# Commissioner of Income-tax, Bombay City v. Ncmdlal Gandalal HidayatullahJ

- **Citation:** [1960] 3 S.C.R. 640
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeals Nos. 86 and 87 of 1956
- **Bench:** S. K. DAs, A. K. Sarkar, M. HrnAYATULLAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-income-tax-bombay-city-v-ncmdlal-gandalal-hidayatullahj-1886
- **Pages:** 11

## Headnote

Court Fee-Amendment of statute enabling levy of higher court
fee-When retrospective-Suit instituted before amendment, appeal
filed thereafter-Court fee on memorandum of appeal-Court Fees
Act, 1870 (7 of 1870), ss. 4, 6, Sch. I, Art. 1-Court Fees (Bombay
Amendment) Act, 1954 (Rom. 12 of 1954).
In 1954 certain amendments were made in the Court Fees
Act, 1870, as applied to
Bombay by the Court Fees (Bombay
Amendment) Act, 1954,
by which the system of charging court
fees in the Bombay High Court on the Original Side was altered
and instead of a fixed fee payable on the plaint, etc., ad valorem
fees became
leviable. The amendments
came
into
force on
April 1, 1954, but there was no provision, express or by necessary
intendment, for giving them retrospective effect.
In respect of
appeals filed after that date against decrees passed in suits instituted before that date, the question arose as to whether the court
fees payable on the memoranda of appeal were according to the
law in force at the date of the filing of the suits or according to
the law in force at the date of the filing of appeals:
Held, that the court fees payable on the memoranda of appeal
were according to the law as it stood at the date of the filing of
the suits.
An impairment of the
right of appeal by
putting a new
restriction thereon or imposing a more onerous condition is not a
matter of procedure only;
it impairs or imperils a substantive
right and an enactment which does so is not retrospective unless
it says" so expressly or by necessary intendment.
Hoosein Kasam Dada (India) Ltd. v. The State of Madhya
Pradesh and others, [1953] S.C.R. 987 and Garikapatti Veerayya v.
N. Subbiah Choudhury, [1957] S.C.R. 488, followed.
A Reference under Section 5 of the Court Fees Act, (1954) 57
Born. L.R. 180,
Amara Eswaramma and others v.
Makkam
....
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f .
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-
3 S.C.R.
SUPREME COURT REPORTS
641
Seethamina, A.I.R. 1955 Andhra 221, Arjun: v. Amrita and others,
I.LR. [1956) Nag. 296 and Nagendra Nath Bose v. Mon Mohan
Singh, (1930) 34 C.W.N. 1009, approved.
Mohri Kunwar v. Keshri Chand, l.L.R. [1941] All. 558, distinguished.

## Text

1960
Commissioner of
Income-tax,
Bombay City
v.
Ncmdlal Gandalal
HidayatullahJ.
1960
640
SUPREME COURT REPORTS
[1960]
the respondent bear his own costs and pay those of the
appellant here and throughout.
ORDER OF COURT.
In accordance with the majority judgment of the
Court, the appeal is dismissed with costs.
Appeal dismissed.
STATE OF BOMBAY
v.
SUPREME GENERAL FILMS EXCHANGE LTD.
(with connected appeal)
(S. K. DAs, A. K. SARKAR and M. HrnAYATULLAH, JJ.)
Court Fee-Amendment of statute enabling levy of higher court
fee-When retrospective-Suit instituted before amendment, appeal
filed thereafter-Court fee on memorandum of appeal-Court Fees
Act, 1870 (7 of 1870), ss. 4, 6, Sch. I, Art. 1-Court Fees (Bombay
Amendment) Act, 1954 (Rom. 12 of 1954).
In 1954 certain amendments were made in the Court Fees
Act, 1870, as applied to
Bombay by the Court Fees (Bombay
Amendment) Act, 1954,
by which the system of charging court
fees in the Bombay High Court on the Original Side was altered
and instead of a fixed fee payable on the plaint, etc., ad valorem
fees became
leviable. The amendments
came
into
force on
April 1, 1954, but there was no provision, express or by necessary
intendment, for giving them retrospective effect.
In respect of
appeals filed after that date against decrees passed in suits instituted before that date, the question arose as to whether the court
fees payable on the memoranda of appeal were according to the
law in force at the date of the filing of the suits or according to
the law in force at the date of the filing of appeals:
Held, that the court fees payable on the memoranda of appeal
were according to the law as it stood at the date of the filing of
the suits.
An impairment of the
right of appeal by
putting a new
restriction thereon or imposing a more onerous condition is not a
matter of procedure only;
it impairs or imperils a substantive
right and an enactment which does so is not retrospective unless
it says" so expressly or by necessary intendment.
Hoosein Kasam Dada (India) Ltd. v. The State of Madhya
Pradesh and others, [1953] S.C.R. 987 and Garikapatti Veerayya v.
N. Subbiah Choudhury, [1957] S.C.R. 488, followed.
A Reference under Section 5 of the Court Fees Act, (1954) 57
Born. L.R. 180,
Amara Eswaramma and others v.
Makkam
....
r
f .
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-
3 S.C.R.
SUPREME COURT REPORTS
641
Seethamina, A.I.R. 1955 Andhra 221, Arjun: v. Amrita and others,
I.LR. [1956) Nag. 296 and Nagendra Nath Bose v. Mon Mohan
Singh, (1930) 34 C.W.N. 1009, approved.
Mohri Kunwar v. Keshri Chand, l.L.R. [1941] All. 558, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.
86 and 87 of 1956.
Appeals from the Judgment and Order dated November 24, 1954, of the Bombay High Court in Appeals
Nos. 89/X and 96/X of 1954.
H. R. Khanna and R. H. Dhebar, for the appellants.
S. D. Goswami and Gopal Singh, for the respondents.
1960.
April 22.
The Judgment of the Court was
delivered by
S. K. DAs, J.-These two consolidated appeals arise
out of the juclment and order of the High Court of
Bombay
elated November 24,
1954,
passed on two
applications in t1vo appeals disposed of by the said High
Court.
The facts are similar and the question of law
arising therefrom is one and the same, namely, whether
in the absence of provisions giving retrospective effect
to certain amendments made in the Court Fees Act,
1870, as applied to Bombay by the Court Fees (Bombay Amendment) Act,
1954 (Bombay Act No. XII of
1954), which amendments
came in force on April 1,
1954, hereinafter called the
relevant date, the court
fees payable on two memoranda of appeal were payable according to the law in force at the date of filing
of the suits which was prior to the relevant date, or
according to the law in force at the date of the filing
of the memoranda of appeal which was after. the relevant date.
The facts are simple and may be very shortly stated.
On April 16,
1953,
Messrs.
Sawaldas Madhavdas
brought a suit against the
Arati Cotton Mills Ltd.,
praying for a decree for rupees two lacs and odd.
The
suit was decreed on July 22, 1954.
The Arati Cotton
Mills Ltd. filed a memorandum of appeal against the
said decree on September 4, 1954, and paid court fees
of Rs. 3,193-12-0 on the said memorandum.
On or
about October 5, l 954,
a settlement was arrived at
between the parties and on October 9, 1954, a prayer
was made for dismissal of the appeal for want of prosecution.
On November 18, 1954,
an application was
1960 .
•
State of Bombay
v.
· Supreme Central
Films Exchange
Ltd.
S.K. Das] ..
1960
State of Bombay
v.
Supreme General
Films Exchange
Ltd.
S.K. Das].
642
SUPREME COURT REPORTS
[1960]
made under s. l 0 I. Code of Civil Procedure, by the
Arati Cotton .\!ills Ltd.,
for refund of excess court
fees paid 011 the
memorandum of
appeal.
In the
application it was stated:
"The appellants say that the appeal having arisen
out of a suit which had been instituted on or about
16th April, 1953, long prior to the coming into force
of the Court Fees (Bombay Amendment) Act, XII of
l 954, no court fees were payable on the memorandum
of appeal herein except as provided in the Table of
fees hereinafter mentioned and that it was due to a
mistake that the appellants were called upon to pay
the said institution fee amounting to Rs. 3,193-12-0
and the said sum was paid by the appellants under a
bona fide mis take and/ or
inad\ ertence and/ or oversight.
The appellants say that the only fee payable
for the filing of the said memorandum of appeal was
the fee of Rs. 'l2 under item No. 58 of the Table of
fees set out at page 'l96 of the Rules of this Court.
The appellants say that they were not legally bound
to pay anything more than the said sum of Rs. 32 and
that sum of Rs. 3, Iii 1-12-0 paid by them in excess of
the said sum of
Rs. :l2 was paid
by mistake
and
ignorance of the appellant"s legal rights and/or through
inadvertence or oversight.
The appellants submit that
it is necessary for the ends of justice that the said sum
of Rs. J,161-12-0 should be ordered to be refunded to
them."
Similarly, on December 17, 1953, Messrs. Rasiklal and
Company Ltd., brought a suit against ·Messrs. Supreme
General Films Exchange Ltd. and two
other defendants in which a decree was passed on May 11, 1954,
for a sum of Rs. ·H,876-12-0 against Messrs. Supreme
General Films
Exchange Ltd.
The
latter
filed a
memorandum of appeal on July 31, 1954, and paid
court fees of Rs. I ,958 on it.
The appeal was,
however, withdrawn with the leave of the High Court on
September 27, 1954.
C\1essrs. Supreme General Films
Exchange Ltd. then applied for refund of the excess
court fees paid on a ground similar to that mentioned
earlier in connection with the application of the Arati
Cotton Mills Ltd.
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3 S.C.R.
SUPREME COURT REPORTS
643
Both the applications were heard together after
.issue of notice to the Advocate-General, Bombay, who
appeared for 'the State of
Bombay and opposed the
applications.
By its judgment and order dated November 24, 1954, the High Court allowed the applications.
The State of Bombay then asked for and obtained a
certificate in the two cases which were consolidated to
the effect that they were fit for appeal to this Court.
These two appeals have been preferred on ·the strength
of that certificate.
Now, the learned Chief Justice who delivered the
judgment allowing the two applications, referred to an
earlier decision of this, reported in A Reference Under
Section 5 of the Court Fees Act (') and said that that
decision governed the present cases also.' The facts which
led to the earlier decision were: (i) that prior to the relevant date a suit for partition of joint family property
fell under Schedule II, Art. 17 (vii) of the Court Fees
Act and the court fees payable were Rs. 18-12-0 only;
(ii) an amendment which came into effect on the rele0
vant date said
that the court
fees payable in such
suits should be according to the value of the share in
respect of which the suit is instituted; (iii) a suit for
partition of joint family property was brought before
the relevant
date but an appeal was filed thereafter.
The question was:
on the facts stated above, what
court fees were payable on the memorandum of appeal.
Relying on
the decision of
this Court in H oosein
Kasam Dada (India) Ltd.
v.
The State of Madhya
Pradesh and Others (') and certain other decisions to
which we shall presently refer., the learned Chief Ji.:5tice
held that
a right
of appeal is
a substantive '/ight
which vests in a
litigant at the date of the filing of
the suit, and cannot· be taken away unless the legislature expressly or by necessary intendment says so;
furthermore, an appeal is a continuation of the suit,
and it is not merely that a right of appeal cannot be
taken away by a procedural enactment which is not
made retrospective, but the right cannot be impaired or
imperilled nor can new conditions be attached to the
filing of the appeal; nor can a condition already existing be made more onerous or more stringent so as to
(1) [1954] 57 Born. L.R 180.
(2) (1953] S.C.R. 987.
1960
State. of Bombay
v.
Supreme General
Films Exchange
Ltd.
S.K. Das].
1960
State of Bombay
v.
Supreme General
Films Exchangt
Ltd.
S.K. Das].
644
SUPREME COURT REPORTS
[1960)
affect the right: of appeal arising out of a suit instituted prior to the enactment.
Learned counsel for the
appellant has
made a somewhat feeble
attempt to
distinguish the decision in A Reference Under Section 5
of the Court Fees Act (') on facts, but it cannot be
seriously disputed that if that decision is correct, then
it must govern the two cases before us.
Though the
facts are not identical, we see no difference in principle between them.
On behalf of the St.ate of Bombay, appellant before
us, the correctness of the decision has been challenged
on the ground that there
is no vested right in procedure and reliance has been placed on the principle
"that the
presumption against a
retrospective construction has
no application
to enactments
which
affect only the procedure and practice of the courts,
even when the alteration
which the statute makes
may be disadvantageous to one of the parties" (see
Maxwell on
Interpretation of Statutes,
10th Edn.,
p. 22h).
Very strong reliance has been placed on the
decision in Mohri Kunwar v. Keshri Chand (') and on
the observations made therein to the effect that no
suitor has
a vested right
to insist that during the
pendency of a litigation which a suitor has started,
the
enactment
relating
to court
fee shall not be
changed and the fee leviable shall not he increased or
reduced with regard to future appeals and he would
be entitled to carry on proceedings on the basis of
the law as it stood when the plaint was filed even
though the law is different when he comes to file an
appeal.
On behalf of the respondent it has been submitted that since the decision of the learned Chief
Justice of the Bombay High Court
in A Reference
Under Section 5 of the Court Fees Act (1), there has been
another decision of this Court which concludes the
question (Garikapatti Veerayya v. N. Subbiah Choudhury) (3) and it is argued that the true principle is that
where a right of appeal is impaired or imperilled or a
more onerous
or stringent
condition is put on the
right of appeal, the impairment, peril or imposition of
a more stringent. condition is not retrospective unless
(1) [1954] 57 Born. L.R. 180.
(2) I.L.R. [1941] All. 558.
(3) [1957] S.C.R. 488.
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3 S.C.R.
SUPREME COURT REPORTS
645
the
legislature says
so
expressly
or by
necessary
intendment.
It is necessary to state here what the High Cour.t
has clearly pointed out with regard . to the amendments made by the Court Fees (Bombay Amendment)
Act, 1954.
On the relevant date the whole system of
charging court fees in the Bombay High Court on the
Original Side was altered and instead of a fixed fee
payable on the plaint, etc., ad valorem fees became
leviable as in the districts.
The change was effected
inter alia by deleting s. 4 and amending s. 6 of the
Court Fees Act, 1870, and Art. I of Sch. I to the Act.
There was
no prov1s10n,
express or
by necessary
intendment, for giving
retrospective
effect
to the
amendments made in the sense of affecting a right of
appeal arising out of a suit
instituted prior
to the
relevant date.
As this position has not been contested,
it is not necessary to read here the provisions of the
Amending Act.
We proceed straightaway to consider the arguments
advanced on behalf of the appellant.
So far as we~
have been able to appreciate the submissions made on
behalf of the parties, the point of controversy is really
this: is an impairment
of the right of appeal by
imposing a more stringent or onerous condition thereon a matter of procedure only or is it a matter of substantive right?
v\le think that the question is really
concluded by the decisions of
this Court
We refer
first to the decision in Hoosein Kasam Dada (India)
Ltd. v. The State of Madyha Pradesh ancl others (').
The facts of that case were these: Section 22(1) of the
Central Provinces and Berar Sales Tax Act, 1947, provided that no appeal· against an order of assessment
should be entertained by the prescribed authority unless it was satisfied that such
amount of tax as the
:cippellant might admit to be due from him, had been
paid.
This Act was amended on November 25, 1949,
;ind s. 22(1) as
amended
provided that
no appeal'
should be admitted by the said authority unless such
;i.ppeal was accompanied by satisfactory proof of the
payment of the tax in respect of which the appeal had
(I) [19!i3] S.C.R. 987.
20-6 SCI/ND/82
1960
State of Bombay
v.
Supreme General
Films Exchange
Ltd.
S.K.DasJ.
1960
State of Bombay
v.
Supreme General
Films Exchange
Ltd.
S.K. Das].
646
SUPREME COURT REPORTS
[1960]
been preferred.
On November 26. 1947,
the appellant submitted a return to the Sales Tax Officer, who,
finding that the turnover exceeded 2 lacs,
submitted
the case to the
Assistant Commissioner for disposal
and the latter made an assessment on April 8, 1950.
The appellant preferred an appeal on May I 0, 1950,
without depositing
the amount of tax. in respect of
which he had appealed. The Board of Revenue was
of opinion that s. 22(1) as amended applied to the case
as the assessment was made, and the appeal was preferred,
after the
amendment came
into force and
rejected the appeal. It was held by this court that
the appellant had a vested right of appeal when the
proceedings were initiated in 1947
and his right of
appeal was governed by the law as it stood then. It
was further held that the amendment of 1950 could
not be regarded as a mere alteration in procedure or
an alteration regulating the exercise of the right of
appeal; it whittled down the right itself, and had no
retrospective effect as the
Amendment Act of 1950
did not expressly or bv necessary
intenclment give it
retrospective effect.
This decision
proceeded on the
principle that impairment of the right of appeal by
imposing a more onerous condition is not a matter of
procedure only. The decision in Garikapatti Veerayya
v. Subbiah Choudhury ('), referred specifically to two
decisions
relating to an increase in
court fees bv
subsequent amendment of the Court Fees Act, and one
of the decisions was
Sawaldas
Madhavdas v.
Arati
Cotton Mills Ltd. ('), the very decision which is under
appeal here. The other decision was R. M. Seshadri
v. The Province of Madras (').
Perhaps, our attention
was not
then drawn to the
circumstance that the
decision in Sawaldas Madhavdas v. Arati Cotton Mills
Ltd. (') was at the time pending in appeal here. The
point of the decision in Garikapatti Veerayya (') is, however,
this:
this Court
referred with
approval to
decisions which accepted
the position
that taking
away a right of appeal and imposing a more onerous
condition on such right involved the same principles
as to retrospective effect of the subsequent legislation.
(1) [1957] S.C.R. 488.
(2) [1954] 57 B.L.R. 394._
(3) I.L.R. [1954] Mad 643.
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3 S.C.R.
SUPREME COURT REPORTS
647
A similar view was expressed in Amara
Eswaramma
and others v. Makkam Seethamma (1) and Arjun v.
A mrita and others (').
The appellant has relied on In re: Punya Nahako (3).
That was a case of review, and it was held that if
between the date of the plaint or the appeal and the
date
for filing the petition for review,
there was a
change in the Court Fees Act increasing the fee payable ad valorem, the petitioner must pay at the increased rate.
The learned Chief Justice (Chagla, C.J.) expressed the·· opinion that a review does not stand on
the same footing as· an appeal,
and one cannot say
that there is a substantive right of review. It may
be pointed out here that even in respect of a review, a
view different from that of the Madras High Court
was taken in Parmeshar K urmi v. Bakhtwar Pande (').
It is,
however, unnecessary
to say anything
more
about a review, because we are not concerned with it
in the present case.
,
In Anand Ram Pramhans and others v. Ramgulam
Sahu and others (') the question which was
mooted
and discussed related to the proper presentation of a
memorandum
of appeal,
and
incidentally
it was
observed that the new Bihar and Orissa Court Fees
Act which had already come into force applied to the
case.
There was ·no discussion of the question as to
whether the enactment in question was given retrospective effect or not.
As to the decision in
Mohri
Kunwar v. Keshri Chand (') on which so much reliance
has been placed by the appellant,
it ·is necessary to
point out that the question there was if the right of
appeal created by s. 6A of the Court Fees Act, which
was added by U.P. Act, XIX of 1938,
was available
as against an order passed after the coming into force
of the latter Act, although that Act was not in existence and consequently there was no right of appeal
at the date of filing that plaint. It was held that the
enactment,
by the amending Act of 1938, of s. 6A
which allmved an appeal against an order demanding
the payment of a deficiency in court fees did not take
away any right which was vested in the plaintiff on
(I) A.I.R. 1955 Andhra 221.
(2) I.L.R. [1956] Nag. 296.
(3) [1926] I.L.R. 50 Mad. 488.
(4) [1932] I.L.R. 54 All. 1092.
(5) A.I.R. ,1923 Pat. 150.
· (6) I.L.R. [1941] Aii. 558.
1960
State of Bombay
v.
Supreme General
Films Exchange
Ltd.
S. K. Das J.
1960
State of Bombay
v.
Supreme General
Films Exchange
Ltd.
S.K. Das:J.
648
SUPREME COURT REPORTS
I 1 !)GO]
the date on which he filed the plaint, it only conferred
on him a new right; nor did it Lake away any right
which was
vested in the defendant,
for though the
defendant could object if the plaint was not properly
>tamped and
might also have a
right to have the
matter
determined by the court he had
no vested
- right in the procedure by which it was to be determined, and this procedure could be changed pending
the suit and a change in procedure could not be said
to deprive him of any vested right.
It would appear
from what has been stated
above that the decision
proceeded on the footing that the amending Act conferred a new
right of appeal,
and not that it took
away a vested right of appeal;
and the reason of the
decision was based on the principle
that there is no
vested right in the procednre by which the sufficiency
of court
fees is determined 'by a court.
That is a
principle of a different character from
the one
v.re are concerned
i;vit}1
in the present case, viz.,
the retrospective
effect of a
subsequent enactment
which either takes away a right of appeal or impairs
it by imposing· a more stringent or onerous condition
thereon.
\Ve do 11ot, therefore, think that the Allahabad decision helps the appellant.
The question was considered in reverse in
Delhi
Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi (') and the principle of Colonial Sugar
Refining Co. v. Irving (')
was
applied.
Another
decision in point is that of Nagendra Nath Bose v.
Mon Mohan Singh Roy (').
In that case the plaintiff
instituted a suit for rent valued at Rs. J,306-15-0 and
obtained a decree.
In execution of that
decree the
defaulting tenure was sold on November 20, 1926, for
Rs. J ,600.
On
December 19,
l 928,
an application
was made under 0. 2 J, r. 90, of the Code of Civil
Procedure,
by the
petitioner who was one
of the
judgment
debtors for setting
aside the sale.
That
application having been dismissed for default of his
appearance, the petitioner preferred an appeal to the
District .Judge,
Hoogly, who refused
to admit the
· appeal on the gTound that the amount recoverable 111
(1) [1927] L.R. 54- T.A. 421.
(2) [1905] A.C. 31i9.
(3) [1930] 34 C.W.N. 1009.
>
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3 S.C.R.
SUPREME COURT REPORTS
64:9
execution of the
decree had not . been deposited as
required by the
proviso to s. l 74(c)
of the
Bengal
Tenancy Act as amended by an amending Act of 1928.
The contention of the petitioner was that the amending provision, which came into force on February 21,
1929,
could not affect his right of appeal from the
decision on an
application made
on December 19,
1928, for setting aside the sale.
Mitter, J., said:
"We think the contention of the
petitioner is wellfouncled and must prevail. That a right of appeal is
a substantive right cannot now be seriously disputed.
lt is not a mere
matter of procedure.
Prior to the
amendment of 1928 there was an appeal against an
order refusing to set aside a sale (for that is the effect
also where the application
to set aside the
sale is
dismissed for default) under the provisions of Order 43,
rule ( l ), of the Code of Civil Procedure.
That right
was unhampered by any restriction of the kind now
imposed by s. 174(5), proviso.
The Court was bound
to admit the appeal whether the appellant deposited
the amount recoverable in execution of the decree or
not.
By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction
has been put on the right of appeal, the admission of
which is now hedged in with a condition.
There Can
be no doubt that the right of appeal has been affected
by the new provision and in the absence of an express
enactment this amendment cannot apply to proceedings pending at
the elate when the new amendment
came into force.
It is true that the appeal was filed
after the Act came into force, but that circumstance is
immaterial-for the
date to be looked into for this
purpose is the date of the original proceeding which
eventually culminated in the appeal."
This decision
was approved by this Court both in
Hoosein Ka~am
Dada (1) and Karikojlatti V eerayya (').
It is
thus clear that in a long line of decisions
approved by this Court and at least in one given by
this Court,
it has been held that an impairment of
the right of
appeal by
putting a new
restriction
thereon or imposing a more onerous condition is not
a matter of procedure only; it impairs or imp_erils a
(IJ [1953] S.C.R. 987.
(2) [1957] S.C.R 488.
1960
State of Bombay
v.
Supreme General
Films Exchange
Ltd.
S. K. Das].
1960
State of Bombay
v.
Suj;reme Gener(!l
lillms Exchange
Lid.
S.K. Da.J.
1960
Af,,-il 22.
650
SUPREME COURT REPORTS
[1960]
substantive right and an enactment which does so is
not
retrospective unless it says
so expressly
or by
necessary intendment.
\Ve are, therefore, of the view that the High Court
was right in the view it took, and the orders of refund
of excess court
fees which it passed were correct in
law.
Accordingly, the appeals fail and are dismissed with
costs.
There will be one set of costs, as the appeals
have been consolidated and heard together.
Appeals dismissed.
BRlJENDRALAL GUPTA AND ANOTHER
v.
j\\'ALAPRASAD AND OTHERS.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO and
K. C. DAS GUPTA, JJ.)
Election-Nomination, rejection of-Non-mention of age in
nomination paper-If defect of substantial
nature-Omission, if
amounts to defect-Scrutiny-When enquiry necessary-Electoral
Roll-Entry regarding age-How far conclusive-Representation of
the People Act, 1951 (43 of 1951), ss. 33 and 36-Representation of
the People Act, 1950 (43 of 1950), ss. 16 and 19.
Thirteen candicates filed their nomination papers for election
to the Legislative Assembly of Madhya Pradesh.
The nomination of U was rejected on the
ground
that he failed to give a
declaration as to his age as required in the nomination paper.
After the poll the appellants were declared duly elected.
Thereupon one of the unsuccessful candidates J filed an elecion petition challenging the election of the appellants, inter alia, on the
ground that the nomination of U had been improperly rejected.
The Election Tribunal dismissed
the petition holding
that
U
made no attempt before the
returning officer to remedy the
defect in the nomination paper,
that the defect could not in law
have been remedied at the stage of the scrutiny, that the defect
was of a
substantial character
and that
the rejection
of the
nomination was proper. On appeal the High
Court held that at
the time of the scrutiny U had offered to
supply the omission
but the returning officer had refused to allow him to do so, that
the ret_urning officer was
bound to make
a summary enquiry
before rejection,_ the nomination,
that the non-mention of age in
the nomination paper was not a defect of a substantial character
and that the rejection of the nomination was improper and consequently allowed the appeal and set aside the election of the
appellants:
-