Harnam Singh -
(1.) TO appreciate the point arising in this case the facts must be set out in some detail.
(2.) MESSRS. Hans Raj Gupta and Co., Chawri Bazar, Delhi, applied to the Appellate Tribunal, Income-tax, under Section 66(1) of the Income-tax Act, 1922, hereinafter referred to as the Act, to refer to the High Court of Judicature at Lahore questions of law arising out of the order passed by that Tribunal but the Appellate Tribunal refused to state the case on the ground that no question of law arose from that order. MESSRS. Hans Raj Gupta and Co,, then applied to the High Court of Judicature at Lahore under Section 66(2) of the Act, to require the Appellate Tribunal to state the case and refer the points of law arising from the order of the Appellate Tribunal to the High Court under Section 66 (2) of the Act. Upon that application a Division Bench of the Lahore High Court issued notice to the Appellate Tribunal.
Now on the division of the Punjab the case was sent by the Lahore High Court to "this Court, but considering the provisions of Article 13 (2) (a) of the High Courts (Punjab) Order, 1947, the records of that case were returned to the Lahore High Court for a decision on that application by that Court,
On 9th April; 1948, Messrs. Hans Raj Gupta and Co., applied under Section 151 of the Civil Procedure Code to this Court for recalling the records of Civil Miscellaneous No. 44 of 1946 from the Lahore High Court and then deciding the petition under Section 66(5) of the Act on the ground that this Court had jurisdiction to hear the ease. That application was registered in this Court as Civil Miscellaneous No. 54 of 1948 in Civil Miscellaneous No. 44 of 1946. The case came up before Diwan Ram Lall, C.J., on 21st of April, 1948, when his Lordship rejected the application in limine.
After waiting for about two years Messrs. Hans Raj Gupta and Co., have again applied to this Court under Section 151 of the Civil Procedure Code praying that this Court may recall the records of Civil Miscellaneous No. 44 of 1946 from the Lahore High Court and decide that case itself. Upon this petition Soni, J., ordered:
Notice to Commissioner of Income-tax only on the question of! jurisdiction of this Court to hear the case. Early date
Pursuant to the notice issued by this Court to the Income-taxi Commissioner Mr. Sarv Mittra Sikri, Advocate, has appeared in this Court for the Commissioner of Income-tax.
(3.) MR.Sikri urges that considering that an application covering the point raised in Civil Miscellaneous No. 131 of 1950 has already been decided by this Court on 21st April, 1948, the present petition is not competent. As set out above, the present petition is textually the same with minor 1 alterations as the petition which was registered in this Court as Civil Miscellaneous No. 54 of 1948 in Civil Miscellaneous No. 44 of 1946,11 That being so, the order passed by this Court on 21st April, 1948, is; not open to reconsideration in these proceedings.
But quite independently of the objection set out in the preceding ? paragraph I see no merits in this petition. By Section 1 of the Indian Independence Act, 1947, two independent Dominions were set up in India. By Section 4 the old Punjab became two separate Provinces. Section 9 of the Act empowered the Governor-General to make provision or order for bringing the provisions of the Independence Act into effective operation. Now, under Section 9 of the Act the Governor- 1 General on 11th August, 1947, promulgated the High Courts (Punjab) Order, 1947, and the Articles of that Order to which reference may be made are Articles 3, 5 and 13,
By Article 3 this High Court was constituted. Article 5 defined the jurisdiction of this Court and the only limitation on the powers of this Court was territorial. Indeed, the powers conferred on this Court were the same as the Lahore High Court had regarding its original, appellate or other jurisdiction. Considering that this case arose in the State of Delhi, this Court has jurisdiction under Article 5 of the Order. Article 13(2), however, provides that notwithstanding anything contained in the High Courts (Punjab) Order, 1947, proceedings which, immediately before 15th August, 1947, were pending in the High Court at Lahore on its original side shall be heard and determined by that Court. The question for decision is whether Civil Miscellaneous No. 44 of 1946 pending in the High Court of Judicature at Lahore was a proceeding on the original side of the High Court at Lahore. On this point a number of authorities were referred to at the hearing before me. Of them Chief Commissioner of Income-tax, Madras v. North Anantapur Gold Mines Ltd., 1921 44 Mad. 718 and Venkataratnam v. Secretary of State, 1930 AIR 1930 Mad. 896 may be seen. In Chief Commissioner of Income-tax, Madras v. North Anantapur Gold Mines, Ltd. 1921 44 Mad 718, Wallis, C.J., said:
Now, the issuing of the writ of mandamus to secure the performance of a public duty where no adequate remedy existed by action or otherwise was, it seems to me, clearly an exercise of original jurisdiction. It was a proceeding originating in the Court issuing it, and might be directed in a proper case to any class of public officer, executive or judicial. It must also be regarded as having been within the original jurisdiction of the Supreme Court because that Court had no appellate jurisdiction. Similarly, I think that the substituted jurisdiction to issue orders under Section 45 of the Specific Belief Act is original jurisdiction.