# THE SUP.REME COURT REP-ORTS STATE OF UTTAR PRADESH v. DR. VIJAY ANAND MAHARAJ

- **Citation:** [1963] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** B. P. Sinha, K. SUBBA RA.o, N. Rajagopa.La Ayyangar, J. R. MunHOLKAR, T. L. Venkata.Rama Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-sup-reme-court-rep-orts-state-of-uttar-pradesh-v-dr-vijay-anand-maharaj-2539
- **Pages:** 20

## Headnote

Agricultural I ncome•ta::c-Review of proceedings-Proceedings, ~f include writ proceedings-,-U.P. Agricultural Incomet<tZAct, 1949 (U .P.111of1949) as amended by U.P. Act No.
XIV of 1956, s. 11-Rulea of Oourl Ok. VIII, r./)-Letters
Patent Allahabad High Oourt, cl. 10-0onatitution of India,
Art. 226.
The respondent, who owned agricultural properties in
the different districts of Uttar Pradesh, was .assessed to agri·
cultural income tax by the Additional Collector of Banaras.
On challenge by way of a petition under Art. 226 of the
Constitution, assessment was quashed by the Allahabad
High Court on the ground that the assessing authority had no
jurisdiction to assess. Under s. 6 of the U.P. Act No. XIV
of 1956
the assessments by the Additional Collector were
validated and a party to the proceedings under Agricultural
Income-tax Act was given the right to move the Court or
authority within the prescribed period to review the proceedings where in the assessments had been set aside on the ground
th it the assessing authority had no jurisdiction to make the
assessment. By s.11 the authority or court so moved was
bound to 'review the order. The State of Uttar Pradesh
applied to the High Court for review of its earlier order
quashing the assessment. · The single Judge of the High
Cou~t held that s. l l of the Act did .not . apply to wri~ proceed1ngs under Art. 226 of the Const1tuuon. On appeal
the Divbion Bench held that the order 'of the single Judge
did not amount to a •judgment' under Ch. VIII r.5 c;:l. IO of
the Letter Patent and the Rules. of Allahabad High Court
and t~t s.11 of the A~t did not apply to. proceedings by, way
of a writ before the High Court. On aifpeal by special leave
by the State it was contended that the Division Bench was
wrong and by an additional statement of case it was sought
to be urged that the application for review should be treated
as one under order 47 of the COde of Civil Procedure.
1
1961
March 26.
1962
Stat1 of (]tlar
Pradt.sh
v.
Dr. YiJa.J Anand
l1-l aharq_i
2
SUPREME COURT REPORTS [1963)
Held (per Sinha, C. J., Subba Rao, Ayyangar and
Aiyar,JJ.), that under cl. JO of the Letters Patent of the
Allahabad High Court and the Rules of the Court the ex-·
prcssion 'judgrnent' would even on the narrow view of the
expression include the order in the present case whereby the
statutory right given to the party was finally negatived and
that the Division Bench was in error in holding that it was
not a 'judgment'.
HPld, further, that the proceeding under Art. 226 of the
constitution were neither 'proceediiigs' under the Act nor
proceedings on the basis of the Act.
The proceedings
under Art. 226 of the Constitution
were independent and original proceeding and not a continua~ion of the assessment proceedings.
Venkataratnam v. Secretary of State for Indfo, (1930)
I.L.R.53 Mad. 979, Ryou. of Garabandha v. The Zamindar of
Parlakimedi
J.L.R.
1938 Mad. 816, Ramayya v. State of
Madras,
A.I.R. 1952 Mad.
300, Mou/vi Hamid Hassan
Nomani v. Banwarilal Ooy. (1947) II M.1..J. 32, Budge Butlge
Municipality
v.
Manaru,
(1952)
57
C.W.N.25
and
Satyanarayanamurthi v. I.T. Appellate Tribunal, A.I.R.1957
Andhra 123, referred to.
The Act had to be interpreted consistently with the
Constitution and there was no power in the State Legislature to compel the High Court to act in a particular way
in exercise of its jurisdiction under Art. 226 of the Constitution. S<ction 11 could only apply to cases where any court
or authority other than the High Court in exercise of its
jurisdiction under Art. 226 of the Constitution, had decided
the matter.
Held, further, that construing •shall' ins.I I of the Act
as 'may' would defeat the very provisions of the Act.
Held, also, that ,the contention that the application
under s.J] of the Act may be treated as one order 47 of the
Code of Civil Procedure, was highly belated and further
.-
there were many possible objections to such a course and it
...
cannot be acceded to.
7
CIVIL APPEr,r,ATE,JURrsDrCTI

## Text

:A.
' ..
).
},..,
1\•
j
THE SUP.REME COURT REP-ORTS
STATE OF UTTAR PRADESH
v.
DR. VIJAY ANAND MAHARAJ
(B. P. SINHA, C.J., K. SUBBA RA.o,. N. RAJAGOPA.LA
AYYANGAR, J. R. MunHOLKAR, and T. L.
VENKATA.RAMA AIYAR, JJ.)
Agricultural I ncome•ta::c-Review of proceedings-Proceedings, ~f include writ proceedings-,-U.P. Agricultural Incomet<tZAct, 1949 (U .P.111of1949) as amended by U.P. Act No.
XIV of 1956, s. 11-Rulea of Oourl Ok. VIII, r./)-Letters
Patent Allahabad High Oourt, cl. 10-0onatitution of India,
Art. 226.
The respondent, who owned agricultural properties in
the different districts of Uttar Pradesh, was .assessed to agri·
cultural income tax by the Additional Collector of Banaras.
On challenge by way of a petition under Art. 226 of the
Constitution, assessment was quashed by the Allahabad
High Court on the ground that the assessing authority had no
jurisdiction to assess. Under s. 6 of the U.P. Act No. XIV
of 1956
the assessments by the Additional Collector were
validated and a party to the proceedings under Agricultural
Income-tax Act was given the right to move the Court or
authority within the prescribed period to review the proceedings where in the assessments had been set aside on the ground
th it the assessing authority had no jurisdiction to make the
assessment. By s.11 the authority or court so moved was
bound to 'review the order. The State of Uttar Pradesh
applied to the High Court for review of its earlier order
quashing the assessment. · The single Judge of the High
Cou~t held that s. l l of the Act did .not . apply to wri~ proceed1ngs under Art. 226 of the Const1tuuon. On appeal
the Divbion Bench held that the order 'of the single Judge
did not amount to a •judgment' under Ch. VIII r.5 c;:l. IO of
the Letter Patent and the Rules. of Allahabad High Court
and t~t s.11 of the A~t did not apply to. proceedings by, way
of a writ before the High Court. On aifpeal by special leave
by the State it was contended that the Division Bench was
wrong and by an additional statement of case it was sought
to be urged that the application for review should be treated
as one under order 47 of the COde of Civil Procedure.
1
1961
March 26.
1962
Stat1 of (]tlar
Pradt.sh
v.
Dr. YiJa.J Anand
l1-l aharq_i
2
SUPREME COURT REPORTS [1963)
Held (per Sinha, C. J., Subba Rao, Ayyangar and
Aiyar,JJ.), that under cl. JO of the Letters Patent of the
Allahabad High Court and the Rules of the Court the ex-·
prcssion 'judgrnent' would even on the narrow view of the
expression include the order in the present case whereby the
statutory right given to the party was finally negatived and
that the Division Bench was in error in holding that it was
not a 'judgment'.
HPld, further, that the proceeding under Art. 226 of the
constitution were neither 'proceediiigs' under the Act nor
proceedings on the basis of the Act.
The proceedings
under Art. 226 of the Constitution
were independent and original proceeding and not a continua~ion of the assessment proceedings.
Venkataratnam v. Secretary of State for Indfo, (1930)
I.L.R.53 Mad. 979, Ryou. of Garabandha v. The Zamindar of
Parlakimedi
J.L.R.
1938 Mad. 816, Ramayya v. State of
Madras,
A.I.R. 1952 Mad.
300, Mou/vi Hamid Hassan
Nomani v. Banwarilal Ooy. (1947) II M.1..J. 32, Budge Butlge
Municipality
v.
Manaru,
(1952)
57
C.W.N.25
and
Satyanarayanamurthi v. I.T. Appellate Tribunal, A.I.R.1957
Andhra 123, referred to.
The Act had to be interpreted consistently with the
Constitution and there was no power in the State Legislature to compel the High Court to act in a particular way
in exercise of its jurisdiction under Art. 226 of the Constitution. S<ction 11 could only apply to cases where any court
or authority other than the High Court in exercise of its
jurisdiction under Art. 226 of the Constitution, had decided
the matter.
Held, further, that construing •shall' ins.I I of the Act
as 'may' would defeat the very provisions of the Act.
Held, also, that ,the contention that the application
under s.J] of the Act may be treated as one order 47 of the
Code of Civil Procedure, was highly belated and further
.-
there were many possible objections to such a course and it
...
cannot be acceded to.
7
CIVIL APPEr,r,ATE,JURrsDrCTION: Civil Appeal
No. 25 of 1961.
Appeal by specie.I leave from the judgment
a.nd decree dated November !!6,
1957, of the
Allahabad High Court in Specie.I Appeal No. 235
of 1957.
•
>
I S.C.R.
SUPREME COURT REPORTS
3
0. B . .Agarwala and C. P. Lal, for the appellants.
H. N. Sanyal, Additional Solfoiwr General of
India, S. K. Kapur, Bishamber Lal and K. ]( . .Jain,
for the respondent.
1.962. March 2H.
The Judgment of Sinha,
C.J., Subba Rao and Ayyangar, ,JJ., was delivered
by Subba Rao, J., Mudholkar,
.T., delivered a
separate Judgment.
SuBBA RAO, J.-This appeal by specia] ]eave
is directed against the judgment and order of a
divi~ion Bench of the Allahabad High Court confirming those of a single Judge of that court dismissing
the application filed by the appellant to review the
order of the High Court dated November 22, 1958.
1
1be facts leading up to the filing of this appeal
may be briefly stated. The respondent held certain
zamindari and agricultural properties in different
districts of the State of Uttar Pradesh. On December 22, 1952, the Additiona.l Collector, Banaras, in
exercise of the powers conferred on him under the
provisions of the U. P. Agricultural Income-Tax
Act (Act III of 1949), assessed the respondent to
an agricultural income-'tax of Rs. 99,964-12-0 for
the year 1359 fasli.
On September 30, 1955, the
respondent filed a petition before the High Court;
under Art. 2i6 of the Constitution for quashing the
said order on the ground that the Additional
Collector, Banaras, had no jurisdiction to make the
said assessment. On November 22, 1955, Mehrotra
J., allowed the writ petition quashing the aaid
assessment. The State of Uttar Pradesh did not
prefer an appeal against the said order and allowed
it to become final. On February 9, 1956, the State
of Uttar Pradesh promulgated an Ordinance, being
Ordinance No. II of 1956, which was subsequently
replaced by U. P. Act No. XIV of 1956. Under the
provisions of the Ordinance, the assessments made
1962
State nf Uttar
Pr2desh
v.
Dr, Vijay Anand
Mah~raj
S11bba Ran J.
State of Uttar
Pradesh
••
Dr. Vija1 Anand
M•haraj
Suhba Rao J.
4.
SUPREME COURT REPORTS [1963]
by the Additional Collector were retrospectively
validated and, under s.6 thereof, a right was
conferred upon any party to the proce<Jdings under
the U.P. Agricultural Income-tax Act, 1948, (hereinafter called the
principal Act),
'Wherein any
assessment made by an Additional Collector or
Additional Assistant Collector was set aside merely
on the ground that the assessing authority had no
jurisdiction to make the assessment, to apply within
90 days from the date of the commencement of the
said Ordinance for a review of the said proceedings
in\the light of the provisions of the Ordinance, and
a statutory injunction was imposed upon a court to
review the said order accordingly. Pursuant to the
provisions of s.6 of the said Ordinance, on March 14,
1956, the appellants filed an application in the High
Court at Allahabad for review of its order dated
November 22, 1956. Subsequently as stated earlier,
the Ordinance was replaced by the U. P. Act XIV of
1956, hereinafter called the Act. In the course of
the judgment we shall refer only to the provision of
the Act. The said application was heard, in the
first imtanee, by Mehrotra, J., and he held that s.ll
of thn
Act, which corresponds to s.6 of the
Ordinance, did not entitle the appellant to file an
application for review of an order ma.de by the High
Court under Art. 226 of the Constitution.
The
appellant's petition was dismissed on that ground.
The appellants preferred an appeal against the said
order to a division Bench of that court. Nootham,
C.J., and Srivastava, J., who heard the appeal, dis·
missed it on two grounds, namely, (I) under Ch. VIII
r.5 of the Rules of Court, a special appeal against
an order of a single Judge of the court can be maintained only if that order amounts to a "Judgment·~
and an order refusing an application for review nbt
being a "Judgment" cannot be the subject of an
appeal, (2) on merits, that is on the construction of
s.11 of the Act, the view taken by Mehrotra, J. was
correct. The present appeal, as already stated, was
preferred against the said order.
•
l
.....
( .)
1 S.C.R.
SUPREME COURT REPOR'I
1S
5
Mr. C. B. Aggarwala, learned counsel for tho
appellants, has raised before us the following points:
( 1) The order of Mehrotra, J., dismissing the application for review of his earlier order is a "Judgment
within the meaning of Ch. VIII r. 5 of the H.ules of
Court and, therefore,. an appeal lies against that
order to a division Bench of that court.
(2) The
terms of s.11 of the Act are comprehensive enough
to take in an order made by the High Court under
Art. 226 of the Constitution quashing the order of
assessment and even if there is some lacuna, the
provisions shall be so construed as to carry out clear
intention of the Legislature.
(3) In any view, the
application for review filed by the appellants could
be treated as one filed under Order 47 of the
Code of Civil Procedure, and the earlier
order
reviewed on the ground that there is an error
apparent on the face of the record.
We shall take
the questions in the order they were argued.
The first question is whether an appeal lay
against the order of Mehrotra., J ., rejecting the
application for review filed by tho1 appellants to a
division Bench of the High Court. Chapter VIII r.5
of the Rules of Court provides for an appeal against
an order of a single judge. Under that rule a
special appeal against an order of a single. judge of
the court can be maintained· only if that order
&mounts to.a "judgement". That rule gives effect
to c 1. IO of the letters Patent for the High Court of
Allahabad, which gives a right-. of appeal against
a judgment of a single judge subject to the <io~di
tions mentioned therein. The said cl.10 corresponds to cl.15 of the letters Patent for the High
Courts of Calcutta., Bom~y a.nd Madras. The
soope of the expression "judgment" came under
the judicial scrutiny of the var~ous High Courts:
there is a cleavage of opinion on that question.
We shall briefly notice the leading decisions of the
Va.rious High Courts on th.e subject. Couch, C.J.,
l9G2
State of Uttar
Pradesh
v.
/Jr. Vijay A11a11d
fl..faharaj
Subba Rao J.
1962
Sttite of Uttar
Pr'odesh
v.
Dr. Vijay Anand
Maharaj
Subb• RaoJ.
6
SUPRE~1E COURT REPORTS (l9G3]
in :J.'he J'U8tices of the Peace for Calcutta v.
1.'he
Oriental Gas Go.
(') defines the word "judgment''
in cl. 15 of the Letters Patent thus:
"We think 'judgment' in clause 15 means
a decision which affects the merits of the
question between the parties by determining
some right or liability. It may be either
final, or preliminary, or interlocutory, the
difference between them being that a final
judgment determines tho whole ca.use or suit
and a preliminary or interlocutory judgment
determines only a part of it, leaving other
matters to be deterpiined".
'.l.'he same High Court in Hadjee J,wnael v. Hudjee
M ahommed (2) held that an appeal lay under the
said clause from an order refusing to set aside an
order granting leave to sue to the plaintiff under
ol.12 of the Letters Patent. Therein Couch, C.J.,
observed:
"lt is not a mere formal order, or an
order merely regulating the procedure in the
suit, but on that has the effect of giving a
jurisdiction to the c.ourt it otherwise would
•
not have. And it may fairly be said to
,
determine some right.between them, viz., the
right to sue in a particular Court, and to
compel the defendants who a.re not within
its jurisdiction to come in and defend the suit,
or if they do not, to make them liable to have
a decree passed against them in their
'-
absence."
The Bombay High Court followed the Calcutta
view.
The leading judgment of the Madras High
Court is that in Tutjaram v. Alagappa (3), where it
was held that an order of a single Judge in the
Original Side refusing to frame an issue asked for
by one of the parties is not a 'judgment' within
(I) (1872) 8 Bena. L.R. 433, 452.
(2) (1874) 13 Bena. L,R, 91, 101.
(3J (1912) I.L.R. 35 Mad, 1, 7, 15.
•
_,
I S.C.R.
SUPREME COURT REPORTS
7
the meaning of cl.15 of the Letters Patent. White,
C.J., la.id down the following tests:
"The test seems to me to be not what is
the form of the adjudication, but what is its
effect in the suit or proceeding in whieb it is.
m1,1.de. If its effect, whatever its form may
be, and whatever be the nature of the application on which it is made, is to put an end
to the suit or proceeding so far as the Court
before which the suit or proceeding is. pending
is concerned, or if its effect, if it is not complied with, is to put an end to the suit or
proceeding, I think the adjudication is a
'judgment' withi~ the meaning of the clause."
Referring to the decisions of the Calcutta High
Court the learned Chief Justice proceeded to
state:
"On the other hand I am not, prepared
to say as was held in The Justices of the Peace
for Calcutta v. The Oriental Gas OompamJ .(1)
and in Soobai v. Ahamedbhai H abibhai (2),
it must be a decision which affects the merits
by determining some right or liability.
I
think the decision may be a judgment for the
purposes of the section though it does not
affect the merits of the suit or . proceeding
and does not determine any question of right
raised in the suit or proceeding.
Krishnaswami Ayyar, J., observed much to the
same effect:
"I would only stop here to remark that
a decision which determines the cause or
proceeding so far as the particular court is
concerned, though it refused to adjudge the
merits, must also be de1med to be a judgement: far otherwise the rej~ction of a plaint
for defect of form or insufficiency of Court
(I) (1872)8Bcng.L.R.433. _
(2) (1872) 9B.H.C.R.398.
190:::
Stale of Uttar
Pradesh
••
lJr. Vijoy Anand
Maharaj
Subb., Rao J.
J9GZ
Sttt1 of Uttar
Pradesh
v.
Dr. Vijoy Anand
Maharaj
Subha Rao J.
8
SUPl~E.ME COURT REPORTS [1963)
fee or a return of it for want of jurisdiction
would be outside the definition of the learned
Chief Justice which could hardly have been
his meaning.
I may also observe that the
"part" which is determined may be a part
of the claim separable from the rest or a
determination of liability generally though the
actual meaHuro of liability may be a matter
of account".
The Lahore High Court generally followed the view
expressed by the Madrao High Court. The Allahabad
High Court in 1lfuluim1;w,d Nr1im-UUah Koon v.
lhsan-Ullah Hhan (1) expressed the view that an
order which is not, appealallle under 0.43 r. 1 of the ·
Code of Uivil Prucedure is not appealable under
cl. 10 of the Letters Patent. This view ha.ii been
followed by a division· Bench of the same High
Court in Tirmul i:iinyh v. K1tnhayia Singh ('). But
the said decisions do not attempt to lay down a
definition of the expression "judgment" in the
Letters Patent. The Nagpur High Court in Maoohar
v. Baliram (') by a majority, after considering the
case-law on the subject, laid down the following
definition.
Hidayatullah, J ., who delivered the
leading judgment, laid down the test at p. 522 thus:
"A judgment means a decision in an
action whether final, preliminary, or interlocutory which decides eith11r wholly or partially, but conclusively in so far as the Court is
concerned, the controversy which is the subject
of the action. It does not include a decision
which is on a matter of procedure, nor one
~
which is ancillary to the action even though
it may either imperil the ultimate decision or
tend to make it effective. The decision need
net be immediately executable per 88 but if
l11ft untouched, muet result ine..-itably without
anything fart.her, save the determination of
(1) [1892] I. L. R. 14 All.226
(2) [1923J I. L. R, 45 All. 535.
(3) J. L. R. 1952 N•&• 471.
(
1 S.C.R.
SUPREME COURT REPORTS
consequential details, in a decree or <lecreta.I
order, that is to say, an executive document
directing something to be done or not to be
done in relation to the facts of the contro·
versy. The decision may itself order tbat
thing to be done or not to be done or it may
leave that. over till after the ascertainmont
of some details but it must not be interlocutory
having for its purpose the ascertainment
of some matters or details prior to the
determination of the whole or any part of tho
controversy."
The foregoing brief analysis of judgment shown
that the definition given by the Madras High Court
is wider than that given by the Calcutta and
Nagpur High Courts. It is not necesaary in this
case to attempt to reconcile the said decision or to
give a definition of our own, for on the facts of the
· prese.at case the order of Mehrotra., J., would bo a
judgment within the meaning of the narrower definition of that expression.
The appellants filed an application to review
the order of the High Collrt quashing the order of
assessment made by the Additional CoJlector. It
was alleged in the affidavit that the impugned
assessment had been validated under the Ordinance
and that the applicants had the right to have the
order of Mehrotra, J., reviewed in the light of the
provisions of s. 6 thereof. The assessee denied that
the appe11ants had any such right. The appellants'
statutory right to have the order of the High Court
reviewed was denied by the other side and was put
in issue before the High Coul't. The relevant provisions of the Act, read :
Section 2. "In Section 2 of the U. P.
Agricultural Income 'rax Act, 1948 (hereinafter caJled the Principal Act), for clause (4},
the following shall be and be deemed always
to have been substituted191iB
State of_Wtar
i'radesh
'·
Dr. Vijay Anand
llialiaraj
Su6ba Rao J,
1962
Slate of U'tor
Pradesh
••
llr. Vijay A.n•n;
MallQroj
SubbtJ R110 J.
lo
SUPREME COURT REPORTS [1963]
"( 4-a.) 'Collector' shall have the meanina
as in the U, P. Land Revenue Act, 1901, and
will include an Additional Collector appointed under the said Act."
Section 10.
Validation-(!) l<'or the removal of doubts it is hereby declared that-
(a) in rule 18 of the U. P. Agricultural
Income Tax Rules, 1949, the expression
"Collector" and "Assistant Collector in-charge
of a sub-division" shall respectively include and
be deemed always to have included an "Additional Collector" and an "Additional Assistant
Collector in-charge of a sub-divisional".
(b) all orders, actions or proceedingl'I
ta.ken, directions issued or jurisdiction exercised or in accordance with the provisions of
the Principal Act or of any rule framed
thereunder
prior to
the
amendment
of
that Act by Section 2 of this Act aha.II be
deemed to be a.a good and valid in law a.s
if Section 2 aforesaid had been in force
at all material dates.
(2) Where any question a.rises a.s to the
validity or legality of any assessment ma.de by
a.n Additional Collector in-charge of a subdivision or by a.n Additional Collector in purported exercise of the powers under Section 14
or of the rules framed under clause (c) of subsection (2) of Section 44 of the Principal Act,
the same shall be determined a.a if the
provisions of Section 2 of this Act had
been in force at all material dates .
•
Section 11. Review of Procee,dings :-Where
before the commencement of this Act any
court or authority had, in any proceedings
under the Principal Act, set aside any a.eseasment made by 11.n Additional Collector or
'
!
•
.•
)
1 s.c.R.
SUPREME COURT REPORTS
11
Additional Assistant Collector in-charge of a
sub-division merely on the ground that the
assessing authority had no jurisdiction to make
an assessment, any party to the proceedings
may, at any time within ninety days from the
date of commencement of this Act apply to the
Court or authority for a view of the proceedings in the light of the provisions of this Act,
and the Court or authority to which the
application is made shall review 'the proceed·
ings accordingly and make such order, if any,
varying or revising the order previously made
as may be necessary to give effect to the pro-
-visions of the Principal Act as amended by
Sections 2 and 8 of this Act.
Under the aforesaid provisions the assessmeut:;
made by the Additional Collector were retrospectively validated and a right was conferred on a.
party to the proceedings under the Principal Act,
wherein the assessments were set aside merely on
the ground that the assessing authority had no
jurisdiction to make an assessment, to apply to the
court to have that order reviewed. A statutory
injunction was also issued to the court which set
aside the assessment on the ground of want of
jurisdiction to review· its order- and to give effect to
the provisions of the Principal Act, as amended by
SS. ~and. 4 of the Act, that is to say, a fresh right
has been conferred upon a party _to the earlier
proceedings to have the previous order set aside and
to have decision from the court on the basis of the
a.mended Act. This is a valuable and substanti~e
right conferred upon a party to the proceeding.
On the rival contentions, the question of the
fresh right conferred upon a party to the proceed·
ing and the jurisdiction of the court to enforco
the said right would be in issue and any decision
thereon could legitimately be said to be a decision determin~g the rights of parties. But .for the
1962
State of Utt4r
Pradesh
c..
Dr. Vijay Anand
Maharaj
Subba Rao J.
1962
Sta·te Qj. U liar
L'r.desh
v.
Dr. ·Vij'!_V Anond
Maharaj
fubba Rao J.
12
SUPHEME COURT REl>oRTS [llJ63]
amen<ling Act, the order of the High Court admittedly would have become final;
but, because of
the amending Act there was a controversy whether
the binding decision could be reopened and the
rights of the parties decided in accordance with
the amending Act.
The decision of Mehrotra, J.,
dismissing the application was certainly a decision
denying the right of the appellants alleged to have
been conferred under the
amending Act. We
therefore, hold t.hat the order of Mehrotra, J.,
dismissing the application, filed for review of his
earlier order, on the ground that s. 11 of the Act
did not confer any such right on the appellants
was a •judgment' within the meaning of cl.10 of
the Letters Patent as well as Ch.VIII r.5 of the
H.ules of Court. If so, we must hold that the
division Bench of the High Court went wrong in
holding that no appeal lay against the order of
Mehrotra, J,
Even ~o, the appellants would not be entitled
to succeed, unless we
hold, differing from the
High Court, that s.11 of the Act confers a right
on the appellants to have the order of Mehrotra,
J·.,
reviewed.
We
have
already
extracted
the provisions of s. 11. Section 11 is in two parts:
the first part of the section confers a right on
a party to the proceedings under the Principal
Act to apply to the court or authority for a review
of the proceeding in the light of the provisions of
the Act within 90 days from the commencement
of the Act, and the second part issues a statutory
injunction un such a court or authority to review
the proceedings accordingly and to make an order
as may be necessary to give ·effect to the provisions
of t.Jie Principal Act, as amended by ss.2 and 4 of
the Act.
The first question, therefore, is whether
the order of Mehrotra, J., in an application
under Art. 226 of the Constitution was in any pro.
ceeding under the Prineipal Act. Obviously a
petition under Art. 226 of the Constitution cannot
be a proceeding under the Act: it is a proceeding
•.
1
I•
)
1 S.C.R.
SUPREME OOURT REPORTS
13
under the Constitution. But it is said, relying
upon certain passages in Maxwell on the Interpretation of .Statutes, at p, 68, and in Crawford on
"Statutory Construction" at p. 492, that, it i~ the
dutJ-. .of the Judge ''to make such construetiop. of
a statute as shall suppress the mischief and advance the remedy," and for that purpose the more
extended meaning could be attributed to the
words so as to bring all matters fairly within the
scope of such a statute even though outside the
letter, if ·:within its spirit or reason. But both
Maxwell and Crawford administered a caution in
resorting to such a construction. Maxwell says
at p.68 of his book:
"The construction must not, of course,
be strained to include cases plainly omitted
from the natural meaning of the words.''
Crawford says that a liberal construction does not
justify an extension of the statute's scope beyond
the contemplation of ·the Legislature. The fundamental and . elementary rule of construction is
that the words and phrases used . by the Legis ·
lature shall be given their ordinary meaning and
shall be constructed according to the rules bf
grammar. When the language is plain and unambiguous and admits of only one meaning, no
question of construction of a statute a.rises, for the
Act speaks for itself. It is a well recognized rule
of construction that the meaning must be collected
from the expressed intention of the Legislature.
So construed, there cannot be two -possible views
!
on the interpretation of the first part of the
section.
Learned
counsel suggested that we
should read the relevant portion ~f the fi~t part
thus: ''in any proceedings to set aside any assessment made on the basis of the Principal Act.,'.
To accept this argument is to rewrite the section.
While the section says that the order sought to
be reviewed is that made in a proceeding under
J96Z
State of Utto1
Pradesli
v.
Dr. Vijay Ab~nd
MaharQj
Subba Roo .T.
1962
Stott,,, (]tta1
Pradtsh
••
f),, r ijoy Anand
Maharaj
Sub~a Rao J,
14
SUPREME OOURT REPORTS [1963]
the Principal Act, the ll.rgument seeks to remove
the qualification attached to the proceeding and
add the same to the assessment. The alternative
argument, namely, that without changing the position of the words as they stand in the section, the
expression "on the basis of" may be substituted
for the expression "under" does not also yield the
results expected by the learned counsel. It cannot be held with any justification, without doing
violence to the language used, that a proceeding
under Art. 226 of the Constitution is either one
under the Principal Act or on the basis of the
Principal Act, for it is a proceeding under Art. 226
of the Constitution to quash the order on the
ground that it was IBade in violation of the Act.
An attempt is then made to contend that a proceeding under Art. 226 of the Constitution is a.
continuation of the proceedings before the Additional Collector and, therefore, the said proceedings are proceedings under the Act. This leads
us to the consideration of the question of the
scope of the proceedings udder Art. 226 of the
Constitution.
Article 226 confers a power on a High Court
to issue the writs, orders, or directions mentioned
therein for the enforcement of any of the rights
conferred by Part III or for any other purpose.
This is neither an appellate nor a revisional jurisdiction of the High Court.
Though the power
is not confined to the prerogative writs issued by
the English Courts, it is modelled on the said writs
mainly to enable the High Courts to keep the
subordinate tribunals within bounds. Before the
Constitution, the chartered High Court, that is,
the High Courts a.t Bombay, Calcutta.and Ma<lms,
were issuing prerogative writs similar to those
issued by the King's Bench Division, subject to the
same limitations imposed on the said writs. In
Venkat,aratnam v. 8ecref,ary of State for lndici ('),
(I} (1930) J,L.R. 53 Mad. 979.
1
j
l S.C.R.
SUPREME COURT REPORTS
15
a division Bench of the Madras High Court, consisting of Venkatasubba Rao and Madhavan Nair,
JJ., held tha.t the jurisdiction to issue a writ of
certiorari was original jurisdiction. ln Ryots of
Garabandha
v. The Zamindar of Parlakimedi (1},
another division Bench of tli.e same High Court, consisting of Leach, C. J., and Madh,van Nair J., considered the question again incidentally and came to
the same conclusion and held that a writ of
certiorari is issued only in exercise of the oriaina.l
jurisdiction of the High Court. In Ramayya v. St,ate
of Madras- (2), a division Bench, consisting of
Govinda Menon and Ra.maswami Gounder, JJ,,
considered the question whether the proceedings
under Art. 226 of the Constitution are in exercise
Of
the
original
jurisdiction
or
revisional
jurisdiction
of the
High
Court,
and
the
learned Judges held that the power to issue writs
under Art. 226 of the Constitution is original and
the jurisdiction exercised is original jurisdiction. In
Moulvi Hamid Hassan N omani v. Banwarilal. Roy (3),
the Privy Council was considering the question
whether the original civil jurisdiction which the
Supreme Court of .Calcutta possessed over certain
classess of persons outside the territorial limits of
that jurisdiction bas been inherited by the High
Court.
In that context the Judicial Committee
observed.
"It cannot be disputed that the issue of
such writs is a matter of original jurisdiction''.
The Ca.lc11tt& High Court, in Bu,dge ·Budge Jfunicipallty "· Mangru ('), came to the same conclusion,
namely, that the jurisdiction exercised under Art.
226 of the Constitution is original as distinguished
from appellate or revision&) jurisdiction; but the
High Court pointed out that the juri11diction, though
original, is a special jurisdiction and should not be
(l) I.L.R. 1938 Mad. 816.
(2) A.I.R. 1952 Naef. 300.
(3J ( 19.2) I{ M. L. J. 32, 35.
{4) (1952) 57 C. W. N. 25.
1962
Stolt of Uttor
Pradesh
v.
Dr. Vijay Anand
Maharaj
Subha Rao ,f.
W62
Sta!e of Ultar
Pradtsh
v.
Di. riiav Ananrl
Maliaraj
Subba R•o J.
16
SUPREME COURT REPORTS [1963]
confused with ordinnry civil jurisdiction under the
Letters Patent. The Andhra High Court in Satyanarayanamurthi v. I. T. AppeJ,late TrilntrMJl (1) described it as an extraordinary original jurisdiction.
It is, therefore, clear from the nature of the power
conferred under Art. 226 of the Constitution and the
decisions on the subject that the High Court in exercise of its power under Art. 226 of the Constitution
exercises odginal jurisdiction,
though the said
jurisdiction shall not be confused with the ordinary
civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted
with its appellate and revisional jurisdict.ions, is
exercisable throughout the territories in relation to
which it exercises jurisdiction and may. for convenience, be described as extraordinary original
jurisdiction. If that be so, it cannot be contended
that a petition under Art. 226 of the Constitution is
n continuation of the. proceedings under the Act.
There is another insurmountable difficulty in
accepting the construction suggested by learned
counsel. Under the second part of the section a
party to the earlier proceedings may within the
prescribed time apply to the court or authority for
a. review of the proceedings in the light of the provisions of the Aot, and the cciurt or authority to
which the application is made shall review the proceedings accordingly, and make .such order, if any,
varying or revising the order previously ma.de as may
be necessary to give effect to the Principal Act, as
amended by s. 2 of the Act. Should it be held that
this section applies to an order made by a High
Court under Art. 226 of the Constitution, the statutory mandatory injunction issued under the second
part of the section to the High Court to make an
order in a particular way would be constitutionally
void. Under the Constitution the Legislature of a
(I) A. J. ll. 1957 Andbra 123.
' '
.
I
I.
'
1 S.C.R.
SUPREME COURT RElPORTs
17
State derives its authority to· make laws under Art.
245 of the Constitution, which reads:
( l) "Subject to the provisions of this Constitution; Parliament may make la.ws for the
whole or any part of th~ territory of India: and
the Legislature of a. State may make laws for
the whole or any pa.rt of the State.''
Article 245 is, therefore, subject to Art. 226 of· the
Constitution .. It follows that no law made by the
Legislature of a State can be in derogation of the
powers of the High Court under Art. 226 of the
Constitution. It is well settled that Art. 226 confer8 a discretionary power on the High Cpurts to
make or issue appropriate orders and writs for the
enforcoment of any of the rights conferred by Part
III of the :Constitution or for any other purpose.
While Art. 226 confers & discretionary power on the
High Court, the second part of s. 11 · of the Act
enjoins on the High Court to make an order in a
particular way .. We· ·should not give
such a
construction to the section as would bring it into
conflict with Art. 226 of the Constitution a.pd which
would have the ,effect of invalidating it to that extent. On the other hand, the cons~ruction adopted by us would be consistent with the second part
of the section, for,_ if the first part is confined only
to an order made by any court or authority, other
than the High Court in exercise of its jurisdiction
under Art. 226 of the Constitution, both the parts
fall in a piece, and we wou~d not only be giving a
natural meaning to the express words .used in the
section but we would also be saving the section
from the vice of constitutional invalidity.
·
·
·
Learned counsel for the appellants seeks to
got over this obvious difficulty by contending that
the word "shall" may be treated as "may" s_o that
the discretion of High Court under Art. 226 may be
maintain'='d. Alternatively, he· contends that the
second pa.rt of the section comprises two parts-the
lHI
Slat1 of Uttar
·
Pradesh
V;
Dr. V ijo.1 11ntJnd
Mah#•j
1962
State ofUitar
Pradlsll
v.
Dr. VijaJ .Ana11d
Ma!itJraj,
Subba RuJ.
'
18
SUPREME COURT REPORTS [1963]
first empowers an aggrieved party only to file an
application, and the second imposes a statutory
duty, and thnt the first may convenient~y be served
from the second and its validity to tl1at extent sustained. The first argument is contrary to the express words used and the intention of the Legislature. If we read ''shall" as "may" the same discretion will have to be given even to authorities and
courts other than the High Court, with the result
the purpose of the section would be defeated. On
the other hand, if the expression "shall" is given
its natural meaning, the section carries out the
intention of the Legislature, vi~., the mandatory
injunction imposed on courts and authorities to
restore the
as~essment d<'clared invalid.
Tho
decisions cited by the lea.rued counsel ill support of
his construction arc not of any help, for they were
based upon the co!1Bt1·uction of the relevant provisions under consideration in those cases.
The
second argument, if accepted, would be rewriting
the section. While the dominant intention of the
Legislature is to issue a mandatory injunction on
the courts or authorities to review their orders on
a suitable application mo,de to them, we would be
deleting it and thus defeating the object of the
Legislature. For the foregoing reasons, we have no
hesitation in holding that, on a plain reading of the
clear words used in the section, it does not apply to
an order made by the High Court under Art. 226 of
the Constitution.
Lastly it is contended that even ifs. l i does
not apply, we should treat the application filed by
the appellants before the High Court as one made
under Order 4 7 of the Code of Civil Procedure. There
are many objections for allowing the appellants to
do so at this very late stage of the proceedings.
The application was filed only under s. 11 of the
Aot and no attempt was made either before
Mehrotra, J., or before the
division
Bench
of the High Court to ask for an a.mendment
'
'
'
f
i s.o.R.
SUPREME COURT REPORTS
or to sustain the petition under Order 4 7 of
the Code
of Civil Procedure; nor did the
appellants raise this plea in the petition filed for
speoial leave or even in the statement of case as
originally filed by them. After the case was argued
for sometime on an observation casually made by
the Court, time was taken and for the first time
tb/s plea was taken in the additional statement of
c~se filed by,the appellants. This is, therefore, a
highly belated attempt to convert the application
filed on one basis into that on another. Further,
the plea, if allowed, is not so innocuous or. smoothsailing as it appears to be, but is brimming with
many controversial questions. It raises the following questions : ( l) Whether the application treated as one made under order 4 7 of the Code of Civil
Procedure was within time; (2), if it was out of
time, could the delay be excused without the appellant filing an application for excusing it and giving
valid reasons for the same ; (3) whether an order
made by the High Court in exercise of its powers
under Art. 226 of the Constitutic.n could be reviewed under Order 47 of the Code of· Civil Procedure,
and, if not, under s. 151 of the said Code; (4) whether the amendment of an Aot with retrospective
effect could be treated as an error on the face of the
record or as a sufficient cause within the meaning
of Order 47 of the Code of Civil Procedure for
reviewing the· final orders and decrees made by
courts on the basis of .the law obtaining at the time
the said 9rders or decrees were made ; and ( 5} if
the order of Mehrotra, J., was one made under
Order 4 7 of th,e Code of Civil Procedure, would an
appeal lie to a. division Bench of the High Court
under Order 43 of the Code. We do not propose to
expre1s any opinion on the aforesaid questions.
It would be enough to say that we are not justified
to allow the appeIJants to convert their petition to
one made under Order 4 7 of the Code of Civil Pro.
1962
State of Ullar -
Ptadeak
v.
Dr. Vi]~, Anand
!Hallaraj
Su66a Rao J.
1962
St•i. of Utt,,,.
Pradesh
••
Dr. Viio.1 A.none/
Ma11oraj
SubboRaoJ.
Muriholk.,J.
1962
M01e1a IO.
20
SUPREME COURT REPORTs (1963]
cedure at this very late stage, in view of the foregoing reasons.
In the result, we hold that the order of tho
High Court is correct. Tho appeal fails and is diHmissed with costs.
MunHOLKAii, J.-I agree with my learned
brother that the appeal should be dismissed for the
reasons stated in his judgment. I, however, express
no opinion on the quetion regarding the ma.in ta.inability of the appeal. under the Letters Pa.tent
against the decision of a single Judge in a case of
this kind.
Appeal diltm~.
THAKUR MOHD. ISMAIL
v.
THAKUR SABIR ALI
(P. B. GAJENDR.AG.ADKAR, A. K. SARKAR and
K. N. w
.ANOHOO, J J.)
Wakf-alal·aulad Ezecuted by Oud.h talukdar--1/ offends rule
against porpituity-Oudh JC1tate• Act. 1869 (1of1869), as. 11,
12, 18-Mussalman wakf Validating Act, 1913 (6 of 1913),
••. a, 4.
A Hanafi Mussalman, owner of a talukdari estate
governed by the Oudh Estate, 1869, executed in 1925 a deed
of walrf-alal-aulad, for the benefit of himself, his family and
descendants generation after generation. He was to be the
first mutwalli and thereafter his second son and after him his
·other sons and descendants according to the· rule of prim0genitu.re.
Certain amounts were also to be paid to charities and
'
for the maintenance of members of his family. The remainder
was to go to the mutwalli. After his death the suit, out of
which the present appeal arises, was instituted by the eldest
son of his predeceased <'ldcst son claiming succession to the
estate according to male lineal primogeniture under the Act.
His case mainly was that the wakf deed was invalid in view of
ss. 11 and 12 of the Act. The trial court found that the deed