# Gujarat University, 11hmedabad v. Krishna Rangariath Mudholkar

- **Citation:** [1963] Supp. 1 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 1961-12-18
- **Case number:** Civil Appeals Nos. 469, 470, 506, 507 and 529 to 534 of 1962
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo, K. c. DAB GUPTA, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gujarat-university-11hmedabad-v-krishna-rangariath-mudholkar-2702
- **Pages:** 28

## Headnote

Coal Tax-Levy-ValUJity-Writ Petition, if barred by
rea ju&icata-Enhanced levy after first imposition-Absence of
premous sanction by Local Government-Legality of such levy--
Constitution of India, Arts. 19 (1) (f), 32, 141, 226-Central
Provinces Local Self Government Act, 1920 (C. P. IV of 1920),
8. 51(2).
The 1st appellant in the first batch of appeals ~>ad filed
a writ petition in this Court challenging the nouces. calh~g upon
him to pay the tax of 9 pies per ton on coal mcluding coal
despatched outside the State of Madhya Pradesh on two grounds,
namely, that the levy of the tax by. th~ J.ndepende~~ Mining
Board was invalid at the date of its uutial mtposttion and,
1 S.C.R.
SUPREME COURT REPORTS
173
therefore, the respondent Sabha wl,ich was the successor of the
Mining Board could not continue the levy an~ also that on a
proper construction of s. 51 of the Act, the levy could not be
made. Another point natnely, the increase in the rate of tax
from the original 3 pies to the 9 pies per ton a.t \1.rhich the tax
\Vas demanded \Vas illegal v • .-as sought to be canvassed but was
not allowed to be argued hy the Court as it had not been raised
in the pctitio11.
The \\.Tit petition \Vas rejected.
The appellant challenged the levy of the tax for the further
periods by way of a writ petition before the High Court of
J\.Jadhya Pradt"'sh on grounds distinct and separate from those
which had been rejected by this Court. The High Court dismissed the writ petition on the ground that it.was barred by
rrs,judicata by reason of the earlier judgment by
this Court.
In the case of the other appellants the High Court held that the
matter '\.Vas also concluded on the authority of the de:cision of
this Court. The appellants in the first batch of appeals came
by special leave and also filed writ petitions challenging the
validity of the levy.
Held, that while the general
principle of res-jud·icala
app]ies to \'\Tit petitions undrr Art. 32 and Art. 226 of the
Constitution, in its application to
~i\.rt. 32 of the Constitution,
the doctrine only regulates the manner in which the fundanu'ntal rights could be f;HCcessfully asserted and does not in
any \vay i1npair or affect the content of the fundamental rights.
Pandit M.8.M. Sha""'" v. Dr. 8hree Krishna Sinha, [1961]
1 8. C. R. 96, Raj 1,ak8hmi Dasi v. Banamali Sen, [1953]
S. C.R. 154 and Duryao v. 8tnte of U.P., [1962] l S.C.R. 574,
referred to.
Constructive rc8-jiulicafa was a crcoture of statute and its
application could not Le extended to other proceedings particularly those questioning tax liability for different years.
Hrld, further, that the law declared by the Supreme
Court which is binding under Art. 141 of the Constitution of
India is diat which has been expressly declared and any implied
dcclarat1on though binding was subject to revision by this Court
when the point was subsequently directly and expressly raised
before this Court.
Held, further, that the procedure of assessment of tax
authorised by the relevant statutory provisions and the Rules
could not be said to be a capricious administrative or executive
affair so'" to violate Art. 19(1) (f) of the Constitution.
1962
The Amalgamattd
Coalfields Ltd.
v.
The ]anapada Sabha
Chhindu·ara
1962
The Amalgamated
Coalfields Ltd.
v.
1 he Janapada Sabha
Chhir1dwara
'
174 SUPREME COURT REPORTS [1963] SUPP.
Kunnathat Thathunni Moapil Nair v. State of Kera/a,
[1961) 3 S. C.R. 77, distinguished.
As the Rule which prescribed the maximum rate had
itself been deleted it could not be said that there had been a
levy in excess of the maximum prescri°hed.
As neither the Act nor the Rules prescribed a ceiling on
the levy, the expression "first imposition" occurring in s. 51(2)
would include every increase of the levy after its initial impnsition and the increased levy Would require the previous sanction
of the Local Government and such sanction not being there, the
levy at the rate of 9 pies per ton was illegal.
Considering the nature of the tax and the periods

## Text

_Characters 0–39,998 of 58,253. This is a partial read: ask again with offset=39998 for what follows._

1962
Gujarat University,
11hmedabad
v.
Krishna Rangariath
Mudholkar
Subba Rao, J.
1962
Septtmber 24.
172 SUPREME COURT REPORTS [1963] SUPP.
under a statute, s. 38A of the Act which is a conse·
quential provision would be valid.
For the aforesaid reasons I hold that the University was w~ll within its rights in prescribing, by
statutes, the said two languages as media of instruc·
tion to replace English by stages.
.
In the result the order of the High Court is set
aside and the appeals are allowed with costs of the
appeliants here and in the High Court.
BY COURT: In accordance with the view of the
majority, both the appeals stand dismissed in the
manner indicated in the majority judgment, with
costs.
There will be one set of hearing fee.
Appeals dismissed.
THE AMALGAMATED COALFIELDS LTD.
AND ANOTHER
v.
THEJANAPADA SABHA, CHHINDWARA
(And connected appeals)
(B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N.
WANCHOO, K. c. DAB GUPTA AND J. c. SHAH, JJ.)
Coal Tax-Levy-ValUJity-Writ Petition, if barred by
rea ju&icata-Enhanced levy after first imposition-Absence of
premous sanction by Local Government-Legality of such levy--
Constitution of India, Arts. 19 (1) (f), 32, 141, 226-Central
Provinces Local Self Government Act, 1920 (C. P. IV of 1920),
8. 51(2).
The 1st appellant in the first batch of appeals ~>ad filed
a writ petition in this Court challenging the nouces. calh~g upon
him to pay the tax of 9 pies per ton on coal mcluding coal
despatched outside the State of Madhya Pradesh on two grounds,
namely, that the levy of the tax by. th~ J.ndepende~~ Mining
Board was invalid at the date of its uutial mtposttion and,
1 S.C.R.
SUPREME COURT REPORTS
173
therefore, the respondent Sabha wl,ich was the successor of the
Mining Board could not continue the levy an~ also that on a
proper construction of s. 51 of the Act, the levy could not be
made. Another point natnely, the increase in the rate of tax
from the original 3 pies to the 9 pies per ton a.t \1.rhich the tax
\Vas demanded \Vas illegal v • .-as sought to be canvassed but was
not allowed to be argued hy the Court as it had not been raised
in the pctitio11.
The \\.Tit petition \Vas rejected.
The appellant challenged the levy of the tax for the further
periods by way of a writ petition before the High Court of
J\.Jadhya Pradt"'sh on grounds distinct and separate from those
which had been rejected by this Court. The High Court dismissed the writ petition on the ground that it.was barred by
rrs,judicata by reason of the earlier judgment by
this Court.
In the case of the other appellants the High Court held that the
matter '\.Vas also concluded on the authority of the de:cision of
this Court. The appellants in the first batch of appeals came
by special leave and also filed writ petitions challenging the
validity of the levy.
Held, that while the general
principle of res-jud·icala
app]ies to \'\Tit petitions undrr Art. 32 and Art. 226 of the
Constitution, in its application to
~i\.rt. 32 of the Constitution,
the doctrine only regulates the manner in which the fundanu'ntal rights could be f;HCcessfully asserted and does not in
any \vay i1npair or affect the content of the fundamental rights.
Pandit M.8.M. Sha""'" v. Dr. 8hree Krishna Sinha, [1961]
1 8. C. R. 96, Raj 1,ak8hmi Dasi v. Banamali Sen, [1953]
S. C.R. 154 and Duryao v. 8tnte of U.P., [1962] l S.C.R. 574,
referred to.
Constructive rc8-jiulicafa was a crcoture of statute and its
application could not Le extended to other proceedings particularly those questioning tax liability for different years.
Hrld, further, that the law declared by the Supreme
Court which is binding under Art. 141 of the Constitution of
India is diat which has been expressly declared and any implied
dcclarat1on though binding was subject to revision by this Court
when the point was subsequently directly and expressly raised
before this Court.
Held, further, that the procedure of assessment of tax
authorised by the relevant statutory provisions and the Rules
could not be said to be a capricious administrative or executive
affair so'" to violate Art. 19(1) (f) of the Constitution.
1962
The Amalgamattd
Coalfields Ltd.
v.
The ]anapada Sabha
Chhindu·ara
1962
The Amalgamated
Coalfields Ltd.
v.
1 he Janapada Sabha
Chhir1dwara
'
174 SUPREME COURT REPORTS [1963] SUPP.
Kunnathat Thathunni Moapil Nair v. State of Kera/a,
[1961) 3 S. C.R. 77, distinguished.
As the Rule which prescribed the maximum rate had
itself been deleted it could not be said that there had been a
levy in excess of the maximum prescri°hed.
As neither the Act nor the Rules prescribed a ceiling on
the levy, the expression "first imposition" occurring in s. 51(2)
would include every increase of the levy after its initial impnsition and the increased levy Would require the previous sanction
of the Local Government and such sanction not being there, the
levy at the rate of 9 pies per ton was illegal.
Considering the nature of the tax and the periods for which
it was assessed and in the· absen~e of any provision, the
assessment once made by r. l 0 was final and there could be no
re-assessment.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 469, 470, 506, 507 and 529 to 534 of 1962.
Appeals by special leave from the judgment
and order dated December 18, 1961, of the Madhya
Pradesh High Court in Misc. ·Petition Nos. 24, 2!l,
42, to 45, 58, 70, 95 and 213 of 1960.
WITH
Petitions Nos. 70 and 71 of 1962.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental rights.
Sachin Chaudhri, B. Sen, J. B. Dadachanji,
0. 0 .. Mathur and Ravinder Narain, for the appellants (in C. As. Nos. 469 and 470/62) and the Petitioners (in Petns. Nos. 70 and 71 of 62).
A. V. Viswanatha Sastri, R. Ganapathy Iyer
and G. Gopalakrishnt:tn, for the respondent (in C. As.
Nos. 469, 470, 506 and 507 of 62), Respondents Nos.
l and 3 (in C. As. Nos. 529 to 534/62) and Respondent No. l (in. Petn. Nos. 70 and 71/62).
B. Sen and I. N. Shroff, for the appellants (in
C. As. Nos. 506 and 507/62).
1 S.C.R.
SUPREME COURT REPORTS
175
N. C. Chatterjee, Y. S. Dharmadhikaree and
Jf. S. Gnpta, for the appellants (in C. As. Nos. 529
to 534 of 62).
I. N. Shroff, for the respondents Nos. 2 and 4
(in C. As. 529 to 534 of 62).
1962. September 24. The
Judgment of the
Court was delivered by
GAJRNDRAGADKAR, ].-These ten appeals and
two writ petitions have been placed for hearing
together in a group, because they raise common
questions of law. The appellants in these matters
are all colliers holding mining leases under the
Government of Madhya Pradesh for the extraction
of coal from collieries situated in the Chhindwara
District. The respondent, Janapada Sabha, Chhindwara, has issued notices against them calling upon
them to pay coal tax "for coal manufactured at the
mines, sold for export by rail or sold otherwise than
for export by rail within the jurisdiction of the
original Independent Mining Board for the said
area". It appears that the mining area in question
was within the territorial limits of the Independent
Mining Local Board which had the status and powers
of a District Council under the Central Provinces
Local-Self Government Act, 1920 (hereinafter called
the Act).
The respondent Sabha is the successor of
the said Mining Board and, therefore, claims to be
entitled to continue the levy and recover the tax
in question.
On
March
12, 1935, the Mining Board
exercising its powers under section 51 of the Act,
resolved to levy coal tax, and accordingly, the first
imposition made by it received the sanction of the
local Government on December 16,
1935, as
per
Notification
No.
8700-2253-D-VIII.
This
notification
came into force from January 1,
1936.
On
December 16,
1935,
the
local
Government notified the mies for the assessment and
1962
The Am.a/gamattt.
Coalfieldr Ltd
v.
The Janapada SObh.
Chhindwara
Gajendragadlrar, J.
1962
The Amalgamated
Coalfields Ltd.
v.
The Janapada Sabha,
Chhintfwara
Gajendrag11dkar, J.
176 SUPREME COURT REPORTS [l963]SUPP.
collection of the tax which it had framed in exercise
of the powers conferred on it by section 79 (l ), clauses
(xv), (xix) and (xxx). Rule 2 of these Rules provided
that the tax shall be payable by every person, firm
or company holding a mining lease for coal within
the limits of the Independent Mining Local Board's
jurisdiction. Rule 3 provided that the tax shall be
levied @ three pies per ton on coal, coal dust or coke
manufactured at the mines, sold for export by rail or
sold otherwise than for export by rail within the
torritorial jurisdiction of the Independent Mining
Local Board.
In 1943, the words "coke manufactured at the mines" were deleted from Rule 3 and the
tax was confined to coal and coal dust. The rate thus
prescribed was increased from time to time.
On
December 22, 1943, the rate was made 4 pies per
ton; on .July 29, 1946, it was made 7 pies, per
ton; and on July 19, 194 7, it was made 9 pies.
The Mining Board continued to recover the tax at the
said rates until the Act was repealed in 1948 and in
its place was enacted the Central Provinces and Berar
Local Self-Government Act, 1948 (No. 38 of 1948).
The respondent Sabha has now taken the place of the
said Mining Board and has issued the notices against
the several appellants, calling upon them to pay the
coal tax for the different periods mentioned in the
said notices.
The appellants in Civil Appeals Nos. 469 and
4 70 of 1962 are : The Amalgamated Coalfields Ltd.,
and The Pench Valley Coal Co. Ltd. They are
companies incorporated under the Indian Companies
Act, 1913, and both have Shaw Wallace & Co., Ltd.,
as their Managing Agents.
On August 23, 1958,
notices. were served on the two appellants calling
upon them to pay Rs. 21,898/ 64 np and Rs. 11,838/9
np respectively as tax assessed @ 9 pies per ton from
January 1, 1958, to June
30, 1958.
This tax
was claimed in respect of coal which iucluded coal
despatched by the appellants outside the State of
1 S.C.R.
SUPREME COURT REPORTS
177
Madhya Pradesh. The validity of these notices was
challenged by the appellants in this Court by their
Writ
Petition No.
31 of Hl59.
On Februarv
10, 1961, the said writ petition was dismissed b)·
this Court and it was held that the notices served on
them were valid (Vide The A1ru1/gr1111fr.ied Cool;field8
Ltd. v. T0e Ja1uipn17'! Sabhn, Chhindmrr'.1.(').
On September 13,
I!)()()
and
March 2,
19fil, two notices of demand were served on the
appellants calling upon them to pay Rs. 1,16,776/25
nP. and Rs. 65,21il/10 nP. respectively in regard to
the tax assessed @nine pies per ton on all coal despat-
. ched by the appellants from their collieries for the
half years ending June
;{O,
Hlii8.
December
:H, 19,;s, June :lO,
lDiill, December :11,
1959,
June 30,
!\WO and
December :ll, rnno.
The
appellants challenged the validitv of these notices by
a Writ Petition filed by them in the High Court of
Madhva Pradesh on April 12, J!)()l (:'\o. 9G of l!lCil).
\Vhilst the said writ petition was pending before
the High Court, the appellants filed another writ
Petition in the same High Court (No. 21 :l of 1961 ).
By this writ petition, the appellants challenged
the validity of notices issued
against them on
June !l, l !)59, by which coal tax was demanded
from them for a period b,elwec11_ April 1,
I [)51
to
December 31, l!J;37.
This tax was levied in
respect of co'al despatched by the appellants outside
the State
of Madhva
Pradesh. The amounts
demanded ;vere Rs. l,!J:!,U4/66 nP. and Rs. ()8,319/36
nP. respectively.
These two petitions along with eight others
were heard together by the High Court. So far as
the appellants' petitions were concerned, the High
Court has held that the
appellants' claims were
barred by
res .i1tdicnff1 by reason of the earlier
decision
of
this
Court
in
the
case
of the
Am11/ynrnated Coo/field,• Ltd. ('). The appellants then
applied for and
obtained special leave
from
(I) (1962] J, S. C. R. !.
1962
The Amalgamated
Coalfields Ltd.
v.
The J anaprzda Sabha
Chhindu•ara
GaJendragadkar, J.
1962
The Amalgamated
Coalfield, Ltd.
v.
The· J anapada Sabha~
Chhindwara
Gajendn1gadkar, J.
178 SUPREME COURT REPORTS [1963] SL.'i'.
this Court on April 23, 1962 and it is by special
leave thus granted to them that they have come to
this Court in Civil Appeals 4()9 & 4 70 of 1!1(i2.
The appellants have also filed two Writ Petitions Nos. 70 & 71 j HJ()2 under Art. :l2 of the Constitution.
By these writ petitions, the two appdlants
challenged the validitv of the not ices served .on them
on June 9, Hl59 as well
as on
September l:l,
1960. The appellants' case
is that these notices
are illegal and without jurisdiction and so, they want
them to be quashed by an appropriate writ or order
issued against the respondent in that behalf. Thus,
the two appellants, the Amalgamated Coalfields Ltd.,
and the Pcnch Valley Coal Co. Ltd., are concerned
with the two appeals Nos 4G\l & 470/1!1()2 and \Vrit
Petitions 70 & 71/1962.
The other appeals arise from the writ petitions
filed in thC' High Court of :Madhya Pradesh by the
respective appellants which were tried along with the
writ petitions filed by the Amalgamated Coalfields
Ltd. & Anr. In dealing with these writ petitions,
High Court has held that the decision of this Court
is the case ofAmal!7amatcd Crxil;ficlds Lld.(1 ) concludes
the points raised by them in challenging the validity
of the notices, and so, following the said decision, the
Hig·h Court has dismissed all the said petitions. The
appellants applied for and obtainrd special leave to
come to this Court against the said decisions ahd it is
'A>ith the special leave thus granted to them that these
appellants have come before us.
Civil Appeal No. 500 arises from the decision of
the Hirsh Court of Maclhya
Pr~cicsh dismissing the
writ petition filed bcfor·c it by the appellant, the
Ctntral Provinces Svmlic3tc (P) Ltd.
By its writ
petition the appellant had cliallic>nged the validity of
the notice served by the respondent calling upon it to
pay arrears of the tax amounting to Rs. 20,776/88 nP.
being arrears from April 1, !9iil to June 30, 1959.
(1)
[ 1%2] l S.C.R. !.
1 S.C.R.
SUPREME COURT REPORTS
179
It appears that for the said period, the appellant had
been taxed by the respondent, but the said tax was
not imposed on coal which had been transported by
the appellant outside the limits of the State of
Madhya Pradesh.
The respondent now sought to reopen the assessment levied against the appellant for
that period by inclnding a claim for tax in respect of
coal sold by the appellant outside the limits of the
State. The High Court has rejected the Writ Petition
and that decision has given rise to Civil Appeal
No. 500 of 1902.
Civil Appeal No. 507 of 1962 arises from a writ
petition filed by the appellants M/s. Kanhan Valley
Coal Co. (Private) Ltd., in the High Court of Madhya
Pradesh in which the validity of the notice issued by
the respondent calling upon the appellants to pay the
coal tax amounting to Rs. IO, !liO/ · as arrears from
April 1. 1051 to .June :lll, l\liifl has been challenged .. The High Court has dismissed the writ petition,
and so, the appellants have n•mc tn this Court by
their Appeal No. fi()i /l!lG:!.
Civil Appeals Nos. fi:W to 534 of l 962 similarly
arise out of six writ petitions filed by the appellants
M/s. Newton Chickli Collieries (P) Ltd. & five others
in the High Court of Madhya Pradesh challenging
the validity of the notices of demand served on them
to recover by way of arrears coal tax for the periods
mentioned in the notices in regard to coal sent by
them outside the State of Madhya Pradesh for export. These writ petitions were dismissed by the High
Court, and the appellants have,· therefore, come to
this Court by appeals Nos.
5:W-ii:l4/190~. That, in
brief, is the genesis of the ten appeals and two writ
petitions which have bern grouped together for hearing in th is Court.
It will thus be seen that Civil Appeals Nos. 409
& 470/l!ltl:l and \Vrit Petitions Nos. 70 & 71/196:!
raise a preliminarv question about the applicability
1962
1k Amafgamalld
Coalfieldf Ltd.
v.
The Janapada Sabha,
Chhindwara
'
Gajendragadkar, /,
1962
Thr? Amalgamated
Coa(fieldJ Ltd.
v.
The Janapada~ Sabha,
Chhindwara
Gajrndragadkar. J.
'"
180 SUPREME COURT REPORTS [1963] SUPP.
of the doctrine of res judicata to writ petitions filed
under Art. 226 or to petitions under Art. 32, whereas
the said appeals and writ petitions as well as the other
appeals raise an additional question about the validity
of the notices issued against the respective appellants.
We would, therefore, deal with civil appeals i\os. 4G9
and 470/1962 and Writ Petitions Nos. 70 and 71/19G2.
Our decision in these matters will govern the other
appeals in this group.
The first point which falls for our decision in
these appeals is one of res judicatet. The High Court
has held that the challenge made by the appellants
against the validity of the demand notices issued
against them by the respondent is barred by res
jiidiwta by virtue of the decision of this Court in the
earlier case brought by the appellants themselves before this Court.
'J'he Amalgamated Coal;(relds Ltd.(')
Before
dealing with
this point it is
necessary
to refer to the said decision. In that case, the validity
of the impugned notices was challenged on two
grounds ; it was urged that the levy of the tax by the
Independent Mining Board was invalid at the date of
its initial imposition in 1935 and so, the respondent
Sabha which was the successor of the said Mining
Board could claim no authority to continue the said
tax. This contention was based on the assumption
that before the power conferred· bys. 51 of the Act
could be exercised, the previous sanction of the
Governor-General had to be obtained, or that there
should be fresh legislation in that behalf. This Court
held that the Act having received the assent of the
Governor-General, its validity cannot be challenged
in view of the saving clauses in the proviso to section
80A (3) and s. 84(2) of the Government of India Act,
1915. That being so, it was not open to any party to
suggest that any subsequent amendments of the
Government of India Act could affect the continued
validity and operation of the Act. The scconcl con- .
tention raised was one of construction.
It was urged
(!) [1962] I S.C.R. I.
'
l S.C.R.
SUPREME COURT REPORTS
181
that on a fair construction of s. 51, the coal tax was
excluded from the purview of the local authority.
This argument was based on the opening clause of
s. 51 which provided that its provisions would operate
subject to the provision of any law or enactment for
the time being in force. It was suggested that this
clause took in the provisions of s. 80A(3) of the
Government of India Act read with the Scheduled
Taxes Rules framed under that section,
but this
argument was also rejected. It appears that at the
hearing
of the
petition,
the
appellants also
attempted to
tak~ an additional point against the
validity of the impugned notices on the ground that
the rate of tax which had been increa>ed from :l pies
to U pies per ton was invalid. The appellants' case
was that this increase was effected· after the commencement of the Government of India :\ct, l !l:J.i, and
so, it was invalid. This argument was not considered
by the Court, because it was not even hinted in the
petition filed by the appellants and the Court thought
tltat it would not be proper lo permit the appellants
to raise that point at that stage.
That is how the
appellants' challenge to the validity of the impugned
notices served on them on August 23, l \J58 was
repelled and the writ petition filed by them in that
behalf was dismissed.
It appears that the authority of the .J anapada
Sabha to le,·y the impost under s.51 of the. :\ct was
challenged on another ground in the case of .J/ /s.
Rr11n Kri.shmi Ram Nath v. J11napad Sabhr6 ('). This
time the attack against the competence of the J anapad
Sabha proceeded on the ground that in repealing the
Act of l!l:!O, the subscqncnt Act of 19!8 had not
provided for the continuance of the said power in
the J anapad Sabhas which were the successors of the
Independent Mining Boards. Section 192(c) purported
to provide that all rates, taxes and cesses due to the
District Council, Local Board or Independent Local
Board shall be deemed to be due to the Sabha to
(I) (1962] Supp. 3 S.C.R. 70.
1962
The Amalga111a ted
Coalfields Ltd.
v.
The Janapada ilabha,
Clihindwara
Gajendragadkar, J.
The Amalgamated
Caaljields Ltd.
v.
The Jonrtpada Sabha,
Chhiridwara
Gajendragadkar, J,
182 SUPREME COURT REPORTS [1963] SUPP.
whose area they pertain. But it was obvious that
this clause coulcl apply to, and save, only rates, taxes
and cesses alreacly due; it did not authorise the imposition of fresh ccsscs, taxes or rates in future.
Having
realised that the relevant provision did not save future
imposts, an amending Act was passed in 1949 by
which the said saving was extended to include the
right of the J anapad Sabhas to continue the levy of
the impugned tax and this amendment was made
retrospective from
June 11, 1948,
when
the
parent Act had come into force.
In the case of
Rurn
Krishna (1)
the
validity
and
effectiveness of this amendment of 1949 was challenged. It
was thus a basic challenge to the power of the
Janapad Sabhas to levy any impost on the ground
that the subsequent amendment was invalid. This
Court repelled the said challenge and held that the
retrospective operation of the amendment was valid.
According to this decision, the Provincial Legislature
was competent to legislate for the continuance of the
tax, provided the relevant conditions of s.143(2) of
the Government of India Act 1935 were satisfied.
These conditions required that the tax should be one
which was lawfully levied by a local authority for
the purposes of a local area at the commencement
of Part III of the Government of India Act; that the
identity of the body that collects the tax, the area
for whose benefit the tax is to· be utilised and the
purposes for which it is to be utilised continue to be
the same, and that the rate of the tax is not enhanced nor is its incidence materially altered, so that, in
substance, it continues to be the same tax. Since
these tests were· satisfied by the impost levied by the
Janapad Sabha, it was held that the impost was valid
and that the retrospective amendment of s.192 was
effective.
The present proceedings constitute a third
challenge to the validity of the notices issued by the
Janapad Sabha, and as we have already seen, the
(IJ [1962] Supp. s s.c.R. 10.
l S.C.R.
SUPREME COURT REPORTS
183
challenge made by the
appellants by their writ
petitions before the High Court has been repelled
on the preliminary ground that it is barred by res
judicatf•. In that connection, the first question to
consider
is whether the general principle of res
farliwta applies to writ petitions filed under Art. 32
of the Constitution.
This question has been considered by a special
Bench of this Court in the case of Pandit JJJ. 8. 31.
Shamui v. Dr. Shrec J{rishna Sinha (1).
Chief
Justice Sinha, who ddivcrcd the unanimous opinion
of the Court, has answered this question in the aflirmative. In that connection, the learned Chief Justice
has referred to an earlier decision of this court in
RuJ L11ksh111i Da.si v. Banmnali Sen, (') where it has
been laid down that the principle underlying re.s
jmli'.wta is applicable in respect of a question which
has been raised and decided after full contest, even
though the first Tribunal which decided the matter
may have no jurisdiction to try the subsequent suit
and even though the subject-matter of the dispute
was not exactly the same in the two proceedings. It
ought to be added that the Tribunal which had tried
the first dispute in that case was a Tribunal of
exclusive jurisdiction. Then the points raised on
behalf of the petitioner Sharma were considered and
it was noticed that, in substance, they were the same
points which had been agitated before. this Court on
an
earlier
occasion
and had
been
rejected.
"In our opinion", said the judgment, "the qucslions
determined
by the
previous decision of this
Court cannot be reopened in the present case and
must govern the rights and obligations of the parties
which as indicated above, are substantially the same."
Thus, this decision shows that even petitions filed
under Art. 32 are subject to the general principle of
res jwlicata.
The question about. the applicability of the
doctrine of res jwjicata to the petitions filed under
(1) [1961] 1. S.C.R. 96.
(2) [1953] S.C.R. 154.
1962
The
Ama/gamatdd
Coa(field~ Ltd.
v.
The Janopada Sabha,
Chhindwara
Gajendragadlcar, J.
1962
1 he Amalgamatrd
Coalfirlds Ltd.
v.
The JanavaJa Sabha
Chhir;d,cara
Gajcndragadkar, J.
184 SUPREME COURT REPORTS [1963] SUPP.
Art. 32 came before this Court in another form in
Daryao v. 1'he St,i,te of U. l'. ('), and in that case it
has been held that whete the petition under Art. 226
is considered on the merits as a contested matter and
dismissed by the High Court, the decision pronounced
is binding on the parties, unless modified or reversed
by appeal or other appropriate proceedings under
the Constitution, and so, if the said decision was not
challenged by an appropriate remedy provided by
the Constitution, a writ petition filed in respect of
the same matter would be deemed to be barred by
res judicata..
Therefore, there can be no doubt that
the general principle of res jndicatri applies to writ
petitions filed under Art. 32 or Art. 226.
It is
necessary 'to emphasise that the application of the
doctrine of res judicatn to the petitions filed under
Art. 32 ·does not in any way impair or affect the
content of the fundamental rights guaranteed to the
citizens of India. It only seeks
to
regulate the
manner in which the said rights could be successfully
asserted and vindicated in courts of law.
The question in the present appeals, however,
is somewhat different.
The notices which are challenged by the appellants in the present proceedings
are in respect of the tax levied for a period different
from the period covered by the notices issued ·on
August 23, l!J;)8 which were the subject-matter of
the earlier writ proc_eedings
(The
Amalgamated
Coalfields Ltd. (')). Where the liability of a tax
for
a particular year is considered and decided,
does the decision for that particular year operate as
res judicata in respect of the liability for a subsequent
year ? In a sense, the liability to pay tax from year
to year is a separate and distinct liability; it is based
on a different cause of action from year to year, and
if any points of fact or law are considered in determining· the liability for a given year, they can
generally be deemed to have been considered and
decided in a collateral and incidental way. The
(1) [1962) l S. C.R. 574.
(2\ [1962) l S. C. R. I.
1 S.C.R.
SUPREME COURT REPORTS
185
trend of the recent English decisions on the whole
appears to be, in the words of Lord Radcliffe, "that
it is more in the public interest that tax and rate
assessments should not be artificially encumbered
with estoppels (I am not speaking, of course, of the
effect of legal decisions establishing the law, which
is quite a different matter), even though in the result,
some exptctations may be frustrated and some time
wasted." (vide Society of Jlediwl Officers oj flcrilth v.
Hope l'alnation O.fficer (')).
The basis for this view
is that generally, questions of liability to pay ta/(
are determined by Tribunals wilh limited jurisdiction
and so, it would not be inappropriate to assume that
if they decide any other questions incidental to the
determination of the liability for the specific period,
the decisions of those incidental questions need not
create a bar of re8 judicata while similar questions
of liability for subsequent years are being examined.
In that connection, it would be interesting to
refer to four English decisions.
In the case of Brol:en
Hill Proprietnry Co. Ltd. rmd Jlunicipal Cowncil of
Broken Hill, (') the question which fell for decision
was how the average annual value of a mine for
rating purposes had to be determined, and it was held
by the Privy Council that the said value was to be
ascertained by dividing the value of the output during
the three years by three, not by multiplying it by
205 Jnd dividing it by 305.
One of the points which
the Privy Council had to consider was whether a
contrary decision reached by the High Court of
Australia between the parties as to the valuation for
a previous year, operated as res judicata.
In reject.
ing the plea that the principle of res judicata applied,
Lord Carson observed that "the decision: of the High
Court related to a valuation and a liability to a tax
in a previous year, and no doubt as regards that year,
the decision could not be disputed.
The present case
relates to a new question, viz., the valuation for a
different year and the liability for that year. It is not
(l) [1960] A. C. 551, 563.
(2) (1926] A. a. 94;
1962
The
Ama/gamat,
Coalfields Ltd.
v.
The Janapada .Sab
Chhindwara
Gajendragadkar1 ,
1962
The
Amalgamated
Coalfields Ltd.
v.
The Janapada Sabha,
Chhindwara
Gajendragadkar, J.
lSG SUPREME COURT REPORTS [19G3] SUPP.
eadem questio, and therefore, the principle of res
judicata cannot apply." (p. 100).
It, however, appears that in the same year, the
Privv Council came to a somewhat contrarv decision
in the case of Hoystead v. Commissioner of Taxation.(1)
In that case, the question which arose for decision
was about the deduction claimable under ther elevant
provision of the
Land
Tax
Assessment Act,
1\JlG (Aust.) Upon the assessment for 1919-20, the
Commissiouer
allowed
only
one
deduction of
5,000 lbs. contending that the beneficiaries were not
joint owners within the meaning of the Act.
The
case was then stated to the full Bench which upheld
the Commissioner's view and rejected the argument
that the Commissioner was estopped from coming to
that conclusion in view of his decision in a previous
year. When the matter went before the Privy
Council, it reversed the decision of the Full Court,
because it held that the Commissioner was estopped,
even though in the previous litigation no express
decision had been given whether the beneficiaries were
joint owners, it being assumed and admitted that
they were, and the Privy Council thought that the
matter so admitted was fundamental to the decision
then given.
It would thus be seen that this decision
applied the principle of res judicata even where
there was no express decision on the point, but the
point had been conceded in the earlier proceedings.
In 19GO, the House of Lords had occasion to
consider this question in the case of Society of
illedical
Ojjicers
of Health (').
\Ve have already quoted one statement of the law from the
speech of Lord Radcliffe in that case. In that case,
the main reason given for repelling the application
of the principle of res judicatq, in rating cases, was
that the jurisdiction of the Tribunal which deals with
those cases is limited, in that its function begins with
and ends with deciding the assessment or liability of
a person for a terminable period. Besides, it was
(1) fl926] A. C. 155.
(2j [1960] A. C. 551, 563.
l S.C.R.
SUPREME COURT REPORTS
187
held that the position of a valuation officer is that of
a neutral official charged with the recurring duty of
bringing into existence a valuation list, and he cannot properly be described as a party so as to make
the proceedings a !is inter partes.
In coming to the
conclusion that the doctrine of res Judimtu would not
apply in such cases, Lord Radcliffe was influenced
by the consideration that if decisions in rating cases
are to be treated as conclusive for all time that would
be to impose a needlessly heavy burden upon the
administration of rating (p . .';fi6).
This decision
purported to approve of the view taken in 1 he case
of the Broken Hill Proprietnry Co.
Ud.(') and
to distinguish the view taken in the lloy8teiid mse.(')
Lord Radcliffe had occasion to return to the same
subject again in Oaffoor v. Incnme-ttix Commi"siuncr.( 3)
Speaking for the Privy Council, Lord Radcliffe considered the problem of the application of res J11rliml<•
to taxation cases, examined it in detail and came to
the conclusion that the said doctrine did not apply
to tax cases in the sense that the decision for the levy
of a tax for one year docs not operate as res J nd i1;nl11
in dealing with the question of a tax for the subsequent year.
On this occasion, emphasis was not
placed so much on the limited nature of the jurisdiction of the Tribunal that deals with tax cases, but
it was held that even if the matter goes to a High Court
on :1 statement of the case, the decision of the High
Court would also not create a bar of res Jnrliwtu in
dealing with the tax claim for a subsequent year. "The
critical thing," said Lord Radcliffe, "is that the dispute
which alone can be determined by any decision given
in the course of these proceedings is limi tcd to one
subject only, the amount of the assessable income for
the year in which the assessment is challenged." He,
no doubt, recognised that in the process of arriving
at the necessary decision, it was likely that the consideration of questions of law turning upon the
construction of the ordinance or of other statutes or
(1) [1926] A.C. 94.
(2) [1926) A.C. 155.
(3) ll9Gl] 2 W.L.R. 794.
1962
The
Amal,~amated
CotJlfitfdJ Ltd.
v.
The Janapada 'labl1a,
Chhindwara
Gojendragadkar, J.
19G2
The Amalgamated'
C,,/ftelds Ltd.
v.
The Jana/Jada Sabha,
Chhi11d11·ara
Gajendragadkar, J.
188 SUPREl\IE COURT REPORTS [1963] SUPP.
upon the general law, may he involved, but he
thought that the decision of those questions should be
treated as collateral or incidental to what is the only
issue that is
truly submitted to determination
(pp.
800-801).
This decision would, therefore,
support the appellants' contention' that the High
Court was in error in dismissing their writ petitions
on the preliminary ground that they were barred by
res jttdicaltb.
'
In considering this question, it may be necessary
to distinguish between decision on questions of law
which directly and substantially arise in any dispute
about the liability for a particular year, and questions
of law which arise incidentally or in a collateral
manner, as Lord Radcliffe himself has observed in the
case of the Society of 1}Jedical Officers of llealtl!, (1)
that the effect of legal decisions establishing the
law would be a different matter. If, for instance,
the validity of a taxing statute is impeached by an
assessee who is called upon to pay a tax for a particular year and the matter is taken to the High Court
or brought before this Court and it is held that the
taxing statute is valid, it may not be easy to hold
that the decision on this basic and material issue
would not operate as res,iiuliwta against the assessee
for a subsequent year.
That, however, is a matter
on which it is unnecessary 'for us . to pronounce a
definite 9pinion in the present case. In this connection, it would be relevant to add that, even if a direct
decision of this Court 011 a point bf law does not
operate as res Jud·icata in a dispute for a subsequent
year, such a decision would, under Art. 141, have a
binding effect not only on the parties to it, but also
on all courts in India as a precedent in which the
law is declared by this Court. The question about the
applicability of res ,iiidicata to such a decision would
thus be a matter of merely academic significance.
In the present appeals, the question which
arises directly for our decision is : does the principle
(I)
[196D] A.C. 551, 563.
1 S.C.R. SUPREME COURT REPORTS
189
of constructive res judicata apply to petitions under
Art. 32 or Art. 226 where the dispute raised is in
respect of a year different from the year involved
in a prior dispute decided by this Court ? w· e have
already noticed the points actually decided by this
Court against the appellants on the earlier occasion
(vide 'l.'he Amalgamated Coa~fields Ltd.(1)).
One of
the points sought to be raised was in regard to the
validity of the increase in the rate of tax from 3 pies to
9 pies per ton; and since this point had not been taken
in the petition and relevant material was not available
on record, this Court refrained from expressing any
opinion on it. The appellants contend that the
order passed by this Court refusing permission to the
appellants to raise this point on the earlier occasion
docs not mean that this Court has decided the point
on the merits against the appellants; it may mean
that the appellants were given liberty to raise this
point later: but even otherwise. the point has not been
considered and should not be held to be barred bv
constructive res fudiwta. It is significant that th~
attack against the validity of the notices in the present
pi;oceedings is based on grounds different and distinct
from the grounds raised on the earlier'occasion. It
is not as if the same ground which was urged on the
earlier occasion is placed before the Court in another
form.
The grounds now urged arc entirely distinct,
and so, the decision of the High Court can be upheld
only if the principle of constructive res jndicatci can
be said to apply to writ petitions filed under Art. 32
or Art. 226.
In our opinion, constructive resJnd·icnta
which is a special and artificial form of res .fudicata,
enacted by section 11 of the Civil Procedure Code
should not generally be applied to writ petitions filed
under Art. 32 or Art. 226. We would be reluctant
t8 apply this principle ro the present appeals all the
more because we arc dealing with cases where the
impugned tax liability is
for different years. In
dismissing the appellants' petitions on the ground of
res )uclicata, the High Court has no don bt referred to
(!) (1962] 1. S. C.R. !.
1962
The Amalgamated
Coalfields Ltd.
v.
1 he Janaprula Sabha 1
Chhindwara
c . ijrndra_r;adkar, J.
1962
Tht Amalgamated
CD"/jie/d; Ltd.
v.
The J,znaj1ada Sabha,
Ch!tindU"ara
Gajendragadkar, J,
190 SUPREME COURT REPORTS [1963] SUPP.
Art. 141 under which the law declared by this Court
is binding on all Courts within the territory of India.
But when we are considering. the question as to
whether any law has been declared by this Court bv
implication, such implied declaration, though binding
must be held to be subject to revision by this Court
on a proper occasion where the point in question is
directly and n:pressly raised by any party before this
Court. Therefore, we are inclined to hold that the
appellants cannot be precluded from raising the new
contentions on which their challenge against the
validity of the notices is based.
The first ground urged by the appellants on
the merits is that the levy authorised to be imposed
by the Act and the Rules framed thereunder violates
the fundamental rights guaranteed to the citizens
under Art. l!l (1) (f) of the Constitution, and in
support of this argument, reliance is placed on the
decision of this Court in Kunootlu1t Thathunni
11loopil .N11ir v. The 8t11tc of Il.emla (1). In that case,
the impugned Act was struck down because it suffered
from several serious infirmities; it was confiscatory in
character and its provisions in regard to the levy of
the impost were so arbitrary and unreasonable that
the Court took the view that the Legislature had
completely ignored the legal position that the assessment of a tax on person or property was at least of a
quasi-judicial character. This conclusion was based
on the examination of the relevant statutory provisions.
In the present case, we are not satisfied that
this decision can assist the appellants at all, because
the nature of the statutory provisions and the Rules
framed under the Act in the present appeals is entirely
different.
At this stage, it is necessary to refer to the relevant statutory provisions and the Rules.
Section 51
of the Act (which, in substance, corresponds to section
90 of the Act of 1948) reads thus :-
(!) [1961]3 S.·C. R.