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Judgment
VENKATARAMANA RAO, J. - This is an application for the issue of a writ of certiorari to quash the proceedings of the Collector of Madura
taken in regard to the realisation of the arrears of Income Tax levied on the petitioner. The case of the petitioner is that he was assessed to Income
Tax for the year 1931-1932, 1932-1933 and 1933-34 in the sum of Rs. 5,510-2-0, Rs. 7,503-5-0 and Rs. 8,333-6-0 respectively totalling Rs.
21,766-13-0. The notices of demand for the several years were respectively issued on the 31st January, 1933 and 16th November, 1933. After
the assessment, proceedings u/s 46 of the Income Tax Act were commenced and certificates as required by the said section were issued. In
March 1935, the Revenue Divisional Officer issued an order for arrest of the petitioner for the said arrears and the petitioner was arrested on the
26th March, 1935, when we he gave 22 post dated cheques commencing from 1-4-1935 to 6-9-1935 and he was thereafter released and then
two of these cheques were cashed but he understands that the proceedings for arresting him had already been issued and he seeks to quash them
on the ground that they violate Section 46(7) of the Income Tax Act in that the proceedings were not commenced within the expiration of one year
in which any demand was made under the act and also in contravention of the provisions of section 48 of the Revenue recovery Act which requires
as a condition precedent that there should be wilful default.
On behalf of the Government a preliminary objection has been taken that the jurisdiction to issue a writ is barred u/s 106(2) of the Government of
India Act, and even assuming jurisdiction, no writ can lie for quashing a ministerial act, as in this case what is sought to be quashed is the warrant
issued. It was further contended that even the preliminary order in and by which the warrant was directed to be issued is also ministerial, The
argument based on Section 106, Clause 2 is thus put : Income Tax is revenue; the proceedings that are sought to be quashed were in respect of
acts ordered or done in the collection thereof and the collector acted u/s 46 of the Income Tax Act, according to the law for the time being in
force. The writ of certiorari being an original writ the jurisdiction is thus barred. It is contended in answer by Mr. K. V. Krishnaswamy Ayyar that
section 106(2) does not apply to this case as the original jurisdiction in that clause relates only to suits or actions instituted on the original side of the
Madras High Court, as Section 106(2) is nothing but a re-enactment of the saving clause in the Supreme Courts Act (39 and 40 Geo III Ch. 79)
and under that Act the Supreme Court has jurisdiction exercisable only withing the limits of the presidency Town and the saving clause related only
to that jurisdiction. He relied on the privy Council decision in Alcock Ashdown & Co., Ltd. v. Chief Revenue Authority, Bombay. He further
contended that the act sought be qualified is a judicial act. He also contended even if Section 106 (2) may be said to have taken away the power
to issue a writ of certiorari, if the act which is sought to be quashed is in excess of the jurisdiction of a body which exercised judicial functions the
High Court has power to issue a writ of certiorari in the exercise of its inherent jurisdiction.
Before examining the soundness of these contentions, it will be necessary to refer to the relevant provisions of the various statutes which define the
scope and extent of the power to issue the writ of certiorari possessed by the High Court. The Jurisdiction which the High Court has to issue writ
of certiorari or other prerogative writs is derived from the Supreme Court and it has in this respect only such jurisdiction as the Supreme Court
had. The Supreme Court of Madras was established by the Government of India Act, 1860 (39 and 40 Geo III Ch 79). It provided for the
establishment of a supreme Court of judicature at Madras.....""with full power to exercise jurisdiction..... and to be invested with such power and
authorities, privileges and immunities.... and subject to the case same limitations, restrictions and control withing the said........ Town of Madras and
Territoritories dependent on the Government of Madras...as the said Supreme Court of judicature at Fort William in Bengal... invested with or
subject to within the said Fort William or the kingdoms or provinces of Bengal, Bihar and Orissa.
Therefore it is necessary to note what were the powers and limitations of the Supreme Court at Fort Williams was itself established by virtue of the
East India Act, 1772, (13 Geo. III Ch. 63). Under the Letters Petent by which the Supreme Court of Bengal was constituted, one of the powers it
had was the power to issue a writ of certiorari conferred on it by Section 4 of the Letters Patent. It is a well known fact that owning to the conflict
which arose between the judges of that court and the Executive Government it was thought desirable to define and restrict the powers of the
Supreme Court. Accordingly 21 Geo. III Ch. 70 was passed. Among others there were two limitations imposed on the powers of the Supreme
Court :
(1) ""That the Governor-General in Council of Bengal shall not be subject jointly or severally, to the jurisdiction of the Supreme Court of fort
William in Bengal for or any other matter or thing whatsoever counselled, ordered or done them in their public capacity only, and acting as
Governor-General and Council.
(2) ""And..... the said Supreme Court shall not have or exercise any jurisdiction in any matter concerning the revenue or concerning any act or acts
ordered or done in the collection thereof according to the usage and practice of the country, or the regulations of the Governor-General in
Council.
It will thus be seen that in two matters, i.e., in regard to the jurisdiction over the Governor-General and council and in regard to matters concerning
revenue, the jurisdiction had been curtailed.
These limitations again were emphasised and enacted by 39 and 40 Geo. III Ch. 79 and by the Letters Patent provided in Clause 8 ""that the said
chief Justice and the said puisne judges shall severally and respectively be, justices and Conservators of the peace, and Governors within and
throughout the settlement of Fort St. George, and the Town of Madras, and the limits thereof, and the factories subordinate thereto, and all the
territories which now or, are hereafter may be, subject to or dependent upon, the Government of Madras aforesaid, and to have such jurisdiction
and authority as our justices of our justices of Our Court of Kings Bench have, and may lawfully exercise, within that part of Great Britain called
England, as far as circumstances will permit."" It is in virtue of this clause that the Supreme Court derived the power to issue a writ of certiorari. The
proviso in the letters patent defined the exception to the jurisdiction of the court. The relevant provision ran as follows :-
Nor shall the said court have or exercise any jurisdiction in any matter concerning the revenue, under the management of the said Governor
council respectively either within or beyond the limits of the said Town or the Forts or the Factories subordinate thereto, or concerning any act
done according to the usage and practice of the country or the regulations of the Governor in Council.
The Supreme Court had no power to issue a writ of certiorari or other prerogative writs in matters concerning revenue within or beyond the limits
of the Town of Madras or the Forts or Factories subordinate thereto. The present High Court was constituted under the Indian High Courts Act,
1861 (24 and 25 Vict. Ch. 104). Section 9 of that Act runs as follows :
Each of the High Courts to be established under this Act shall have and exercise all such Civil, Criminal, admiralty and vice-admiralty,
testamentary, intestate and matrimonial jurisdiction, original and appellate and all such powers and authority for and in relation to the administration
of Justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent aforesaid grant and direct subject however, to
such direction and limitation as to the exercise of original Civil & Criminal jurisdiction beyond the limits of the Presidency Towns as may be
prescribed thereby; and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the Legislative powers in
relation to the matters aforesaid of the Governor-General of India in Council the High Court to be established in each presidency shall have and
exercise all jurisdiction and every power and authority whatever in any manner vested in any of the Courts in the same Presidency abolished under
this Act at the time of the abolition of such last mentioned Courts.
Dealing with this Section VENKATASUBBA RAO, J., observed in Penugonda Venkataratnam v. Secretary of State :
they (the Letters Patent) contain in fact, no provision corresponding to Clause 8 of the Charter of 1800. The High Court, therefore, derives its
power to issue prerogative writs not from any express clause in the charter, but from Section 9 of the Act, which preserves intact the powers of the
abolished Courts. It follows therefore that the Letters Patent have not enlarged the jurisdiction of the High Court in certiorari.
Section 106 of the Government of India Act does not carry the matter further. Section 106 (1) is as follows :-
106(1). The several High Courts are Courts of record and have such jurisdiction original and appellate, including admiralty jurisdiction in respect
of the offences committed on the high seas and all such powers and authority over or in relation to the administration of justice including powers to
appoint clerks and other ministerial Officers of the Court, and power to make rules for regulating the practice of the Court, as are vested in them
by Letters Patent, and subject to the provisions of any such Letters Patent, all such jurisdictions, powers and authority as are vested in these
Courts respectively at the commencement of this Act.
Therefore the question is, had the Supreme Court the power to issue a writ of certiorari in regard to matters of revenue and if so, subject to what
limitation ? As will be seen from the provisions of the statutes already stated, it had no jurisdiction to issue a writ of certiorari concerning any act
ordered or done in the collection of revenue according to the usage and the practice of the country or the regulations of the Governor and Council.
If the Supreme Court had no jurisdiction to issue a writ of certiorari, the High Court has no jurisdiction to do so. This application for the issue of a
writ is not therefore, maintainable. I am also of opinion that the application is unsustainable in view of Section 106, Clause 2. I shall now deal with
the contention of Mr. Krishnaswami Ayyar on this point. In one sense his argument is self destructive. According to him the jurisdiction of the
Supreme Court to issue a writ of certiorari was confined only to the presidency Town because the jurisdiction of the Supreme Court cannot be
exercised within the limits of the Presidency Town and not beyond it. If so, the High Courts jurisdiction being only such jurisdiction which the
Supreme court had, his application to this Court for the writ of certiorari cannot lie. I do not agree with Mr. Krishnaswami Ayyar that the phrase
original jurisdiction in section 106 (2) should be confined to Ordinary Original Civil Jurisdiction. There is no doubt an observation of the late Chief
Justice in Govindarajulu v. Secretary of State which appears to lend support to the contention of Mr. Krishnaswamy Ayyar. The learned Chief
Justice on page 445 commenting on Section 136, Clause 2 of the Government of India Act observes thus :
In matters affecting the revenue, the original side of this Court and that side alone is debarred from interfering in revenue matters.
The, learned Subordinate Judges in that case were not considering the power of the High Court to issue a writ of certiorari. u/s 106, it will be seen
the High Court is vested with (1) the original jurisdiction more specifically described in Clauses 12 and 13 of the Letters Patent and, (2) the original
jurisdiction of the abolished Supreme Court which is conferred by the words such jurisdiction, powers and authority as are vested in those Courts
respectively at the commencement of this Act. It is not disputed that the writ of certiorari is issued in the exercise of original jurisdiction (I. L. R. 53
Mad. at 999 and 1017). As an exception to both sets of original jurisdiction above mention section 106 Clause 2 has been enacted, just as they
have enacted Section 110 in regard to exemption conferred in favour of the Governor and Council. The wording of Section 106 (2) is in my
opinion very suggestive and instructive. The words have not and may not are both declaratory and prospective and would aptly comprise also the
jurisdiction vested in the Court at the commencement of the Act apart from the jurisdiction vested by the Letters Patent.
Considerable stress was laid by Mr. K. V. Krishnaswami Ayyar on the decision of the privy Council in Alcock Ashdown & Co., Ltd. v. Chief
Revenue Authority, Bombay. In that case the Income Tax Officer refused to refer a case to the high Court of Bombay u/s 51 of the Income Tax
Act of 1918. Both the Bombay High Court and the Madras High Court had taken the view that and order u/s 45 of the specific Relief Act could
not be issued compelling the Income Tax Officer to refer the case to them because of Section 106 (2) of the Government of India Act. Their
Lordships of the Judicial Committee negatived this view and held that ""the order of a High Court to revenue officer to do his statutory duty would
not be the exercise of original jurisdiction in any matter concerning the revenue."" As I understand their observation, in their Lordships view to ask a
revenue officer to do his statutory duty would not be a matter concerning revenue. This is made clear by a passage from the previous paragraph :-
To argue that if the legislature says that a public officer even a revenue officer shall do a thing, and he without cause or justification refuses to do
that thing, yet the Specific Relief Act would not be applicable and there would be no power in the Court to compel him to give relief to the subject
is to state a proposition to which their Lordships must refuse to assent.
Two things are necessary to constitute a bar u/s 106 (2), viz., (1) an exercise of original jurisdiction (2) a matter concerning revenue or the
collection thereof. In their Lordships view as aforesaid there was no matter concerning revenue in this case. I do not think their Lordships meant to
decide there was no exercise of original jurisdiction as Section 45 of the Specific Relief Act refers to ordinary original civil jurisdiction.
Mr. Krishnaswamy Ayyar attempted to argue that the Income Tax is not revenue but this argument is not open to him after the ruling in Best & Co.
v. Collector of Madras.
Another argument of Mr. Krishnaswamy Ayyar may be noticed, namely, even if the statute has taken away the writ, when a judicial body acts ultra
vires this Court can nevertheless issue a writ. The short answer to this is that the High Court had never any jurisdiction to issue the writ in matters
concerning revenue.
It was next contended by Mr. K. V. Krishnaswamy Ayyar that the exception can only be in favour of acts which have been done according to the
law for the time being in force and therefore if the act is not in conformity with the law and in direct contravention of it the jurisdiction is not barred.
In this case the Collector having acted in contravention of Section 46, Clause 7, he must be deemed to have not acted according to the law for the
time being in force I am unable to accept this contention. This clause was interpreted very clearly by their Lordships of the Judicial committee in
Spooner v. Juddow. In that case it was found that the collector illegally levied quit rent from a person who was not liable to pay it. Dealing with the
argument that the exception of jurisdiction would avail only when the act is according to the regulations of the Governor and Council, LORD
CAMPBELL observed :
There can be no rule more firmly established than that if parties bona fide and not absurdly believe that they are acting in pursuance of statutes and
according to law they are entitled to the special protection which the legislature intended for them although they have done an illegal act.
His Lordship concluded the judgment thus :
We are bound to differ from the judge below who says that the jurisdiction of this court has not been taken away when the act complained of is
not warranted by the usage and practice of the country or by the companys regulation. If it concerned the revenue or was a matter concerning an
act bona fide believed to be done according to the Regulations of the Governor and Council of Bombay his jurisdiction was gone although prima
facie it appeared to be a trespass over which his jurisdiction might be properly exercised.
Mr. K. V. Krishnaswamy Ayyar sought to distinguish this case by relying on the observations of Baron Parke in John Calder v. Robert Craigie
Halkett. In that case there was an action on trespass brought to recover damages for the arrest and false imprisonment of the plaintiff by the
Magistrate of Foujdari (criminal) of the Zillah of Nuddeah in Bengal. The action was held not to lie by virtue of 21 Geo. III, Chy. 70, Section 24. It
prohibited an action against any person exercising a judicial office for an act done by virtue of the order of the order of the Court. Dealing with this
his Lordship observed :
The object is to put the judges of the Native courts on the footing of the Judges of the Supreme Courts of Record or Courts having similar
jurisdiction to the Native Courts here, protecting them from actions for things done with in their jurisdiction though erroneously or irregularly done,
but leaving them liable for things done wholly without jurisdiction.
The question in this case is entirely different. It is not merely exemption from liability in a personal action. In 4 M. I. A. 353 their Lordships
considered the jurisdiction of the Court from the point of view of the subject matter and ruled that in respect of the subject matter the jurisdiction of
the Court had been entirely taken away if the officer acted in the belief that he had jurisdiction. In the present case it is not denied that certificates
were issued in accordance with the provisions of section 46 of the Income Tax act, and orders for arrest made and warrant issued in pursuance of
the said provision. Whether the said orders were justified on a right construction of the said provision does not matter; but what matters is whether
the Collector bona fide believed that he was acting according to the said provision. If so, the jurisdiction of the Court to deal with the said act is
gone. In this case it has been conceded that the Collector was not acting mala fide. I have therefore come to the conclusion that the preliminary
objection must prevail and that this court has no jurisdiction to issue a writ of certiorari to quash the proceedings concerned. I therefore dismiss the
petition with costs, viz., Rs. 100 (to be paid by the petitioner).