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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 years 1931-32, 1932-33 and 1933-34, in the sum of Rs. 5,610-2-0, Rs. 7,503-5-0 and Rs. 8,333-6-0, respectively totalling Rs.
21,746-13-0. The notices of demand for the several years were respectively issued on 31st January 1932, 31st January 1933 and 16th
November 1933. After assessment, proceedings u/s 46, 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 26th March 1935, when 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 proceedings for arresting him had already been issued and he seeks to quash them
on the ground that they violate Section 46(7), Income Tax Act in that the proceedings were not commenced within the expiration of one year from
the last day of the year in which any demand was made under the Act and also in contravention of the provisions of Section 48. 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), 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, 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 Iyer 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 Court Acts 39 and 40, Geo. III, Ch. 79
and under that Act the Supreme Court has jurisdiction exercisable only within 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 1923 47 Bom 742. He further
contended that the act sought to be quashed is a judicial act. He also contended even if Section 106(2), may be said to have taker; 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 writs 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, 1800 (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 same
limitations, restrictions and control within the said.... Town of Madras and Territories dependent on the Government of Madras.... as the said
Supreme Court of Judicature at Fort William in Bengal.... is invested with or subject to within the said Port 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 William in 1800. The Supreme Court at
Port William was itself established by virtue of the East India Act, 1772, 13, Geo. III, Ch. 63. Under the Letters Patent 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, Letters Patent.
It is a well-known fact that owing 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 and Council of Bengal shall not be subject jointly or severally, to the jurisdiction of the Supreme Court of Fort
William in Bengal for or by reason or any act or order, or any other matter or thing whatsoever counselled, ordered or done by them in their public
capacity only, and acting as Governor-General in 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 in Council and in regard to matters
concerning revenue, the jurisdiction has been curtailed. These limitations again were emphasised and enacted by 39 and 40 Geo. III, Ch. 79 and
by the Letters Patent which were issued in pursuance thereof constituting the Supreme Court at Madras. The Letters Patent provided in Clause 8
that:
The said Chief Justice, and the said puisne Judges shall severally and respectively be, and they are, all and every one of them hereby appointed to
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 are, or 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 Court of King''s 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 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 in
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.
Thus 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 Ports or Factories subordinate thereto. The present High Court was constituted under the High Courts Act
1861, (24 and 25 Vict. Ch. 104). Section 9 of that Act runs as follows:
Bach 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 as aforesaid grant and direct, subject however to such
direction and limitations as to the exercise of original, civil and 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 whatsoever 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 Venkataratnam v. Secy. of State 1930 53 Mad 979 :
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, 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 offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power 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 limitations? 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 in
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 S 106, Clause 2. I shall not 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 Towns because the jurisdiction of the Supreme Court can only be
exercised within the limits of the Presidency Towns and not beyond it. If so, the High Court''s 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. Secy. of State 1927 50 Mad 449, which appears to lend support to the contention of Mr. Krishnaswami Ayyar. The
learned Chief Justice on p. 455 commenting on Section 106, Clause 2, 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 Judges in that case were not considering the power of the High Court to issue a writ of certiorari. u/s 105, it will he 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:
Venkataratnam v. Secy. of State 1930 53 Mad 979 . As an exception to both sets of original jurisdiction above mentioned Section 106, Clause 2
has been enacted, just as they have enacted S 110 in regard to exemption conferred in favour of the Governor in 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 1923 47 Bom 742. 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 an order u/s 45, Specific Relief
Act, could not be issued compelling the Income Tax Officer to refer the case to them because of Section 106(2), Government of India Act. Their
Lordships of the Judicial Committee negatived this view and held that, the order of a High Court to a 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, Specific Relief Act, refers to ordinary original civil jurisdiction. Mr.
Krishnaswami 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 1919 35 MLJ 23. Another argument of Mr. Krishnaswami 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. Krishnaswami 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 early by their Lordships of the Judicial Committee in Spoonar v. Juddow (1850)4 MIA 353. 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 his Court has not been taken away when the act complained of is
not warranted by the country or by the company''s regulations.'' 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. Krishnaswami Ayyar sought to distinguish this case by relying on the observations of Baron Parke in John Gaidar v. Robert Craige
Halkett (1839) 2 MIA 293. 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 Foujdary (criminal) of the Zillah of Muddeah in Bengal. The action was held not to lie by virtue of 21 Geo III, Ch. 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 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 within 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 Spoonar v. Juddow (1850) 4 MIA
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, Income Tax Act, and orders for arrest made and warrants
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).