# M. r. Shareef and Another v. The Hon'bie Judges of the High Court of Nagpur, LAXMANAPPA HANUMANTAPPA JAMKHANDI

- **Citation:** [1955] 1 S.C.R. 769
- **Court:** Supreme Court of India
- **Decided:** 1954-10-21
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-r-shareef-and-another-v-the-hon-bie-judges-of-the-high-court-of-nagpur-1198
- **Pages:** 5

## Headnote

-
S.C.R.
SUPREME COURT REPORTS
769
counsel for acting wrongly under an erroneous impression of their rights and privileges.
For the reasons given above we allow this appeal to
the extent that the sentence of fine passed on both the
appellants is set
aside,
and the unqualified apology
given by them to this
Court .and the High Court is
accepted. We also desire to issue a strong admonition
and warning to the two
counsel for their conduct.
There will be no order as to costs in these proceedings
throughout.
Appeal allowed.
1954
M. r. Shareef
and Another
v.
The Hon'bie
Judges of the
High Court of
Nagpur,
LAXMANAPPA
HANUMANTAPPA
JAMKHANDI
1954
(I.
'I'HE UNION OF INDIA AND ANOTHER.
;MEHR CHAND MAHAJAN C.J., s. R. DAS, GHULAM
HASAN, IlHAGWATI and VENKATARAMA AYYAR JJ.]
Constitution of India, Arts. 31(1), 32, 265-Deprivation of pro-
·t>erty-Otherwise than by imposition or collection of tax-Right conferred by Art. 265-Whether can be enjorced by Art. 32.
Held, that as there is a special provision in Art. 265 of the
Constitution that no tax shall be levied or collected except by
authority of law, clause ( 1) of Art. 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax and as the right conferred by Art. 265 is
!l-Ot a fundamental right conferred by Part III of the Constitution,
it cannot be enforced under Art. 32.
Ramjilal v. Income-tax Officer,
Mohindcrgarh ([1951] S.C.R
t ,
127) followed.
Suraj Mal Mohta and Co. v. A. V. Visvanatha Sastri (A.LR
1954 S.C. 545) referred to.
OmcJNAL JuRrsmcTioN : Petition No. 492 of 1954.
Petition
under article 32 of the Constitution for
the e,nforcement of Fundamental Rights.
B. Sen, l. N. Shroff and B. P.
Singh for the
petitione1 .
.._
M. C. Setalvad, Attorney-General
for
India, and
C. K. Daphtary, Solicitor-General for India (G' N. foshi.
October 21
1954
Laxmanappa
Hanumantappa
V,
Union of India
and Anot/zn
Mahqjan C. J.
770
SUPREME COURT REPORTS
r 19551
P. A. Mehta and P. G. Gokhale, with them) for the
respondents.
1954. October 21.
The Judgment of the Court was
delivered by
MEHR
CHAND
MAHAJAN C.J.-This 1s a
petition
under article 32 of the Constitution of India for the
enforceme<J,t of fundamental rights under articles 31(1)
and 19(1)(f) of the Constitution and for the issue of
writs in the nature of mandamus and/or certiorari and
for suitable directions restraining the respondents from
interfering with the petitioner's properties in violation
of his fundamental rights.
The petition anses
m these
circumstances.
The
petitioner, along with his
brothers, used to carry on
the business of toddy and liquor vendors.
In addition
to this, one of the brothers used to run a bus service
and <lealt m cotton and money-lending also. All the
brothers owned
extensive
properties, both
agricultural
and non-agricultural. Though prior to the assessment
year 1926-27 all the brothers were assessed to incometax as a Hindu undivided family, since then up to the
year 1946 they were assessed separately on account of
a partition alleged to have been made between them.
In December, 1946, the Income-tax Officer commenced
proceedings
against them
under section 34 on the
ground that the case of partition set up by them was
not correct and as a matter of fact there had been no
part1t10n
between them and they were carrymg on
business jointly.
As a result of these proceedings
an
assessment under section 34 was made
on the four
brothers jointly, treating
them as
an association of
persons,
for the year 1942-43.
Similar assessment proceedings were taken against them in respect of the
years 1940-41, 1941-42 and 1943-44.
In December, 1947, the Central
Government, under
the bona fide belief that the petitioner's brothers had
made huge profits during the war and had evaded tax,
made five
references to the Income-tax Investigation
Commission under section 5 ( 1)
of the Taxation on
Income
(Investigation Commission) Act, 1947. Reference No. 175 concerned all the brothers as an associat

## Text

-
S.C.R.
SUPREME COURT REPORTS
769
counsel for acting wrongly under an erroneous impression of their rights and privileges.
For the reasons given above we allow this appeal to
the extent that the sentence of fine passed on both the
appellants is set
aside,
and the unqualified apology
given by them to this
Court .and the High Court is
accepted. We also desire to issue a strong admonition
and warning to the two
counsel for their conduct.
There will be no order as to costs in these proceedings
throughout.
Appeal allowed.
1954
M. r. Shareef
and Another
v.
The Hon'bie
Judges of the
High Court of
Nagpur,
LAXMANAPPA
HANUMANTAPPA
JAMKHANDI
1954
(I.
'I'HE UNION OF INDIA AND ANOTHER.
;MEHR CHAND MAHAJAN C.J., s. R. DAS, GHULAM
HASAN, IlHAGWATI and VENKATARAMA AYYAR JJ.]
Constitution of India, Arts. 31(1), 32, 265-Deprivation of pro-
·t>erty-Otherwise than by imposition or collection of tax-Right conferred by Art. 265-Whether can be enjorced by Art. 32.
Held, that as there is a special provision in Art. 265 of the
Constitution that no tax shall be levied or collected except by
authority of law, clause ( 1) of Art. 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax and as the right conferred by Art. 265 is
!l-Ot a fundamental right conferred by Part III of the Constitution,
it cannot be enforced under Art. 32.
Ramjilal v. Income-tax Officer,
Mohindcrgarh ([1951] S.C.R
t ,
127) followed.
Suraj Mal Mohta and Co. v. A. V. Visvanatha Sastri (A.LR
1954 S.C. 545) referred to.
OmcJNAL JuRrsmcTioN : Petition No. 492 of 1954.
Petition
under article 32 of the Constitution for
the e,nforcement of Fundamental Rights.
B. Sen, l. N. Shroff and B. P.
Singh for the
petitione1 .
.._
M. C. Setalvad, Attorney-General
for
India, and
C. K. Daphtary, Solicitor-General for India (G' N. foshi.
October 21
1954
Laxmanappa
Hanumantappa
V,
Union of India
and Anot/zn
Mahqjan C. J.
770
SUPREME COURT REPORTS
r 19551
P. A. Mehta and P. G. Gokhale, with them) for the
respondents.
1954. October 21.
The Judgment of the Court was
delivered by
MEHR
CHAND
MAHAJAN C.J.-This 1s a
petition
under article 32 of the Constitution of India for the
enforceme<J,t of fundamental rights under articles 31(1)
and 19(1)(f) of the Constitution and for the issue of
writs in the nature of mandamus and/or certiorari and
for suitable directions restraining the respondents from
interfering with the petitioner's properties in violation
of his fundamental rights.
The petition anses
m these
circumstances.
The
petitioner, along with his
brothers, used to carry on
the business of toddy and liquor vendors.
In addition
to this, one of the brothers used to run a bus service
and <lealt m cotton and money-lending also. All the
brothers owned
extensive
properties, both
agricultural
and non-agricultural. Though prior to the assessment
year 1926-27 all the brothers were assessed to incometax as a Hindu undivided family, since then up to the
year 1946 they were assessed separately on account of
a partition alleged to have been made between them.
In December, 1946, the Income-tax Officer commenced
proceedings
against them
under section 34 on the
ground that the case of partition set up by them was
not correct and as a matter of fact there had been no
part1t10n
between them and they were carrymg on
business jointly.
As a result of these proceedings
an
assessment under section 34 was made
on the four
brothers jointly, treating
them as
an association of
persons,
for the year 1942-43.
Similar assessment proceedings were taken against them in respect of the
years 1940-41, 1941-42 and 1943-44.
In December, 1947, the Central
Government, under
the bona fide belief that the petitioner's brothers had
made huge profits during the war and had evaded tax,
made five
references to the Income-tax Investigation
Commission under section 5 ( 1)
of the Taxation on
Income
(Investigation Commission) Act, 1947. Reference No. 175 concerned all the brothers as an association of persons while the other four references related
•
' ,
•
•
..
•
s.c.R.
SUPREME COURT REPORTS
771
to the brothers individually._ As a result of the proz9s1
ceedings before the ., Investigation Commission, the
Commission made a report to the Central Government
Laxmanappa
H anumantappa
on the 26th of September, 1952, estimating the amount
v.
of escaped income at Rs. 16, 79,203 between the years Union of India
1940-41 and 1948-49. In pursuance of this report the •nd Another
·Central Government passed an order undersection8(2)
of the Taxation on,Income (Investigation Commission) Mahajan a. f.
Act directing that the assessment proceedings be taken
under the Indian Income-tax Act and Excess Profits
Tax Act, 1940, as well as under the Business Profits
_Tax Act, 1947, against Messrs Jamkhandi Bros. as an
association of persons with a view to assess or reassess
the income that had escaped assessment according to
the report_ of _ the Investigation ·-Commission. -In
accordance with these orders the Income-tax Officer
commenced proceedings against l\Iessrs Jamkhandi
Bros. as an association of persons. On the 30th
November, 1953, various assessment orders were passed
·by the Income-tax Officer assessing the petitioner under
the Income-tax Act and the Excess Profits Tax Act.
Proceedings were then taken against the petitionerfor
recovery of the tax assessed by the Income-tax Officer
and in those proceed in gs the properties of the petitioner
in the District of Belgaum were attached for payment
of the dues ·and one of his properties comprising of
about 12 plots ofland was sold by public auction under-·
the provisions of the Bombay Land Revenue Code.
On the 20th September, 1954, the -present application was preferredunder the provisions of article 32 of
thq Constitution .. -It has perhaps been made under the.
impression that the decision of this Court in Siiraj Mal
ltlohta v. A. V. Visvanatha Sastri and Another(') has
application to the facts and circumstances of this case
as well and that relief can be obtained against the
assessment orders which have become final, by taking
proceedings under article 32 of the Constitution. In·
the petition it was alleged that the attachment and sale
of the petitioner's properties was illegal and violates
the petitioner's fundamental rights under articles 31(1)
and 19(l)(f) of the Constitution. It was al~o alleged
(t) A.LR. 1954 s.c. s~s ..
772
I!,-•
,
'
•
· SUPREME COURT REPORTS
(1955]
z954
that the proceedings before the Income-tax Investiga·
. tion Commission after the coming into force of the Con·
HL.,,manappa stitution were illegal as being in contravention of articles
••u':':_"
1
~PP• 14 and 20(3) of the Constitution and that in view of the
union of India-decision of this Court inSuraj Mal lrfohta v. A. V.
and Another • V isvanatha Sastri and Another (supra) proceedings under
--
the Taxation on Income (Investigation Commission)
Afakaj•n<J_, J._ Act; 1947 were discriminatory and that the references
made by the Central Government under section5(1) are
not based on a proper classification. It was prayed that
this Court may be pleased to issue a writ in the nature
of mandamus and/or certiorari or such other directions
as may be appropriate to quash th_e assessment orders
made in pursuance of the_ order of the-Central Government under section 8(2) of the Taxation on Income
(Investigation Commission) Act, 1947, and to restrain
the respondents from attaching and selling or interfering
in any manner with the properties of the petitioner ..
From the facts stated above it is plain that the
proceedings taken under the impugned Act XXX of
1947 concluded so far as the Investigation Commission
is concerned in September, 1952, more than two years
before this petition was presented in this Court. The
assessment orders under the Income-tax Act itself were
made against the petitioner in November, 1953. In
these circumstances we are of the opinion that he is
entitled to no relief under the provisions of article 32 of
the Constitution. It was held by this Court in Ramjilal
v. Income-tax Officer, Mohindergarh (') that as there is
a special provision in article 265 of the Constitutbn that
no tax shall be levied or collected except by authoi;ity
of-Jaw, clause (1) of article 31 must therefore be
regarded as concerned with deprivation of property
otherwise than by the imposition or collection of tax,
and inasmuch as the right conferred by article 265 is
. not a right conferred by Part III of the Constitution,
it could not be enforced under article 32. In view of
this decision it has to be held that the petition under .
article 32 is not maintainable in the situation that has
arisen and that even otherwise in the peculiar circumstances th_at have arisen it would not be just and proper
(1) [r9,;1J s.c'.R. 127.
-
.•
J
1
S.C.R.
SUPREME COURT REPORTS
773
to direct the issue of any of the writs the issue of which
1s discretionary with this Court. When
this position
was
put to Mr. Sen, the
learned
counsel for the
petitioner, he very fairly, and, in our opm10n, rightly
conceded that it was not possible for him to
com~at
this position.
For the reasons given above this petition is bound to
fail and it is accordingly dismissed with costs.
Petition dismissed.
DEWAN BAHADUR SETH GOPAL DAS MOHTA
"·
THE UNION OF INDIA AND ANOTHER.
[MEHR CHAND MAHAJAN C.J., s. R. DAS,
GH?LAM HASAN, BHAGWATI
and VENKATARAMA AYYAR JJ.]
Co11stitution of
India, Art. 32-Taxation on Income (Investigation Commission) Act, 1947 (XXX of 1947) s. 5(1)-lnvestigation
and Report by Commission in respect of profits made by assessee and
·~
tax payable by him-Mutual. settlement
between
assessee
and
Government-Petition under Art. 32-Whether competent.
The petitioner, a business man, was alleged to have
made
huge profits during the years of War and the Central Government
acting under s. 5( 1) of the Taxation on Income (Investigation Commission) Act, 1947 (XXX of 1947) referred his case to the Investigation
Commission for
investigation and report.
During
the
pendency of the
investigation
the
petitioner's
application
for
settlement under the provisions of s. 8-A of Act XXX of 1947 was
~ accepted by the Central Government and in pursuance thereof the
tax was made payable
by instalments and the
claim for
evaded
income-tax was thus finally settled by mutual agreement.
When
the instalments in the sum of Rs. 4 lacs odd still remained due the
petitioner preferred the. present petition under Art.
32 of the
Constitution alleging that the entire proce~dings under Act XXX
of 1947, were illegal, ultra vires, void and unconstitutional, that the
Income-tax authorities were not competent to recover the amount
due from him and that ss. 5, 6, 7 and 8 of the Act were ultra vires
as they infringed Arts. 14, 19(1) (£) and 31 of the Constitution.
•
Held, that the petition under
Art. 32 was not competent as
whatever had already been paid or whatever was still recoverable
from the petitioner was being recovered on the basis of the
1954
Laxmanappa
HanurMntaaPfia
v.
Union •f India
Mahajan C. ].
1954
Oclo6w 2 1.