LALITABAI BANWARILAL Vs. DOMINION OF INDIA
LAWS(BOM)-1954-1-22
HIGH COURT OF BOMBAY
Decided on January 08,1954

Lalitabai Banwarilal Appellant
VERSUS
DOMINION OF INDIA Respondents


Referred Judgements :-

SHIV BHARJWAN V. ONKARMAL [REFERRED TO]
SHAIKH ALI AHMED VS. COLLECTOR OF BOMBAY [REFERRED TO]



Cited Judgements :-

MST. FAZI VS. MOHAMMAD BHAT [LAWS(J&K)-1978-11-2] [REFERRED TO]
M/S. ALLIED EXPORTS AND IMPORTS, GUDUR NELLORE DISTRICT VS. STATE OF A. P. [LAWS(APH)-1970-2-38] [REFERRED TO]


JUDGEMENT

DESAI, J. - (1.)HIS Lordship, after setting out the contentions of the parties, proceeded,] It was argued by Mr. R. J. Joshi for defendants Nos. 1 and 2 that the order of attachment and the prohibitory order both dated August 23, 1948, related to a matter concerning revenue or concerning collection of revenue according to the law for the time being in force. Reliance was placed on the provisions of Section 226(1) of the Government of India Act, 1935; That sub -section is as under : Until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.
(2.)THE key stone of the argument was that the suit concerned revenue and an order for collection of income -tax dues as arrears of revenue. It is necessary, therefore, to examine the nature of the suit filed by the plaintiff. The suit is primarily and essentially for a declaration of title to property which the plaintiff claims as her own; and which title is disputed by the defendants, and particularly by defendants Nos. 1 and 2. Now, the plaintiff has nothing to do with payment of income -tax in this suit and this is not a matter concerning revenue nor is she herself concerned in anyway with any order of assessment or enforcement or collection of income -tax in pursuance of any order made against her father. That the suit was occasioned by some act done or ordered on behalf of defendant No. 1 is no doubt a factor which compelled the plaintiff to come to Court. But I do not see how the reason or motive which induced or forced the plaintiff to file this suit can affect the nature of the suit. Unless persuaded by some sound principle of law or compelled by any over -riding authority I am not prepared to read anything in Section 226(1) of the Government of India Act, 1935, as depriving this Court of the exercise of its original civil jurisdiction to try a suit for declaration of title to any property which a person claims as his own and which title is disputed by the Government.
Words of sufficient clarity and width in a statute may take away jurisdiction of superior Courts or this may result from the statute by necessary implication. A strong leaning neverthelss exists against the construction of a statute so as to oust or restrict jurisdiction of superior Courts when the result of refusal to exercise jurisdiction would be abdication of the same and negation of the vested rights of the subject. That a subject has always had a right to come to this Court and its predecessors for a declaration of title to any property against the Government is undis -putable and was not disputed by learned Counsel. I have, therefore, to see if there is anything in Section 226(1) which has taken away or restricted the jurisdiction of this Court to try a suit for a declaration of title by a third party who is not in any way concerned with or sought to be held liable for any arrears of revenue. It is a sound canon of construction that any statute which encroaches on the jurisdiction of the Court is subject to a strict interpretation, and it is therefore expected that if such was the intention of the Legislature care would have been taken to manifest it, if not in express words at least by clear indication and beyond reasonable doubt. Read in the light of this principle of construction, I do not see how the sub -section can be understood to affect the rights of third parties against whom no order or direction was made relating to any matter of revenue or collection of arrears of revenue. As I read it the sub -section can only apply to a person liable to pay the arrears of revenue or any person against whom any order concerning the arrears of revenue is directed. There must be some claim made against him. It is only such a person that is prevented from invoking the original civil jurisdiction of the High Court, because his claim in such a case would necessarily be concerning the arrears of revenue or any order passed concerning the collection of the same. I do not deem it necessary to go in any detail into the history of a provision of law which while not affecting the jurisdiction of the Courts in the moffusil took away the original jurisdiction of the High Courts in matters of revenue. The history begins with the practical difficulty occasioned by the fact that the Supreme Court in the Presidency Town of Calcutta , claimed to exercise jurisdiction in respect of acts done by the servants of the East India Company in collecting revenue of Bengal to which the company was entitled by virtus of the grant of 'Divani'. As the preamble to the first enactment of the Parliament in the matter, 21 Geo. III, c. 70, indicates that legislation was passed by the Parliament for the purpose of preventing the interference of the Supreme Court in revenue matters. I have no doubt that in deciding the question of the plaintiff's title I would not be interfering with any revenue matter or any order concerning collection of the same, I am not aware of any principle of construction which would lead me to the conclusion that this antiquated fossil which remained on the) statute book till our Constitution came into existence should be so interpreted as to affect third parties who had nothing to do with revenue or revenue authorities. In my, judgment it would be contrary to all principles of justice to deprive third parties from seeking relief from this Court by giving any wider meaning to Section 226(1) of the Government of India Act, 1935, than that strictly necessary having regard to the nature of the subject -matter and the language expressly used by the law -maker, Mr. R. J. Joshi drew my attention to a number of decisions but I do not think they really touch the present point. In none of those cases did the question arise of a suit by a third party not concerned with arrears of revenue. I shall only refer to two of the cases cited by Mr. Joshi. In Spooner v. Juddo (1850) 4 M. I. A. 353 their Lordships of the Privy Council in an appeal from the Supreme Court at Bombay held that by the Charter of Justice establishing the Supreme Court at Bombay that Court was prohibited (in like manner as the Supreme Court at Calcutta under 21 Geo. III, C.70) from entertaining any jurisdiction in a matter concerning revenue under the management of the Governor and council or any act done in connection with the same. In that case in November 1846 one Harkissandas was the owner and occupier of a house situated in Bazar Gate Street in Bombay. The property was liable to the payment; of an annual quit -rent called pension which formed part of the land revenue of the East India Company and there was then due to the Collector a sum of Rs. 8 -3 -8 on account of arrears of pension which had not been collected from the premises since the year 1827. The predecessor -in -title of Harkissandas Avas Narotamdas whose name was registered in the books of the Collector. Harkissandas appears to have purchased the property in 1836 and to have continued in possession of it up to the date of the proceedings which gave rise to the appeal to the Privy Council. No change of name, however, was made in the books of the Collector and throughout the period the name of Narotamdas appeared in the books as the registered proprietor of the property. Spooner who was the Collector of Revenue in Bombay and one of his assistants sent a subordinate officer to the house of Harkissandas to demand payment of arrears of pension. Harkissandas refused to pay the arrears and a warrant signed by Spooner was served on him. The warrant stated that the Collector was entitled by virtue of the powers conferred on him to enter into and take possession of the property in respect of which arrears of pension were claimed. Then it appears that some subordinate officers of the Collector tried to enter the house in question. They were prevented from doing so by Harkissandas who it appears became very violent and attempted to expel the officers. A scuffle ensued and Harkissandas brought an action of trespass in the Supreme Court of Bombay against the Collector and one of his subordinate officers. The defence in the suit was that the suit related to a matter which concerned revenue or an act done in the collection of revenue and therefore the Supreme Court at Bombay had no jurisdiction. That plea was ultimately accepted by the Privy Council. Relying on this decision Mr. Joshi has argued before me that in that case the act of the Collector affected a third party. I do not think Mr. Joshi is right in his submission. An examination of the report clearly shows that arrears of pension could be collected from the property itself and the Collector had a right under the laws then in force to proceed against the property in respect of any arrears of pension and that right could be enforced even against the successor -in -title. Besides, part of the arrears had accrued after Harkissandas became owner of the property. Therefore, in that case there was no question of applying the provisions of 21 Geo. III, c. 70, Section 8, which is in pari materia with Section 226(2) of the Government of India Act, 1935, to a third party who had nothing to do with revenue or the collection of revenue. I do not think Mr. Joshi's argument is in any way supported by that decision.

(3.)SHAIKH Ahmed v. Coll. of Bombay : (1949)51BOMLR589 was another decision relied on by Mr. Joshi. In that case an application for directions in the nature of habeas corpus was made to this Court by an application under Section 491 of the Criminal Procedure Code. It was made by a person detained in custody for non -payment of income -tax dues. It was held that provisions of Section 226(1) of the Government of India Act, 1935, applied to the facts of the case and, therefore, this Court had no jurisdiction to entertain the petition presented to it. It must be noted that this was a case in which a party himself liable for non -payment of tax had come before the Court. This decision also does not carry Mr. Joshi's argument any further.


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