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Sm. Suprova Sundari Devi Vs. Commissioner of Income-tax, West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2549 of 1954
Judge
Reported inAIR1958Cal641,62CWN426
ActsConstitution of India - Article 226
AppellantSm. Suprova Sundari Devi
RespondentCommissioner of Income-tax, West Bengal and ors.
Appellant AdvocateAnil Kumar Sinha, Adv.
Respondent AdvocateNirmal Chandra Chakraborty, Adv.
Cases ReferredDwarka Das v. Pyare Lal
Excerpt:
- .....but when it came to the consideration of the petitioner's claim petition, it appear^ that mr. d.k. ghose's jurisdiction was liable to be challenged. the petitioner made an application before that officer, never took the point of jurisdiction, and nowhere states before me that she was unaware of the defects as to jurisdiction. she took the chance of success but failed. she did not take any of the legal remedies open to her under the p. d. r. act or the rules, but came up straight here. assuming that it is a valid argument that a litigant can come up here where there is an initial lack of jurisdiction without exhausting the alternative legal remedies. even so, it does not get rid of the other principle, namely that where there is a lack of jurisdiction, initial or otherwise, the objection.....
Judgment:
ORDER

Sinha, J.

1. The facts in this case arc shortly as follows. There was a certificate proceeding, being Certificate Case No. 555 (Income-tax) of 1951-52 against one Tarak Nath Bagchi for arrears of income-tax amounting to Rs. 24,949-9-0. Notice under Section 7 of the Public Demands Recovery Act was served on the certificate debtor on 22-4-1952. He thereafter filed an objection under section 9 of the said Act, denying liability. That objection was dismissed sometime on 17-11-1952. A distress warrant was issued, and on 12-3-1953 in execution of the distress warrant, the furniture at premises No. 38/1, Masjid Rari Street was attached. This is the residential dwelling house and was the address given by TarakNath Bagchi in his return. It is stated that in his return, he treated this property as his own. Be that as it may, on 14-3-1953 the petitioner Sm. Suprava Sundari Devi, wife of Tarak Nath Bagchi, preferred an objection. This was an objection in accordance with Rule 39, Schedule II of the Bengal Public Demands Recovery Act, that is to say, a claim by a third party. After the writ had been issued and the properties attached in November 1953, one Mr. D. K. Ghosh, the 5th respondent in this case, came to assume office as a Certificate Officer. On 18-11-1953 he issued a notice that this claim preferred by the petitioner will be investigated on 22-12-1953. On that date nobody turned up on behalf of the petitioner and the claim was dismissed ex parte. As against this order the petitioner could either go by way of an appeal or revision under the Act or file a suit under Rule 43 in Schedule II of the Bengal Public Demands Recovery Act. She did neither. On 27-7-1954 an application was made and a Rule was issued at her instance calling upon the opposite parties to show cause why a writ in the nature of certiorari should not issue and why the attachment and publication of sale proclamation and/or sale of the petitioner's properties should not be quashed and for other reliefs.

2. Mr. Sinha on behalf of the petitioner argues that Mr. D. K. Ghosh has now been held to have had no jurisdiction as a Certificate Officer between the dates 9-10-1953 and 13-2-1954 in Ladhuram Taparia v. D.K. Ghose, : AIR1957Cal667 . He says that as the Certificate Officer had no jurisdiction he could not deal with the claim case and his order dismissing the claim case is without jurisdiction and void and that the further proceedings must be stayed and/or set aside.

3. The objection taken is as follows. There can be no doubt now that so far as Mr. D.K. Ghose is concerned, he was not validly acting as a Certificate Officer within a certain specified period. The petitioner, however, herself made an application for investigation of her claim before Mr. D.K. Ghose and never took the objection that he had no jurisdiction. The said Mr. Ghose dealt with the application and in this particular case dismissed it, but he might equally have granted the petitioner's claim. The petitioner took a chance of succeeding, and further tool the risk of not appealing or filing any suit or taking any steps under the Act or under the Rules framed thereunder, to set aside or challenge the decision of the Certificate Officer, that is to say, Mr. T.K. Chose who was purporting to act as such. The question is whether in an application tinder Article 226, his client can be heard to say that Mr. D.K. Ghose had no jurisdiction. The principle that is now firmly established is that points of jurisdiction must be taken in the Tribunals below, and at the earliest possible moment. A person who wishes to raise a point of jurisdiction and has not taken it in the court 'below has to satisfy this Court that he was unaware of the defect in the jurisdiction and that is why it was not taken. That has nowhere been stated. Subject to this exception, the general rule applies that a point of jurisdiction, whether initial or otherwise, must be taken before the lower Tribunal and at the first instance. Otherwise, no relief can be granted in a Writ Court. The principle has been clarified in a decision of the Bombay High Court in Gandhinagar Motor Transport Society v. State of Bombay : AIR1954Bom202 . The learned Chief Justice has explained there how we are not concerned in such a case with the question as to whether the petitioner has a right to question the jurisdiction in a Court of Law. All that we are concerned with is whether a Court of Equity, in this instance a Writ Court, will grant relief. 'In Rex v. Williams, Philips Ex parte, (1914) 1 KB 608 (C), Channell, J. points out :

'A party may by his conduct preclude himself from claiming the writ 'ex dcbito justified', no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted 'ex debito justitiae' to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them.

Therefore, this is a clear answer to the argument advanced by Mr. Gamadia that the fact that the petitioners did not challenge the jurisdiction of the Government did not by consent or waiver confer jurisdiction upon the Government. As we have already pointed out, the question is not that if the Government's decision was without jurisdiction it became a competent decision merely because the petitioners did not object to the jurisdiction. But the question is whether the petitioners not having challenged the jurisdiction of the Government, this Court will give them relief by exercising its very special and discretionary jurisdiction'.'

The position, therefore, is shortly as follows: The certificate proceedings against Tarak Nath Bagchi were quite in order, but when it came to the consideration of the petitioner's claim petition, it appear^ that Mr. D.K. Ghose's jurisdiction was liable to be challenged. The petitioner made an application before that officer, never took the point of jurisdiction, and nowhere states before me that she was unaware of the defects as to jurisdiction. She took the chance of success but failed. She did not take any of the legal remedies open to her under the P. D. R. Act or the rules, but came up straight here. Assuming that it is a valid argument that a litigant can come up here where there is an initial lack of jurisdiction without exhausting the alternative legal remedies. even so, it does not get rid of the other principle, namely that where there is a lack of jurisdiction, initial or otherwise, the objection has to be taken before the lowers court, or the person making the impugned order, before the litigant may be allowed to come up here. Admittedly, no such objection was taken. I am, therefore, unable to entertain it here. Even here, in the petition, although it is said that the Certificate Officer acted illegally and without jurisdiction in attaching the properties, sufficient facts have not been given as to why it is illegal. The particulars necessary to establish that Mr. D.K. Ghose at the proper time was not properly vested with jurisdiction have not been given anywhere. Mr. Sinha on behalf of the petitioner then argues that an analogy may be drawn from a proceeding under section 115 of the Code of Civil Procedure where it has been held that in spite of the fact that no objection has been taken as to jurisdiction, an initial lack of jurisdiction cannot be tolerated. He cites the case of Dwarka Das v. Pyare Lal, AIR 1930 All 873 (D). In my opinion, there is no analogy. This principle may be applicable in a court of law and in the consideration of the procedure laid down by a statute. But, this is a case of an application for a high prerogative writ in a court of equity. In my opinion, the petitioner not having taken the point of jurisdiction in the court below, and not having exhausted her legal remedies, she is precluded from getting relief in this Court, and this application ought to be dismissed.

4. Mr. Sinha has taken another point, namely, that the notice issued under section 7 of the P. D. P. Act had been issued under a rubber-stamp signature. I do not see how the petitioner can take that objection. That was a notice issued upon her husband who is the certificate debtor and not upon her. She made a claim petition in respect of the attachment levied by a distress warrant. No objection whatsoever was preferred by her under Section 9, nor would it lie. Under the circumstances, it is not open to the petitioner to take this point.

5. The Rule is discharged.

6. The interim order will continue till one week after the reopening of the Court after the X'mas holidays to enable the petitioner to obtain further relief from the appeal court if an appeal is filed.

7. There will be no order as to costs.


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