The Province of Madras vs Chekka Satyanarayanamurthy

Govinda Menon, J.—All these three appeals raise the same question of law, though the respondents are different. The suits were filed by the

respondents plaintiffs against the State of Madras alleging that sales-tax was illegally levied against them and excessive amounts were collected

from them as sales-tax. Various defenses were raised in the trial Court of which one was that the civil Court has no jurisdiction to entertain the

suits. The District Munsiff found in favour of the defendant and dismissed all the suits. On appeal, the learned Subordinate Judge came to a

contrary conclusion and remanded the suits for disposal on merits. Hence these appeals.

The only question is whether the Madras General Sales-tax Act, 1939, with its subsequent amendments has ousted the jurisdiction of the

ordinary civil Courts when a party is alleged to have been aggrieved by the administration of the Act. For this purpose it is necessary to refer to the

relevant portions of the Act of which sections 11 and 12 are the most important. The earlier sections deal with the levy of sales-tax on various

commodities and the method of levying the same. Section 11 lays down that an assesses objecting to an assessment made on him under the

provisions of this Act, may, within thirty days from the date on which he was served with notice of assessment, appeal to such authority as may be

prescribed. The appeal shall be in the prescribed form and shall be verified in the prescribed manner. The appellate authority may, after giving the

appellant an opportunity of being heard, pass such orders on appeal as such authority may think fit. Sub-section (4) of Section 11 states that every

order passed in appeal, under this section by the appellate authority shall, subject to the powers of revision conferred by the next section be final.

Section 12 contemplates that the Revenue Board may, in its discretion, call for and examine the record of any order passed, or proceeding

recorded, by any authority, officer or any person under the provisions of the Act, for the purpose of satisfying itself as to the legality or propriety of

such order or as to the regularity of such proceeding, and may pass such order in reference thereto as it thinks fit. Both these sections therefore lay

down that if a tax collecting authority levies sales-tax, any assessee aggrieved by such assessment is entitled to file an appeal to an appellate

authority whose decision will be final subject to a revision by the Board of Revenue. In deciding the revision it is open to the Board to find out

whether the order was legal or proper and whether the proceedings were regular. The powers conferred u/s 12 are more or less in the nature of

the power conferred upon the High Court in exercise of its revisional jurisdiction under Sections 435 and 439 Criminal Procedure code. That is,

the powers are sufficiently wide as to entitle the Board to interfere in suitable cases. Sections 17 and 18 are also relevant for the present

controversy. Section 17 prohibits the filing of a suit, or prosecution, or other proceeding, against any officer or servant of the State Government for

any act done of purporting to be done, under the Act, without the previous sanction of the State Government. Sub-section (2) says that no officer

or servant of the State Government shall be liable in respect of any such act in any civil or criminal proceeding if the act was done in good faith in

the course of the execution of duties or the discharge of functions imposed by or under the Act. section 18 reads as follows:

No suit shall be Instituted against the Crown and no suit, prosecution or other proceeding shall be Instituted against any officer or servant of the

State Government in respect of any act done or purporting to be done under this Act, unless the suit, prosecution or other proceeding is instituted

within six months from the date of the act complained of.

If Sections II and 12 of the Act are in the nature of a complete Code so that any relief which an aggrieved person may have can be obtained only

by way of an appeal and a revision, then it is urged that the civil Courts have no jurisdiction. For that purpose well-known cases were brought to

our notice. The earliest of them is in ''Ramachandra v. Secretary of State'', 12 Mad 105 where-in the Court held that where, by an Act of the

Legislature, powers are given to any person for a public purpose, from which an individual may receive injury, if the mode of redressing the injury

is pointed out by the statute, the ordinary jurisdiction of civil Courts is ousted and in the case of injury the party cannot proceed by action. This

decision has been later on considered and discussed in many cases, the most important of them being ''Iswarananda Bharathi v. Commissioners,

Hindu Religious Endowments Board'' 54 Mad 928 There the learned Judges, Curgenven and Cornish, JJ., referred to a large body of case law

and held that so far as the Hindu Religious Endowments Board was concerned, a finding given by the Board that a particular building is a math or a

temple can be agitated by means of an application before the Court and that a suit for a declaration under the ordinary law is not maintainable.

They also referred to cases which held that the jurisdiction of the Court will not be ousted unless it is expressly or impliedly excluded by the

enactment creating the special tribunal. In ''Secretary of State v. Mask & Co.'' ILR (1940) Mad 599 the Privy Council held that under the Sea

Customs Act (VIII of 1878), and Land Customs Act (XIX of 1924), the jurisdiction of civil Courts is ousted and resort only be had to the

remedies provided by the particular statutes. Their Lordships discussed Sections 188 and 191 of the Sea Customs Act and the provisions of the

Land Customs Act and held that the jurisdiction of the civil Courts has been ousted by means of those statutes. Reference may also be made to

''Bhivandiwalla & Co. v. Secretary of State'' 45 M.L.W. 394 Raleigh Investment Co. Ltd. v. Governor-General in Council'' 1947 2 M.L.J. 16

''Ramaswami v. Board of Commissioners'', H R E., Madras'' ILR (1950) Mad 799 a recent decision of the Supreme Court in ''Brij Raj Krishna v.

S.K. Shaw & Bros.'' 64 Mad L.W. 366 and to ''Raja Visweswar v. Province of Bihar'' 27 Pat 820. In the Patna case, the learned Judges

reviewed the case law in great detail and came to the conclusion that with regard to the Bihar Sales-tax Act of 1944 a suit for a declaration and

injunction u/s 42 of the Specific Relief Act was not maintainable because the plaintiff had a complete remedy under the provisions of that Act itself.

On the other hand there are cases which have held that in order that jurisdiction of the civil Courts should be deemed to have been ousted, the

exclusion must be clearly expressed or clearly implied and without any such provision the ordinary law of the land could not be departed from. In

the ''Secretary of State v. Jagannadham'' ILR (1941) Mad 850 Leach, C.J., delivering the judgment of the Full Bench referred to the decision in

''Wolverhampton New Waterworks Co. v. Hakesford'', (1859) 141 E R 486 as well as the decision in ''Secretary of State v. Mask & Co.'', ILR

(1940) Mad 599 Other cases of this Court, viz., In ''Ramchandra v. Secretary of State 12 Mad 105 and ''Iswarananda Bharathi v. Commissioner,

H. R. E. Board 54 Mad 928 were also referred to it page 860, the learned Chief Justice observes as follows:

Therefore we have here two principles clearly established. The first is that, to exclude the jurisdiction of the civil courts the exclusion must be

explicitly expressed or clearly implied. The second is that, where the liability is statutory as opposed to liability under the common law the party

must adopt the remedy given to him by the statute.

Under the Madras Co-operative Societies Act (VI of 1932) the question again arose and it was decided in ''Ramayya v. Chittoor District Co-

operative Deputy Registrar'' ILR (1946) Mad 330 that a suit does not lie to set aside a sale held by the officers of the Co-operative Department in

execution of an order passed by a liquidator u/s 47 of the Act against a debtor in respect of a debt due to a Co-operative Society which is in

liquidation. The special procedure prescribed by the Act and by the Rules for the execution of orders passed under the Act and for setting aside

the sales implies necessarily that the jurisdiction of the civil Courts is ousted in such cases. Section 48 of the Act which expressly excludes, subject

to specific exceptions the jurisdiction of the civil Courts in matters connected with the winding up of a society is a bar to the suit. One instance of

such exclusion is found in Section 64 of the Income Tax Act. The principle therefore is that where a statute specifically excludes the jurisdiction of

a civil Court, or by necessary intendment such exclusion implied, then ordinary Courts cannot have any right to entertain the suits. But there is

another class of cases where the statute recognises that a suit can be filed but puts a restriction upon the filing of such suits or prescribes a period

of limitation for the filing of a suit of that nature, or, as a necessary prerequisite to the filing of a suit requires the sanction of an authority. In such

matters the Court''s jurisdiction is not excluded. In this connection, reference might be made to the City Municipality Act, Section 287, District

Municipalities Act, Sections 93 and 354, Local Boards Act, Sections 79 and 228. With regard to the City Municipality Act we have the case in

''Valliammal v. The Corporation of Madras'', 38 Mad 41 where the principles have been discussed in detail. This decision was considered in

''Ishwarananda Bharathi v. Commissioners, H. R. E. Board'', Madras 54 Mad 928. In this connection we may also refer to the Privy Council

decision in Secretary of State v. Fahaminidannissa Begum'', 17 Cal 950 .

But the most important decision which has to be considered for the purpose of the present discussion is that of Varadachariar, J., in Kamaraja

Pandia Naicker v. Secretary of State'' 69 M. L. J. 695.

The learned Judge states the law as follows at page 700 of the report:

The ordinary rule is that where a person''s liberty or property is interfered with, under colour of statutory powers he has a cause of action which

the civil Courts are bound to entertain unless a bar to such entertainment has been enacted expressly or at least by necessary implication. Where

there is no question of a common law right and an infringement thereof, the position may be different, for in such cases, the ordinary Courts had

''prima facie'' no jurisdiction therefore there is no question of any ouster of their jurisdiction .... Even where rights of property are involved, the

legislature may point a particular modes of redress. But in dealing with this class of cases a distinction has to be borne in mind between the general

right of resort to the Civil Court and any particular form of procedure in seeking the aid of the civil Court. So long as the statute provides for a

decision by a civil Court, it is immaterial whether the civil Court is approached by means of a suit or by an appeal or petition .... It will be scarcely

right to speak of the Revenue Board in a case like the present as a ""special tribunal."" ..... The Board acts only as part of the executive machinery

and not as an independent body settling a dispute between the tax payer and the taxing authority.

The question therefore is whether in this case there is any such exclusion expressly or by necessary implication. When Section 18 of the Act

provides that no suit shall be instituted against the State unless the same is done within six months from the date of the Act complained of it

necessarily implied that there is no prohibition against the filing of a suit. The section is couched in the negative form; but if it is paraphrased and

expressed in a positive form, the result comes to this that a suit can be instituted against the State Government for an act done or purporting to be

done under the Act if the same is done within six months from the date of the Act complained against. In our opinion this section comes within the

category explained by Varadachariar, J., in ''Kamaraja Pandia Naicker v. Secretary of State'' 69 M. L J. 695 and the suits are therefore

maintainable.

The civil miscellaneous appeals are dismissed with costs.