficulty and after careful consideration we have come to the conclusion that the petitioner is not entitled to leave to appeal to the Supreme Court as of right under Article 133(1) of the Constitution.

3. The first objection that the order of the Court was not passed in a civil proceeding was based on two grounds, namely, (1) that as the matter related to income-tax the proceeding was a revenue proceeding and (2) that an application under Article 226 of the Constitution was not a civil proceeding. Taking the second ground first we are not prepared to subscribe to the large proposition that no order passed by this Court on a petition filed under Article 226 of the Constitution for a relief covered by that Article would ever be an order in a Civil proceeding of a High Court. Article 226 clearly says that directions, orders or writs sought under that Article are for the enforcement of any of the' rights conferred by Part III of the Constitution or for any other purpose. There is no definition of 'civil proceeding' in the Constitution. We fail to see why a proceeding under Article 226 of the Constitution for the enforcement of a right to property, for instance, cannot be deemed to be a civil proceeding. We realise that every application under Article 226 of the Constitution cannot be deemed to be a civil proceeding. To give an obvious example an application for a writ of habeas corpus or a writ of prohibition to prevent prosecution of criminal proceedings may not be properly described as civil proceedings, but if the Civil rights of a party are affected by an order of the executive Government or a party feels aggrieved by the adjudication of a Special Administrative Tribunal relating to his rights in a property or other Civil rights we see no reason why an application by such an aggrieved party should not be deemed to be a civil proceeding. The only authority in support of this part of Mr. Rama Rao Sahib's contention is a decision of the Patna High Court in Collector of Manghyr v. Pratap Singh : AIR1957Pat102 . In that case a Full Bench of the Patna High Court held that the proceeding in the High Court for grant of a writ under Article 226 of the Constitution is not a ' Civil proceeding ' within the meaning of Article 133 of the Constitution. Ramaswami, C.J., who delivered the judgment of the Full Bench sets out the reasons for that conclusion thus:

The jurisdiction of the High Court under Article 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the civil rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various Tribunals and public authorities are kept within the limits of their jurisdiction. In other words the jurisdiction of the High Court under Article 226 is a supervisory jurisdiction, a jurisdiction meant to supervise the work of the Tribunals and public authorities and to see that they act within the limits of their respective jurisdiction.

In a proceeding under Article 226 the High Court is not concerned with the determination of the civil rights of the parties; the only object of such a proceeding under Article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and Tribunals act within the limits of their respective jurisdiction ....

and again at page 105

The expression used in Article 133 is a ' civil proceeding ' of a High Court and not the expression ' civil cause or matter ' which is manifestly of wider import. On its general acceptation, the term ' proceeding ' means the form in which the action is brought or defended, the manner of intervention by parties, the mode of deciding issues, of opposing judgment and of executing (Bouvier's Law Dictionary). It follows that the expression 'civil proceeding' of a High Court must be interpreted to mean the form of proceeding of the High Court in the exercise of its civil jurisdiction.

With great respect to the learned Chief Justice we are unable to agree with his reasoning. It may be true that under Article 226 of the Constitution this Court never declares the civil rights of the parties but this Court does in proper cases enforce such rights in case of infringement of civil rights of parties, for example, the right to property. It is also clear that various Tribunals and public authorities are entrusted with the duty of adjudicating between rival claims to property. A petition under Article 226 of the Constitution to quash a decision of one such Tribunal would certainly pertain to the civil rights of the parties. Nor do we agree that an application for the issue of a writ under Article 226 of the Constitution can never be a proceeding of the High Court in the exercise of its civil jurisdiction. We have the high authority of the Privy Council in Zamindar of Parlakimidi v. Ryots of Garibandho (1943) 2 M.L.J. 254 : L.R. 70 IndAp 129 : I.L.R. (1944) Mad. 457 that the issue of a prerogative writ would be part of the original jurisdiction of a High Court and if it relates to civil rights it would be in the exercise of its original civil jurisdiction. Vide also Moulvi Hamid Hassan Momani v. Banwarilat Roy (1947) 2 M.L.J. 32 . We cannot also refrain from referring to the fact that in several matters arising out of petitions filed under Article 226 of the Constitution this Court has given leave to appeal to the Supreme Court and so far as we are aware no objection was taken either by the Court or by the eminent counsel who appeared in any of the cases that leave should not have been granted as the order appealed against was not passed in a civil proceeding. We, therefore, reject this part of the contention of Mr. Rama Rao Sahib.

4. The next part of his contention was that the proceeding in this case was in the nature of a revenue proceeding and such a proceeding will not fall within the class of civil proceedings mentioned in Article 133(1) of the Constitution. He referred us to the decision of the Patna High Court in Allen Berry & Co., Ltd. and Ors. v. Income Tax Officer : [1955]28ITR70(Patna) . In that case the petitioners were assessed to tax under Section 23 of the Indian Income-Tax Act. Against this assessment order the petitioners filed applications for the issue of writs under Articles 226 and 227 of the Constitution and these applications were summarily dismissed by the High Court and applications were filed for leave to appeal to the Supreme Court under Article 133 of the Constitution against such orders. It was held by a Division Bench of the Patna High Court that the orders complained of were not orders passed in a civil proceeding within the meaning of that Article and leave was refused. Besides this decision there are also other decisions as for instance the decision of the Nagpur High Court in Sriram Gulabdas v. Board of Revenue (M.P.) (Nagpur) (1953) 4 S.T.C. 340 in which it has been held that applications filed to quash assessments to income-tax or sales-tax would not be civil proceedings within the meaning of Article 133 of the Constitution, These decisions, in our opinion, have no application to the present case. The following observations of S.K. Das, C.J., who delivered the judgment of the Bench in Allen Berry & Co., Ltd., and others v. Income-Tax Officer : [1955]28ITR70(Patna) set out the grounds on which leave was refused:

It seems clear to me that every writ application is not necessarily a civil proceeding; it may be a civil proceeding or a criminal proceeding or other proceeding according to the nature of the application and the questions raised and decided in the proceeding. It is well-settled that a suit would not have been maintainable by the petitioners in respect of the two assessment orders; and if the petitioners had proceeded under the machinery of the Indian Income-Tax Act the proceeding/would not have been anything but a revenue proceeding. The mere fact that the petitioners filed two applications for writs in the High Court against the assessment orders, does not, in my opinion change the nature of the proceeding. I agree with the view expressed by their Lordships of the Rajasthan High Court which states that the question whether a proceeding under Article 226 of the Constitution is a civil proceeding or not depends upon the nature of the proceeding. In the cases before us the nature of the proceeding was that it called into question certain assessment orders made by the Income-Tax authorities. The proceeding was not a civil proceeding as there was no right of suit, and I do not think it can be said to be a civil proceeding within the meaning of Article 133 of the Constitution.

If the application filed by the petitioner before us under Article 226 of the Constitution had been to quash the assessment order it may well be said that it is not a civil proceeding on the above reasoning. But such is not the relief sought by the petitioner. There is no quarrel as such with the orders of assessment passed on her husband. All that she complains of is that her own property is being attached and sold to realise the amount of tax due by her husband. She is only asserting her right to the property standing in her name and seeking relief against any interference with her right. We do not think that it is proper to describe her application as a revenue proceeding. She could not have obviously proceeded under the machinery of the Indian Income-Tax Act as the petitioners in the Patna case (1953) 4 S.T.C. 340 could have. Further a suit would have been maintainable by the petitioner to restrain the Income-Tax authorities from taking proceedings against her property to satisfy the arrears of tax due from her husband whereas in the Patna case1 and other similar cases a suit would not have been maintainable to challenge the validity of the assessment orders. We, therefore, hold that the writ petition filed by the petitioner was not a revenue proceeding. In this view it is unnecessary to discuss, the much larger question whether revenue proceedings could also be deemed to be civil proceedings for the purpose of Article 133(1) of the Constitution. We may in passing refer to the view taken by this Court in Krishnaswami v. Council of I.C.A.I. : AIR1953Mad79 that ' it cannot be affirmed that every order passed in proceedings other than criminal is open to appeal under Article 133 as made in a civil proceeding.'

5. The next objection which certainly appears to us to be formidable is that the order sought to be appealed against is not a final order. The number of decisions dealing with the question as to when an order can be deemed to be a final order is legion but if is not necessary to examine all of them. Mr. Nambiar's argument briefly was that the only proceeding in this Court was the writ petition filed by the petitioner and that was finally disposed of by the order against which the appeal is proposed to be filed and so there is a final order. Simple and attractive though the argument appears, logically it will lead to the result that an order dismissing an application for stay of execution of a decree or stay of trial of a suit in a subordinate Court would also be a final order because it may be said that an application for stay is a proceeding in this Court and that has been finally disposed of by the order dismissing it. The test which could be gathered on a study of the relevant authorities for determining the finality of an order is whether the order has finally disposed of the rights of the parties. Vide the decisions in Kupuswami Rao v. The King (1948) 1 M.L.J. 103 : (1947) F.L.J. 110 : 1947 F.C.R. 180 and Premchand v. The State of Bihar : [1951]19ITR108(SC) . In Hossen Kasam Dada v. State of Madhya Pradesh (1952) 3 S.T.C. 289 the facts were these : An appeal to the Commissioner Of Sales Tax was not admitted on the ground that the applicant had not deposited the tax assessed under the proviso to Sub-section (i) of Section 22, Central Provinces and Berar Sales Tax Act, 1947. The applicant thereupon made an application to the High Court under Article 226 of the Constitution for a direction to the Commissioner of Sales Tax to admit the appeal even though the particular condition was not complied with. The High Court rejected the application. The applicant thereupon applied for leave to appeal to the Supreme Court under Article 133 of the Constitution. It was held by a Full Bench of the Nagpur High Court that the decision of the High Court could not be regarded as a judgment or a final order within the meaning of Article 133 of the Constitution. Their Lordships pointed out that a judgment or a final order to be appealable to the Supreme Court must affect the merits of the case between the parties by determining some right or liability. The High Court did no more than to point out to the applicant that the Act must be complied with. In Thangavelu Chettiar and Co. v. Government of Madras (1955) 1 M.L.J. 66 : 6 S.T.C. 72 a Bench of this Court held that an order of the High Court relating to a provisional assessment was not a final order within the meaning of Article 133(1) of the Constitution.- It cannot be said that the order of this Court dismissing the writ petition filed by the petitioner has terminated the proceedings taken by the Collector to attach the petitioner's property. This Court never determined the right of the petitioner to the property sought to be attached by the Collector for recovery of arrears of income-tax. The Collector on an objection by the petitioner might well hold that the property belongs to the petitioner herself and, therefore, cannot be attached and sold to recover the arrears due from her husband, the assessee. We, therefore, hold that the order of this Court sought to be appealed against is not a final order within the meaning of Article 133(1). Vide also West Jamurla Coal Co. v. Bholanath A.I.R. 1954 Gal. 424.

6. Once it is held that an order is not a final order it follows that it is not also a judgment within the meaning of Article 133. An order which is not final cannot be deemed to be a judgment. See Mohammad Amln Bros., Ltd. v. The Dominion of India (1950) S.C.J. 139 : 1949 F.C.R. 842 and Raghavacharyulu v. Venkata Ramanuja Charyulu (1954) 1 M.L.J. 198. The objection of Mr. Rama Rao Sahib that the order passed by this Court -in the writ petition is neither a judgment nor a final order within the meaning of Article 133(1) of the Constitution must, therefore, prevail.

7. We are also doubtful if the case satisfies the requirement of Article 133(1)(a) as to valuation. We shall assume that the property which has been attached is worth more than Rs. 20,000 but can it be said that the subject-matter of the dispute is the property sought to be attached. This Court did not go into the question of the petitioner's title to the property. All that the Court did was to allow the attachment of the property by the Collector to continue and it left open to the petitioner all the remedies which if desired she can avail herself of to prevent the property from being sold. We think that the order does not even involve directly or indirectly some claim or question respecting the property. If this Court had decided that the property really belonged to the petitioner's husband and that the petitioner was only a benamidar, then obviously the subject-matter of the dispute would be the property or in any event the order would involve a claim respecting property. This Court did not hold so. It only indicated the procedure which the Collector should follow in exercise of his powers under Section 46 of the Indian Income-Tax Act. We are inclined to hold that the case does not even satisfy the pecuniary requirement of Article 133(1)(a) of the Constitution.

8. In the result the application for leave to appeal to the Supreme Court is dismissed. No costs.


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