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N.C. Mookerjee and Co. Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberSupreme Court Appeal Nos. 4 to 7 of 1963
Judge
Reported inAIR1963Cal389,[1964]54ITR286(Cal)
ActsConstitution of India - Articles 227, 248, 254(2) and 133(1); ;Bengal Public Demands Recovery (Validation of Certificates and Notices) Act, 1961; ;Indian Council Act, 1892 - Section 5
AppellantN.C. Mookerjee and Co.
RespondentUnion of India (Uoi) and anr.
Appellant AdvocateArun Kumar Dutt (II) and ;Sukumar Guha Thakurta, Advs.
Respondent AdvocateB.L. Pal, Adv. for Opposite Party No. 1, ;J. Majumdar and ;S.C. Bose, Advs. for Opposite Party No. 2
Cases ReferredGuru Govinda Basu v. Sankari Prosad Ghosal
Excerpt:
- .....the validating act was an act relating to subject which was covered by entry 43 in the concurrent list (list iii) in 7th schedule of the constitution or the legislation in question was one which was not covered by any item either in the concurrent or state list and as such one which was within the exclusive power of the parliament to make under article 248 of the constitution read with entry 97 in list i of the 7th schedule of the constitution, it was further contended that the legislation being one relating to item 43 of list iii it required the previous assent of the president under the provisions of article 254 cl. (2) and no sucn assent having been obtained the legislation was invalid. the learned judges of the division bench in overruling tne contention of the petitioner observed.....
Judgment:

Bose, C.J.

1. This is an application for a certificate under Article 133(1)(c) of the Constitution of India in respect of a decision of a Division Bench of this Court dated the 26th September 1962 which affirmed the order of the Additional Member, Board of Revenue, dated the 21st April, 1960 in certain Certificate Proceedings under the Bengal public Demands Recovery Act initiated against the petitioner.

2. The petitioner is a registered partnership firm consisting of four partners. On 25th August, 1954 the petitioner firm was assessed to excess profits tax in respect of its accounting year ending 31st March, 1942. A notice of demand under Section 29 of the Indian income-tax Act read with Section 21 of the Excess Profits Tax Act, 1940 and dated the 3rd September, 1954 was addressed to the petitioner firm and the latter was directed to pay a sum of Rs. 11,192/- as excess profits tax by the 25th September, 1954. The petitioner firm did not pay according to the demand and the Income-tax Officer N. D. District II, Calcutta, on 12th March, 1956 forwarded a certificate to the Certificate Officer and Additional District Magistrate 24 Parganas, for recovery of the tax from the petitioner firm. On 29th March, 1956, a certificate for the said firm was signed and filed by the then Certificate Officer under Section 6 of the Bengal Public Demands Recovery Act, 1913 and notice under Section 7 of the Act was issued and served upon the petitioner. On 23rd May, 195S the petitioner filed objection under Section 9 and at the hearing of the Certificate Case, the Certificate Officer upheld this objection and on 20th December, 1956 a fresh notice under Sec, 7 was served upon the petitioner firm. On 27th January, 1957 the petitioner firm filed again an objection under Section 9 denying the petitioner firm's liability and challenging the validity and legality of the certificate and proceeding thereunder. The petitioner also pleaded payment of various amounts and asserted that the firm was entitled to refund of all moneys upon adjustment. The petitioner firm also filed a supplementary objection on 4th February, 1957. The Certificate Officer, however, rejected this objection. Against the said order the petitioner preferred an appeal under Section 51 of the Bengal Public Demands Recovery Act before the learned commissioner, Presidency Division. But on 18th April, 1958 the Commissioner dismissed the appeal summarily. Against tnat judgment the petitioner on 26th May, 1958 tiled an application under Section 53 of the Act before the learned Additional Member, Board of Revenue, for revision. This application was heard analogously with petitioner firm's three other applications in three other Certificate Cases initiated against the petitioner. After hearing these applications the learned Additional Member, Board of Revenue, passed orders rejecting the revision petitions on 21st April, 1960. As against those orders, the petitioner moved this Court and obtained Rules in respect of the said four Certificate cases. These Rules came up for hearing before a Division Bench of this Court consisting of Bachawat J. and Chatterjee J. who by an order dated the 26th September, 1962 discharged the said Rules. It is against this decision ot the Division Bench that the petitioner now intends to prefer an appeal to the Supreme Court.

3. Before the learned Judges the principal contention that was raised was that the certificates were not in accordance with the provisions of the Bengal Public Demanas Recovery Act, and the rules made thereunder and so were invalid and the Bengal Public Demands Recovery (Validation of Certificates and Notices) Act being West Bengal Act XI of 1961 was ultra vires the Constitution and as such was ineffective for the purpose of validating the certificates in question. It was contended that the validating Act was an Act relating to subject which was covered by Entry 43 in the Concurrent List (List III) in 7th Schedule of the Constitution or the legislation in question was one which was not covered by any item either in the Concurrent or State List and as such one which was within the exclusive power of the Parliament to make under Article 248 of the Constitution read with Entry 97 in List I of the 7th Schedule of the Constitution, it was further contended that the legislation being one relating to item 43 of List III it required the previous assent of the President under the provisions of Article 254 cl. (2) and no sucn assent having been obtained the legislation was invalid. The learned Judges of the Division Bench in overruling tne contention of the petitioner observed that the West Bengal Act XI of 19S1 was a piece of legislation dealing with certificates and notices issued under the Bengal Public Demands Recovery Act, 1913 and the Bengal Public Demands Recovery Act is plainly not a law with respect to Entry 43 in the Concurrent List inasmuch as it is not a law with respect to recovery in the State of West Bengal of claims regarding public demands arising outside that State and as an instance of law with respect to Entry 43 of List Ml the learned Judges referred to the Revenue Recovery Act, 1890 which is Central Act 1 of 1890. The Division Bench held that the Bengal Public Demands Recovery Ad, 1913 is a law with respect to the administration of justice, constitution and organisation of Revenue Courts, procedure of Revenue Courts and with respect to land reveune, including the collection of land revenue and as such was wholly covered by Entries Nos. 3 and 45 of the State List (List II of 7th Schedule), That Act was not a law with respect to any of the matters of the Union List or of the Concurrent List and consequently it could not be pronounced as invalid on the ground that the assent ot the President under Article 254(2) of the Constitution had not been obtained. In reaching this conclusion the learned Judges held incidentally that the Certificate Officer and the Member, Board of Revenue in so far as their functions extended to the adjudication of the rights of the parties were 'Revenue Courts within the meaning of Entry 3 of the State List.' The learned Judges also noticed the conflict of authorities on the point as to whether a Certificate Officer is a Court or not. The learned Judges referred to the case of Dwarkanath v. Srigobinda : AIR1929Cal130 where a Division Bench of this Court held tnat a Certificate Officer is not a Court. Reference was made by the learned Judges also to the decisions of this Court reported in : AIR1940Cal215 , Joy Durga Dassi v. Sourish Chandra Roy, and : AIR1954Cal355 , Abanindra v. A. K. Biswas which took a contrary view and held that a Certificate Officer is a Court. Reference was also made to two decisions of the supreme Court reported in : (1950)NULLLLJ921SC , Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. and (S) : 1956CriLJ326 , Virindar Kumar v. State of Punjab, In this view of the matter the learned Judges of the Division Bench ultimately came to the conclusion that the Bengal public Demands Recovery (Validation of Certificates and Notices Act XI of 1961 is a valid piece of legislation and assent of the President under Article 254(2) of the Constitution was not necessary for its validity. The learned Judges also examined the other points raised as to the irregularities and defects in the form of the certificates and noticed the conflict of authority on this point; but held that in view of the validating Act which had the effect of curing all these irregularities and defects, it was not necessary to refer such question for the decision of a larger Bench.

4. The principal point which the petitioner intends to urge before the Supreme Court is as to the validity of West Bengal Act XI of 1961 (Bengal Public Demands Recovery (Validation of Certificates and Notices)) Act. It is urged that the validating Act is a legislation with respect to Entry 43 in List III and as such it requires the assent of the President as contemplated in Article 254(2) of the Constitution. The legislation cannot be regarded as one coming within Entry 3 or Entry 45 in List II. The alternative argument on this question of legislative competency is that it is a law which Parliament alone was competent to make under Article 248 of the Constitution reaa with Entry 97 of List I. The learned Judges of the Division Bench have given their reasons for upholding the validity of the Act in some detail and looking at those reasons it is difficult for us to find fault with the reasonings, we are, however, not oblivious of the observation of the Judi-cial Committee which is so often repeated that even it a decision is found to be obviously right, a certificate can be granted if questions of faw involved are substantial questions of law or the case is one of considerable private importance; Raghimath Prasad Singh v. Deputy Commr. ot Partabgarh . In the present case the decision of the Division Bench covers four certificate cases the validity of which is challenged by four applications in which Rules were obtained and all these four Rules were disposed of by the same judgment. The total amount claimed by the income-tax Department on account of excess profits tax in these four rules conies to over two lakhs of rupees which is no doubt a considerable sum so far as a private business firm is concerned. The question as to the interpretation of the different entries of the Constitution which is involved in this case and the question of the legislative practice prevailing in obtaining the previous sanction or the Governor-General under Section 5 of the Indian Councils Act, 1892 (and?) in obtaining the assent of the President under Article 254(2) of the Constitution to the passing or the amending West Bengal Acts 15 of 1955 and 15 of 1957 which the learned Judges of the Division Bench considered and explained as assent being taken in such cases by way of abundant caution, cannot, in our view, be brushed aside as not being substantial questions of law. The very wide definition of the expression 'public demand' as given in Section 3 Clause (6) of the Act read with Schedule 1 and particularly Items 3 and 4 thereof may provide scope for a plausible argument that the legislation also covers realisation or recovery in the State of West Bengal of claims in respect of taxes and other public demands including arrears of land revenue and sum recoverable as such arrears arising outside the State.

5. In view of all these, we think that this is a fit case in which we can grant a certificate under Article 133(1)(c) of the Constitution.

6. But before we can grant this certiticate we shall have to consider certain preliminary objections which have been raised as to the maintainability of this application. The first objection which was raised by the learned Advocate for the responednt is that Article 133(1)(c) of the Constitution is not attracted in this case inasmuch as in order that such provision may be applicable it has to be established that there was a Court of first instance which dealt with the matter and thereafter it came up before the High Court and was disposed of by a decision of this Court. It is argued that the whole scheme of Article 133(1)(c) of the Constitution is that there has to be a Court of first instance as a condition precedent to invok-ing the operation of the provisions of Article 133(1) of the Constitution and before an appeal can lie to the Supreme Court from any judgment, decree or final order of a High Court. Stress is laid on the expression 'in the court of first instance' as occurring in Clause (a) of Article 133(1) of the Constitution and the expression 'of the Court immediately below' in the paragraph appearing after Clause (c) of Article 133(1) of the Constitution. It will be convenient, therefore, to refer to this paragraph which finds place after Clause (c) of Article 133(1) of the Constitution and which is as follows:--

'And where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in Clause (c), if the High Court further certifies that the appeal involves some substantial questions of law.'

It is sufficient to point out that the whole object of incorporating this clause in Article 133(1) is to provide that it is only in cases where the decision of the court immediately below is affirmed by any judgment, decree or final order of a High Court in a civil proceeding, that it is necessary for the High Court to further certify in addi-tion to the certificate as to valuation test that the appeal involves some substantial questions of law. This paragraph further makes it abundantly clear that it has no application to a case coming under Clause (c) of Article 133(1). The words 'in any case other than a case referred to in Sub-clause (c)' make that clear. It is to be noted that in a case which went up before the Supreme Court and which is reported in (S) : [1955]2SCR457 , Tirath Singh v. Bachittar Singh the certificate under Article 133(1)(c) of the Constitution was granted by the High Court in respect of its judgment in relation to a proceeding which came up before the High Court from an Election Tribunal in exercise of its jurisdiction under Article 227 of the Constitution, but no objection appears to have been raised that as there was no Court of first instance such an application under An. 133 (1) of the Constitution was not maintainable, in the case before us it has been held by the Division Bench that the Board of Revenue is a Revenue Court and we do not think that for the purpose of attracting the provisions or Article 133(1)(c) it is a condition precedent to the applicability of that clause that there has to be a Court of first instance in the sense of a regular Court before the provisions contained in Article 133(1)(c) can be availed of or invoked.

7. The other objection which was raised rather family is that the proceeding before the High Court is not a civil proceeding inasmuch as the validity of the assessment in relation to excess profits tax was challenged before the learned Judges of the Division Bench though unsuccessfully, and so the proceeding was a revenue proceeding and consequently Article 133(1) of the Constitution is not attracted. But it is to be pointed out that this is only one of the points which was raised before the High Court. There were various other points raised before the High Court by invoking the jurisdiction of the High Court under Article 227 of the Constitution and merely because one of the points related to the question of the validity of the assessment, does not in our view make the entire proceeding a revenue proceeding. We have no doubt that the proceeding in question was a civil proceeding. As to what proceeding is to be reagrded as a civil proceeding, has been recently considered by this Division Bench in some detail and with reference to certain Division Bench cases of different High Courts in the case of Guru Govinda Basu v. Sankari Prosad Ghosal in Supreme Court Appeal No. 83 of 1962--Judgment D/- 3-14963 : : AIR1963Cal364 . It has also been pointed out that Courts which decide disputed rights between subjects or between a subject and the State are civil Courts. It is true a certificate officer or the Board of Revenue adjudicates upon disputes relating to revenue or public demands, but such dispute is nevertheless a civil dispute which arises in proceedings for enforcement or civil rights. Judicial dictionary defines a civil proceeding as a process for the recovery of individual right or redress of individual wrong. Before a Certificate Officer or Board of Revenue the person who is sought to be made liable upon the certificate, in other words, the Certificate debtor, raises questions disputing his liability or relating to his liability to pay the amount due on the certificate and these authorities have to adjudicate upon such questions and when the decision of the Certificate Officer or the Board of Revenue is challenged in a proceeding under Article 227 such proceeding must be regarded as a proceeding Involving a dispute with regard to civil rights of the parties and consequently the proceeding before the High Court is a civil proceeding within the meaning of Article 133 of the Constitution, and the petitioner has, therefore, a right of appeal to the Supreme Court from the order or the High Court discharging the Rule in the present case.

8. Objection was also raised on behalf of the respondents on the ground that the Certificate Officer has not been made a party to the application. The learned Advocate for the petitioner felt the weight of this objection and made an application for adding the Certificate Officer as a party and upon that an order was made by this Court adding the Certificate Officer as party respondent.

9. In my view for the reasons given above the application should succeed. Let a certificate under Article 133(1)(c) be drawn up and issued. Costs of the application will be costs in the Supreme Court Appeal. Hearing fee is assessed at five gold mohurs.

Mitter, J.

10. I agree.


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