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Manmull JaIn Vs. N.C. Putatunda - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1460 of 1952
Judge
Reported inAIR1953Cal363,57CWN255
ActsConstitution of India - Article 226; ;Chandernagore (Application of Laws) Order, 1950
AppellantManmull Jain
RespondentN.C. Putatunda
Appellant AdvocateG.P. Kar and ;Surathi Mohan Sanyal, Advs.
Respondent AdvocateHemendra Qumar Das and ;Smriti Kumar Roy Chowdhury, Advs.
Cases ReferredSankar Mawli Dutt v. The State
Excerpt:
- .....the jurisdiction of the high court under article 226, to chandernagore, by any law, nor has the indian constitution been made applicable to chandernagore, this high court has no jurisdiction over that area to issue any writ or direction to any person or authority in chandernagore, does not appear to me to be without substance. it is true that under article 372 of the constitution all the laws in force in the territory of india at the time of the commencement of the constitution including the extra provincial jurisdiction act 1947 (47 of 1947) continued in force after the commencement, of the constitution and under the said act 47 of 1947 the central government had the power to determine which court should exercise the auxiliary or incidental jurisdiction consequential on the.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226 of the Constitution for an appropriate writ directing the respondent to forbear from giving effect to a notice of demand dated 8-5-1952 and a summons dated 13-5-1952 issued by the respondent calling upon the petitioner to pay a certain sum by way of petrol duty, and also to forbear from giving effect to a resolution dated 19-12-1951 and an order dated 4-4-1952 under which the said petrol duty has been purported to have been imposed upon the petitioner.

2. The case of the petitioner is that he carries on a business amongst other places in the city of Chandernagore as Agent of Burmah-Shell Oil Storage & Distributing Co. of India Ltd. under the name and style of Hind Trading Co. and as such runs a Petrol Pump at Burra Bazar, Grand Trunk Road in the City of Chandernagore. The said Petrol Pump yields a daily average cash sale of about Rs. 500/-. By a decree of the President of the Council of Ministers of the Republic of Prance, Chandernagore was declared a free city. In July 1949 there was a referendum in Chandernagore relating to the question of transfer of the City of Chandernagore to the Indian Union. By a provisional Franco-Indian treaty signed in Paris in the beginning of 1950 (and subsequently ratified) the territory of the City of Chandernagore was ceded to India subject to ratification by the Republic of France. In May 1950 the said city of Chandernagore was de facto transferred to the Indian Union by the President of the Council of Ministers, France, pending ratification of the said Treaty.

By a notification dated 1-5-1950, the Government of the Indian Union in exercise of the powers conferred by Section 4, Extra Provincial Jurisdiction Act 1947 (47 of 1947) promulgated an Order called the Chandernagore (Application of Laws) Order 1950 and it was made operative from 2-5-1950. The said Order provided that certain enactments of the Indian Legislature which are mentioned in a schedule appended to the said Order would come into force in Chandernagore and the corresponding French Laws would cease to be operative in the said city. On or about 1-5-1950 the Government of India also appointed an Administrator and certain other officers to carry on the administration of the said city. The respondent was appointed Treasury Officer of Chandernagore with effect from 2-5-1950 and subsequently he was appointed Precepteur of the said City.

The case of the petitioner further is that the effect of the Chandernagore (Application of Laws) Order 1950 was that except matters which were governed by the various enactments specified in the Schedule of the said Order, all other matters were governed by French Laws which were in force prior to the commencement of the said Order and which remained in force even after promulgation of the said Order. The imposition of petrol duty was outside the purview of the Application of Laws Order 1950 and was a matter governed by French Laws. The respondent being an officer appointed by the Government of India had no power to administer French Laws and as such the order of imposition of the petrol duty and the notice of demand and summons issued by the respondent were all illegal and without jurisdiction, and therefore, unenforceable against the petitioner.

3. It is also the case of the petitioner that the resolution passed by the Municipal Assembly of Chandernagore on 19-12-1951 and the order dated 4-4-1952 which made the said resolution operative, are invalid and have no force and effect, inasmuch as the prescribed procedure for making the said resolution a valid and effective piece of legislation was not followed in respect of the said resolution dated 19-12-1951, and consequently the levy of petrol duty and the steps taken for enforcing payment of such duty were entirely without jurisdiction.

4. On the question whether the respondent has power to administer French Laws and to levy the petrol duty in question reliance has been placed by Mr. Kar the learned counsel for the petitioner on the case of -- 'Sankar Mawli Dutt v. The State', 56 Cal. W. N. 500 (S. B.)

5. In support of the contention that the resolution dated 19-12-1951 of the Municipal Assembly of Chandernagore is an invalid and ineffective piece of legislation, it is pointed out that by a decree of 7-11-1947 the Municipal Assembly of Chandernagore was given power to regulate by its deliberations all affairs regarding financial and administrative management of the City of Chandernagore on terms and conditions contained in the said Decree. By another Decree of 18-10 1948, the said Decree of 7-11-1947 was modified and Article 28 was abrogated. Further by Article 2 of the said Decree of 1943 it was provided that a resolution taken on the mode of collection and rules of levy of taxes, duties and contributions would take effect only after their approval by a Decree of the Council of State (Consul D'Etat) and as such Decrees must be taken within a period of 90 days from the date on which the resolution reaches the office of the French Overseas Ministry, which date is notified immediately to the President of the Municipal Assembly, and if the resolution is not annulled then it is considered as approved after the expiry of the said period of 90 days and it becomes final and operative as a valid piece of legislation.

In the present case, however, the resolution of 19-12-1951 was not sent to the President of the Municipal Assembly nor was it approved by Consul D'Etat but it was sent to the Government of India as it was not cancelled by the Government of India it was deemed to have been automatically approved on the expiry of the prescribed time limits and it was considered to have become a valid law. It is submitted that according to the decree of 1948 (Article 2) it is Consul D'Etat which had the power to annul or approve the resolution of 19-12-1951 and consequently the Government of India's approval did not have the effect of giving the resolution any legislative force.

6. Mr. Hemendra Kumar Das, the learned Government Advocate, has contended that the jurisdiction conferred on the High Court under Article 226 of the Constitution does not extend to Chanderanagore and consequently this Court has no power in exercise of such jurisdiction to interfere with the notice of demand or the summons in respect of which relief is sought in this application. Mr. Das has referred to Article 1(2) and Article 3(b) of the Constitution and has argued that as the Parliament of India has not by any law brought the city of Chandernagore within the State of West Bengal, this High Court has no jurisdiction under Article 223, over that territory. Reference has also been made by Mr. Das to Article 230 and it is pointed out that it is only the Indian Parliament which can by law extend the jurisdiction of the High Court to any area not within any of the State of the Indian Union and as the Chandernagore (Application of Laws) Order 1950 is not a law made by Parliament, this High Court cannot exercise jurisdiction under Article 226 in respect of the territory of Chandernagore. It is to be noted that there is no question of increasing the area of any State in the present case. There has seen no declaration made that Chandernagore is a part of the State of West Bengal. In the circumstances, Articles 1(2) and 3(b) have no application to the facts and circumstances of this case.

7. The contention of Mr. Das that as the Indian Parliament has not extended the jurisdiction of the High Court under Article 226, to Chandernagore, by any law, nor has the Indian Constitution been made applicable to Chandernagore, this High Court has no jurisdiction over that area to issue any writ or direction to any person or authority in Chandernagore, does not appear to me to be without substance. It is true that under Article 372 of the Constitution all the laws in force in the territory of India at the time of the commencement of the Constitution including the Extra Provincial Jurisdiction Act 1947 (47 of 1947) continued in force after the commencement, of the Constitution and under the said Act 47 of 1947 the Central Government had the power to determine which Court should exercise the auxiliary or incidental jurisdiction consequential on the jurisdiction exercised under the Extra Provincial Jurisdiction Act (Section 4 (2) (c) of Act 47 of 1947).

Article 260 of the Constitution also recognises this power of the Government of India to exercise Extra Provincial Jurisdiction in respect of an area outside the territory of India. But what the Chandernagore (Application of Laws) Order 1950 has purported to do is that it has determined, that, for the purpose of administering the laws, which are specified in the Schedule to the Order, it is the High Court at Calcutta which will have the jurisdiction to administer such laws, and adjudicate upon questions arising in the application and enforcement of such laws. In the case --'Sankar Mawli Dutt v. The State', 56 Cal. W N 500 this Court assumed jurisdiction under Section 439, Criminal P. C. which has expressly been made applicable to Chandernagore by the Order of 1950. Under the Order of 1950 the High Court has been given only a limited jurisdiction. The jurisdiction under Article 226 which is a very special jurisdiction, does not seem to have been extended to Chandernagore. Further, it appears that the President of India has assumed control and administration in respect of the territory of Chandernagore and in exercise of his power under Article 243(2) of the Constitution the President has promulgated the Chandernagore (Administration) Regulation 1952 (1 of 1952) which makes provision for the administration of Chandernagore and for matters connected therewith. It appears to me that this High Court has no jurisdiction to interfere with the notice of demand or the summons issued by the respondent, in exercise of the power conferred under Article 226 of the Constitution of India.

8. In view of my decision on this question of jurisdiction it is not necessary to determine the other questions which have been raised by Mr. Kar on behalf of the petitioner.

9. In the result this petition fails. The Rule is discharged with costs. Hearing fee is assessed at five gold mohurs.

10. It is stated before me by the learned Advocate of the petitioner that an appeal will be taken against this judgment and it is prayed that the operation of this order be stayed till 5-1-1953 to enable the petitioner to file the appeal.

11. This prayer is allowed. Let the operationof this order be stayed till 5-1-1953, as prayed for.


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