Wanchoo, J. - (1.) This is an appeal on a certificate granted by the Calcutta High Court. The brief facts necessary for present purposes are these. The respondent had imported 2,000 drums of mineral oil. Out of this quantity, the appellant, the Collector of Customs, Calcutta, confiscated 50 drums by order dated September 20, 195O. He also imposed a personal penalty of Rs. 61,0001- on the respondent under the Sea Customs Act, No. 8 of 1878 (hereinafter referred to as the Act). The respondent appealed to the Central Board of Revenue under S. 188 of the Act, and this appeal was dismissed in April, 1952. Thereupon the respondent filed a petition under Art. 226 of the Constitution in the High Court. We are in the present appeal not concerned with the merits of the case put forward by the respondent, for the mater has not yet been heard on the merits. When the petition came up before a learned Single Judge a question was raised as to the jurisdiction of the High Court to hear the petition in view of the decision of this Court in Election Commission India vs. Venkata Rao Subba Rao, (1953) SCR 1144. As the learned Single Judge considered the point important, he referred the mater to a larger bench:and eventually the question was considered by a Full Bench of the High Court. The Full Bench addressed itself two questions in that connection, namely, (i) whether any writ could issue against the Central Board of Revenue which was a party to the writ petition and which was permanently located outside the jurisdiction of the High Court, and (ii) whether if no writ could issue against the Central Board of Revenue any writ could be issued against the appellant, which was the original authority to pass the order under challenge, when the appellate authority (namely, the Central Board of Revenue) had merely dismissed the appeal.
(2.) The Full Bench held on the first question that the High Court had no jurisdiction to issue a writ against the Central Board of Revenue in view of the decision in the case of Venkata Rao Subba Rao, (1953) SCR 1144. On the second question, it held that as the Central Board of Revenue had merely dismissed the appeal against the order of the Collector of Customs, Calcutta, the really operative order was the order of the appellant, which was located within the jurisdiction of the High Court, and therefore it had jurisdiction to pass an order against the Collector of Customs in spite of the fact that that order had been taken in appeal (which was dismissed) to the Central Board of Revenue to which no writ could be issued. The Full Bench further directed that the petition would be placed before the learned Single Judge for disposal in the light of its decision on the question of jurisdiction. Thereupon there was an application for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us.
(3.) The only question which falls for decision before us is the second question debated in the High Court, namely, whether the High Court would have jurisdiction to issue a writ against the Collector of Customs, Calcutta, in spite of the fact that his order was taken in appeal to the Central Board of Revenue against which the High Court could not issue a writ and the appeal had been dismissed. There seems to have been a difference of opinion amongst the High Courts in this matter. The Rajasthan High Court in Barkatali vs. Custodian General of Evacuee Property of India. AIR 1954 Raj 214 held that where the original authority passing the order was within the jurisdiction of the High Court but the appellate authority was not within such jurisdiction, the High Court would still have jurisdiction to issue a writ to the original authority, where the appellate authority that merely dismissed the appeal and the order of the original authority stood confirmed without any modification whatsoever. on the other hand, the Pepsu High Court in Joginder Singh Waryam Singh vs. Director, Rural Rehabilitation, Pepsu, (S) AIR 1955 Pepsu 91, the Nagpur High Court in Burhanpur National Textile Workers Union vs. Labour Appellate Tribunal of India, (S) AIR 1955 Nag 148 and the Allahabad High Court in Azmat Ullah vs. Custodian, Evacuee Property, U.P. Lucknow (S) AIR 1955 All 435 (FB) held otherwise, taking the view that even where the appeal was merely dismissed, the order of the original authority merged in the order of the appellate authority, and if the appellate authority was beyond the territorial jurisdiction of the High Court, no writ could issue even to the original authority. It may be mentioned that the Rajasthan High Court had occasion to reconsider the matter after the decision of this Court in Thangal Kunju Musaliar vs. Venkatachalam, (1955) 2 SCR 1196 and held that in view of that decision, its earlier decision in Barkatali's case, (supra) was no longer good law. The High Court has however not noticed this later decision of the Rajasthan High Court to which the learned Chief Justice who was party to the earlier Rajasthan case was also a party. The main reason which impelled the High Courts, which held otherwise, was that the order of the original authority got merged in the order of the appellate authority when the appeal was disposed of and therefore if the High Court had no territorial jurisdiction to issue a writ against the appellate authority it could not issue a writ against the original authority, even though the appellate authority had merely dismissed the appeal without any modification of the order passed by the original authority.;