# Dwarkadas Shrinivas of Bombay v. The Sholapur spinning and Weaziing Co. Ltd., and Others

- **Citation:** [1954] 1 S.C.R. 738
- **Court:** Supreme Court of India
- **Decided:** 1954
- **Case number:** CIVIL APPEALS Nos. 118 to 121 of 1952
- **Bench:** Mehr Chand Mahajan C. J, MuKHERJEA, S. R. DAs, VIVIAN BosE, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dwarkadas-shrinivas-of-bombay-v-the-sholapur-spinning-and-weaziing-co-ltd-and-335
- **Pages:** 10

## Headnote

Constitution
of India,
art. 226-/urisdiction of Punjab High
Court to issue writs to Income-tax Investigation Commission located
in
Delhi-Remedy
under
art. 226-Discretionary-Taxation
on
Income (Investigation Commission)
(Act XXX of 1947), ss. 5 and
8(5).
The Punjab High Court has jurisdiction to issue a writ under
art.
226
of
the
Constitution to
the
Income-tax
Investigation
Commission
located in Delhi and
investigating
the case of the
petitioner under 5 of the Taxation on Income (Investigation Commission) Act, ·1947, although the petitioners were assessees within
the U. P. State an<l their original assessments
were
made by the
Income-tax authorities of that State.
Article 226 of the Constitution confers on all the High Courts
new and very
wide powers
in the matter of issuing writs which
they never possessed before.
There are only two limitations placed
upon the exercise of such powers by a High Court ; one is that the
power is to be exercised "throughout the territories in relation
to which it exercises jurisdiction",
that is to say, the writs issued
by the court cannot run beyond the territories subject to its
jurisdiction. The other is that the person or authority
to whom
. S.C.R.
SUPREME COURT REPORTS
739
the High Court is em.powered to issue writs "must be within those
tertitories" and this implies that they must be amenable to its
jurisdiction either by residence or location within those territories.
,
The remedy provided in art. 226 of the Constitution is a discretionary one and the High
Court has always the discretion to
refuse to grant any writ if it is satisfied that the aggrieved party
can have an adequate or suitable relief elsewhere.
Ryots of Garabandho v. Zamindar of Parlakimedi (70 I.A. 129)
and Election Commission v. Saka Venkata Subba Rao [1953] S.C.R.
1144 referred to.
C1v1L
APPELLATE
JuR1so1ct10N :
CIVIL
APPEALS
Nos. 118 to 121 of 1952.
(Appeals under article 133 ( 1) ( c) of the Constitution of India from the Judgment and Order dated the
10th August, 1950, of the High Court of Judicature,
Punjab at Simla
(Khosla and Kapur JJ.)
in Civil
Miscellaneous Nos. 256, 260, 261 and 262 of 1950).
Dr. Bakshi Tek Chand (T. N. Sethi, with him) for
the appellants.
M. C. Setalvad, Attorney-General for India (Poru!
A. Mehta, with him) for the respondents.
1954. January, 22. The Judgment of the Court
was delivered by
MuKHERJEA J.-These four
consolidated appeals,
which have come before us, on a certificate granted by
the High Court of Punjab under article 133 (1) (c) of
the
Constitution, are
directed against one common
judgment of a Division Bench of that court dated the
10th August,
1950, by which the learned Judges
dismissed four analogous petitions, presented on behalf
of the different appellants,
claiming
reliefs under
articles 226 and 227
of the Constitution, in respect of
certain
income-tax
investigation
proceedings
commenced against them under Act XXX of 1947. It
appears that a partnership firm carrying on business
under the name and style of K. S. Rashid & Son was
started on the 5th of May,
1934, the partners being
three in number to wit K. S. Rashid Ahmed, Saeed
Ahmed, his son, and Mrs. Zafar
Muhammed, his
mother. Mrs. Zafar Muhammed died on the 7th of
January, 1946, and as a result of her death the partnership stood dissolved. Immediately on the day following,
1954
1'. S. ·Rashid·
and Son
v.
The Income-tax
Investigation
Commission, etc._
Mukherjea ] •.
1954
K. S. Rashid
and Son
V•
The Iiicome~tax
Investigation
-Commission, etc.
Mukherjea J·
740
SUPREME COURT REPORTS
f1954]
that 1s to say on the 8th of January, 1946, a new
firm was started bearing the same name, with the two
surviving partners of the original firm
an~ one Saeeda
Begum, a daughter of
K. S. Rashid,
as
the third
partner. On the 31st of December, 1947, the Central
Government referred the cases of. this firm,
as well as
of the individuals constituting it, to the Income-tax
Investigation Commission for enquiry and report under
section 5 of Act XXX of
1947,

## Text

1953
Dwarkadas
Shrinivas of
Bombay
v.
The Sholapur
spinning and
Weaziing Co. Ltd.,
and Others.
1954
Jan. 22.
738
SUPREME COURT REPORTS
[1954)'
to our Parliament to deprive a person of his property
merely by passing an Act. The two parts of the
article form an integral whole and cannot be disassociated from each other.
The result is that I agree with the order proposed
by my learned brother.
Appeal allowed.
Agent for the appellant : /. N. Shroff.
Agent for respondents Nos.
1 to 4 and 6 to 8 ~
Rajinder Narain.
Agent for respondent No. 9 : G. H. Rajadhyaksha.
K. S. RASHID AND SON
ti.
THE INCOME-TAX INVESTIGATION
COMMISSION, ETC.
(With connected appeals)
[MEHR CHAND MAHAJAN C. J., MuKHERJEA,
S. R. DAs, VIVIAN BosE and GHULAM HASAN JJ.]
Constitution
of India,
art. 226-/urisdiction of Punjab High
Court to issue writs to Income-tax Investigation Commission located
in
Delhi-Remedy
under
art. 226-Discretionary-Taxation
on
Income (Investigation Commission)
(Act XXX of 1947), ss. 5 and
8(5).
The Punjab High Court has jurisdiction to issue a writ under
art.
226
of
the
Constitution to
the
Income-tax
Investigation
Commission
located in Delhi and
investigating
the case of the
petitioner under 5 of the Taxation on Income (Investigation Commission) Act, ·1947, although the petitioners were assessees within
the U. P. State an<l their original assessments
were
made by the
Income-tax authorities of that State.
Article 226 of the Constitution confers on all the High Courts
new and very
wide powers
in the matter of issuing writs which
they never possessed before.
There are only two limitations placed
upon the exercise of such powers by a High Court ; one is that the
power is to be exercised "throughout the territories in relation
to which it exercises jurisdiction",
that is to say, the writs issued
by the court cannot run beyond the territories subject to its
jurisdiction. The other is that the person or authority
to whom
. S.C.R.
SUPREME COURT REPORTS
739
the High Court is em.powered to issue writs "must be within those
tertitories" and this implies that they must be amenable to its
jurisdiction either by residence or location within those territories.
,
The remedy provided in art. 226 of the Constitution is a discretionary one and the High
Court has always the discretion to
refuse to grant any writ if it is satisfied that the aggrieved party
can have an adequate or suitable relief elsewhere.
Ryots of Garabandho v. Zamindar of Parlakimedi (70 I.A. 129)
and Election Commission v. Saka Venkata Subba Rao [1953] S.C.R.
1144 referred to.
C1v1L
APPELLATE
JuR1so1ct10N :
CIVIL
APPEALS
Nos. 118 to 121 of 1952.
(Appeals under article 133 ( 1) ( c) of the Constitution of India from the Judgment and Order dated the
10th August, 1950, of the High Court of Judicature,
Punjab at Simla
(Khosla and Kapur JJ.)
in Civil
Miscellaneous Nos. 256, 260, 261 and 262 of 1950).
Dr. Bakshi Tek Chand (T. N. Sethi, with him) for
the appellants.
M. C. Setalvad, Attorney-General for India (Poru!
A. Mehta, with him) for the respondents.
1954. January, 22. The Judgment of the Court
was delivered by
MuKHERJEA J.-These four
consolidated appeals,
which have come before us, on a certificate granted by
the High Court of Punjab under article 133 (1) (c) of
the
Constitution, are
directed against one common
judgment of a Division Bench of that court dated the
10th August,
1950, by which the learned Judges
dismissed four analogous petitions, presented on behalf
of the different appellants,
claiming
reliefs under
articles 226 and 227
of the Constitution, in respect of
certain
income-tax
investigation
proceedings
commenced against them under Act XXX of 1947. It
appears that a partnership firm carrying on business
under the name and style of K. S. Rashid & Son was
started on the 5th of May,
1934, the partners being
three in number to wit K. S. Rashid Ahmed, Saeed
Ahmed, his son, and Mrs. Zafar
Muhammed, his
mother. Mrs. Zafar Muhammed died on the 7th of
January, 1946, and as a result of her death the partnership stood dissolved. Immediately on the day following,
1954
1'. S. ·Rashid·
and Son
v.
The Income-tax
Investigation
Commission, etc._
Mukherjea ] •.
1954
K. S. Rashid
and Son
V•
The Iiicome~tax
Investigation
-Commission, etc.
Mukherjea J·
740
SUPREME COURT REPORTS
f1954]
that 1s to say on the 8th of January, 1946, a new
firm was started bearing the same name, with the two
surviving partners of the original firm
an~ one Saeeda
Begum, a daughter of
K. S. Rashid,
as
the third
partner. On the 31st of December, 1947, the Central
Government referred the cases of. this firm,
as well as
of the individuals constituting it, to the Income-tax
Investigation Commission for enquiry and report under
section 5 of Act XXX of
1947, presumably on tl1e
ground that there had been substantial evasion of payment of income-tax in these
cases.
The authorised
official appointed under section 5 ( 4) ( 3) of the Act,
who figures as respondent No. 2 .in all these appeals, in
due course started investigation in these
cases and the
appellants' complaint is, that contrary
to the provisions of the Act, he extended his investigations to a
period subsequent to
the 31st March,
1943, up to
which date the income-tax assessment in all these cases
was completed. A petition embodying this complaint
was made to the authorised official on the 8th of April,
1949, but no order was passed on the petition, as the
Commission was expecting an early change of law in
this respect. The law was amended by an Ordinance
dated the St:1 o' July, 1949, but the appellants still
contended
that
the
amendment was
neither retrospective in its operation, nor did it enable the authorised
official to carry on his investigation beyond the 31st
March, 1943. The account books, however, were shown
to the
oflicial under protest.
On the 17th September,
1949, three applications were fi:ed before the Commission, one with regard to the affairs of Mrs. Zafar
Muhammed stating that no investigation could take
place in regard to her as she was already dead ; the
second with regard to the affairs of Saeeda Begum on
the ground that she being a new partner and not having
been assessed
before, was not subject to the jurisdiction of the Commission ; while the third application
was to the effect that the new firm, which came into
existence on the 8th of January,
1946, could not have
its affairs enquired into at all under the provisions of
the Act. After that, in June, 1950, four miscellaneous
petitions were filed, (being C. M. Cases Nos. 259 to 262
S.C.R.
SUPREME COURT REPORTS
741
of 1950) on behalf of the appellants, before the High
Court of Punjab, and the prayers made therein were
of a three-fold character. It was prayed in the first
piace that a writ of prohibition might be issued to the
Commission and the authorised
official directing them
not to proceed with the investigation of cases referred
to the Commission under section 5 of Act XXX of 1947.
The second prayer was for a writ in the nature of
certiorari for quashing the proceedings already
wmmenced. The third and the alternative claim was that
the
proceedings
before
the Commission might be
revised under article 277 of the Constitution and suitable orders passed as the justice of the case WOJ!ld
require. Upon these petitions, rules were issued on
the 25th of July,
1950, after a report from the Investigation Commission had been called for. On behalf of
the respondents, who resisted these petitions, certain
preliminary points were raised in bar of the petitioners'
claim. It was contended in the first place that the
petitioners being assessees belonging to U. P., their
assessments
were
to
b~ made by
the
Income-tax
Commissioner of that State and the mere fact that the
location of the Investigation Commission was in Delhi
would not confer jurisdiction upon the Punjab High
Court to issue writs under article 226 of the Constitution. The second
objection was that the Act itself
being of a special nature which created new rights and
liabilities, the remedies provided for in the Act itself
for any breach or violation thereof were the
only remedies ·which could be pursued by the aggrieved parties and
article 226 or 227 of the Constitution would not be
available to the petitioners. The third ground taken
was that the court could not give ·relief to the petitioners because of sections 5(3) and 9 of Act XXX of
1947. These contentions found favour with the learned
· Judges who heard the petitions, and although' they did
not express any final opinion on the third point raised,
they dismissed the applications or the petitioners on
the first two grounds mentioned above. It is against
these orders of dismissal that the . present appeals have
been taken to this .court and Dr. Tek Chand, whG
appeared on behalf of the appellants, has
a~ailed the
i954
k. s·. Rashid"
and Son
V•
The Income:.tax'
Investigation
Commission, etc ..
Mukherjea J~
1954
K. s. Rashid
and Son
V•
The lncome~ta~
lnvest1"gatio11
Commission, tic·
MukMrjea J.
742
SUPREME COURT REPORTS
[1954]
propriety of the decision of the High Court on both
the points.
So far as the first point is concerned, which relates
to the question of jurisdiction of
the Punjab High
Court to issue writs of certiorari or prohibition in
these
cases, the learned Judges based their decision
entirely upon the pronouncement of the Judicial Committee in the well known case of Ryots of Garabandho
v. Zamindar of Parlakimedi(' ). The question for consideration in that case was, whether the High Court
of Madras had jurisdiction to issue a writ of certiorari
in respect of an order passed by the Collective Board
of
Revepue,
as
an
appellate authority, in certain
proceedings for settlement of rent between the Zamindar of Parlakimedi and the Ryots of certain villages
within his estate situated in the district of Gan jam
which was wholly outside the limits of the Presidency
town of Madras. The question was answered in the
negative. The Judicial Committee laid down that the
three Chartered High Courts of Calcutta, Madras and
Bombay had powers to issue, what were known as the
high prerogative writs, as successors to the Supreme
Courts
which
previously
exercised
jurisdiction
over
these
Presidency
Towns ; but the
exercise of the
powers under the Charter was
limited to
persons
within the ordinary original civil jurisdiction of the
three High Courts, and outside that jurisdiction it
extended only to 'British subjects' as defined in the
Charter itself.
It was held that the Supreme Court
of Madras had no jurisdiction under the Charter which
created it to ,correct or control a country court of the
the East India Company deciding a dispute between
Indian inhabitants of the Ganjam district about the
rent payable for land in that district ; and no such
power was given by any subsequent legislation to its
successor,
the High Court.
A contention seems
to
have been raised on behalf of the appellants that the
jurisdiction to issue writs could be founded on the
fact that the office of the Board of Revenue, which
was the appellate authority in the matter of settlement of rents, was located within the town of Madras
(!) 70 I.A. 129.
..
,.
:S.C.R.
SUPREME COURT REPORTS
743
and the order complained of was made in that town
and reliance was placed in this connection upon the
case of Nundo Lal Bose v. The Calcutta Corporation('),
where a certiorari was issued by the Calcutta High
'Court to quash an assessment made by the Commissioners of the town of Calcutta on a certain dwelling
house. This contention was repelled by the Judicial
·Committee with the following observations:
"The question is whether the principle of that
case can be applied in the present case to the settlement of rent for land in Ganjam, merely on the basis
of the location of the Board of Revenue, as a body
which is ordinarily resident or located within the
town of Madras, or on the basis that the order complained of was made within the town. If so, it would
seem to follow that the jurisdiction of the High Court
would be avoided by the removal of the Board
of
Revenue beyond the outskirts of the town, and that
it would never attach but for the circumstance. that
an appeal is brought to, or proceedings in revision
taken by,
the Board of Revenue. Their Lordships
think
that
the
question
of
jurisdiction must be
.regarded as one of substance, and that it would not
have been within the competence of the Supreme
·Court to claim jurisdiction over such a matter as the
present by issuing certiorari to the Board of Revenue
·on the strength of its location in the town. Such a
view would give jurisdiction to the Supreme Court,
in the matter of the settlement of rents for ryoti
.holdings in
Ganjam
between parties not otherwise
subject to its jurisdiction, which it would not have
had over the Revenue Officer who dealt with the
.matter at first instance."
It is on the basis of these observations of the Judi-
·Cial Committee that the learned Judges have held
that the mere location of the Investigation Commission
in Delhi is not sufficient to ,confer jurisdiction upon
the Punjab High Court to issue a writ in the present
case.
It is
said
that the
petitioners are
assessees
within the U. P State and their original assessments
were made by the Income-tax Officers of that State.
(1) I.L.R, !! Cal. 275, ,.
1954
.
K. $.Rashid
and Son
V•
The Iizcome~Jax
Inve5tigation
Commission, etc.
Mukherjea ]•
I
954
K. S. Rashid
and Son
v.
The Income-tax
Investigation
Commission, et&•
MukherJea J.
744
SUPREME COURT REPORTS
[1954]
The subsequent proceedings, which had to be taken
in pursuance of the report of the Investigation Commission, would have to be taken by the Income-tax
authorities in the U. P., and if a case had to be stated,
it would be stated to the High Court at Allahabad.
Taking, therefore, as the Privy Council had said, that
the question of jurisdiction is one of substance, it was
held that no jurisdiction in the preoent case could be
vested in the Punjab High Court, for that jurisdiction could be avoided simply by removal of the Commission from Delhi to another place.
This line of reasoning does not appear to us to be
proper and we do not think that the decision in the
Parlakimedi's case(1 ) is really of assistance in determining the question of jurisdiction of the High Courts in
the
matter of issuing writs under article 226 of the
Constitution. The whole law on
this
subject
has
been
discussed and
elucidated
by this court in its
recent pronouncement
in
Election
Commission v.
Venkata Rao(') where the observations of the Judicial
Committee in Parlakimedi's case, upon which reliance
has been placed by the Punjab
High Court, have
been fully explained. It is to be noted first of all,
that prior to the commencement of the Constitution
the powers of issuing prerogative writs could be exercised in India only by the High Courts of Calcutta,
Madras and Bombay and that also within very rigid
and defined limits. The writs could be issued only
to the extent that the power in that respect was not
taken away by the Codes of Civil and Criminal Prncedure(') and they could be directed only to persons.
and authorities within the
original civil jurisdiction
of these
High Courts. The
Constitution
introduced
a fundamental change of law in this respect. As has
been explained by this Court in the case referred to
above, while article 225 of the Constitution preserves
to the existing High Courts the powers and jurisdictions which they had previously, article 226
confers,
on all the High Courts, new and very wide powers
(1) 70 I.A. 129.
(2) [1<·53] S. C.R. u44.
(3) Vi de in this connection Besant v. T!te Advocate General of Madras~
46 I. A. 176.
..
S.C.R.
SUPREME COURT REPORTS
745
in the
matter of issuing writs which
they never
possessed before. "The makers
of
the
Constitution"
thus
observed
Patanjali
Sastri
C.J.
in delivering
the judgment of the court, "having decided to provide for certain basic safeguards for the people in the
new 'et up, which they called fundamental rights,
evidently thought it necessary to provide also a quick
and· inexpensive remedy for the enforcement of such
rights, and, finding that the prerogative writs, which
the courts in England had developed and used whenever
urgent
necessity
demanded
immediate
and
decisive interposition, were peculiarly suited for the
purpose, they conferred, in the State's sphere, new
and wide powers on the High Courts of issuing
directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue
such
directions, etc. 'for any other
purpose'
being
also
included with a view apparently to place all the High
Courts in this country in so;;,ewhat the same
position
as
the Court of King's Bench in England." There
are only two limitations placed upon the exercise of ·
these powers by a High Court under article 226 of
-
the Constitution; one is that the power is to be
exercised "throughout
the
territories in relation to
which it exercises jurisdiction'', that is
to say, the
wri'ts
issued
by
the
court cannot run beyond the
territories
subject
to
its
jurisdiction.
The other
limitation is that the person or authority to whom
the High Court is empowered to issue writs "must be
within those territories" and this implies that they
must be amenable to its jurisdiction either by residence
or location within those territories. It is with reference to these two conditions thus mentioned that the
jurisdiction of the High Courts to issue writs under
article 226 of the Constitution is to
be
determined.
The
observations
of
the Judicial
Committee
in
Parlakimedi's case(') have strictly
speaking
no direct
bearing on the point. It is true as the Privy Council
said in that case that the question of jurisdiction
must be regarded as one of substance, but the meaning and
implication of this observation
could be
ascertained
onlv with reference to
the context of
(1) 70I. A. 129 ..
1 I-~~ S, Q, I,(5g
,954
K. S.Rashid
and Son
V•
The Income-tax
InvestigaJion
Commission, etc.
Muk/urjta J·
1954
r;. s. Ra.rhid
and Son
V•
/The Income-tax
lnvl!stigation
Commission, tic.
Mukheriea J•
746
SUPREME COURT REPORTS
[1954]
the
facts
and
circumstances
of
that
case.
As
was
pointed out
by this court in the case
referred
to
above ( 1 )
:
''Their Lordships
considered,
in the
peculiar situation they were dealing with, that the
mere location of the appellate authority alone in the
town of Madras was not a sufficient basis for the exercise of jurisdiction whereas both the subject matter,
viz., the settlement of rent for lands in Ganjam, and
the Revenue Officer authorised to make the settlement
at first instance were outside the local limits of the
jurisdiction of the High Court. If the Court in Madras
were recognised as having jurisdiction to issue the writ
of certiorari to the
appellate authority
in
Madras,
it
would practically be recognising the court's jurisdiction over the Revenue Officer in Ganjam and the
settlement of rents for lands there, which their Lordships held it never had. That was the 'substance' of
the matter they were
!~king at." In our opinion,
therefore, the first contention raised by Dr. Tek Chand
must be accepted as sound and the view taken by the
Punjab High Court on the question of jurisdiction
cannot be sustained.
So far as the second point is concerned, the High •
Court relies upon the ordinary rule of construction
that where the legislature has passed a new stature
giving a new remedy, that remedy is the only one
which .could be pursued. It is said that the Taxation
on Income (Investigation Commission) Act, 1947, itself
provides a remedy against any wrong or illegal order
of the Investigating Commission and under section 8
(5) of the Act, the aggrieved party can apply to the
appropriate Commissioner of Income-tax to refer· to
the High Court any question of law arising out of such
order and thereupon the ·provisions of sections 66 and
and 66-A of the
Indian Income-tax Act shall apply
with this modification that the reference shall be heard
by a Bench of not less than three Judges of the High
Court. We think that it is not necessary for us to
express any final opinion ·in this case as to whether
section 8 (5) of the Act is to be regarded as providing
the only remedy available to the aggrieved party and
that it excludes altogether the remedy provided for
(1) A.I.R. 1953 S.C. 210, 214; [1953] S.C.R. 1144.
...
S.C.R.
SUPREME COURT REPORTS
747
under article 226 of the Constitution. For purposes of
this case it is enough to state that the remedy provided
for in article 226 of the Constitution is a discretionary
remedy and the High Court has always the discretion
to refuse to grant any writ if it is satisfied that the
aggrieved
party can have an adequate or suitable
relief elsewhere. So far as the present case is concerned, it has been brought to our notice that the appellants before us have already availed themselves of the
remedy provided for in section 8(5) of the Investigation Commission Act and that a reference has been
made to the High Court of Allahabad in terms of that
provision which is awaiting decision. In these circumstances, we think that it would not be proper to allow
the appellants
to invoke the discretionary jurisdiction
under article 226 of the Constitution at the present
stage, and on this ground alone, we would refuse to
interfere . with the orders fuade by the High Court.
Dr. Tek Chand argues that the Income-tax authorities
have not referred all the matters to the High Court
which the appellants wanled them to do. But for this
there is a remedy provided in the Act itself and in
case a proceeding occasions a
gross miscarriage of
justice, there is always the jurisdiction in this court to
interfere by way of special leave. In the result, we
dismiss the appeals but in the circumstances of the
case make no order as to costs.
•
Appeals dismissed .
Agent for the appellant : Rajindef' Narain .
•
Agent for the respondents : R. H. Dhebar .
1954
K. S. RaJhid
and Son
v.
The Income-tax
Investigation
Commission, etc.
Mukheijea J.