Lalitabai Banwarilal v. Dominion of India — 1954 DIGILAW 3 (BOM)

Judgement FACTS :- The case of the plaintiff as set out in the plaint was that she was married to Banwarilal Ramswaroop, the son of a wealthy merchant of Delhi. At the time of her marriage ornaments of large value were presented to her by her relatives and these ornaments were her stridhan property. She also received some more ornaments at the time of the Maklava ceremony which took place about ten months after her marriage. When she left Bombay for Delhi after the Maklava ceremony she took away with her most of those ornaments. They remained with her in Delhi till February 1948 when she came to Bombay on account of some disturbances at Delhi and also because her father-in-law, who was suffering from tuberculosis, had asked her to go to Bombay for some time. She brought all her ornaments to Bombay and resided with her father and mother (defendants Nos. 4 and 5). Her uncle-in-law, Biharilal, accompanied her to Bombay, and he tried to secure for her a locker in a safe deposit vault in the locality of Kalbadevi. Being unable to secure a separate locker for herself the plaintiff deposited her ornaments in a locker which had already been hired by her father and which stood in the joint names of her father and her mother. The name of the plaintiff was added as a hirer of the locker on February 27, 1948, before she deposited the ornaments in the locker. The ornaments were kept in a wooden box and in a bundle and the key of the wooden box as also of the locker remained with the plaintiff. A list of the ornaments was prepared and was kept in the wooden box. On August 23, 1948, the contents of the locker were attached by an order passed by the Collector of Bombay (defendant No. 3) under O. XXI. R. 46, of the Civil Procedure Code, and S. 46(2) of the Indian Income-tax Act, in pursuance of a certificate forwarded to him by the Income-tax Officer, C-IV Ward, Bombay. The order of attachment was in the nature of a prohibitory order directing the Bank of India not to permit anyone to open the locker and was in respect of a demand for a sum of Rs. 1,68,501 for income-tax assessment and penalty levied on defendant No. 4 for the assessment year 1943-44. The order of attachment was in the nature of a prohibitory order directing the Bank of India not to permit anyone to open the locker and was in respect of a demand for a sum of Rs. 1,68,501 for income-tax assessment and penalty levied on defendant No. 4 for the assessment year 1943-44. A copy of the prohibitory order was served on defendant No. 4. The plaintiff thereupon applied to defendant No. 3 claiming the return of the ornaments in the locker. Correspondence ensued in the course of which defendant No. 3 called upon the plaintiff to prove by evidence her title to the ornaments. A meeting was held on October 15, 1948 by the Commissioner of Income-tax (defendant No. 2) when the solicitor for defendant No. 1 contended that the ornaments belonged to defendant No. 4 and that the plaintiffs claim was false and fraudulent. Defendant No. 3 thereupon passed an order directing the plaintiff to file a suit to prove her title to the ornaments. The present suit was accordingly filed on October 13, 1949, by the plaintiff against the defendants. The plaintiff alleged that neither defendant No. 4 nor defendant No. 5 had any interest in any of the ornaments kept in the box and the bundle deposited in the locker, that the ornaments being hers were not liable to attachment for any income-tax liability of defendant No. 4, that the income-tax claim made by defendant No. 1 was made on behalf of defendant No. 1 and the attachment was levied by defendant No. 3 at the instance 6f the Income-tax officer, C-IV Ward, Bombay, and that officer was under defendant No. 2 and defendant No. 2 was responsible for the orders passed by officers under him. The plaintiff further alleged that both, defendants Nos. 2 and 3, were officers of defendant No. 1 and in respect of the attachment complained of they had acted in the course of their employment and in discharge of official duties and, therefore, defendant No. 1 was responsible for the attachment of the ornaments. Reliefs claimed by the plaintiff were purely of a declaratory nature, the declarations sought being that the ornaments in that box and bundle belonged absolutely to the plaintiff; and for a declaration that defendants Nos. Reliefs claimed by the plaintiff were purely of a declaratory nature, the declarations sought being that the ornaments in that box and bundle belonged absolutely to the plaintiff; and for a declaration that defendants Nos. 4 and 5 had no title or interest in the same; the other declarations sought were that the ornaments were not liable to be attached for any debt or liability of defendant No. 4 and for a declaration that the order of attachment and the prohibitory orders passed by defendant No. 3 were illegal and invalid. Further, the plaintiff asked for a consequential relief that the prohibitory order made on the Bank of India on August 23, 1948, should be set aside. In the written statement of defendant No. 1, the Dominion of India, numerous defences were raised. It was contended that the plaint did not disclose any cause of action and was misconceived so far as defendant No. 1 was concerned. On merits it was alleged that the plaintiffs name was added collusively as a co-hirer of the locker with a view to creating evidence of ownership of the ornaments which according to defendant No. 1 belonged to defendant No. 4 against whom heavy income-tax assessment was pending. Defendant No. 2 contended that the plaint disclosed no cause of action against him and the suit was misconceived. He also made an allegation of collusion between the plaintiff and defendants Nos. 4 and 5. Defendant No. 3 raised an additional plea to the effect that the order of attachment and the prohibitory order both dated August 23, 1948, related to a matter concerning revenue and/or concerning an act of collection of revenue according to the law for the time being in force and, therefore, the jurisdiction of the Court was barred by the provisions of S. 226(1) of the Government of India Act, 1935. DESAI, J. :- (After setting out the contentions of the parties His Lordship continued as follows) : It was argued by Mr. R.J. Joshi for defendants Nos. 1 and 2 that the order of attachment and the prohibitory order both dated August 23, 1948, related to a matter concerning revenue or concerning collection of revenue according to the law for the time being in force. Reliance was placed on the provisions of S. 226(1) of the Government of India Act, 1935. R.J. Joshi for defendants Nos. 1 and 2 that the order of attachment and the prohibitory order both dated August 23, 1948, related to a matter concerning revenue or concerning collection of revenue according to the law for the time being in force. Reliance was placed on the provisions of S. 226(1) of the Government of India Act, 1935. That sub-section is as under : "Until otherwise provided by Act of the appropriate legislature, no High Court shall have any original Jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force." 2. The key stone of the argument was that the suit concerned revenue and an order for collection of income-tax dues as arrears of revenue. It is necessary, therefore, to examine the nature of the suit filed by the plaintiff. The suit is primarily and essentially for a declaration of title to property which the plaintiff claims as her own, and which title is disputed by the defendants, and particularly by defendants Nos. 1 and 2. Now, the plaintiff has nothing to do with payment of income-tax in this suit and this is not a matter concerning revenue nor is she herself concerned in any way with any order of assessment or enforcement or collection of income-tax in pursuance of any order made against her father. That the suit was occasioned by some act done or ordered on behalf of defendant No. 1 is no doubt a factor which compelled the plaintiff to come to Court. But I do not see how the reason or motive which induced or forced the plaintiff to file this suit can affect the nature of the suit. Unless persuaded by some sound principle of law or compelled by any over-riding authority I am not prepared to read anything in S. 226(1) of the Government of India Act, 1935, as depriving this Court of the exercise of its original civil jurisdiction to try a suit for declaration of title to any property which a person claims as his own and which title is disputed by the Government. 3. Words of sufficient clarity and width in a statute may take away jurisdiction of superior Courts or this may result from the statute by necessary implication. 3. Words of sufficient clarity and width in a statute may take away jurisdiction of superior Courts or this may result from the statute by necessary implication. A strong leaning nevertheless exists against the construction of a statute so as to oust or restrict jurisdiction of superior Courts when the result of refusal to exercise jurisdiction would be abdication of the same and negation of the vested rights of the subject. That a subject has always had a right to come to this Court and its predecessors for a declaration of title to any property against the Government is indisputable and was not disputed by learned counsel. I have, therefore, to see if there is anything in S. 226(1) which has taken away or restricted the jurisdiction of this Court to try a suit for a declaration of title by a third party who is not in any way concerned with or sought to be held liable for any arrears of revenue. It is a sound canon of construction that any statute which encroaches on the jurisdiction of the Court is subject to a strict interpretation, and it is therefore expected that if such was the intention of the Legislature care would have been taken to manifest it, if not in express words at least by clear indication and beyond reasonable doubt. Read in the light of this principle of construction, I do not see how the sub-section can be understood to affect the rights of third parties against whom no order or direction was made relating to any matter of revenue or collection of arrears of revenue. As I read it the sub-section can only apply to a person liable to pay the arrears of revenue or any person against whom any order concerning the arrears of revenue is directed. There must be some claim made against him. It is only such a person that is prevented from invoking the original civil jurisdiction of the High Court, because his claim in such a case would necessarily be concerning the arrears of revenue or any order passed concerning the collection of the same. I do not deem it necessary to go in any detail into the history of a provision of law which while not affecting the jurisdiction of the Courts in the moffusil took away the original jurisdiction of the High Courts in matters of revenue. I do not deem it necessary to go in any detail into the history of a provision of law which while not affecting the jurisdiction of the Courts in the moffusil took away the original jurisdiction of the High Courts in matters of revenue. The history begins with the practical difficulty occasioned by the fact that the Supreme Court in the Presidency Town of Calcutta claimed to exercise jurisdiction in respect of acts done by the servants of the East India Company in collecting revenue of Bengal to which the company was entitled by virtue of the grant of "Divani". As the preamble to the first enactment of the Parliament in the matter, 21 Geo. III, c. 70, indicates that legislation was passed by the Parliament for the purpose of preventing the interference of the Supreme Court in revenue matters. I have no doubt that in deciding the question of the plaintiffs title I would not be interfering with any revenue matter or any order concerning collection of the same. I am not aware of any principle of construction which would lead me to the conclusion that this antiquated fossil which remained on the statute book till our Constitution came into existence should be so interpreted as to affect third parties who had nothing to do with revenue or revenue authorities. In my judgment it would be contrary to all principles of justice to deprive third parties from seeking relief from this Court by giving any wider meaning to S. 226(1) of the Government of India Act, 1935, than that strictly necessary having regard to the nature of the subject-matter and the language expressly used by the law-maker. Mr. B.J. Joshi drew my attention to a number of decisions but I do not think they really touch the present point. In none of those cases did the question arise of a suit by a third party not concerned with arrears of revenue. I shall only refer to two of the cases cited by Mr. Joshi. In - Spooner v. Juddow, 4 Moo Ind App 353 (PC) (A), their Lordships of the Privy Council in an appeal from the Supreme Court at Bombay held that by the Charter of Justice establishing the Supreme Court at Bombay that Court was prohibited (in like manner as the Supreme Court at Calcutta under 21 Geo. Joshi. In - Spooner v. Juddow, 4 Moo Ind App 353 (PC) (A), their Lordships of the Privy Council in an appeal from the Supreme Court at Bombay held that by the Charter of Justice establishing the Supreme Court at Bombay that Court was prohibited (in like manner as the Supreme Court at Calcutta under 21 Geo. III, c. 70) from entertaining any jurisdiction in a matter concerning revenue under the management of the Governor and council or any act done in connection with the same. In that case in November 1846 one Harkissandas was the owner and occupier of a house situated in Bazar Gate Street in Bombay. The property was liable to the payment of an annual quit-rent called pension which formed part of the land revenue of the East India Company and there was then due to the Collector a sum of Rs. 8-3-8 on account of arrears of pension which had not been collected from the premises since the year 1827. The predecessor-in-title of Harkissandas was Narotamdas whose name was registered in the books of the Collector. Harkissandas appears to have purchased the property in 1836 and to have continued in possession of it up to the date of the proceedings which gave rise to the appeal to the Privy Council. No change of name, however, was made in the books of the Collector and throughout the period the name of Narotamdas appeared in the books as the registered proprietor of the property. Spooner who was the Collector of Revenue in Bombay and one of his assistants sent a subordinate officer to the house of Harkissandas to demand payment of arrears of pension. Harkissandas refused to pay the arrears and a warrant signed by Spooner was served on him. The warrant stated that the Collector was entitled by virtue of the powers conferred on him to enter into and take possession of the property in respect of which arrears of pension were claimed. Then it appears that some subordinate officers of the Collector tried to enter the house in question. They were prevented from doing so by Harkissandas who it appears became very violent and attempted to expel the officers. A scuffle ensued and Harkissandas brought an action of trespass in the Supreme Court of Bombay against the Collector and one of his subordinate officers. They were prevented from doing so by Harkissandas who it appears became very violent and attempted to expel the officers. A scuffle ensued and Harkissandas brought an action of trespass in the Supreme Court of Bombay against the Collector and one of his subordinate officers. The defence in the suit was that the suit related to a matter which concerned revenue or an act done in the collection of revenue and therefore the Supreme Court at Bombay had no jurisdiction. That plea was ultimately accepted by the Privy Council. Relying on this decision Mr. Joshi has argued before me that in that case the act of the Collector affected a third party. I do not think Mr. Joshi is right in his submission. An examination of the report clearly shows that arrears of pension could be collected from the property itself and the Collector had a right under the laws then in force to proceed against the property in respect of any arrears of pension and that right could be enforced even against the successor-in-title. Besides, part of the arrears had accrued after Harkissandas became owner of the property. Therefore, in that case there was no question of applying the provisions of 21 Geo. III. c. 70, S. 8, which is in pari materia with S. 226(1) of the Government of India Act, 1935, to a third party who had nothing to do with revenue or the collection of revenue. I do not think Mr. Joshis argument is in any way supported by that decision. 4. All Ahmed v. Coll. of Bombay, AIR 1950 Bom 33 (B), was another decision relied on by Mr. Joshi. In that case an application for directions in the nature of habeas corpus was made to this Court by an application under S. 491 of the Criminal Procedure Code. It was made by a person detained in custody for non-payment of income-tax dues. It was held that provisions of S. 226(1) of the Government of India Act, 1935, applied to the facts of the case and, therefore, this Court had no jurisdiction to entertain the petition presented to it. It must be noted that this was a case in which a party himself liable for non-payment of tax had come before the Court. This decision also does not carry Mr. Joshis argument any further. 5. Then Mr. It must be noted that this was a case in which a party himself liable for non-payment of tax had come before the Court. This decision also does not carry Mr. Joshis argument any further. 5. Then Mr. Joshi argued that in any event this Court had no jurisdiction to grant to the plaintiff reliefs sought in prayers (d) and (e) of the plaint. These reliefs are for a declaration that the order for attachment passed by defendant No. 3 is illegal and invalid and for an order by this Court that the order of attachment and the prohibitory order should be set aside. Mr. Joshis argument was that in any event these reliefs directly concern acts alleged to have been. done in the matter of collection of revenue. There is some scope for this argument. But, I have got to look primarily at the substantial nature of the suit. Since these are merely reliefs consequential to the relief by way of declaration of title, I do not think it can be said that the plaintiff in this suit seeks to question any order made for the collection of revenue. In any case the point does remain that she is not a party who is in any way concerned with or who can in any way be affected by these orders. Therefore, whatever view I take of the matter, the result must be that the plaintiffs right to claim these consequential reliefs cannot be taken away on the bar of jurisdiction. 6. There is another difficulty and indeed a serious one to the plea of bar of jurisdiction, Article 225 of the Constitution removed the bar previously imposed on the exercise of original jurisdiction by the High Court. That article is as under : "225. 6. There is another difficulty and indeed a serious one to the plea of bar of jurisdiction, Article 225 of the Constitution removed the bar previously imposed on the exercise of original jurisdiction by the High Court. That article is as under : "225. Jurisdiction of existing High Courts : Subject to the provisions of this Constitution; and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of the Constitution : Provided that any restriction to which the exercise of original jurisdiction of any of the High Courts with respect to any matter concerning the revenue or concerning any act-ordered or done in collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction." The proviso in express terms removes the restriction to the exercise of the jurisdiction of High Courts in matters concerning revenue. That bar, therefore, no longer survives. It is true that the Constitution had not come into force when the suit was filed, but the provisions of S. 226(1) of the Government of India Act, 1935, relate, in my opinion, entirely to matters of procedure and I have to apply the procedural law in force at the time of the trial of the suit. There is authority for the proposition that no party has a vested right to a particular proceeding or to a particular forum. The question recently came up for consideration before the Appeal Court in - Shiv Bhagwan v. Onkarmal, AIR 1952 Bom 365 (C). In that appeal one of the questions which came up for consideration of the Court was whether the Court had jurisdiction to decide a question affecting any property which at the date of the filing of the suit was outside the territorial jurisdiction of the Court. In that appeal one of the questions which came up for consideration of the Court was whether the Court had jurisdiction to decide a question affecting any property which at the date of the filing of the suit was outside the territorial jurisdiction of the Court. It appears that subsequent to the filing of the suit there had been a change in legislation and the particular property in question, though outside the jurisdiction of the Court at the date of the filing of the suit, had before the suit came up for hearing for disposal by my brother Shah, J. come within the jurisdiction of the Court. It was observed in the judgment of my Lord the Chief Justice that (p. 373) : "........the question that arises for determination is whether, notwithstanding the fact that the Court had no jurisdiction with regard to this property at the inception of the suit, this Court can try the suit with regard to this property by reason of the fact that jurisdiction was subsequently conferred on it...... Now, I think it may be said as a general principle that no party has a vested right to a particular proceeding or to a particular forum, and it is also well settled that all procedural laws are retrospective unless the Legislature expressly states to the contrary........ This Court was bound to take notice of the change in the law and was bound to administer the law as it was when the suit came on for hearing. Therefore, if this Court had jurisdiction to try the suit when it came on for disposal, it could not refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date when it was instituted." Bhagwati, J. (as he then was) in a concurring judgment expressed the same view. Referring to procedural law his Lordship observed (p. 377) : "There is authority for the proposition that if the law is changed at the date of the hearing, the Court should give effect to the changed law, and that it is the duty of the Court to administer the law of the land at the date when the Court is administering it." I am bound by and am also in respectful agreement with the law so laid down. Mr. Joshi had only a feeble answer to this aspect of the case. Mr. Joshi had only a feeble answer to this aspect of the case. Learned counsel referred to Art. 395 and Art. 367(1) of the Constitution. They are as follows : "367 (1). Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. 395. The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed." 7. Mr. Joshi next referred to Cls. (b), (c) and (e) of S. 6 of the General Clauses Act and an argument was advanced that the effect of those clauses was that the provisions contained in S. 226(1) of the Government of India Act, 1935, continued to apply to the present suit. Learned counsel particularly relied on Cl. (e) of S. 6 of the Act. Now, as I read that clause it only means that legal proceedings or remedy provided for by any enactment in respect of any right, privilege, etc. may continue notwithstanding the subsequent repeal of that enactment as if there had been no repeal. This does not, however, mean that the subsequent enactment cannot in any manner affect those legal proceedings or that remedy. The Legislature indubitably reserves to itself and has the power to legislate in a manner which may affect those proceedings or that remedy. To accept Mr. Joshis argument would be to say that i.e. Legislature cannot give any retrospective operation to a statute which repeals an earlier statute. That certainly is not the meaning or effect of S. 6. Therefore, in my opinion Cl. (e) of S. 6 does not in any way affect the applicability of Art. 225 of the Constitution to a suit previously instituted and which comes up for disposal after the coming into operation of the Constitution. I am unable to read in any of the provisions referred to by learned counsel anything which prevents Art. 225 being applied to the present suit. 8. Another argument, also of despair, was that Art. 225 is not merely procedural and should, therefore, be regarded as prospective in its operation and not retrospective. I am unable to read in any of the provisions referred to by learned counsel anything which prevents Art. 225 being applied to the present suit. 8. Another argument, also of despair, was that Art. 225 is not merely procedural and should, therefore, be regarded as prospective in its operation and not retrospective. Where rights and procedure are dealt with together by any provision of law it may well be the intention of the Legislature that the old rights should be determined by the old procedure. But it seems clear to me that the proviso to Art. 225 only deals with jurisdiction and not with any rights. The strictly accurate concept would seem to be that when any substituted procedure is followed by the Court, it does not really give retrospective operation to the same but merely applies rules of procedure as it finds them at the time. It is true that the expression "retrospective" is used by the highest authority in decided cases but it is also pointed out that the word when used in the context of procedural law is in itself ambiguous. Procedural law relates to process of litigation and it is rather the means and instrument by which the aims of substantive law are attained. It also deals with the mode in which a right of action already existing is to be asserted. I shall only refer to one sentence from Salmonds Jurisprudence, 10th edn., as it is an apt answer to the present argument. It is as follows (p. 476) : "Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what courts and within what time I must institute proceedings are questions of procedural law, for they relate to the modes in which courts fulfil their functions." But jurisprudential considerations apart, it is quite clear that the proviso to Art. 225 deals only with the question of restriction on jurisdiction previously existing and which restriction was abrogated by it. That certainly is a matter of procedure and, therefore, both on principle and on authority the plea of the bar of jurisdiction fails. (The rest of the judgment is not material to the report.) Suit decreed.