1950 (12) TMI 23 - HC - VAT and Sales Tax

Issues Involved:
1. Competence of the reference to B.P. Sinha, J.
2. Applicability of Clause 28, Letters Patent, and Section 98, Civil Procedure Code.
3. Maintainability of the application under Article 133 of the Constitution of India.
4. Interpretation of the term "judgment" under Article 133.
5. Determination of whether the proceeding is a "civil proceeding" under Article 133.

Detailed Analysis:

1. Competence of the Reference to B.P. Sinha, J.
A preliminary point was raised questioning the competence of the reference to B.P. Sinha, J., and whether there was a lawful decision of the Court disposing of the reference under Section 21(3) of the Bihar Sales Tax Act, 1944. The provision for a reference to a third Judge is contained in Clause 28, Letters Patent, and Section 98 of the Civil Procedure Code. Clause 28 relates to a difference of opinion arising in the exercise of the High Court's "original or appellate jurisdiction," and Section 98 relates to a difference arising in appeal. It was concluded that neither Clause 28, Letters Patent, nor Section 98, Civil Procedure Code, has any application to the present case. The High Court has the authority to mold a convenient form of procedure in the absence of a specific provision, as supported by the cases Smith v. Williams and Maharajadhiraja of Darbhanga v. Commissioner of Income-tax.

2. Applicability of Clause 28, Letters Patent, and Section 98, Civil Procedure Code
The Court discussed the applicability of Clause 28, Letters Patent, and Section 98, Civil Procedure Code, in the context of the reference under the Bihar Sales Tax Act. It was concluded that these provisions do not apply to the present case because the jurisdiction in question is vested in the High Court by a special statute (the Bihar Sales Tax Act) and not by the Letters Patent or the Civil Procedure Code. The Court referred to the case Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority, Bombay, to support this conclusion.

3. Maintainability of the Application under Article 133 of the Constitution of India
The further objection raised was that the application is not maintainable under Article 133 of the Constitution of India. The Court examined whether the decision of the High Court in this case is a "judgment" under Article 133. It was argued that the decision of the High Court in a sales tax matter is a judgment in a civil proceeding, but the Court concluded that the decision in question was not a "final judgment" within the meaning of Article 133. The Court relied on the decision in Tata Iron Steel Co., Ltd. v. Chief Revenue Authority, Bombay, which held that the decision of the High Court in a reference under the Income-tax Act was merely advisory and not a final judgment.

4. Interpretation of the Term "Judgment" under Article 133
The Court discussed the interpretation of the term "judgment" under Article 133 of the Constitution of India. It was argued that the term "judgment" in Article 133 does not need to be final and can include interlocutory judgments. However, the Court concluded that the term "judgment" in Article 133 should be interpreted in the same way as it was interpreted under Sections 205 and 206 of the Government of India Act, 1935. The Court referred to the decision in Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority, Bombay, which held that the word "judgment" is not used in its strict legal and proper sense in the context of references under the Income-tax Act.

5. Determination of Whether the Proceeding is a "Civil Proceeding" under Article 133
The Court considered whether the decision in question arises out of a "civil proceeding" under Article 133. It was argued that the expression "civil proceeding" in Article 133 has been used in contradistinction to the term "criminal proceeding" in Article 134. The Court referred to the decision in Pritam Singh v. The State, where it was observed that the Supreme Court can grant special leave in civil cases, criminal cases, income-tax cases, and other cases. The Court concluded that income-tax cases and sales tax cases are not "civil proceedings" within the meaning of Article 133.

Conclusion:
The Court concluded that the application for leave to appeal to the Supreme Court is not maintainable under Article 133 of the Constitution of India. The decision of the High Court in a reference under the Bihar Sales Tax Act is not a "final judgment" and does not arise out of a "civil proceeding" within the meaning of Article 133. Therefore, the application was dismissed with costs.

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