PETITIONER: STATE OF MADHYA PRADESH Vs. RESPONDENT: BHAILAL BHAI & ORS. DATE OF JUDGMENT: 20/01/1964 BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N. <NAME>, J.C. AYYANGAR, N. RAJAGOPALA CITATION: 1964 AIR 1006 1964 SCR (6) 261 CITATOR INFO : RF 1965 SC1740 (11) R 1966 SC1089 (34) R 1969 SC 78 (4) E 1970 SC 898 (18,35,37,46,51,62,63) D 1972 SC2060 (4,5) E 1975 SC 813 (5,6) RF 1976 SC2243 (21) R 1982 SC 101 (28) E&R 1990 SC 772 (20,31,32) RF 1990 SC 820 (17) RF 1991 SC1676 (72) ACT: Constitution of India, 1950, Arts. 226, 301 and 304--Issue of Writ Unreasonable delay in moving <ORG>--what is--Sales Tax--Impeding inter State trade--Validity--Tax paid under mistake--Order of repayment--Jurisdiction of <ORG> under Art. 226. HEADNOTE: The respondents are dealers in tobacco in the State of Madhya Bharat. The appellant imposed sales tax on the sale of imported tobacco by the respondents. But no such tax was imposed on the sale of indigenous tobacco. The respondents filed petitions under Art. 226 of the Constitution for the issue of writ of mandamus 'directing the refund of sales tax collected from them. They contended that the impugned tax violated Art. 301 (a) of the Constitution and they paid the tax under a mistake of law and the tax so paid was refundable under s. 72 of the Indian Contract Act, 1872. The appellant contended that there was no violation of Art. 301 of the Constitution, even if there was such violation the tax came within the special provision under Art. 304(a ), the <ORG> bar. no power to direct refund of tax already paid and in any event the <ORG> should not exercise its discretionary power of issuing a writ of mandamus directing this to be done since there was unreasonable delay in filing the petition. The <ORG> rejected all the contentions of the appellant and a writ of mandamus was issued as prayed for. The appellants appealed to this <ORG>. Before this <ORG> substantially the same contentions as were canvassed before the <ORG> were raised. Held: (i) Even though the liability to pay tax was created by the sale of tobacco in Madhya Pradesh and not by the import itself the facts and circumstances showed that trade and commerce as between Madhya Bharat and other parts of India was directly impeded by the impugned tax and therefore the said tax violated Art. 301(a) of the Constitution. <CITATION> ,  1 S.C.R. 809, <CITATION> ,  1 S.C.R. 491 and Firm <ORG> v. State of Madras, A.I.R. 1963 S.C. 928, referred to. (ii) Even though the tax contravened Art. 301 of the Constitution it would he valid if it came within the saving provisions of Art. 304 of the Constitution. (iii) Tobacco manufactured or produced in the appellant State, similar to the tobacco imported from outside had not been subjected to the tax and therefore the tax was not within the saving provisions of Art. 304 (a) of the Constitution. 262 (iv) The tax which had already been paid was so paid under a mistake within s. 72 of the Indian Contract Act. The <ORG>s have power for the purpose of enforcement of fundamental rights and statutory rights to grant consequential reliefs by ordering repayment of money realised by the Government without the authority of law. Firm <ORG> v. State of Madras, A.I.R. 1963 S.C. 928 and <CITATION> ,  S.C.R. 1360,referred to. (v) As a general rule if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by the extraordinary remedy of mandamus. Even if there is not such delay, in cases where the opposite party raises a prima facie issue as regards the availability of such relief on the merits on grounds like limitation the <ORG> should ordinarily refuse to issue the writ of mandamus. (vi) Though the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226 the maximum period fixed by the legislature as the time within which relief by a suit in a Civil <ORG> must be claimed may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. The <ORG> may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. Where the delay is more than this period it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Iimitation Act is three years from the date when the mistake is known. In the result C.A. Nos. 861-867 are allowed in part and the other appeals are dismissed. JUDGMENT:

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 362-377 of 1962.

Appeals from the judgment and orders dated December 16, 1959 of <ORG> in Miscellaneous Petitions Nos. 144 to 158 and 160 of 1958.

Civil Appeals Nos. 858 to 867 of 1962.

Appeals from the judgment and orders dated 28th October, 1960, 16th September, 1960 and 29th July, 1960 of <ORG> in Miscellaneous Petitions Nos. 110, 119 and 136 of 1960, 198, 199, 202 to 206 of 1959 respectively. Civil Appeals Nos. 25 to 29 of 1963.

Appeals from the judgment and orders dated 29th July, 1960, 26th September, 1960, 28th October, 1960, 16th September, 1960 and 28th October, 1960 of <ORG> in Miscellaneous Petition Nos. 273 of 1958, 73, 74, 120 and 132 of 1960 respectively. <NAME>, Advocate-General, Madhya Pradesh and <NAME> for the appellants (in all the appeals). <NAME>, <NAME>, <NAME> and <NAME>, for the respondent (in C.A. No. 362/1962). <NAME>, <NAME> and <NAME>, for the respondents (in C.A. Nos. 363 to 377 and 858 to 867 of 1962 and 25 to 27 of 1963).

January 20, 1964. The Judgment of the Court was delivered by <NAME> 31 appeals by the State of Madhya Pradesh are against the orders made by <ORG> in 31 applications under Art. 226 of the Constitution by dealers in tobacco. All these petitioners carried on business in Madhya Bharat which later became part of the State of Madhya Pradesh. They were assessed to sales tax on their sales of tobacco in accordance with the notification issued by the State Government in exercise of powers under s. 5 of the State Sales Tax Act and large amounts were collected by <ORG> and later by <ORG>. The petitioners contended that the taxing provisions under which the tax was assessed and collected from them was unconstitutional as it infringed Art. 301 of the Constitution and did not come within the special provision of Art. 304(a). Accordingly, they prayed for appropriate writs or orders for refund of all the taxes that has been collected from them. In resisting these applications <ORG> contended, first, that the Wing provisions did not offend Art. 301 of the Constitution and that in any case, they satisfied the requirements of Art. 304(a). It was further contended that even if the taxing provision was unconstitutional and the assessment and collection of tax had been without any legal authority the petitioners were not entitled to the order for refund prayed for.

<ORG> was of opinion on a consideration of; the notification under which the tax was assessed that it imposed a tax only on imported tobacco and not on home grown tobacco and so it did not come within the special provisions of Art. 304(a) of the Constitution and consequently the infringement of Art. 301 of the Constitution which resulted from the imposition of a tax on import of goods made the provisions void in law. The prayer for refund was allowed in the applications out of which C.A. Nos. 362-377, C.A. Nos. 861--867 of 1962 and C.A. No. 25 of 1963 have arisen. The prayer was rejected in the remaining applications. In the present appeals the State of Madhya Pradesh challenges the correctness of <ORG> decision that the taxing provision was unconstitutional and void and also the orders for refund made in some of the petitions men- tioned above.

The liability to pay tax arose under s.3 of the Madhva Bharat Sales Tax Act. This Act came into force from the 1st day of May 1950. As originally enacted it provided that (a) every dealer who imports goods into Madhya Bharat shall be liable to pay tax on his taxable turnover in respect of sales or supplies of goods effected from the 1st day of May 1950 if his total turnover in the previous year in respect of sales or supplies of goods exceeded Rs 5,000; (b) similarly every manufacturer or processor whose turnover in the previous year exceeded Rs. 5,000 was made liable to pay tax on his taxable turnover in respect of sales or supplies of goods effected from the 1st day of May 1950; (c) every other dealer was made liable to pay tax on his taxable turnover in respect of sales or supplies of goods effected from the 1st day of May 1950, if the total turnover in the previous year exceeded Rs. 12,000. By later amendments the word "processor" was deleted from cl. (b) of the section and the meaning of the words "any other" in cl. (c) was made clearer by substituting the words "any goods of a dealer not falling in cl. (a) or cl. (b)". There was also an amendment in 1950 making it, clear that the taxable turnover on which the tax liability.

<NAME> was in respect of sales or supplies of goods effected in Madhya Bharat.

Section 5 of the Act provides that the tax payable by a dealer shall be at a single point and shall not be less than Rs. 1/9/- per cent or more than 6-1/4 per cent of the taxable turnover, as notified from time to time by the <ORG> by publication in the Official Gazette. This is subject to a proviso that the <ORG> may in respect of a special class of goods charge tax upto 12-1/2% on the taxable turnover. The second sub-section of s. 5 empowers the <ORG> to notify at the time of notifying the tax payable by a dealer, the goods and the point of their sale at which the tax is payable. The legal position therefore is that unless there is a valid notification under s. 5 no tax can be levied. The contention of the petitioners- dealers which has succeeded in <ORG> is that the notifications on the strength of which the tax was assessed on them were invalid.

The first notification was issued on April 30, 1950. This provided that with effect from the 1st day of May 1950 sales tax shall be collected in respect of goods specified in column 2 of the Schedule that was attached to the notification at the point of sale mentioned in column 3 at the rates mentioned in column 4. The relevant portion of the Schedule ran thus:-

-------------------------------------------------------- Sl Name of commodity The point of sale Rate of No. by dealers tax

9. Tobacco leaves, manufactu- Importer 6-4-0 red tobacco (for eating and Per cent smoking) and tobacco used Sales Tax for <ORG> manufacturing.

----------------------------------------------------------- This was followed by another notification dated May 22, 1950 under which a lower rate was prescribed for tobacco used for Bidi manufacturers. But the point at which the tax was payable remained unaltered. The rele-

vant portion of the Schedule to this notification was in these words:

----------------------------------------------------------- Sl. Name of commodity Point of sale Rate per-

No. by the dealers cent of tax in M. B.

10. Tobacco leaves and manu-

factured tobacco (for eating, Importer 6-4-0 smoking and snuffing)

11. Tobacco used for Bidi Importer 1-9-0 manufacturing.

------------------------------------------------------------ For a short period, i.e., from the 1st January 1954 to the 21st January 1954 these two notifications remained inoperative in consequence of a notification dated the 24th October, 1953, under which from the 1st January 1954 the point of sale at which the tax was payable was altered to "on a sale by a dealer direct to a consumer or to a dealer who does not hold a licence or registration certificate under the Sales Tax Act ". This last notification was again superseded by a notification dated the 21st January, 1954 in consequence of which the old position was restored with effect from January 22, 1954. That is, with effect from 22nd January 1954 the point at which the tax was payable, again became a sale by an importer.

There can be no doubt that the tax payable at the point of sale by the importer in Madhya Bharat directly impeded the freedom of trade and commerce guaranteed by Art. 301 of the Constitution. It is true that the import by itself would not bring in the liability to tax and that if the imported goods were not sold in Madhya Bharat no tax would be

-payable. Quite clearly however by far the greater part of the tobacoo leaves, manufactured tobacco (for eating and smoking) and tobacco used for Bidi manufacturing that would be imported into the State would be sold in Madhya Bharat. That a very considerable amount was so sold is clear from the very assessment orders made in these several cases. There can be no doubt therefore that even though it is the sale in Madhya Bharat of the imported goods that creates the liability to tax and not the import by itself, the trade and commerce as between Madhya Bharat and other parts of India is directly impeded by this tax. On the authority of this Court's decision in <CITATION> (1) it must therefore be held that the tax contravenes the provisions of Art. 301 of the Constitution. It may be mentioned that the later decision of this Court in <CITATION> (2) which slightly modified the majority decision in <ORG> case does not alter this position. If the tax could have been claimed to be regula- tory or compensatory it would have got the benefit of the latter decision. There is, however, no scope for such a claim (See Firm Mehtab Majid & Co. v. State of Madras) (3). The tax could still be good if even though it contravened the provisions of Art. 301 it came within the saving provi- sions of Art. 304(a) of the Constitution. That Article provides in its cl. (a) that notwithstanding anything in Article 301 or Art. 303 the legislature of a State may by law impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject so however as not to discriminate between goods so imported and goods so manufactured or produced. An attempt was made on behalf of the State before <ORG> and also before us to construe the notification mentioned above to mean that not only the tobacco imported from other States but also similar goods manufactured or produced in Madhya Bharat were subject to this tax and at the same rate. It was argued that a dealer in these goods who was an importer and so sold goods imported by him into Madhya Bharat would also be selling goods not so imported but manufactured and produced in the State. We are prepared to agree that may well be so. What we are unable to see, however, is that in respect of sales of such other goods this person would be liable to (1)  1 S.C.R. 809.

(2) [1963] 1 S.C.R. 491.

(3) A.I.R. 1963 S.C. 928.

any tax under the notification. We are informed that in fact where importers dealt with goods other than imported goods the sales of such other goods were in fact excluded from tax. The learned Advocate-General of Madhya Pradesh who appeared before us in support of these appeals suggested that that was done by <ORG> on a mistaken interpretation of the law. We do not think so. In our opinion, the only reasonable interpretation of the notification as it stands, viz., that tax on tobacco leaves, manufactured tobacco and tobacco used for Bidi manufacturing would be payable at the point of sale by the importer, is that only the sale of goods which the importer had imported would be liable to tax and not sale of any other goods by him. If the intention had been as suggested by the learned Advocate-General that though the tax is payable at the point of sale by an importer the scale by the same person of goods manufactured or produced in Madhya Bharat would also be liable to tax, the word "importer" would not have been used in column 3 but the word "dealer" would have been used and the point of sale would have been indicated by some other words as the "first sale in Madhya Bharat" or "the sale to the retailer in Madhya Bharat" as the rule-making authority chose.

The matter becomes even more clear if in column 3 we read for "importer" the definition of "importer of goods" in s. 2(i) of the Act. Reading this we find that the point of sale in Madhya Bharat at which the tax is payable is the sale "by the dealer who brings or causes to be brought into Madhya Bharat any goods from outside for the purpose of processing, manufacturing or sale" or "who purchases goods in Madhya Bharat for the purpose of sale from a dealer who does not ordinarily carry on business in Madhya Bharat."When only such a sale is being made the point at which the tax is payable, there is hardly any scope for a serious argument that the notification was intended to make sales by that same dealer of goods manufactured or produced in Madhya Bharat liable to tax.

it may not be out of place to notice in this connection the distinction made by s.3 of the Madhya Bharat Sales  Tax Act between sales by a dealer who imports goods [cl.

(a)] and other dealers [cls. (b) and (c) ]. It is not un- reasonable to think that the Act itself contemplated the sales by an importer of goods as meaning only sales by him of goods imported by him into Madhya Bharat. Apart from this, it has to be noticed that admittedly the notification did not make dealers who dealt only in home grown or home produced tobacco liable to pay the tax. That by itself would be sufficient to bring in the vice of discrimination which is the purpose of Art. 304(a) to prevent. There can, therefore, be no escape from the conclusion that similar goods manufactured or produced in the State of Madhya Bharat have not been subjected to the tax which tobacco leaves, manufactured tobacco and tobacco used for Bidi manufacturing, imported from other States have to pay on sale by the importer. This tax is, therefore, not within the saving provisions of Art. 304(a). As already pointed out it contravenes the provisions of Art. 301 of the Constitution. The tax has therefore been rightly held by <ORG> to be invalid. It is clear that the assess- ment of tax under these notifications was thus invalid in law.

A portion of the tax thus assessed has been already paid by the petitioners. It cannot now be disputed that this payment was made under a mistake within s.72 of the Indian Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. The question is whether the relief of repayment has to be sought by the tax- payer by an action in a civil court or whether such an order can be made by <ORG> in exercise of its jurisdiction under Art. 226 of the Constitution. The jurisdiction conferred by Art. 226 is in very wide terms. This Article empowers <ORG> to give relief by way of enforcement of fundamental rights and other rights by issuing directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. According to the petitioners a writ in the nature of mandamus can be appropriately used where money has been paid to the Government by mistake to give relief by commanding repayment of the same. That in a number of cases <ORG>s have used the writ of mandamus to enforce such repayment is not disputed. In a recent case in <ORG>, v. The State of Madras(1) this <ORG> made, in a petition under Art. 32 , an order for refund of tax illegally collected from the petitioner under Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. The question whether the <ORG> has this power to order refund was not however raised there. in <CITATION> (2) the appellants disputed the correctness of <ORG>'s order made in an application under Art. 226 of the Constitution directing refund of taxes that had been paid under the U.P. Sales Tax Act on the respondent's forward transactions in silver bullion. After the levy of sales tax on such transactions was held to be ultra vires by <ORG> of Allahabad the respondent asked, for refund of the tax paid and when that was refused he applied to <ORG> under Art. 226 of the Constitution for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected. The order made in this case by <ORG> for refund was affirmed by this <ORG> in appeal. In this case also the power of <ORG> to order such refund was not challenged either before <ORG> or before this <ORG>.

We see no reason to think that <ORG> have not got this power. If a right has been infringed-whether a fundamental right or a statutory right-and the aggrieved party comes to the court for enforcement of the right it will not be giving complete relief if the court merely de- clares the existence of such right or the fact that that existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the <ORG> or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and the right has not been actually infringed an application (1) A.I.R. 1963 S.C. 928.

(2) [1959] S.C.R. 1350.

under Art. 226 would lie and the courts would give necessary relief by making an order in the nature of injunction. It will hardly be reasonable to say that while the court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the court must still refuse, where the right has been actually invaded, to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made.

For the reasons given above, we are clearly of opinion that <ORG> have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the <ORG> without the authority of law. At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which <ORG> rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the <ORG> for relief under Art. 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the <ORG> or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on grounds like limitation, the <ORG> should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution. The prayer for refund has been allowed by the High <ORG> in the applications out of which Civil Appeal Nos. 362-377 of 1962 and Civil Appeal Nos. 861--867 of 1962 and Civil Appeal No. 25 of 1963 have arisen. It appears that the tax provisions under which these taxes had been assessed and paid was declared void by the High <ORG> of Madhya Pradesh in their decision in <CITATION> on January 17, 1956. Later, on August 27, 1957 <ORG>, in Madhya Bharat made an order relying on the High <ORG>'s decision mentioned above. The petitioners claim to have discovered their mistake in making the payments after they came to know of these decisions. it is reasonable to think however that the petitioners must have discovered their mistake as soon as the High <ORG>'s decision in the case of <CITATION> dated January 17, 1956 became known to them' All these 16 applications were made within less than three years from the 17th January, 1956. The High <ORG> has taken the view that this was not unreasonable delay and in that view has ordered refund. This appears to us to be a sound and judicial exercise of discretion with which this <ORG> ought not to interfere. it may be added that no triable issue as regards the availability of this consequential relief was raised before the High <ORG> nor has any been suggested before us. The order of refund made by the High <ORG> in these cases cannot therefore be dis- turbed-

The position in Civil Appeal Nos. 861 to 867 of 1962 is however different. The applications out of which these appeals have arisen were made in September 1959, i.e., about three years and eight months after January 17, 1956 when <ORG> gave their decision declaring the tax provisions in question to be void.

It was necessary for <ORG> to consider this question of delay before any order for refund was made. It does not appear however that any attention was paid to this question. In making the orders for refund in each of these cases <ORG> merely said this:-

The present case is governed by <NAME> Case (1960 M.P.C. 304). Learned Government Advocate formally raised the question of the remedy open to the petitioner for refund of tax in order to keep the point open in <ORG>. We accordingly allow this petition. and issue a writ directing the oppo- nents to refund to the applicant firm the amount of tax collected from it during the above-mentioned period."

The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in <NAME> case out of which Civil Appeal No. 362 of 1962 has arisen. On behalf of the res- pondents-petitioners in these appeals (C.A. Nos. 861 to 867 of 1962) Mr. <NAME> has argued that the delay in these cases even is not such as would justify refusal of the order for refund. He argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought 134--159 S.C. 18 may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. <NAME> seems to argue, the mistake was discovered much later, this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by <ORG> in these seven cases cannot be sustained.

The application out of which Civil Appeal No. 25 of 1963 has arisen was also made in 1958, that is, within less than three years from the date of <ORG> decision in <CITATION> . <ORG> was therefore right in stating in its judgment in this case that it is governed by <NAME> case. We see no reason to interfere, with the order for refund made by <ORG> in this case.

In the result, Civil Appeals Nos. 861 to 867 of 1962 are allowed in part and the orders for refund made in those cases are set aside. The petitioners will be at liberty to seek such relief as they may be entitled to in a civil court, if it be not barred by limitation. There will be no order as to costs in these cases. In two other appeals, viz., Civil Appeal Nos. 28 and 29 of 1962, the respondents have not appeared; so there will be no order as to costs in them. In the other appeals which are dismissed, <ORG> will pay costs to the respondents. One hearing fee for all these appeals.

Appeals Nos. 861-867 partly allowed, other appeals dismissed.


ORDER

1. The first petitioner <ORG>, represented by its Secretary, the other petitioners its members challenged the Notification issued by the Commissioner and Special Officer, <ORG> under S.3(1) of the A.P.Slum Improvement (Acquisition of Land) Act 33 of 1956 (hereinafter called the Act).

2. It is averred in the petition that the land was acquired for the purpose of constructing houses and the members have constructed houses at considerable cost and there are disputes about the land and in view of the disputes regarding land, proceedings under S.145 of the Cr.P.C . were initiated and the land was under attachment of the Executive Magistrate under S.146 of the Code and the notification issued by the 1st respondent is illegal as the same was issued without any notice to the petitioners and the 1st respondent has no power to issue notification under the Act and the delegation of the powers by the <ORG> to the 1st respondent is illegal and the notification declaring the land in question as slum area is also illegal and unjust and the same is liable to be set aside. The application was opposed not only by the Commissioner and <ORG> but also by some of the parties who were added as party respondents supporting the notification stating that it is highly essential to declare the land in question as slum area and that the petitioners themselves have no right to question the notification. Sr. <NAME>, the learned counsel for the petitioners mainly argued that the impugned notification is void as opposed to the principles of natural justice and declaring the area in question as a slum area without affording an opportunity is not only adequate but empty. It is also argued that the scheme of the Act does not exclude any opportunity being afforded before issuing notification under S.3(1) and the dicta of the <ORG> bench in <CITATION> has lost its efficacy in view of the subsequent pronouncements of <ORG> regarding post decisional opportunities.

3. It is necessary to examine the scheme of the Act and also notice the effect of the Full bench on this question. The Act is intended for the acquisition of lands in slum areas and the preamble declares that it was noticed that there are slum areas in almost every town in the State of A.P. which are a source of danger to public health and sanitation and it was felt that I has not been possible to provide for the basic needs of sewerage, water supply and road and side-drains in these slum areas, without causing excessive financial strain on the owners of the lands affected and hence the Act is intended to clear those lands in those areas and undertake the execution of works designed to improve those areas. The Act is made applicable in the entire State of A>P.in 1961 by Act 41 of 1961. S.1(3) enables the Government to apply the provisions of the Act in any Municipality in the State by issuing a notification on such date as the government may by such notification in the <ORG> appoint. The said section provides that a notice should be issued to the Municipality for not less than two months before issuing the notification. The 'slum area' was defined to mean any area declared to be a slum area under sub-sec.(1) of S.3, Section 3 which is crucial in the present enquiry is in the following terms:

"3.(1) Where the Government are satisfied that any area is or may be a source of danger to the public health, safety or convenience of its neighbourhood by reason of the area being low lying, insanitary, squalid or otherwise, they may by notification in the <ORG> declare such area to be a slum area.

(2) Where the Government are satisfied that it is necessary to acquire any land in a slum area for the purpose of clearing or improving the area, they may acquire the land by publishing in the <ORG> a notice to the effect that they have decided to acquire it in pursuance of this section.

Provided, that, before publishing such notice, the <ORG> shall call upon the owner of or any other person who in the opinion of the <ORG>, is interested in such land to show cause why it should not be acquired, and after considering the case, if any, shown by any person interested in the land, the <ORG> may pass such orders as they deem fit.

Explanation: Cause shown by the person interested in the land may be against the declaration of the area as a slum area under sub-sec.(1) as well as against the necessity to acquire the land for the purpose of clearing of improving the area.

(3) when a notice as aforesaid is published in the <ORG> the land shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the Government free from all encumbrances.

(4) The Government may, by order, authorise any authority or officer subordinate to them to exercise all or any of the powers conferred and perform all or any of the duties imposed on them by this section, subject to such conditions and restrictions as may be specified in the order."

S.4 provides that the Government may, either hold the land acquired by them under the Act or hand over to the <ORG>, S.5 and S.6 provide for right to compensation and the mode of determining the same. The jurisdiction of the civil Court is barred under S.13 S.15 provides that the provisions of the Act can be made applicable to any pending acquisition proceedings.

4. S.3(1) was construed by a Full bench of this Court when the constitutional validity of the Act was challenged in . It was held that the provisions of the Constitution. No doubt in that case the learned Judges mainly examined the validity of the Act to find out how far the provisions offend Arts.14 and 31(2) of the Constitution Adverting toS.3 (1) it was held (at P.33):-

"The explanation entitles the person interested in the land to show cause (1) against the declaration of the area as a slum area u/s. 3(1) as well as (2) against the necessity to acquire the land for the purpose of clearing or improving the area.

It is true that while proviso to sub-sec. (2) speaks both of the owner as well as of the person interested in the land, but the explanation speaks only of persons interested in the land. We have however no doubt that the expression 'the person interested' would include even the owner of the land. There appears to be no reason as to why the owner should be deprived of an opportunity of objecting both to the declaration u/s 5(1) as well as the intention to acquire the land u/s.3(2) just as a person interested in the land can object. This is just a case of accidental omission but the intention of the <ORG> is clear from the proviso itself.

A close reading of sub-sec. (2) makes it abundantly plain that before a notice under S.3920 is published, it is the statutory duty of the government to call upon the owner and the person interested in the land to show cause. Such a case shall be shown both in regard to the notification u/s.3(1) as well as the necessity to acquire the land. It thus provides opportunity to the owner and the person interested in the land to object to the declaration that it is a slum area, although such opportunity is given only after the declaration."

5. It is urged by the learned counsel for the petitioner that S.3(1) has not excluded the prior opportunity and in view of the clear dicta of <ORG> in <CITATION> post decisional opportunity must be confined in case of urgency and the court should always insist on hearing or opportunity at pre-decisional stage unless the statute excluded such hearing. He relied upon the several dictas of <ORG> in the said case and also the earlier judgment of <ORG> in <CITATION> , . It is no doubt true that <NAME> case is a landmark in the Administration Law in the area of natural justice. In that case the Passport of the petitioner was impounded by the <ORG> u/s.10(3)(c) of the Passport Act 1967 in public interest without giving any prior opportunity. However, after laying down the law when pre-decisional opportunities can be justified they did not pass any formal order setting aside the order of the <ORG> as the <ORG> has agreed to provide opportunity of being heard post-decisionally to the passport holder. <NAME>, <NAME>, emphasised the requirement of fair play irrespective of the fact whether the enquiry is administrative in character or quasi-judicial. In fact <ORG> observed in <CITATION> that the dividing line between the administrative power and a quasi-judicial power is quite thin and is being gradually obliterated and hence <NAME>, <NAME> observed in <NAME> case that the law must therefore be taken to be well settled that even in administrative proceedings which involves civil consequences the doctrine of natural justice must be held to be applicable. This view was reiterated in <CITATION> . The learned counsel pressed the dicta in this judgment very much in his favour holding that in that case <ORG> held that the provisions of the Industries Development and Regulation Act 1951 providing post-decisional opportunity u/s 18-F is not sufficient but a pre-decisional opportunity must be afforded and such pre-decisional opportunity was not excluded by virtue of S.18-AA of the Act. The provisions of the said Act provide two alternative procedures, one u/s.18-A(1)(b) and another u/s. 18-AA(1)(b). Under the former section they can make an enquiry u/s. 15 after giving an opportunity and take over the unit if it is found that the management is highly detrimental to the public interest. But in the latter section which enables the <ORG> to take without investigation u/s. 15 where immediate preventive action becomes necessary. No doubt under S.18-F post-decisional opportunity is provided under which the <ORG> has power to cancel the order made earlier. Construing both the provisions <ORG> by majority held that the pre-decisional opportunity is not excluded. This principle of post-decisional opportunity is again considered in a recent pronouncement of <ORG> by majority held that the pre-decisional opportunity is not excluded. This principle of post-decisional opportunity is again considered in a recent pronouncement of <ORG> in <CITATION> , when that was described as abeyance order suspending an import licence was challenged. <NAME>, <NAME>, speaking for the court held "we do not think that it is permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional it may necessarily have to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay." Thus this part of the law is fairly settled and the significant points one should bear in mind are:

(1) That the doctrine of natural justice applies both in administrative proceedings and quasi-judicial proceedings which involves civil consequences.

(2) Natural justice may be disregarded in an emergency situation where immediate action is necessary.

(3) In case of urgency a post-decisional hearing may be given, (4) Whether the hearing is pre-decisional or post-decisional the affected party must be given a reasonable opportunity not being employ public relations exercise.

(5) Natural justice may be excluded either by specific or necessary implication.

6. Let us apply these principles to the present case. The provisions of the Act 33 of 1956 disclose three stages before the property is vested u/s. 3 of the Act absolutely in the <ORG> free of all encumbrances. The first stage is issuing a notification u/s. 1(3) in respect of each Municipality making applicable the provisions of the Act after affording an opportunity to such Municipality. The second stage is notification u/s.3(1) declaring an area as slum area. The third and final stage is notification u/s.3(2) acquiring the land. A reading of these provisions makes it clear that opportunity should be provided both before issuing notification u/s. 1(3) and also under S.3(2). The opportunity provided u/s. 3(2) is for both the notifications u/s. 3(1) and also 3(2). The very fact that the explanation enables the person interested to show cause both against S.3(1) notification issued earlier and later notification proposed u/s. 3(2) clearly excludes any opportunity before the notification u/s. 3(1). There cannot be any doubt that if the authorities are satisfied that the earlier notification issued u/s. 3(1) is not well founded. They are bound to rescind the same as the opportunity is provided to the persons interested to show cause both against S.3(1) notification already issued and the proposed notification to be issued u/s. 3(2). Though the dicta of the Full bench in this regard is not specific, I am clearly of the opinion that the Full Bench also took the view that the opportunity is provided to the person interested to show cause against the earlier notification u/s. 3(1) and also latter proposed action u/s. 3(2) and thus if follows the authorities are bound to rescind the orders issued u/s. 3(1) declaring an area as slum area if they are satisfied that the earlier notification does not warrant such action.

7. It is argued by the learned counsel that the post-decisional opportunity is employ in this case as the authorities have already made a solemn declaration that the area in question is a slum area and the declaration u/s.3(1) has stigmatised the area of the petitioner as slum area and the civil consequences are so serious and imminent and the notification without giving an opportunity to the petitioner is illegal and opposed to the principles of natural justice and fair play. It is to be noticed that an opportunity was already provided u/s. 1(3) to the Municipality as such before making the provisions of the Act applicable. By virtue of the notification u/s.3(1) no consequences flow. It is only a preliminary step for further proceedings. It is difficult to hold that any civil consequences flow from the notification u/s. 3(1) which requires an opportunity to the petitioners. The mere declaration itself cannot be treated as a civil consequence which requires an opportunity to the petitioners. The principle laid down in <CITATION> . (AIR 1981 SC 8181) is wholly inapplicable. In that case notification u/s. 18(A)(A) completely divests the entire management of the unit and vests the same in the statutory authority. Taking into account such drastic step which beset with several civil if not evil consequences <ORG> has to hold that s.18-AA does not exclude pre-decisional opportunity and the opportunity afforded post-decisionally u/s. 18(f) of that Act was not sufficient. But in our case no consequences flow by S.3(1) notification till notification u/s.3(2) is issued and the statute provides an opportunity to show cause both against the earlier notification u/s 3(1) and the proposed notification u/s. 3(2). Hence in the absence of any civil consequences no earlier opportunity is necessary for issue of notificationu/s.3(1) which is only preliminary step though a jurisdictional and foundational for the further proceedings.

8. Thus I do not find any legal informity in the notification in question for want of opportunity before issuing the notification and it cannot be challenged on the said ground, and consequently this contention fails.

9. It is urged by the leaned counsel for the petitioner that the power of <ORG> u/s.3(1) cannot be delegated to the 1st respondent -Commissioner. For that we have to look to S.3(4) which is already extracted. It is urged that what was contemplated to be delegated is only powers and duties but not the function of the <ORG> as contemplated u/s3(2). It is urged the satisfaction to be arrived at is that of the Governemnt. Such function cannot be delegated u/s.3(4). As per G.O.ms.No.987 dt 17-11-82 the <ORG> have delegated their powers under sub-secs.(1) and (2) of S.3 of the Act to the Special Officer, <ORG> which is in the following terms:

"In exercise of the powers conferred by sub-sec.(4) of S.3 of the A.P.Slum Improvement (Acquisition of Land) Act , 1956 the Governor of A.P. hereby authorise the Special Officer, <ORG> to exercise the powers, and perform the functions imposed on the Government under sub-sec.(1) and (2) of S.3 of the said Act in respect of the slum areas in the area comprising the <ORG>."

I do not think that this distinction between the power and function is justified. Infact power is a larger concept including all its facets of statutory functions. Exercising a statutory power on being satisfied is one of the modes of exercising the power and such power is clearly in the contemplation of sub-sec.(4) and the difference between power and function for the purposes of this question is wholly unjustified and without any substance and I hold that the delegation of power to the 1st respondent by the <ORG> is well within their jurisdiction and is valid.

10. Finally it was urged that thee is no data or material on which a declaration can be made that the area in question is a source of danger to public health, safety or convenience of its neighbourhood by reason of the area being a low lying, insanitary, squalid or otherwise requiring the area to be declared as slum area. No doubt these tests are objective in nature and in a given case this court may examine whether these requirements of objective tests are satisfied though the statute speaks of arriving at the conclusion subjectively. In this case the learned counsel ultimately agreed that this enquiry can be made in the show cause notice issued to them and the authorities are bound to go into the question whether the earlier notification declaring the area as slum area is well founded or not.

11. In the result, the writ petition fails and the same is dismissed , but in the circumstances without costs.

12. Petition dismissed.


JUDGMENT <NAME>, C.J.

1. The general policy of these provisions of the Code, as explained by <ORG> in <NAME> v. <NAME> (1888) L.R.15 I.A.123,127 : 15 Cal.521 is to secure the speedy settlement of questions of title raised at execution sales. Section 283 of the Codes of 1877 and 1882 only gave a right of suit to the party against whom an order had been passed under Sections 280, 281 or 282, and did not provide for the case where the <ORG> under Section 278 refused to investigate the claim on the ground that it had been designedly or unnecessarily delayed. In such cases, Section 283 failed to provide for the speedy settlement of the questions of title raised by the claim. The legislature would appear to have intended to supply this omission when in Rule 63 of Order XXI of the present Code it conferred the right of suit in general terms " where a claim or an objection is preferred " upon " the party against whom an order is made," instead of limiting it, as in Section 283, to cases in which an order had been passed under Rules 60, 61 and 62(Ss. 280, 281 and 282 of the old Code). Where a claim or objection is preferred under Rule 58(formerly Section 278), and the <ORG> rejects it under the proviso to that Rule on the ground that it was designedly or unnecessarily delayed, the unsuccessful claimant or objector in my opinion clearly comes within the words " the party against whom the order is made." Bule 63 does not speak of any party but of the party against whom an order has been made, and assumes that, where a claim or objection is preferred under Section 58(Section 278), there must always be a party against whom an order is made within the meaning of the Rule. I cannot agree with the suggestion in <NAME>, J.'s order of reference that the change in the language of R 63 was due merely to the altered scheme of the Code. If no change had been intended, Br. 60, 61 and 62 would simply have been substituted in B. 63 for Sections 280, 281 and 282 in the corresponding Section 283 cf the former Code. We are bound I think to give effect to the clear intention of the legislature to widen the scope of the Rule in accordance with the general policy of this legislation as explained by the highest tribunal. A claimaint who comes forward too late in the clay to entitle him to have His claim investigated having regard to the proviso in B. 58, none the less raises a question of title with regard to the attached property; and there is nothing unfair in depriving him owing to his laches of the chance of getting a provisional decision in his favour on his claim petition and requiring him to proceed to assert his title by suit within the shorter period of limitation prescribed when questions of title are raised with regard to attached property. I accordingly agree with <CITATION> (1914) 2 L.W. 206 and <CITATION> (1916) 31 M.L.J. 247. As regards S.A. No. 1986 of 1916 the attention of the <ORG> was not called in that case to the alteration in the language of B. 6a on which my opinion is based. Our answer to the 1st question is that the case comes within the terms of Order 21, B. 63. As regards the second question, assuming, as-<NAME>, J., appears to hold in his order of reference, that the Zamindarini's claim in E.A. No. 3307 of 1910 was not finally rejected by the order passed on it on 23rd December 1910, we think that the subsequent order Exhibit V was an order made against the Zamindarini within the meaning of B. 63, and was consequently an order covered by Article 11(1) of the Limitation Act of 1908. Though the order only was that the allegations of the Zamindarini would be notified to bidders, we think it amounted, and was understood to amount, to a rejection of the claim on the ground that it was filed too late.

Oldfield, J.

2. I agree.

<NAME>, J.

3. I entirely agree The language of Order 21, Rule 63, leaves little room for doubt that all orders which negative the rights set up by the claimant or the decree-holder are within the rule. Prima facie the decree-holder attaches or gets attached the property in dispute as that of the judgment-debtor. The law compels him to give certain information to the <ORG> before the proceedings, in attachment are taken. When this requirement is satisfied unless a third party intervenes, the sale will be effected as if the property belonged to the judgment-debtor. When a claim is preferred the usual prayer is that the attachment should be raised as the property does not belong to the judgment-debtor but belongs to the claimant. On the presentation of such a petition if the order is not that the property be released from, attachment it must be taken to be an order against the claimant. The practice of notifying claims to, intending bidders is not warranted by anything contained in the Code of Civil Procedure. It often leads to the depreciation in value of the property to be sold and is not calculated to advance the right of the claimant in any way. Consequently it seems to me that the procedure adopted by some of the Subordinate <ORG>s of notifying objection by claimants at the time of the sale without expressing any decision upon those objections should be discouraged. Although the practice is not a salutary one, I fail to see how this procedure can be construed as not having the force of giving a decision against the claimant. His right to raise the attachment must be deemed to have been negatived when the property was ordered to be sold without releasing it from attachment. Therefore, in my opinion, an order on a claim petition which expresses no final judgment upon the right put forward but simply directs the sale after notifying the claim is an order against the claimant and he is bound to institute a suit under Article 11 of the Limitation Act . The history of the legislation has been reviewed in the judgment of the learned Chief Justice and I do not propose to deal with that question. I agree with the answers proposed.


JUDGMENT <NAME>, J.

1. Two questions arise upon this appeal -the first as to whether the Judicial Commissioner of the North-West Frontier Province was right (a) in permitting the three first respondents to amend their pleadings, and (6) in dismissing certain appeal in that had been wrongly entered in his Court. The two points are distinct, but they both arise in connection with litigation set on foot by six distinct suits which have all been consolidated and dealt with as one. These suits were instituted by the three first respondents claiming a declaration that they were entitled to certain rights of pre-emption against the several defendants, who were vendees of different shares and interests in some 6,813 kanals in the village of Tazagram.

2. The following table will show at once the dates of the conveyances which gave rise to the rights of pre-emption and take dates and numbers of the suits brought in connection with those rights. >

Date of Conveyance. No. of Suit. Date of Suit. ------------------------------------------------------------------------------- 15th October, 1913 ... ... 88 of 1914 15th October, 1914 24th " " ... ... 96 of 1914 22nd " " 21th November, 1913 ... ... 97 of 1914 22nd " " 23rd January, 1914 ... ... 100 of 1914 26th " " 1st December, 1913 ... ... 101 of 1914 2(sic)th" " 2nd " " ... ... 102 of 1914 26th " " ------------------------------------------------------------------------------- 3. The vendees were not all the same. Tue first two appellants were vendees under the deed of the 24th October, 1913, the next three under the deed of the 15th October, 1913, and the remaining three under the four remaining deeds.

4. The suits so commenced all asked for a declaration of preemption rights in respect of the respective properties to which they related, but they did not, in plain language claim possession of the property sold and the usual consequential relief. It is not easy to ascertain why this course was taken. It is true that it enabled the plaints to be stamped on a lower scale than they would have been hid they "asked for the definite assertion of the rights, but that is not an adequate explanation. The real reason "Appears to be that the title to the property was in some confusion, that' the vendees were not in actual possession nor in receipt of the rents, for the rents had not been paid, and as 1 to part, the plaintiffs themselves appear to claim that they were already in possession ^on their own account. It may, therefore, -be that -they regarded the peculiar conditions of the case as rendering the claim for possession inapplicable, and they possibly thought that all difficulty had been avoided by the simple process of claiming declarations of right. The defendants in their defence admitted the plaintiffs' right to pre-emption, but appointed out that a mere claim to such a right was not a claim to any right 'to property within the meaning of Section 42 of the Specific Relief Act, and that the right of pre-emption could not be enforced by a mere declaratory decree.

5. So far as the technical objection is concerned, it would appear' to be well founded. The claim for a declaration would necessarily require to be followed by farther consequential relief, M-the order were to be effectual. They, therefore, could not have proceeded under Section 42 .of the Specific Relief Act , nor is a claim for a bare declaration of right to pre-empt the right way of asserting the right to pre-emption; and when the difficulties in the-plaintiffs' way were pointed out, it would obviously have been wiser for them to have applied at once to have their claim amended by asking the substantive relief instead of a mere declaration that it existed. The difficulty may have been that in suits Nos. 1 and 2 more than a year had elapsed from the date of the deeds, and if, therefore, the defence was well founded they would have been met on application for leave to amend with the same objection that confronts them now. They accordingly determined to fight upon the pleadings, and with unfortunate consequences.

6. The first judgment was delivered in <ORG> on the 18th January, 1915. He held that-the claim for a declaration of right to pre-emption and the claim for pre-emption itself were distinct, and he declined to give, leave-to amend. The Divisional Judge, on the 18th June, 1915, -supported this judgment. The Judicial Commissioner, however, on the 12th December, 1915, allowed the amendment to be made, and from his judgment this appeal has been brought.

7. But for the unfortunate division of judicial opinion upon the point the present appeal would not be entertained, for the power exercised is undoubtedly one within the discretion of the judge and all that can fee urged is that his discretion was exercised upon a wrong principle and that it ought, therefore, to be reversed. It may be that in some statements contained' in the judgment of the Judicial Commissioner their Lordships would find it difficult to agree. In a case such as the present, where the right sought is one involving the dispossession, of a perfectly: lawful purchaser of property, it is not, in their Lordships" opinion, quite accurate to way that a plea that such a suit has not been brought within the proper period of time limited by the Act is a technical plea, if by a technical plea w meant a pea which assert rights which have no merits for their supports. But their Lordships are in full agreement with the statement made by the Judicial Commissioner that, "however defective the frame of the suit may be, the plaintiffs' object was to preempt the land; their cause of action was one and the same whether they sued for possession or not." If this be so, all -that happened was that the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit,-. But if once it be accepted that they were attempting- to establish those rights, there is no sufficient reason shown for disturbing the judgment of the Judicial Commissioner, who thinks they should be at liberty to express their intention in a plainer and less ambiguous manner. It may be noticed that in the claim the relief sought is so awkwardly set out that it would be quite open to the interpretation that they had in fact claimed pre-emption and not a declaration of the right, were it not for the fact that the plaintiffs themselves appear for foolish reasons stoutly to have maintained that that was not their object. That-there was full power to make the amendment cannot be disputed) and though such a power should not as a rule lie exercised where, its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases (see for , example <NAME> v. <NAME> (1867) 11 M.I.A. 485 where such considerations are outweighed by the special circumstances of the case, and their Lordships ace not prepared to differ from the Judicial Commissioner in thinking. that the present case is one.

8. The plaints were accordingly amended and on the 10th, July 1916, judgment was given by the learned Subordinate Judge, who assessed the value of the lauds sold. Appeals were taken from these decrees, some to <ORG>, others to <ORG>, according to value. Those' lodged in <ORG> were subsequently transferred to <ORG>, who heard all the appeals together. He then decided that four of the appeals Were out of time, as they ought to have been filed in <ORG> and not in his Court, and he refused to return these appeals for presentation to the Divisional Judge's Court in order that the latter might consider the question as to whether the time could be extended, and he himself declined to grant an extension of time. It is this order against which the appellants appeal. The reasons given by the learned Judicial Commissioner are stated by him in these words:-

The appeals were barred so far as <ORG> was concerned at the time they were instituted in this <ORG>, and it would be unfair to all concerned to prolong the litigation by returning the appeals with a view to obtaining a decision by <ORG> whether or not they should be allowed to proceed. The position involved would be little short of farcical. The appellants make an obvious mistake without any apparent excuse, and they wish to delay proceedings in this <ORG> while a subordinate <ORG> decides a preliminary issue, the appeals to be again transferred to this <ORG> if the decision proves favorable. It can scarcely be contended that such proceedings would not involve an abuse of the functions of the <ORG>, and I consider that that ground alone is ample justification for a refusal to take the course suggested. Prima facie there was no good ground for the action taken in tiling the appeals in this <ORG>. These four appeals must accordingly fail.

9. It is plain that his judgment was prompted by the desire to avoid unnecessary expense and the hope that thereby he would cause satisfaction, but the only result is that he has caused this appeal.

10. There is no reason whatever shown for disturbing the Judicial Commissioner's judgment. The four appeals were in the wrong <ORG>, and being brought on he was entitled to dismiss them. So far, therefore, as all the appeals are concerned they fail, and their Lordships will humbly advise His Majesty that they should be dismissed with costs.

11. The respondents have, however, instituted a cross-appeal, and this is an appeal against the valuation which has been made of the property sold. Now this Board will not interfere with any question of valuation unless it can be shown that some item has improperly been made the subject of valuation or excluded therefrom, or that there is some fundamental principle affecting the valuation which readers it unsound. On the mere of value of admitted items their Lordships will net interfere. Now in the present instance the case lodged by the respondents complains only of the character of -he valuation as s valuation and does not attempt to impeach it on any of the grounds to which reference has been made. It is quite true that counsel for the respondents, recognising the difficulty in which he is thus placed, has attempted to raise an argument based upon, an assertion that the valuation has proceeded upon an erroneous footing. Their Lordships are not prepared to allow such a point to be now raised. If, as appears to be the case, it was not raised before the Judicial Commissioner it could not be opened now, and if it were so raised, the fact that it is, not referred to in the written statement of the appellants' case forms, to their Lordships' minds, a, good and sufficient reason why it should not be introduced at this, late stage of the proceedings.

12. For these reasons their Lordships will humbly advise His Majesty that the cross-appeal equally with the appeal should be dismissed. There will be no order as to costs.