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TMI Blog1962 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 59 fasli. On September 30, 1955, the respondent filed a petition before the High Court under article 226 of the Constitution for quashing the said order on the ground that the Additional Collector, Banaras, had no jurisdiction to make the said assessment. On November 22, 1955, Mehrotra J. allowed the writ petition quashing the said assessment. The State of Uttar Pradesh did not prefer an appeal against the said order and allowed it to become final. On February 9, 1956, the State of Uttar Pradesh promulgated an Ordinance, being Ordinance No. 11 of 1956, which was subsequently replaced by the U.P. Act XIV of 1956. Under the provisions of the Ordinance, the assessments made by the Additional Collector were retrospectively validated and, under section 6 thereof, a right was conferred upon any party to the proceedings under the U.P. Agricultural Income-tax Act, 1948 (hereinafter called the principal Act), wherein any assessment made by an Additional Collector or Additional Assistant Collector was set aside merely on the ground that the assessing authority had no jurisdiction to make the assessment, to apply within go days from the date of the commencement of the said Ordinance for a rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier order reviewed on the ground that there is an error apparent on the face of the record. We shall take the questions in the order they were argued. The first question is whether an appeal lay against the order of Mehrotra J. rejecting the application for review filed by the appellants to a division bench of the High Court. Chapter VIII, rule 5 of the Rules of Court provides for an appeal against an order of a single judge. Under that rule a special appeal against an order of a single judge ofthe court can be maintained only if that order amounts to a " judgment ". That rule gives effect to clause 10 of the Letters Patent for the High Court of Allahabad, which gives a right of appeal against a judgment of a single judge subject to the conditions mentioned therein. The said clause 10 corresponds to clause 15 of the Letters Patent for the High Courts of Calcutta, Bombay and Madras. The scope of the expression " judgment " came under the judicial scrutiny of the various High Courts : there is a cleavage of opinion on that question. We shall briefly notice the leading decisions of the various High Courts on the subject. Couch C.J., in Justices of the Peace for Calcutta v. Orie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company and in Sonbai v. Ahamedbhai Habibhai, it must be a decision which affects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding." Krishnaswami Ayyar J. observed much to the same effect : " I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular court is concerned, though it refuses to adjudge the merits, must also be deemed to be a judgment : for otherwise the rejection of a plaint for defect of form or insufficiency of court fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief justice which could hardly have been his meaning. I may also observe that the ' part ' which is determined may be a part of the claim separable from the rest or a determination of liability generally though the actual measure of liability may be a matter of account." The Lahore High Court generally followed the view expressed by the Madras High Court. The Allahabad High Court in Muham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated under the ordinance and that the applicants had the right to have the order of Mehrotra J. reviewed in the light of the provisions of section 6 thereof. The assessee denied that the appellants had any such right. The appellants statutory right to have the order of the High Court reviewed was denied by the other side and was put in issue before the High Court. The relevant provisions of the Act read : " Section 2. In section of the U. P. Agricultural Income-tax Act, 1948 (hereinafter called the Principal Act), for clause (4), the following shall be and deemed always to have been substituted (4-a) ' Collector ' shall have the meaning as in the U. P. Land Revenue Act, 1901, and will include an Additional Collector appointed under the said Act." " Section 10. Validation----(1) For the removal of doubts it is hereby declared that, (a) in rule 18 of the U. P. Agricultural Income-tax Rules, 1949, the expression ' Collector ' and ' Assistant Collector in-charge of a sub-division ' shall respectively include and be deemed always to have included an ' Additional Collector ' and an ' Additional Assistant Collector in-charge of a sub-division.' (b) all orders, actions or proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the court on the basis of the amended Act. This is a valuable and substantive right conferred upon a party to the proceeding. On the rival contentions, the question of the fresh right conferred upon a party to the proceeding and the jurisdiction of the court to enforce the said right would be in issue and any decision thereon could legitimately be said to be a decision determining the rights of parties. But for the amending Act, the order of the High Court admittedly would have become final ; but, because of the amending Act there was a controversy whether the binding decision could be reopened and the rights of the parties decided in accordance with the amending Act. The decision of Mehrotra J. dismissing the application was certainly a decision denying the right of the appellants alleged to have been conferred under the amending Act. We, therefore, hold that the order of Mehrotra J. dismissing the application, filed for review of his earlier order, on the ground that section 11 of the Act did not confer any such right on the appellants was a " judgment " within the meaning of clause 10 of the Letters Patent as well as Chapter VIII, rule 5 of the Rules of Court. If so, we mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only one meaning, no question of construction of a statute arises, for the Act speaks for itself. It is a well recognized rule of construction that the meaning must be collected from the expressed intention of the legislature. So construed, there cannot be two possible views on the interpretation of the first part of the section. Learned counsel suggested that we should read the relevant portion of the first part thus : " in any proceedings, to set aside any assessment made on the basis of the principal Act ". To accept this argument is to rewrite the section. While the section says that the order sought to be reviewed is that made in a proceeding under the principal Act, the argument seeks to remove the qualification attached to the proceedings and add the same to the assessment. The alternative argument, namely, that without changing the position of the words as they stand in the section, the expression " on the basis of " may be substituted for the expression " under " does not also yield the results expected by the learned counsel. It cannot be held with any justification, without doing violence to the language used, that a proceeding under article 226 of the Constitution is ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil jurisdiction which the Supreme Court of Calcutta possessed over certain classes of persons outside the territorial limits of that jurisdiction has been inherited by the High Court. In that context, the Judicial Committee observed : " It cannot be disputed that the issue of such writs is a matter of original jurisdiction." The Calcutta High Court, in Budge Budge Municipality v. Mangru came to the same conclusion, namely, that the jurisdiction exercised under article 226 of the Constitution is original as distinguished from appellate or revisional jurisdiction ; but the High Court pointed out that the jurisdiction, though original, is a special jurisdiction and should not be confused with ordinary civil jurisdiction under the Letters Patent. The Andhra High Court in Satyanarayanamurthi v. Income-tax Appellate Tribunal described it as an extraordinary original jurisdiction. It is, therefore, clear from the nature of the power conferred under article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring it into conflict with article 226 of the Constitution and which would have the effect of invalidating it to that extent. On the other hand, the construction adopted by us would be consistent with the second part of the section, for, if the first part is confined only to an order made by any court or authority, other than the High Court in exercise of its jurisdiction under article 226 of the Constitution, both the parts fall in a piece, and we would not only be giving a natural meaning to the express words used in the section but we would also be saving the section from the vice of constitutional invalidity. Learned counsel for the appellants seeks to get over this obvious difficulty by contending that the word " shall " may be treated as et may " so that the discretion of the High Court under article 226 may be maintained. Alternatively, he contends that the second part of the section comprises two parts---the first empowers an aggrieved party only to file an application, and the second imposes a statutory duty, and that the first may conveniently be severed from the second and its validity to that extent sustained. The first argument is contrary to the express words used a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions : (1) whether the application treated as one made under Order XLVII of the Code of Civil Procedure was within time ; (2) if it was out of time, could the delay be excused without the appellants filing an application for excusing it and giving valid reasons for the same ; (3) whether an order made by the High Court in exercise of its powers under article 226 of the Constitution could be reviewed under Order XLVII of the Code of Civil Procedure, and, if not, under section 151 of the said Code ; (4) whether the amendment of an Act with retrospective effect could be treated as an error on the face of the record or as a sufficient cause within the meaning of Order XLVII of the Code of Civil Procedure for reviewing the final orders and decrees made by courts on the basis of the law obtaining at the time the said orders or decrees were made ; and (5) if the order of Mehrotra J. was one made under Order XLVII of the Code of Civil Procedure, would an appeal lie to a division bench of the High Court under Order XLIII of the Code. We do not propose to express any opinion on the aforesaid questions. It would be enough to say that we are not justified to allow the appellants to conve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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