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Standard Vacuum Oil Co. Vs. the Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 58 of 1956
Judge
Reported inAIR1957Cal528,61CWN600
ActsConstitution of India - Article 132 and 132(1); ;Government of India Act - Section 205(1) and 205(2); ;Code of Civil Procedure (CPC) , 1908 - Order 12, Rule 1 - Order 45, Rules 7 and 8
AppellantStandard Vacuum Oil Co.
RespondentThe Commercial Tax Officer and ors.
Appellant AdvocateE.R. Meyer, Adv.
Respondent AdvocateMukherjee, Adv.
Cases ReferredErrol Mackay v. Oswald Forbes
Excerpt:
- .....certificate from the court, taking supreme court matters, for the purpose of including in his appeal grounds not covered by article 132. for taking such grounds he will have to obtain the leave of the supreme court.7. the second question which arises is whether after the trial judge has granted a certificate, it is at all necessary for the party intending to appeal to the supreme court on the strength of that certificate to make a further application to the court taking supreme court matters. in my opinion, it is necessary.8. before the federal court (enlargement of jurisdiction) act, 1947, was passed, appeals to the federal court lay only on the ground mentioned in section 205(1) of the government of india act, 19s5. then, as now such a certificate could be granted by the trial.....
Judgment:

Chakravartti, C.J.

1. The petitioner, the Standard Vacuum Oil Company, wants to appeal to the Supreme Court from an order passed by Sinha, J., whereby he discharged a Rule nisi issued by himself at the instance of the petitioner upon an application made under Article 226 of the Constitution. The prayer in the petition is that 'if necessary', a certificate be granted in terms which appear to be the terms contemplated by both Article 132 and Article 133.

2. It appears that a certificate under Article 132 has already been granted by the learned trial Judge himself by an observation made by him at the end of his Judgment. He has certified that the case involves a substantial question of law as to the interpretation of the Constitution. No particular form is required for a certificate under Article 132. It is also well settled that on questions covered by Article 132, an appeal lies directly to the Supreme Court from the decision of even one learned Judge sitting singly, if he gives the necessary certificate. The prayer in the present petition for a certificate that the proposed appeal involves a substantial question of law as to the interpretation of the Constitution appears to be misconceived and a surplus age.

3. There is, however, a prayer for a certificate which would seem to be a certificate of the kind contemplated by Article 133. The grounds which are intended to be taken in the proposed appeal are set out in para. 16 of the petition and at least one of them, namely, ground (d), does not seem to have any concern with the interpretation of the Constitution. The proposed, appeal, therefore, is intended to cover grounds contemplated by Article 132 and also other grounds which are outside the ambit of that Article. It need hardly be said that the latter grounds would not be covered by the certificate granted by the learned trial Judge under Article 132 and, therefore, the first question which arises is whether a further certificate from this Court is required in order to enable the petitioner to take before the Supreme Court grounds oilier than those covered by Article 132.

4. It appears to me that no such further certificate is required. Clause (3) of Article 132 provides as follows;--

'Where such a certificate is given'' -- that isto say, a certificate under Article 132(1) -- 'or suchleave is 'granted'' -- that is to say, special leave bythe Supreme Court under Article 132(2) -- 'anyparty in the case may appeal to the Supreme Courton the ground that any such question as aforesaidhas been wrongly decided and, with the leave of theSupreme Court, on any other ground.''

It would appear from the terms of Clause (3) of Article 132 that if any appellant to the Supreme Court who has obtained from the High Court a certificate under Clause (1) wishes to urge other grounds in his appeal, he can do so if the Supreme Court gives him the necessary leave and only if such leave is given. There would seem to be no scope for the High Court granting a further certificate under Article 133 for the purpose of authorising the further grounds to be taken in the appeal. .

5. In that regard, the corresponding provision in Section 205(2) of the Government of India Act, 1935, was noticeably different. That Sub-section provided as follows:--

'Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate had been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave.'

It is clear that the provision, above quoted, contemplates an appeal (i) on grounds concerning the interpretation of the Constitution Act under a certificate granted under Section 205(1)(ii) on further grounds on which an appeal could be preferred to the Privy Council with the leave of the High Court and (iii) on still further grounds for taking which the Federal Court might grant leave. The intermediate class of grounds, namely, those on which a party could have appealed without special leave to His Majesty in Council, if no certificate under Section 205(1) had been given, have now disappeared and do not find place in Clause (3) of Article 132. That clause knows only of two broad divisions, namely, grounds authorised by the certificate granted under cl. (1) and such other grounds as the Supreme Court may permit the appellant to take.

6. In view of the difference in language between Section 205(2) of the Government of India Act, 1935, and Article 132(3) of the Constitution, I am of opinion that after an intending appellant has obtained a certificate under Article 132(1) from the trial Judge, it is not necessary for him to obtain a further certificate from the Court, taking Supreme Court matters, for the purpose of including in his appeal grounds not covered by Article 132. For taking such grounds he will have to obtain the leave of the Supreme Court.

7. The second question which arises is whether after the trial Judge has granted a certificate, it is at all necessary for the party intending to appeal to the Supreme Court on the strength of that certificate to make a further application to the Court taking Supreme Court matters. In my opinion, it is necessary.

8. Before the Federal Court (Enlargement of Jurisdiction) Act, 1947, was passed, appeals to the Federal Court lay only on the ground mentioned in Section 205(1) of the Government of India Act, 19S5. Then, as now such a certificate could be granted by the trial Judge. Indeed, it was observed by the Privy Council in Errol Mackay v. Oswald Forbes , that it was the duty of every Judge to grant or withhold a certificate as a part of his Judgment. It is true that Section 205(1) directed in specific terms that it would be the duty of every High Court in British India to consider in every case whether or not any question as to the interpretation of the Act or any Order in Council was involved and of its own motion to give or to withhold a certificate accordingly. It is also true that there is no such direction in Article 132(1), but if an appeal lies to the Supreme Court from the decision of a Judge sitting singly and sitting as a trial Judge, it necessarily follows that the certificate under Article 132(1) may be granted by him. Indeed, the Rules of this Court as they stand now, require the certificate to be applied for to, and granted by, the trial Judge. The position under Section 205(1) of the Government of India Act, 1935, after a certificate had been granted, was precisely the same as the position arising now after a certificate under Article 132(1) is granted under the Constitution. The position was originally provided for by Rr. 3 and 4 of Ch. XXXIII of the Rules of the Original Side. It said that where a certificate had been given under Section 205(1) of the Government of India Act, 1935, and the only ground of appeal was that a question of law as to the Interpretation of the Government of India Act, 1935, or any Order in Council made thereunder had been wrongly decided an application for leave to appeal to the Federal Court would have to be made to the Appellate Court by ex parte petition verified by an affidavit.

We may leave aside that part of the Rule which speaks of the ground of appeal being limited to questions of law as to the interpretation of the Government of India Act, 1935. The provision which is relevant is that after a certificate had been granted by the trial Judge, a further petition had still to be made to the Appellate Court, taking Federal Court matters and leave to appeal to the Federal Court had to be applied for. Rule 4 of the same Chapter dealt with the case where further grounds were sought to' be taken and a substantive application by notice of motion for a further certificate in respect of those grounds was provided for. Since, however, no such further certificate appears to be necessary in view of the provisions of Article 132(3), we may leave Rule 4 out of account.

9. In 1942, the Federal Court came to frame certain Rules relating to appeals preferred to that Court. Rule 2 of Order XI of Part A provided that where a certificate had been given under Section 205(1) of the Government of India Act, any party who desired to appeal would have to file a petition of appeal in the Federal Court. Under Rule 3 such petition had to be presented, subject to Sections 4, 5 and 12 of the Indian Limitation Act, within ninety days from the date of the decree or order appealed from. It is thus clear that the petition of appeal filed directly in the Federal Court was treated as the appeal Jo that Court and limitation was computed by reference to the date of that petition.

10. In view of the provision made by the Federal Court itself that upon a certificate being granted under Section 205(1), the petition of appeal was to be lodged directly in the Federal Court, this Court repealed Rules 2 to 26 of Ch. XXXIII and substituted other Rules. When, with the passing of the Federal Court (Enlargement of Jurisdiction) Act, 1947, the Federal Court came to acquire the Jurisdiction of the Privy Council, certain other Rules were framed, both by the Federal Court and this Court, but they were limited to appeals on grounds other than those covered by Section 205(1).

11. The Rules of the Supreme Court do not make any distinction between appeals under Article 132 and Article 133. Rule 1 of Order XII of Part II of the Supreme Court Rules, 1950, on the other hand', provides that subject to any special directions which the Court may give in any particular case, the provisions of Order XLV of the Code and of any rules made for the purpose by the High Court or other authority concerned, so far as may be applicable, shall apply in relation to appeals preferred under Articles 132(1), 133(1) and 135 of the Constitution. There is thus no provision for lodging a petition of appeal directly in the Supreme Court within the period of limitation after a certificate under Article 132(1) is granted. The whole procedure prior to the admission of the appeal lies in this Court.

12. If the whole procedure lies in this Court, it appears to me that the mere grant of a certificate under Article 132(1) by the trial Judge does not bring an appeal into existence. A certificate under Article 132(1) is merely an expression of opinion as to the nature of the questions involved in the case and of its fitness for an appeal to the Supreme Court, but it is perfectly clear that a party who obtains a certificate is not bound to prefer the appeal authorised by it. Indeed, until he has done something else, there is no appeal at all. It cannot possibly be that once a certificate has been granted in the form of an expression of opinion in the Judgment, a party, desiring to appeal to the Supreme Court on the strength of such certificate, can do so at any time, irrespective of the law of limitation. Nor can it be known, unless a further petition is filed, who the respondents in the appeal are going to be and whether the appeal is properly constituted. For these reasons, it appears to me that a certificate under Article 132(1), while it authorises an appeal, does not by itself bring an appeal into existence. It may also be pointed out that a certificate under Article 132(1), embodied in the Judgment, is a mere declaration as to the nature of the case and is not granted to any particular party. On the strength of that certificate, any of the parties aggrieved by the Judgment can prefer an appeal. Unless, therefore, there is a further petition by 'a party actually desiring to appeal, if cannot be known that anybody is going to appeal at all or who the appellant is or that the appeal is in time and in form. In order that there may be an appeal, a further petition is thus necessary,

13. That such a petition is necessary will appear not only from the considerations to which I have already referred, but also from the provisions of Order 45, Rule 8 of the Code of Civil Procedure. Rule 1 of Order XII of Part II of the Supreme Court Rules, which I have already read, makes the provisions of Order 45 applicable to appeals under Article 132(1). Rule 8 of Order 45 provides that when the necessary security has been furnished and the amount required to defray the expense of preparing and transmitting the record has been deposited, the Court shall declare that the appeal admitted. It is perfectly clear that the Court cannot declare the certificate to be admitted, In order that an effective order under Order 45, Rule 8, can be made after the security and costs have been deposited, it is necessary that there should be an appeal on the record to which the order under Rule 8 shall apply. Any other view will make the system wholly unworkable.

14. I would, therefore, hold that where a certificate under Article 132(1) of the Constitution has' been granted by a learned Judge, sitting singly, there should be a further application to the Court, taking Supreme Court matters which will be in the form of a petition of appeal and which will set out the fact of a certificate having already been granted. That petition must be made within the period of limitation prescribed for appeals to the Supreme Court and must implead the necessary parties. Just as in cases under Article 133, it has to be established that the proposed appeal satisfies the valuation test or that it involves substantial questions of law or that it is otherwise a fit case for appeal, so must the second petition made in a case under Article 132 make out to the Court, taking Supreme Court matters, that a certificate which entitles the intending appellant to appeal to the Supreme Court has been granted. The prayer in such petition should be for an order that a formal certificate be drawn up and be issued. I do not think that the petition should be an exparte petition, because questions of limitation and of the proper constitution of the proposed appeal will be relevant questions and it is obviously necessary and proper that the respondents should be before the Court when the final order directing the issue of the certificate is made.

15. From what I have stated, it will be clear that before the order is made on the petition, made to the Court taking Supreme Court matters, that a formal certificate be issued, there can be no question of demanding or depositing the amount of security or the amount of costs for the preparation and transmission of the paper book. Order 45, Rule 7, which says that 'where the certificate is granted, the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, furnish security in cash' etc., will have to be applied by reference to the date of the order made for the issue of a formal certificate as tho date of the grant of the certificate and not the date on which the certificate was recorded by the trial Judge in his Judgment.

16. We understand that owing to a misconception on the part of all parties, the amount of security and a sum of Rs. 440 by way of costs have already been deposited. Mr. Meyer prayed that we should not only make a formal order on the present petition, but should also direct the appeal to be admitted, inasmuch as the provisions of Order 45, Rule 8, had already been complied with. Although the moneys may have been deposited, to make the order prayed for by Mr. Meyer would be to put the cart before the horse. There can be no question of making any deposit of security or depositing any costs before an appeal has come into existence. At the stage when the moneys were paid and received, there was only a certificate, but yet no appeal. A petition of appeal came into existence when the present petition was filed and an appeal will come info existence only after we make the order that we are going to make.

17. The present petition has been made within the period of limitation. The necessary parties have been impleaded. The fact of a certificate having been granted by Sinha, J., has been set out. Accordingly, the order we make is that a formal certificate under Article 132(1) be drawn up and issued to the intending appellant.

18. There is also a prayer for a stay of all further proceedings and levy o realisation of tax in respect of sales of aviation spirit to be made by the petitioner to foreign-bound aircraft. In compliance with an order made by us when the application came up as a new Motion, the petitioner has already submitted the necessary returns to respondent. No. 1 for the period up to the date of the petition and also placed in deposit with its own solicitors, Messrs. Fowler & Co., a sum of Rs. 2,00,000 as the amount of tax payable on these returns. The respondents do not insist that for the period during which the appeal to the Supreme Court may remain pending, the petitioner should be required to make further payments. They only pray that the petitioner shall go on submitting monthly returns, as required by the Bengal Motor Spirit Sales Taxation Act, 1941, as amended up to date.

19. We accordingly direct that Messrs. Fowler & Co., shall hold the sum of Rs. 2,00,000 (two lacs of rupees), already deposited with them, free of lien and until further orders and that of long as the appeal to the Supreme Court may remain pending, the petitioner shall submit to respondent No. 1 returns of its sales of aviation spirit to foreign-bound aircraft month by month, as required by the Bengal Motor Spirit Sales Taxation Act, 1941, as amended up to date.

20. The respondents have agreed before us by their lenrned counsel, Mr. Mukherjee, that they will have no objection to accepting the returns without payment of the tax payable thereon.

21. Costs of this application shall be costs in the Supreme Court appeal,

Das Gupta, J.

22. I agree.


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