PETITIONER: <NAME> Vs. RESPONDENT: M/S S. LAL AND COMPANY (PVT.) LTD. DATE OF JUDGMENT10/09/1973 BENCH: <NAME>, P. JAGANMOHAN BENCH: <NAME>, P. JAGANMOHAN DWIVEDI, S.N. CITATION: 1973 AIR 2720 1974 SCR (1) 615 1973 SCC (2) 696 CITATOR INFO : F 1976 SC 578 (33) ACT: Practice-Constitution of India, 1950, Art-226-Writ jurisdiction of <ORG>-If can be invoked by person not aggrieved. HEADNOTE: The first respondent filed a writ petition in the <ORG> challenging the grant of a mining lease to the appellant on the ground of a direct. infringement of his right to be granted a mining lease over an area for which he applied for a mining lease and which, according to him, formed part of the area for which the appellant was given the lease. But in fact, the first respondent's application was not in respect of any part of the area for which the appellant was granted a mining lease. Though the appellant was made party to the proceeding, he did not appear as notices were not served on him. The <ORG> allowed the petition in the view that there was a violation: of s. 31 of the Mines and Minerals (Regulation and Development) Act , 1957, and rr. 58 and 59 of the Mineral Concession Rules 1960. Allowing the appeal to this Court, HELD : The first respondent had no interest in the subject- matter of the lease, and the petition was not maintainable. [618 G-H] Though this contention was not urged before the <ORG> as the appellant did not appear in the <ORG>, this Court, in appeal, can not only determine the soundness of the decision, but has jurisdiction to determine any point raised before, it, such as, whether the appeal is competent, whether a party has a locus standi to present the petition and whether the petitioner was maintainable. Ordinarily, the foundation for exercising the jurisdiction under Article 32 or Article 226 , is the personal or individual right of the petitioner himself, though in cases of writs of habeas corpus or quo warranto, the rule may be relaxed. In respect of persons who are not aggrieved and who seek to invoke the jurisdiction of the <ORG> or this Court, the matter rests ultimately on the discretion of the Court, and depends on the nature and extent of the right or interest said to have been infringed and whether the infringement affects the petitioner in some way. [619 A-B, D, G-H] In the present case, the first respondent only alleged direct infringement of his right,but it was found that no right of his had been affected. He was neither aparty nor a person aggrieved or affected and hence had no locus standi to file the petition. [620 <CITATION> ,  S.C.R. 696, <CITATION> ,  S.C.R. 869, <CITATION> ,  S.C.R. 28, <CITATION>  Supp. 3 S.C.R. 1, <CITATION>  2 S.C.R. 172 and R. v. Thamples Magistrates' Court ex. p. Greenbaum, [19571 55 L.C.R. 129-extracted in Yardley Source Book of English Administrative Law, 1970, P. 228, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2572 (N) of- 1972.

Appeal by certificate from the Judgment and Order dated 4th April 1972 of <ORG> in Civil Writ Jurisdiction Case No. 1121 of 1969.

<NAME>, for the appellant.

<NAME>, Solicitor General of India and <NAME>, for respondent Nos. 2 and 6.

<NAME>, for respondents Nos. 3-5.

The Judgment of the Court was delivered by, <NAME>, J. The appellant was granted a mining lease on August 30, 1969 by the State of Bihar (Respondent

3) with the prior approval of <ORG> (Respondent 2) for winning a mineral known as Apatite over as area of 1999.634 acres. Respondent 1 filed a writ petition on September 15, 1969 challenging the lease on the ground that he had earlier on March 22, 1965, applied for a mining lease over an area of 280.62 acres in certain villages of Singhbhum District which was included in the lease granted to the appellant, but as no orders were passed by <ORG> within the statutory period the application was ,deemed 'to have been rejected. He thereafter filed a revision petition to <ORG> which called for the comments of <ORG>. <ORG> intimated to <ORG> that it wanted to work the area itself and for that reason had in fact rejected all the applications for this area including that of the first respondent. On receipt of this comment, <ORG> rejected the revision petition of the first respondent. It appears that the appellant had pursuant to an advertisement in the newspapers applied along with others for the grant of a mining lease for phosphatic rock (Apatite) over an area of 4.1 sq. miles in village Khajurdari in Singhibhum District. But all 'the applications were rejected as <ORG> had by then decided to work the phosphatic bearing areas in the public sector. Later, however, as 3rd respondent felt that such a venture could be better undertaken by a private party rather than <ORG> in view of the dispersed nature of the deposits, whose concentrated and efficient supervision may not be possible through the public sector, it decided to release the area in question to be worked in the private sector. Accordingly permission was sought from <ORG> and an advertisement published in the newspapers for the general information of the interested parties who may be willing to set up a benefication plant for upgrading the low grade Apatite to ensure its use for the production of phosphatic fertiliser and who were capable of making an investment to the extent of Rs. 40 to 50 lakhs. The appellant who is reported to be financially sound submitted a scheme for setting up a benefication plant for upgrading the Apatite. In view of the financial solvency, of the appellant his application was recommended to <ORG>. <ORG> accepted this recommendation and directed the grant of the mining lease in the following terms :

" <ORG> in the interest of mineral development, in exercise of the powers conferred by subrule (2) of rule 58 of the Mineral Concession Rules, 1960, 61 7 hereby authorise <ORG> to grant mining lease for apatite over the area to Dr. <NAME> without following the procedure laid down in sub-rule (1) of the said Rule 58 of the Mineral Concession Rules, 1960.

Further in exercise of the powers conferred by section 31 of the Mines and Minerals (Regulation and Development) Act , 1957, <ORG> hereby authorise <ORG> to grant mining lease to Dr. <NAME> over the area in question which does not form a compact block.

<ORG> also, in exercise of the powers conferred by proviso to section 6(1) of the Mines and Minerals (Regulation and Development) Act , 1957, authorise <ORG> to grant mining lease for apatite over the areas to Dr. <NAME> in excess of the limit of 10 square miles prescribed in section 6(1) and (b) of the said Act."

Immediately on getting to know of the approval given by <ORG> to the grant of the mining lease to the appellant, the first respondent moved <ORG> for a stay and though that application was rejected he made several other attempts but without any success. The last revision application was filed on November 17 1970 under r. 54 of the Mineral Concession Rules--hereinafter referred to as 'the Rules'-before the 2nd respondent on which an order dated November 23, 1971 was passed. This order as disclosed fly the 1st respondent in his supplementary affidavit shows that <ORG> had in exercise of their revisional powers under r. 55 of the Rules, set aside the orders of <ORG> and directed it to give further consideration and pass appropriate orders within a period of four months in as much as <ORG> had not followed the correct procedure in dealing with the application of the 1st respondent.

At this stage we may point out that in the writ petition filed by the first respondent though the appellant was a party it seems he did not appear and the proceeding was ex parte. The appellant's case is that as no notices were served on him, nor was there any proof of service as neither the covers in which the registered notices were sent nor the acknowledgment cards had been returned to the <ORG>, he did not have an opportunity to be heard. No doubt the State of Bihar and <ORG> had opposed the petition but the High <ORG> came to the conclusion that the conditions required for relaxation of the Rules in special cases under s. 31 of the Mines and Minerals (Regulation and Development) Act , 1957 (hereinafter termed the Act) read with rr. 58 & 59 of the Rules, were not complied with while according its approval for the grant of the mining lease to the appellant. in this view it allowed the petition and quashed the lease in favour of the appellant. Before us it is contended by the appellant's learned advocate that the appellant did not have an opportunity of urging before the <ORG> that the writ petition filed by' the first respondent was not maintain.able, because he is- not a person aggrieved as the area for which the ,first respondent had made an application for the grant of mining lease was not included in the area granted to the appellant. He further ,contends that reasons were given by the State of Bihar while recom- mending the grant of the lease to <ORG>, which reasons, at any rate one of them as is evident from the order of <ORG>, were approved. There is, according to him, no infringement of the provisions of s. 31 of the Act read with rr. 58 & .59 of the Rules. The learned Solicitor-General on behalf of <ORG> supports the grant of the mining lease to the appellant on the ground that r. 59 of the Rules is not applicable to the facts of this case inasmuch as the 3rd respondent had not taken any firm decision to reserve the area granted to the appellant, which is a necessary condition of the applicability of that rule. If that rule did not apply then he submits the procedure prescribed in r. 58 which is referred to therein need not be complied with. He further submits that even if r. 59 is applicable, reasons have been recorded by <ORG> for relaxing the Rules as required in s. 31 of the Act.

In so far as the 3rd respondent-the State of Bihar-is con- cerned, there has been a volte-face in its stand before us. After having called for the applications and recommended the lease in favour of the appellant, and after having placed him in a position where he had to incur huge expense, it now wants to contend that the grant of the lease is invalid. Even the first respondent, once he found, that the area for which he applied for a lease was not included in the appel- lant's lease, seems to have perferred to remain absent in the case, but <ORG> wants to challenge the validity of the lease which it did not do before <ORG>.

There is no doubt, as <ORG> has pointed out, that where by relaxing the Rules <ORG> intends to authorise in any case the grant, renewal or transfer of any prospecting licence or mining lease, or the working of any mine for the purpose of searching for or winning any mineral, on terms and conditions different from those laid down in the Rules made under s. 13 of the Act, it can do 'so for reasons to be recorded in writing. Whether any such reasons can be said to have been recorded in the order authorising the grant of the lease on terms and conditions different from those laid down in the Rules made under s. 13 of the Act need not concern us in this case, because, in our view, as the writ petition has been filed by a person who is not the person aggrieved, it is not maintainable. As already pointed out it is admitted by respondents 2 and 3 that the application made by the first respondent was not in respect of the area which is granted to, the appellant and consequently the first respondent had no-interest in the subject-matter of the lease. Even though this contention was not urged before <ORG>, and in the circumstances adverted to by us could not have been urged, as the appellant did not appear, this <ORG> in an appeal can not only determine the soundness of the decision, but has jurisdiction to determine any point raised before it, such as whether the appeal is competent, whether a party has locus standi to present the petition and whether the petition is maintainable etc. <CITATION> (1). <CITATION> (2) it was held by this <ORG> that the legal right that can be enforced under Art. 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the <ORG> for relief. In respect of the jurisdiction under Art. 226 of the Constitution it was laid down in <CITATION> (3) that the existence of the right is the foundation of the exercise of jurisdiction of the <ORG> under Art. 226 of the Constitution. The right to which this <ORG> had adverted as being the foundation for exercising the jurisdiction under Art. 32 or Art. 226 of the Constitution, according to <CITATION> (4) is ordinarily the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. <NAME>, J., as he then was, observed in that case :

" Article 226 confers a very wide power on <ORG> to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the court seeking a relief thereunder."

After citing the above passage in <CITATION> (5) the learned Judge who delivered the judgment in this case also observed at p. 181 :

"A personal right need not be in respect of a proprietary interest : it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression ,,ordinary" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though- he has no proprietary or even fiduciary interest in the subject-matter thereof."

In respect of persons who are strangers and who seek to invoke the jurisdiction of <ORG> or of this <ORG>, difficulty sometimes arises because of the nature and extent of the right or interest which is said to have been infringed, and whether the infringement in some way affects such persons. On this aspect there is no clear enunciation of principles on which the <ORG> will exercise its jurisdiction.

(1) [1952] S. C. R. 696. (2) [1950] S. C. R. 869. (3) [1952] S. C. R. 28. (4) [1962] Supp. 3 S. C. R. 1. (5) [1966] 2 S. C. R. 172.

In England also the <ORG> have taken the view that when the, application is made by a party or by a person aggrieved the <ORG> will intervene ex debito justitias, in justice to the applicant, and when it is made by a stranger the <ORG> considers whether the public interest demands its intervention. In either case it is a matter which rests ultimately in the discretion of the <ORG> : (see <NAME> v. Thames Magistrates' <ORG>, ex. p. Greenbaum(1). In this case, however, the first respondent has not challenged the grant of the lease on the ground of ex debito justitiae but has done so on the ground of a direct infringement of his right to be granted a mining lease over 280.62 acres for which the appellant was given a lease along with other area. Since it is now found that no such right of the first respondent has been affected, he has no locus standi. He is neither a party nor a person aggrieved or affected and consequently his writ petition in the High <ORG> is not maintainable.

On this short ground, this appeal will be allowed and the writ petition filed by the first respondent in <ORG> dismissed. The appellant will have his costs only against the State of Bihar.

<ORG> allowed.

(1)(1957) 55 L.C.R. 129-extracted in Yardley Source Book of English Administrative Law, 1970, p. 228).


PETITIONER: <NAME> AND OTHERS Vs. RESPONDENT: THE STATE OF MADHYA PRADESH AND ANOTHER DATE OF JUDGMENT: 05/04/1968 BENCH: <NAME>, M. (CJ) BENCH: <NAME>, M. (CJ) BACHAWAT, R.S. VAIDYIALINGAM, C.A. HEGDE, K.S. GROVER, A.N. CITATION: 1969 AIR 78 1968 SCR (3) 662 CITATOR INFO : R 1970 SC1298 (9) R 1971 SC 71 (7) RF 1971 SC 530 (233,239,387) R 1971 SC1558 (19) RF 1975 SC2238 (22) E 1977 SC 955 (12,14,16,20,24) R 1978 SC1217 (25) R 1981 SC2016 (8,10) R 1986 SC 794 (8,12,13,14) R 1987 SC2205 (13) RF 1988 SC 752 (10) R 1990 SC 255 (4,5) RF 1991 SC1094 (6) ACT: Madhya Bharat Sales Tax Act (30 of 1950), s. 17-Jurisdiction of civil court barred-Scope of the bar. HEADNOTE: By Notifications issued by <ORG> under s. 5 of the Madhya Bharat Sales Tax Act 1950 sales-tax was imposed and collected from the appellants. They filed suits, for refund of the tax on the ground that it was illegally collected from them being against the constitutional prohibition in Art. 301 and not saved under Art. 304(a).  <CITATION> . (1960) M.P.L.J. 6011, the petitioner therein challenged in a writ petition, the levy of sales tax on the same grounds and <ORG> declared the notifications to be offensive to Art. 301 and held that ,the imposition of tax was illegal. Following that decision, the trial court decreed the suits filed by the appellants. In appeal before <ORG> it was conceded by the <ORG> that the tax could not be imposed in view of Art. 301 , but it was contended that the suits were not maintainable in view of s. 17 of the Act which provides that no assessment made under the Act shall be called in question in any court. <ORG> held that the suits were incompetent. In appeal to this Court, HELD: The suits were maintainable. [684 D] An enquiry into the diverse views expressed in the decisions of this Court shows that an exclusion of the jurisdiction of civil court is not readily to be inferred unless the following conditions apply : (1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. [682 A-C; 683 <CITATION>  L.R. 67 I.A. 222; <CITATION> ,  1 S.C.R. 752 and <CITATION> ,  3 S.C.R. 582. In Firm Illuri Subbayya Chetty & Sons' case the assessee conceded that the tax was payable and did not raise the issue before the appellate authorities under the Act. The suit for refund of tax was held not maintainable on those special facts, with reference to the addition of s. 18A excluding the jurisdiction of civil court and the special remedies provided in ss. 12A to 12D in the Madras General Sales Tax Act, 1939. This Court, however, did not think it necessary to pronounce any opinion on <ORG> view in the <ORG> case  L.R. 74 I.A. 50) that even the vires of the provisions could be considered by the <ORG> constituted under the Act. Dealing with <ORG> case, it was pointed out that non- compliance with the provisions of the statute meant non- compliance with such fundamental 663 provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. [679 G-H; 680 B-D] (2) Where there is an express bar of the jurisdiction of the an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. [682 D] Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. [682 <CITATION> ,  5 S.C.R. 517 it was held that the civil court had jurisdiction because, at the relevant time, (a) the Madras General Sales Tax Act, 1939, did not have s. 18A (which was introduced later barring the jurisdiction of civil court) (b). the Act did not have the elaborate machinery for adequate remedy which was also introduced later, and (c) the tax was illegally collected ignoring the fundamental provisions of the Act. Therefore, the observation in <CITATION> that <NAME>'s case was wrongly decided is open to doubt. [678 D, H] M/s. Kamala Mills Ltd. v. <ORG> of Bombay,  1 S.C.R. 64 was a decision of a Special Bench holding that s. 20 of the Bombay Sales Tax Act 1946 excluded the jurisdiction of the civil court in suits for refund of tax, in cases, where the decision of the authorities under the Act was merely an error in assessment capable of correction by the usual pro- cedure of appeals etc. But the Bench observed, that in such cases, where the jurisdiction of the civil court is barred- by providing an adequate machinery in the Act, it becomes 'pertinent to enquire whether remedies normally associated with actions in civil court are prescribed by the statute or not', and thus expressly left open the question as to how far the bar would operate in cases where the charging provision is ultra vires. [681 A-B, G-. 684 C-D] (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before <ORG> constituted under that Act. <NAME>,, <ORG> cannot go into that question on a revision or reference from the decision of the <ORG>. [682 <CITATION> ,  2 S.C.R. 229; Deputy Commercial Tax Officer, Madras v.Rayalaseema Constructions, 17 S.T.C. 505; Circo's <CITATION> , 19 S.T.C. 66 (S.C.); <CITATION> . 1045 of 1966. dated 20th July, 1967) and <CITATION> ,  1 S.C.R. 260; A.I.R. 1968 S.C. 271. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. [682 <CITATION> ,  6 S.C.R. 261 which confirmed the decision in 1960 M.P.L.J. 601 this Court upheld the order of refund by <ORG> in its writ jurisdiction held that in cases where a defence of limitation was open or other facts had to be decided, the order of 664 refund was not proper, and accepted the proposition that a suit lay in' such cases without adverting to, the provisions of the Act to see whether the jurisdiction of civil court was barred either expressly or by necessary implication. Therefore, this case cannot be an authority for holding that the- civil court has jurisdiction to entertain such suits.  (5) Where the particular Act contains no machinery for refund of,, tax collected in excess of constitutional limits or illegally collected a suit lies. [683 <CITATION> ,  3 S.C.R. 499. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit,does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry. [6 83 B] In the present case, though the Madhya Bharat Sales Tax Act contains ,Provisions for appeal, revision, rectification and reference to the High ,Court, the notifications having been rightly declared void in the earlier -decision of <ORG>, the appellants could take advantage of the fact that tax was levied without a complete charging section. Since the tax authorities could not even proceed to assess the party their jurisdiction was affected and the case fell within categories (3) and (4) above, ,and not in category (2). [684 A-C] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 260 to 263

-of 1967.

Appeals from the judgment and decree dated January 5, 1965 of <ORG>, Indore Bench in First Ap- peals Nos. 68, 69, 71 and 70 of 1961 respectively. <NAME>, <NAME> and <NAME>, for the appellants (in all the appeals).

<NAME> and <NAME>, for the respondents (in all the appeals).

The Judgment of the Court was delivered by <NAME>, <NAME> These are four appeals by certificate against the common judgment of <ORG> of Madhya Pradesh (<ORG>), 16 December, 1964/5 January, 1965

-dismissing four suits filed by the appellants to recover sales-tax alleged to be realized illegally from them by the State of Madhya, Pradesh, the respondent in these appeals. The suits were earlier decreed by the District Judge, Ujjain. The facts in the suits are common and were as follows:

The appellants are dealers in tobacco and have their places of business at Ujjain. They purchase and sell tobacco used for eating, smoking and for preparing bidis. They get their tobacco locally or import it from extra-state places. The former Madhya Bharat State enacted in 1950 the Madhya Bharat Sales Tax Act (Act 30 of 1950) which came into force on May 1, 1950. Under s. 3 of the Act every dealer whose business in the previous year in respect of sales or supplies of goods exceeded in the case of an, importer and manufacturer Rs. 5,000 and in other cases Rs. 12,000 had to pay tax in respect of sales or supplies of goods effected in Madhya Bharat from 1st May 1950. Under s. 5 , the: tax was a single point tax and it was provided that the <ORG> might by a notification specify the point of the sales at which the tax was payable. The section also fixed the minimum and maximum rates of tax leaving it to <ORG> to notify the actual rate.

<ORG>, in pursuance of this power, issued a number,. of notifications on April 30, 1950, May 22, 1950, October 24, 1953 and January 21, 1954. All these notifications imposed tax at different rates on tobacco above described on the importer, that is to say at the point of import. The tax was not levied on sale or purchase of tobacco of similar kind in Madhya Bharat. The tax was collected by the authorities in varying amounts from the appellants for different quarters. We are not concerned with the, amounts. The appellants served notices under s. 80 of the Code of Civil Procedure and filed the present suits for refund of the tax on the ground that it was illegally collected from them being against the constitutional prohibition in Art. 301 and not saved under Art. 304(a) of the Constitution. The State of Madhya Pradesh was formed on November, 1, 1955. <CITATION> .(1) <ORG> declared the notifications to be offensive to Art. 301 of the Constitution on the ground that it was illegal to levy a tax on the importer when an equal tax was not levied on similar goods produced in the State. The decision was later confirmed on this point in <CITATION> (2). The appellants did not take, recourse to the provisions of Art. 226 of the Constitution but filed their suits on December 21, 1957.

The suits were opposed by the <ORG> on the main ground that such a suit was barred by the provisions of s. 17 of the Act which provides :

"17. Bar to certain proceedings.-Save as is provided in S. 13 , no assessment made and no order passed under this Act or the rules made thereunder by the assessing authority, appellate authority or the Commissioner shall be called in question in any Court, and save as is provided-in sections 11 and 12 no appeal or application for revision shall lie against any such assessment or order."

The <ORG> also pleaded that as appeals against the assessment were pending before the Sales Tax Appeal Judge the plaintiffs were (1) 1960 M. P. L. J. 601.

(2) [1964] 6 S.C. R. 261.

not entitled to file the suits. The District Judge, following <CITATION> (1) and <CITATION> .(2), held that such a suit lay when a declaration was sought that the provisions of law relating to an assessment were ultra vires, and demand was made for refund of amounts illegally collected under it. On the second point the District Judge held that s. 21 of the Act which allows the Commissioner or the appellate authority to order refund of tax wrongly paid did not apply since no such appeal was proved to have been filed and the tax was not wrongfully paid but wrongfully realised.

On appeal by the <ORG> <ORG> reversed the decision. Before <ORG> it was conceded (as it is conceded even now) that the tax could not be imposed in view of the bar of Art. 301. The short question thus was whether the suit was barred expressly by s. 17 of the Act or any implication arising from the Act. The contention on behalf of the appellants was that if it was a question of the correctness of the imposition within the valid framework of the statute, rules or notifications S. 17 might have operated but not when the imposition was under a void law. In the latter event the assessee was free to challenge the validity of the law in a civil suit and also to claim a refund.

<ORG> considered the matter in the light of the decisions of <ORG> in <CITATION> in Council(3), <CITATION> (4), <CITATION> (5), <CITATION> (6), and others, and came to the conclusion that the suit was incompetent. <ORG> conceded that both aspects of the case were well supported by, authority. It is not necessary to enter into the reasons which weighed with <ORG> because our discussion of the autho- rities in this judgment will clearly expose the rival views and the one preferred in <ORG>.

The question that arises in these appeals has been before this Court in relation to other statutes and has been answered in different ways. These appeals went before <ORG> of this Court but in view of the difficulty presented by the earlier rulings of this Court, they were referred to <ORG> and that is how they are before us. At the very start we may observe that the jurisdiction of <ORG> is all embracing except to the extent it is excluded by an express. provision of law or by clear intendment arising from such law. This is the purport of (1) A. 1. R. 1951 S. C. 23.

(3) [1947] L. R. 74 1, A. 50; A. 1. R. 1947 P. C. 78. (4) [1940] L. R. 67 1. A. 222; A. 1. R. 1940 P. C. 105. (5) [1964] 1 S. C. R. 752; A. 1. R. 1964 S. C. 322. (6) A. 1. R. 1958 Mad. 544 (F. B.).

(2) 1960 M.P.L.J. 601.

s. 9 of the Code of Civil Procedure. How s. 9 operates is perhaps best illustrated by referring to the categories of cases, mentioned by <NAME>, J. in <ORG> v. Hawkesford(1)-They are :

"One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides, no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it........ The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class."

This view of <NAME>, J. was accepted by <ORG> <NAME> v. <ORG>). To which category do such cases belong in India ? The con- troversy in India has revolved round the principles accepted in <CITATION> (3 ) and in <CITATION> in Council(4). In the first case it was laid down by <ORG> that the ouster of the jurisdiction of <ORG> is not to be lightly inferred and can only be established if there is an express provision of law or is clearly implied. In the second case it was held that where a liability to tax is created by statute which gives special and particular remedies against illegal exactions the remedy contemplated by the statute must be followed and it is not open to the assessee to pursue the ordinary process of Civil Courts. To the latter case we shall refer in some detail presently. Opinion in this Court has, however, wavered as to how far to go with the dicta of <ORG> in the two cases. Before, however, we go into the question we may refer to <CITATION> (5). In that case the notifications were declared ultra vires Article 301 of the Constitution and not saved by Art. 304(a). It was therefore held that the portion of the tax already paid must be refunded by <ORG>. The question then posed was: (1)  6 C. B. (NS) 336.

(2) [1919] A.C. 368.

(2) [1940] 67 I. A. 222.

(4) [1947] 74 I. A. 50.

(5) [1964] 6 S. C. R. 261.

"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 the exercise of its jurisdiction conferred by Art. 226 of the Constitution 2"

This <ORG> after examining the jurisdiction under Art. 226 concluded that the High <ORG> had the power to order refund in proceedings for a writ since complete relief could not be said to be given if only a declaration were given. The <ORG>, however,observed :

"At the same time we cannot lose sight of the fact that the special remedy provided in Article 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."

Pointing out that where a defence of limitation could be raised or other issues of fact had to be tried, it was held that the Court should leave the party aggrieved to seek his remedy by the ordinary mode of a civil suit. Therefore in those cases (there were 31 appeals before this Court) where the writ was asked for within three years, this Court upheld the order of refund by <ORG> in its writ jurisdiction, but in those cases in which the parties had gone to <ORG> after a lapse of 3 years, the order of refund was questioned and not approved observing that the petitioners would be at liberty to seek such relief as they might be entitled to in <ORG> if it was not barred by limitation.

It will appear from this analysis of the case that this Court :accepted the proposition that a suit lay. This it did without adverting to the provisions of the Act there considered to see whether the jurisdiction of <ORG> was barred or not, either expressly or by necessary implication. This Court was, of course, "not invited to express its opinion on the matter but only on whether <ORG> in its extraordinary jurisdiction could order refund of tax paid under a mistake. Having held that in some cases <ORG> should not order refund, this Court merely pointed out that the civil suit would be the only other remedy open to the party. The case cannot, therefore, be treated as an authority to hold that <ORG> had jurisdiction to entertain such suits. We may now proceed to consider first the two cases of <ORG> before examining the position under the rulings of this Court. <CITATION> (1) the sole question was the jurisdiction of the civil court to entertain a suit to (1)  L. R. 67 1. A. 222.

recover an excess amount of customs duty collected from <ORG> The suit was filed after an appeal to the Collector of <ORG> and a revision taken to <ORG> under the Land <ORG> Act, 1924 was dismissed. The suit was dis missed by the trial Judge on the preliminary ground that <ORG> had no jurisdiction. An appeal by <ORG> to <ORG> succeeded and there was a remit. The appeal to <ORG> followed. Section 1 .88 of the Land <ORG> Act, 1924 provided inter alia "Every order passed in appeal under this section shall, subject to the power of revision conferred by S. 191 , be final." <ORG> first made a general observation "It is settled law that the exclusion of the jurisdiction of <ORG>s is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, <ORG>s have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

Then it proceeded to quote s. 188 (as above) and observed "By Ss. 188 and 191 a precise and self-

contained code of appeal is provided in 'regard to obligation which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the executive Government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in <ORG>........" and came to the conclusion that the jurisdiction of <ORG> was excluded. The decision of <ORG> was reversed and that of the trial Judge restored. The next case is the <CITATION> in Council(1). This was an appeal to <ORG> from a judgment of <ORG> in civil appellate jurisdiction reversing a decree passed by a Special Bench of <ORG> in its original civil jurisdiction. It arose from a suit filed for recovery of a sum paid under protest pursuant to an assessment to income-tax of <ORG> on the ground that the computation was under a provision of the Income Tax Act which was ultra vires <ORG>. One of the defences in the suit was that whether the said provision (1)  L. R. 74 I.A. 50.

was ultra vires or not, <ORG> were excluded from exercising their jurisdiction by S. 226 of the Government of India Act, 1935 and s. 67 of the Indian Income Tax Act. The provision in question was held ultra vires by <ORG> and it further held that neither of the two provisions was a bar to the civil courts' jurisdiction. <ORG> in disagreement held that s. 226 of the Government of India Act, 1935 barred the jurisdiction and that the provision impugned was not ultra vires. The bar of s. 67 of the Income Tax Act was not pressed before <ORG>. When the case reached <ORG>, the case was considered under s. 67 but not under s. 226 . <ORG> was of the opinion that s. 67 barred the jurisdiction. <ORG> had raised the question before the Incometax authorities that Explanation 3 to para 4(1) of the Income-tax Act 1922 was ultra vires. This was not accepted and the assessment was made. <ORG> filed an appeal but did not proceed with it and the assessment was confirmed. The appellate authority also said in its order that the constitutional question could not be raised before it. The suit was then instituted.

Section 67 of the Indian Income-tax Act in specific terms stated "No suit shall be brought in any civil court to set aside or modify any assessment made under the Act. . . " The result of the suit has already been stated. '<ORG> considered this section and observed that the suit in form did not profess to modify the assessment but in substance it did so. The declaration that a certain provision was ultra vires was but a step. According to <ORG> the assessment made under an ultra vires statute was not a nullity and the assessment ought to be taken to proceed on a mistake of law in the course of assessment. Therefore, without going into the question whether the provision impugned was ultra vires or not <ORG> considered the matter. The argument was that the assessment was not one 'under the Act', if effect was given to an ultra vires provision since the provision would be a nullity and non-existent. To discover the force of the prohibition in s. 67 the following tests were applied --

(a) Does the Act contain machinery by which the assessee can raise the question of the vires of the provision before the special authorities ?

(b) This test was not conclusive but one to be considered.

(c) If there was no such machinery and yet the civil courts were barred the vires of S. 67 itself might come in for consideration.

<ORG>, however, came to the conclusion that the Income-tax Act gave the assessee an opportunity to raise the question under the Income-tax Act . The provision for a case stated for the advisory opinion of <ORG> was available and even if the authorities refused to state a case, <ORG> could be directly approached. The decision of <ORG> was also subject to further appeal. Thus there was adequate machinery in the Income-tax Act .

The words of s. 67 'under the Act' were construed as the activity of an assessing officer acting as such. That this activity took into consideration an ultra vires provision did not take the matter out of these words. That phrase meant the provenance of the assessment, and not the accuracy or correctness of the assessment or the machinery of the Income-tax Act or the result of; the activity. There was no difference between an incorrect apprehension of the provisions of the Income-tax Act and the invalidity of a provision. <ORG> explained that if this were not so all questions of the correctness of the assessment under the,; Income-tax Act could be brought before the <ORG> and I the section rendered otiose. The section made no distinction between tin inquiry into the merits of the assessment and jurisdiction to embark on an enquiry at all. The Civil <ORG>s' jurisdiction in either case was invoked as to the correctness of the assessment and the language of the section precluded consideration of jurisdiction in such circumstances. The Income-tax Act having a suitable and adequate machinery, jurisdiction to question the assessment otherwise than by that machinery was, therefore, held barred. <ORG> even doubted whether a provision such as S. 67 was at all necessary in the circumstances.

Both these cases thus appear to be decided on the basis of provisions in the relevant Acts for the correction, modification and setting aside of assessments and the express bar of the jurisdiction of <ORG>. The presence of a section barring the jurisdiction was the main reason and the existence of an adequate machinery for the same relief was the supplementary reason. The provision for a reference of a question to <ORG> was considered adequate to raise the issue of the validity of any provision of law under which the taxing authorities acted. This follows from <ORG>'s case(1). <ORG>'s case (2) was more concerned with the finality to the orders given by the Land Customs Act. Even so in the <ORG>'s case(2) room was left for interference by <ORG> by observing that (1) [1947] L. R. 74 1. A. 50.

(2) [1940] L. R. 67 I. A. 222.

<ORG> had jurisdiction to examine into cases where the provisions of the Act had not been complied with, or the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedures. These observations were accepted by this Court in <CITATION> (1) and in <CITATION> (2). A passage from the latter case might be,quoted here "It is true that even if the jurisdiction of the civil court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine these cases."

The observations of <ORG> were thus completely accepted.

We may now examine how the matter was further viewed in this Court. In two other cases this Court laid down that the validity of the provisions under which the authorities act is not a matter for those authorities to decide. In <ORG>'s <CITATION> (3) it was contended that s. 40(2) of the Mysore Sales Tax Act 1957 was ultra vires and beyond the competence of <ORG>. This Court observed :

"It is true that a question as to the vires of section 40(2) of the Sales Tax Act was raised, but it is now settled by decisions of this Court that the question as to the vires of a statute which a taxing officer has to ad- minister cannot be raised before him." The same was again reiterated in <CITATION> (4) in the following words :

"...this Court has held, in <CITATION> (60 I.T.R. 112) that the authorities under a taxing statute are not concerned with the validity of the taxing provisions and the questions of ultra vires is foreign to the scope of their jurisdiction. As no such point could be raised before the Income-tax authorities, neither the High Court nor <ORG> can go into these questions in a revision or reference from the decision of those authorities. This case was followed in <CITATION> [1966, 2 S.C.R. 8811; (60 I.T.R. 156)]".

(emphasis supplied) (1) [1964] 1 S. C.R. 752. (2) [1966] 3 S.C.R. 582.

(3) 19 S. T. C. 66.

(4) C. A. 1045 of 1966 decided on 20th July, 1967.

67 3 The party was left to 'appropriate

proceedings' without specifying what they would be. Perhaps a suit was meant. It follows that the question of validity of the taxing laws is always open to <ORG> for it cannot be the implication of any provision to make such a decision final or that even void or invalid laws must be enforced without any remedy. Therefore, in <CITATION> (1), after, quoting the observations of Viscount <NAME> (<ORG> v. <ORG> (1960 A.C. 260 at p. 286):

"It is a principle not by any means to be whittled down that the subject's recourse 'to Her Majesty's Courts for determination of his rights is not to be excluded except by clear words.";

our brother <NAME> added that the extreme proposition in <ORG>'s case (2 ) had not found favour with this Court. Our learned brother observed :

"This Court was not prepared to accept the dictum in the judgment (<ORG>) to the effect that even the constitutional validity of the taxing provi- sions would have to be challenged by adopting the procedure prescribed by the <CITATION> Income-tax Act -See Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh  1 S.C.R. 752 at 760."

The position was rather strengthened in <CITATION> (3). The question then was whether a suit was not maintainable under S. 18-A of the Madras General Sales Tax Act 1939 (corresponding to s. 67 of the Indian Income-tax Act (1922). The suit followed the decision of this Court in <CITATION> (4) in which 'works contracts' of an indivisible nature were held not to fall within the taxing provisions of the Madras General Sales Tax Act, 1939. Section 18-A was pleaded as a bar. It was held that since the provisions of the Madras General Sales Tax Act, 1939 were declared ultra vires in their application to 'indivisible works contracts' the action of the authorities was outside the said Act and not under the Act for the purposes of s. 18-A . The suit was held not barred. <NAME>, J. (as he then was) speaking for the majority distinguished both <ORG>'s case(5) and the Commissioner of I. T. Punjab, North West Frontier & Delhi Provinces, Lahore v. <ORG> Lahore(") on the ground that no question of the (1) A. I. R. 1968 S.C. 271.

(3) [1966] 2 S. C. R. 229.

(5) [1947] L. R. 74 1. A. 50.

(2) [1947] L. R.74 T. A. 50.

(4) [1059] S. C. R. 379.

(6) [1947] L. R. 74 1. A. 306.

vires of the law was raised in them. <CITATION> . (1) and <CITATION> (3), <NAME> pointed out that the suit was held maintainable in the latter and there was nothing in the former to support the contention that the question of ultra vires of a statutory provision could be canvassed only through the machinery provided under the statute. Referring next to the case of <ORG> and Sons' case(3). the learned Judge said that the question whether s. 18-A of the Madras General Sales Tax Act, 1939 could apply where, a particular provision of the Sales Tax Act was ultra vires was left open (see, p. 243). The learned Judge next quoted the opinion of the majority in <CITATION> (4) to the following effect :

"But, with respect, we find it difficult to appreciate how taking into account an ultra vires provision which in law must be regarded as not being a part of the Act at all, will make -the assessment as one 'under the Act'. No doubt the power to make an assessment was conferred by the Act and, therefore, making an assessment would be, within the jurisdiction of the assessing authoririty. But the jurisdiction can be exercised only according, as well as with reference, to the valid provisions of the Act. When, however, the authority travels beyond the valid provisions it must be regarded as acting in excess of its jurisdiction. To give too wide a construction to the expression 'under the Act' may lead to the serious consequence of attributing to tile legislature which owes its existence itself to the Constitution, the intention of affording, protection to unconstitutional activities by limiting challenge to them only by resort to the special machinery provided by it in place of the normal remedies available under the Code of Civil Procedure, that is, to a machinery which cannot be as efficacious as the one provided by the general law. Such a construction might necessitate the consideration of the very constitutionality of the provision which contains this expression. This aspect of the matter does not appear to have been considered in <ORG>'s case."

The learned Judge next considered whether these observations, although obiter, were departed from in <CITATION> (5) and came to the conclusion that that decision did not touch upon the question whether a suit would lie in (1) F. C. R. 130. (2)  S. C. R. 1. (3)  1 S. C. R. 752. (4)  3 S. C, R. 499.

(5) [1966] 1 S. C. R. 64.

<NAME>

a, case where the assessment was made on the basis of a provision which was ultra vires the Constitution (see p.

Having considered these rulings the learned Judge examined the remedies provided by the Indian Income-tax Act and found that all authorities were creatures of the statute and functioned under it and could not ignore its provisions since the said Act conferred no such 'right' on them. Whether the provisions were good or bad was not their concern. Pointing out that the reference to <ORG> under the Indian Income-tax Act was confined to questions arising from the order of <ORG>, the learned Judge observed that 'the question of ultra vires is foreign to the scope of the <ORG>' jurisdiction' and that if such a question were raised the <ORG> could only reject it on the ground that it had no jurisdiction to decide it, and <ORG> and <ORG> would be equally incompetent on appeal to go into the question. The learned Judge next considered the decisions of <ORG>s into which it is not necessary to go here and on the strength of some observations which supported his view, stated his view in the following words "The legal position that emerges from the discussion may be summarized thus : If a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary implication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to. decide finally a jurisdictional fact thereby excluding by necessary implication the jurisdiction of a civil court in that regard. But an authority created by a statute cannot question the vires of that statute or any of the provisions thereof where-, under it functions. It must act under the Act and not outside it. If it acts on the basis of a provision of the statute, which is ultra vires, to that extent it would be acting outside the Act. In that event, a suit to question the validity of such an order made outside the Act would certainly lie in a civil court."

As the head-note correctly states the effect of the decision was that the foundation laid by <ORG> in <ORG>'s case(1) for construing the expression 'under the Act' had no legal basis. It may be mentioned that in <NAME> (2) case also it was held that there was no machinery provided in the Central Provinces and Berar -Municipal Act for refund of tax assessed (1) (1947) L.R.741.A.50. (2) [1965] 3S.C.R.499.

and recovered in excess of constitutional limits and that the remedy: furnished by that Act was inadequate for enabling the assessee to challenge effectively the constitutionality or legality of assessment or levy of tax by a municipality or to recover from it what was realised under an invalid law. (see the judgment of <NAME>, J. also in Pabbojan case(1) at page 276). In Bharat Kala Bhan case (2) it was pointed out that :

".......... one of the corollaries flowing from the principle that the Constitution is the fundamental law of the land is that the normal remedy of a suit will be available for obtaining redress against the violation of a constitutional provision. The <ORG> must, therefore, lean in favour of construing a law in such a way as not to take away this right and render illusory the protection afforded by the Constitution."

Again in Deputy Commercial Tax Officer, Madras v. Raya- laseema Constructions(") the problem was the same as was dealt with in <NAME>'s Co. Ltd. case (4) . The earlier case was followed and it was held that the sales tax authorities having given effect to an ultra vires provision section 18-A of the Madras General Sales Tax Act, 1939 was no bar to the maintainability of the suit to recover tax paid under such an assessment since the authorities must be taken to have acted outside and not under the Madras General Sales Tax Act.

This brings us to the case of <CITATION> (5). There too three suits were filed alleging that the goods had passed to extra state points while they were still in the possession and ownership of the seller. Since the property in the goods remained in the seller till the goods had entered into other provinces, the sales could not be subjected to a tax in Madras Presidency. Section 11 (4) of the Madras General Sales Tax Act, 1939 made orders of the taxing authorities final but the Act applied only to sales within the Presidency of Madras and not outside it. There was at that time no provision to oust the jurisdiction of the civil courts.

Section 18-A of which we have spoken earlier and on which most of the cases turned, was added much later. Many of the remedies such as were considered in <ORG>'s case(6) and <NAME>'s case (4) were also added at the same time as s. 18-A . The question thus had to be decided without an express provision ousting the jurisdiction of <ORG> and (1) A. 1. R. 1968 S. C. 271.

(3) 17 S. T. C. 505.

(5) [1964] 5 S. C. R. 5 1 7.

(2) [1965] 3 S. C. R. 499.

(4) [1966] 2 S. C. R. 229.

(6) [1947] L. R. 74 I. A. 50.

without the existence of ail adequate machinery for raising such an issue before the authorities. The only provision which had to be considered was S. 11(4) which provided 'every order passed in appeal under this section, shall,, subject to the powers of revision conferred by S. 12 , be final.' The fundamental provisions of the Madras General Sales Tax Act, 1939 (as it then stood) were that the sales must be within the Presidency of Madras. The authorities ignoring these provisions held that 'outside sales' were taxable. Relying upon the dictum of <ORG> in <NAME> & Co.'s case(1), as applied in Firm of Illuri Subbayya Chetty's case(2), this <ORG> held that the suits were competent. In the case of this <ORG> last cited the following observation was made:

"It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, ,its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with. Non-compliance with the provi- sions of the statute to which reference is made by <ORG> must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question."

The Divisional Bench relying upon this observation pointed out "It was thus held that the civil court's jurisdiction may not be taken away by making the decision of a tribunal final, because the civil court's jurisdiction to examine the order, with reference to fundamental pro- visions of the statute, non-compliance with which would make the proceedings illegal and without jurisdiction, still remains, unless the statute goes further and states either expressly or by necessary implication that the civil court's jurisdiction is completely taken away.

Applying these tests, it is clear that without a provision like S. 18A in the Act, the jurisdiction of the civil court would not be taken away at least where the action (1) (1940) L. R. 67 1. A. 222.

(2) [1964] 1 S.C. R.

752. of the authorities is wholly outside the law and is not a mere error in the exercise of jurisdiction. Mr. <NAME> says that we must interpret the Act in the same way as if s. 18A was implicit in it and that s. 18A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders, of assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within the State was a matter wholly outside the jurisdiction of the taxing authorities and in respect of such illegal action the jurisdiction of the civil court continued to subsist. In our judgment the suits were competent."

This case was, therefore, stronger than any so far noticed because of the absence of s. 18-A and the elaborate machinery for adequate remedy was introduced later and the tax was illegal1y collected ignoring the fundamental provisions of the Madras General Sales Tax Act, 1939. However, in <CITATION> (1) (although it was not pointed out what express provision or clear intendment in the Madras General Sales Tax Act, 1939 as it then stood, barred a civil suit) <NAME>'s(2) case was declared to be wrongly decided. In that very case the learned Judges considered a. rule which gave exemption but held that it did not give protection because it was enacted after the account period. What if it had been enacted before ? The observations in <NAME>'s case(1) that if a commodity was not taxable at all or was exempt the civil Court would have jurisdiction were, however, not accepted. It was sufficient to have said in <NAME> case(2) that exemption or no exemption that was for the authorities to decide and not a matter for <ORG>. The argument of exemption was rejected by observing :

"There was in the Travancore-Cochin General Sales Tax Act at the material time no express provision which obliged the taxing authority to exclude from the computation of taxable turnover the amount of salestax collected by the dealers." (emphasis supplied) This reasoning shows that if it had been, the suit might have been held competent. It is not necessary for us to pursue this matter further than to say that the observation that <NAME>'s case was wrongly decided is open to serious doubt.

(1) [1966] 3 S. C. R. 582.

(2) [1964] 5 S. C. R. 517, This leaves for consideration only the cases <CITATION> (1) and <CITATION> (2). The case of Firm of Illuri Subayya Chetty(1) arose under the Madras General Sales Tax Act, 1939, and s. 18-A was pleaded to make the suit incompetent. The transactions in respect of which tax was recovered were said to be of sales and not purchases and the latter only were to, be taxed. It was held that s. 18-A barred the suit because the attempt was to set aside or modify an assessment made under the said Act. It was pointed out that any challenge to the correctness of the assessment must be made before the appellate or revisional forums under the same Act since the character of the transaction was a matter into which the appellate and revisional authorities could go. A litigant who accepted the assessment when he could call it in question by other proceedings under the same Act could not begin a suit. The expression 'under the Act' was sufficient to cover even an incorrect assessment. The assessee firm succeeded in the suit but <ORG> held it barred under s. 18-A and also held against the assessee firm on the nature of the transaction.

This Court first held that there was no provision in the said Act for bringing a civil suit to question the assessment. Therefore the matter must fall in s. 18-A . This Court analysed the provisions of the said Act which provided by s. 12-A , 12-B , 12-C and 12-D for special appeals, including an appeal to <ORG>, the highest <ORG> in the State, laying down further that the appeal should be heard by <ORG>. In the light of this elaborate machinery the question, of alternative remedy was approached. It was also pointed out that the assessee firm had itself included these transactions in its returns. Having conceded that the tax was payable and not having raised the issue before the appellate authorities constituted under the said Act, it was held that the firm could not be allowed to raise the issue in a suit. This was enough to dispose of the appeal to this Court. <ORG>, however, went on to examine the rulings of <ORG> in <ORG>'s(3) and <ORG>'s(4) cases. Dealing with the former case, this Court pointed out that non-compliance with the provisions of the statute meant non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. I The defect of procedure must also be fundamental. In either case the defect must make the order invalid in law and void. The Court went on to observe :

(1) [1964] 1 S. C. R. 752.

(3) (1940) L. R. 67 I. A. 222.

(2) [1966] 1 S. C. R. 64.

(4) (1947) L. R. 74 I. A. 50.

.lm15 "...... In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have-no doubt that the contention of the appellant that on the merits, -the decision of the assessing authority was wrong, cannot be the subject-matter of a suit because s. 18- A clearly bars such a claim in the civil courts." Referring next to <ORG>'s case(1) this Court pointed out that under the scheme of the Income-tax Act , <ORG> thought that a question of vires of the provisions could also be considered, but this Court did not think it necessary to pronounce any opinion whether this assumption was well-founded or not. This point was later considered in <NAME>'s case(2) by <NAME>, J. (as he then was) and we have sufficiently analysed the views of this Court. The case of Firm of Illuri Subbayya (3 ) may be said to be decided on special facts with additional reference to the addition of s. 18-A excluding the jurisdiction of civil court and the special remedies provi- ded in ss. 12-A to 12-D by which the matter could be taken to the highest civil court in the State.

This brings us to the last case on the subject. That is the <ORG> case(4). That case was heard by a special Bench of 7 Judges and is of more binding value than the others. <ORG> Ltd. was assessed to certain sales effected between 26 January 1950 and 31 March 1951 which the taxing authorities treated as 'inside sales' and the Company claimed to be 'outside sales' as determined under the <CITATION> (5). The judgment in the last cited case was delivered on September 6, 1955. The period for invoking remedies under the Bombay Sales Tax Act, 1946 under which the assessment was made had expired. A suit was, therefore, filed to claim refund. The Bombay Act contained s. 20 which read "20. Save as is provided in s. 23 , no assessment made and no order passed under this Act or the rules made thereunder by the Commissioner or any person appointed under s. 3 to assist him shall be called into question in <ORG>, and save as it provided in sections 21 and 22 , no appeal or application for revision shall lie against any such assessment or order."

The suit was dismissed on the preliminary point arising from this bar. A Letter Patent appeal in <ORG> also (1) [1947] I.L.R 74 1. A. 50.

(3) [1964] 1 S. C. R. 752 (2) [1966] 2 S. C. R. 229.

(4) [1966] 1 S. C. R. 64.

(5) [1955] 2 S. C. R. 603.

failed. The case came before this Court on a certificate. It was referred to a Special Bench because S. 20 was challenged as unconstitutional because it barred a suit even where the assessment was unconstitutional. This Court held that as there was adequate remedy to raise the question before the authorities by asking for rectification of the assessment, the section could not be said to deprive him of remedy in such a way as to render the section itself unconstitutional as was hinted in <ORG>'s case(1) about S. 67 of the Indian Income-tax Act. We are not concerned with that question.

The next question which was considered was whether the jurisdiction conferred on the taxing authorities included the jurisdiction to determine the nature of the transaction or was the decision about the character of the transaction, a decision on a collateral fact ? This Court held that it was the former and not the latter. Therefore the decision was held to be merely an error in assessment which was capable of correction by the usual procedure of appeals etc. The bar of s. 20 was, therefore, held to apply. During the course of the arguments <ORG> considered <NAME>'s case (2 ) and distinguished it from the Firm of <NAME> case(3) on the ground that the former was not barred by S. 18-A as it did not exist. The, <ORG>, however, made an observation to the following effect :

"In cases where the exclusion of the civil courts' jurisdiction is expressly provided for, the, consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such consideration

-would be very important, and in conceivable circumstances, 1-night even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."

<ORG> refrained from either accepting the dictum of <NAME> & Co.'s case(4) or rejecting it, to the effect that even if jurisdiction is excluded by a provision making the decision of the authorities final, <ORG> have jurisdiction to examine into (1) [1947] L.R. 741. A.50.

(3) [1964] 1 S. C. R. 5 72.

(2) [1964] 5 S. C. R. 517.

(4) [1940] L. R. 67 1. A. 222.

cases where the provisions of the particular Act are not complied with.

Neither of the two cases of Firm of <NAME>) or <NAME>) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows :-

(1) Where the statute gives a finality to the orders of the special tribunals <ORG> jurisdiction must be held to be excluded if there is adequate remedy to do what <ORG> would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all ques- tions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before <ORG> constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the <ORG>.

(4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(1) [1964] 1 S. C. R. 752.

(2) [1966] 1 S. C. R. 64.

(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for. the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of the jurisdiction of <ORG> is not readily to be inferred unless the conditions above set down apply.

In the light of these conclusions we have to see how the present case stands. Section 3 was the charging section. It spoke of the incidence of the tax. In consisted of several sub-sections. These sub-sections laid the tax on dealers according to their tax able turnover and in the case of a dealer who imported goods into Madhya Bharat the taxable turnover was Rs. 5000/-. Section 4 made certain exclusions and exemptions, and section 5 prescribed the rate of tax. That section read "5(1) The tax payable by a dealer under this Act shall be at a single point and shall not be less than Rs. 1-9-0 per cent. or more than 6 1/4 per cent of the tax able turnover, as notified from time to time by the <ORG> by publication in the official gazette.

Provided that Government may in respect of special class of goods charge tax up to 12 1/2per cent. on the tax able turnover.

(2) The Government while notifying the tax payable by a dealer may also notify the goods and the point of their sale at which the tax is payable."

In notifying the rate provision was made for rates in respect of importers, the point of time being the import. As the import itself postulated movement of goods, the matter fell within Article 301 and as trade and commerce is declared to be free throughout the territory of India, it became unfree by reason of the tax. The tax would therefore have ex facie offended Article 301. This could however be avoided if the tax was saved by Article 304(a). That required that similar goods manufactured or produced in Madhya Bharat had to bear an equal tax. Such equal tax was not imposed hence the notifications were struck down as making discrimination and rendering trade and commerce unfree. This was the effect of <NAME>'s case(1). No -doubt the Madhya Bharat Sales-tax Act contained provi- sions for appeal, revision, rectification and reference to <ORG>, the notifications being declared void the party could take advantage of the fact that tax was levied without a complete charging section. This affected the jurisdiction of the tax authorities because they could not even proceed to assess the party. The question was one falling in category Nos. 3 and 4 rather than in category No. 2 above. It was directly covered by the decision of this Court in <NAME>'s case ( 2 ) read with <ORG>'s <ORG>) and <NAME> case(2) already referred to We would have considered this matter again if <NAME>'s case (2 ) had been doubted before but it seems to have been followed in the last mentioned case and <ORG> case(5). If <ORG> case(6) had not expressly left the question open we would have applied the earlier case of <ORG> but as it is we are bound not by <ORG> decision but by <NAME>'s case(2). We must therefore allow these appeals with costs. The judgment of <ORG> is set aside and suits are decreed. The order for costs shall be as in the suit. The costs in <ORG> shall be borne as incurred.

V.P.S. Appeal allowed., (1) [1964] 6 S. C. R. 261.

(2) [1966] 2 S. C. R. 229.

(3) 19 S. T. C. 66 (S. C.).

(4) C. A. 1045 of 1966, dated 20-7-1967.

(5) A. 1. R. 1968 S.C. 271.

(6) [1966] 1 S. C. R. 64.


PETITIONER: ASRUMATI DEBI Vs. RESPONDENT: KUMAR RUPENDRA DEB RAIKOT AND OTHERS. DATE OF JUDGMENT: 27/02/1953 BENCH: <NAME>, B.K. BENCH: <NAME>, B.K. SASTRI, <NAME> (CJ) BOSE, VIVIAN BHAGWATI, NATWARLAL H. CITATION: 1953 AIR 198 1953 SCR 1159 CITATOR INFO : RF 1965 SC 507 (19) RF 1970 SC 891 (5) R 1971 SC2337 (4) R 1974 SC1719 (11,12,13,14) RF 1981 SC1786 (73,99,139,152) R 1988 SC1531 (63) ACT: Letters Patent (<ORG>), cls. 13, 15-Order for transfer of suit under cl. 13-Whether " judgment"- Appealability -meaning of "judgment". HEADNOTE: An order for transfer of a suit, made under clause 13 of the Letters Patent of the <ORG> is not a "judgment" within the meaning of clause 15 of the Letters Patent and no appeal lies therefrom under the Letters Patent, as it neither affects the merits of the controversy between the parties in the suit itself, nor terminates or disposes of the suit on any ground. [Meaning of the word "judgment" discussed]. <CITATION> . 47 Cal. 1104), Justices of the Peace for Calcutta v. <ORG> (8 Beng. L.R. 433), <NAME> v. <NAME> (I.L.R. 13 Rang. 457), <CITATION> . 35 Mad. 1), <NAME> v. <NAME> (I.L.R. 48 Cal. 857), <NAME> v. <NAME> (29 C.L.J. 225), <NAME> v. <NAME> (39 C.W.N. 156), <NAME> v. <NAME> (A.I.R. 1945 Nag. 156), <NAME> v. <NAME> (A.I.R. 1948 Nag. 85), <NAME> v. <NAME> (I.L.R. 57 All. 983), <NAME> v. <NAME> (I.L.R. 23 1160 Lab. 491), <NAME> v. <NAME> (9 Bom. H.C.R. 398) and <NAME> v. <NAME> (I.L.R. 29 Bom. 249) referred to. <CITATION> . 47 Mad. 136) disapproved. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 92 of 1952. Appeal by special leave from the Judgment and Order dated 16th May, 1951, of <ORG> Calcutta (<ORG> and <NAME>) in Appeal from Original Order No. 136 of 1949 arising out of Judgment and Order dated the 25th April,' 1949, of the said <ORG> (<NAME>) in Extra- ordinary Suit No. 2 of 1948.

<NAME> (<NAME>, with him) for the- appellant.

<NAME> (<NAME>, with him) for the respondent.

1953. February 27. The Judgment of the Court was delivered by <NAME> appeal, which has come before us on special leave, is directed against a judgment of <ORG> of <ORG>, dated the 16th May, 1951, by which the learned Judges dismissed an appeal taken against an order, made by a single Judge on the Original Side of that Court,, under clause 13 of the Letters Patent, on the preliminary ground that the appeal was not competent in law.

There is no dispute about the material facts of the case which lie with-in a short compass. On 7th August, 1947, a suit was filed by the respondent <NAME> in <ORG> at Jalpaiguri in West Bengal,being Title Suit No. 40 of 1947,for recovery of possession of a large estate known as Baikunthapur Raj situated in that district, on the allegation that he, being the eldest son of late <NAME>, the last holder of the estate, became entitled to the properties on the I death of his father under a custom of the family which excludes all females from inheritance and follows the rule of Iineal primogeniture in matters of succession. <NAME> died in December, 1946, and <NAME>, the appellant before us, is admittedly his widow. There was no son born to her and her only child is a daughter named <NAME>. According to the plaintiff respondent, his mother <NAME>, who is a Lepcha by birth was another lawfully wedded wife of <NAME> and was married to the latter in what is known as the " <NAME> form. <NAME> had three sons by this wife, the plaintiff being the eldest. <NAME>, it is alleged, took possession of the bulk of the properties comprised in the estate on the death of her husband, although she had no legal right to the same and it was to evict her from these properties that this suit was brought. Besides <NAME>, the plaintiff also impleaded three other agnatic relations of the deceased (who are defendants Nos. 2 to 4) and also his own two younger brothers as defendants to the suit. <NAME> filed her written statement on January 19, 1948, and the main defence put forward by her was that there was no legal marriage between her husband and the plaintiff's mother, the latter being only one of the several mistresses of her husband. She denied that there was any custom in the family under which females were excluded from inheritance. The defendants 2 to 4 also filed written statements, challenging the legitimacy of the plaintiff and his claim to succession, and put forward their own rights as heirs under the customary law obtaining in the family. On 30th April, 1948, the plaintiff presented an application in <ORG> <ORG> of Calcutta under clause 13 of the Letters Patent, praying for transfer of the suit filed in the Jalpaiguri court to <ORG> to be tried in its Extraordinary Original Civil Jurisdiction. This application was heard by <NAME> sitting singly and by his order dated the 25th of April, 1949, the learned Judge allowed the application, substantially on the ground that having regard to the atmosphere of prejudice that was created in the locality by supporters of the defendant, who wielded considerable influence in the district, the plaintiff might have a legitimate apprehension that he would not get fair trial in the district court.

Against this decision the defendant No. 1 took an appeal to <ORG> of <ORG> and the learned Judges (<NAME> and <NAME>) dismissed the appeal on the ground that the order appealed again was not a 'judgment' within the meaning of clause 15 of the Letters Patent. It is the propriety of this decision that has been challenged before us in this appeal. <ORG> in holding the appeal before it to be incompetent based its decision entirely upon an earlier pronouncement of a Division Bench of the same court, where it was held by <NAME> sitting with <NAME> that an order for transfer of a suit made under clause 13 of the Letters Patent was not a 'judgment' within the meaning of clause 15 (1). Reliance was placed by the learned Judges for this view upon the pronouncement of Sir <NAME> in the well-known and often cited case of <NAME> for Calcutta v. <ORG> (2), where the learned Chief Justice said as follows:-

"We think that 'judgment' in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined."

The identical question, whether an order for transfer under clause 13 of the Letters Patent is a 'judgment' for purposes of appeal, was pointedly raised before the Madras and <ORG>, and while <ORG> (3) answered the question hi the affirmative, a definitely negative answer was given by (1) <CITATION> . 47 Cal. 1104 (2) 8 Ben. L.R. 433.

(3) Vide Krishns Reddi v. <NAME>, I.L.R 47 Mad. 136.

<ORG> (1). The Madras decision purports to be in accordance with the view enunciated <ORG> of that court in <CITATION> (2) where Sir <NAME> sitting with <NAME> swami <NAME> and <NAME> formulated a definition of 'judgment' in a comprehensive manner differing fro the wide interpretation put upon the term in the earlier case of <NAME> v. <NAME> (3). "The test seems me," thus observed the learned Chief Justice, "to be not what is the form of the adjudication, but what is its effect on the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause." This decision, it may be pointed out, has not only been adhered to in Madras since then without any comment, but <ORG> has in several instances manifested a marked leaning towards it (4).

On the other hand, a Full Bench(1) of <ORG> presided over by <NAME> took 'a view altogether different from that of the Calcutta and the Madras <ORG> as regards the meaning of the word I judgment' in clause 13 of the Rangoon Letters Patent, which corresponds to clause 15 of the Letters Patent of the Calcutta and Madras <ORG>. It was held by the Full Bench of <ORG> that the term 'judgment' in the Letters Patent means and is a decree in a suit by which the rights of the

-parties in the suit are determined. In other words, 'judgment' is not what is defined in section 2 (9) of the Civil Procedure Code as being the statement given by the judge of the grounds of a decree (1) <NAME> v. <NAME>, 13 Rang. 457 (F.B.). (2) 35 M 1 (F.B.).

(3) 3 M.H.C.R. 384.

(4) Vide Muathura Sundari v. Haran Chandra I.L.R. 43 Cal. 857; Chandi Charan v. <NAME> 29 C.L.J. 225 at 229 <CITATION> , 39 C.W. N. 155 or order, but is a judoment in its final and definitive sense embodying a decree. A final ' judgment is an adjudication which conclusively determines the rights of the parties with regard to all matters in issue in the suit, whereas a preliminary or interlocutory judgment is a decree by which the right to the relief claimed in the suit is decided but under which further proceedings are necessary before a suit in its entirety can be disposed of. Save and except final and preliminary judgments thus defined, all other decisions are ' orders' and they do not come within the description of I judgments ' under the relevant clause of the Letters Patent. No 'order' is appealable unless an appeal is expressly provided against it by the Civil Procedure code or some other Act of the <ORG>. In this view an ' order' for transferring a suit from a subordinate court to <ORG> could not possibly be regarded as a 'judgment', and consequently no appeal would lie against such an order. This definition of ' judgment 'has been accepted in several cases by <ORG> (1), and substantially this seems to be the view of <ORG> also (2). <ORG> of <ORG>(,'), however, has refused to accept this view and has preferred to follow the tests enumerated by the Calcutta and <ORG>. <ORG> accepted the Calcutta view from the very beginning (4). In view of this wide divergence of judicial opinion, it may be necessary for this court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word I judgment' as it occurs in clause 15 of the Letters Patent of <ORG> and in the corresponding clauses of the Letters Patent of the other <ORG>. We are, however, relieved from embarking (1) <NAME> v. <NAME>, A.I.R. 1945 Nag. 156; <NAME> v. <NAME>, A.I.R. 1948 Nag. 85. (2) <NAME> v. <NAME>, 57 All. 983 (F.B.) (3) <NAME> v. <NAME>, I.L.R. 23 Lah. 491, (4) <NAME> v. <NAME>, 9 Bom. H.C.R. 398, on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a judgment' within the meaning clause 15 of the Letters Patent.

<NAME>, as said already, defined 'judgment' be a decision which determines some right or liability affecting the merits of the controversy between the parties. It is true that according to the learned Chief Justice an adjudication, in order that it might rank as a 'judgment', need not decide the case on its merits, but it must be the final pronouncement of the court making it, the effect of which is to dispose of or terminate the suit or proceeding. This will be apparent from the following observations made by <NAME> in the course of his judgment in the case referred to above :

" It is, however, said that this court has already put a wider construction upon the word I judgment' in clause 15 by entertaining appeals in cases where the plaint has been rejected as insufficient, or as showing that the, claim is barred by limitation,, and also in cases where orders have been made in execution. These however are both within the above definition of a judgment, and it by no means follows that, because we hold the order in the present case not to be appealable, we should be bound to hold the same in the cases referred to. For example, there is an obvious difference between an order for the admission of a plaint and an order for its rejection. The former determines nothing, but is merely first step towards putting the case in a shape for determination. The latter determines finally so far as the court which makes the order is concerned that the suit, as brought. will not lie. The decision, therefore, is a judgment in the proper sense of the term ."

It cannot be said, therefore, that according to Sir <NAME> every judicial pronouncement on a right or liability between the parties is to be regarded  as a 'judgment', for in that case there would be any number of judgments in the course of a suit or proceeding, each one of which could be challenged by way of appeal. The judgment must be the final pronounce ment which puts an end to the proceeding so far as the court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. This view, which is implied in the observations of Sir <NAME> C.J. quoted above, has been really made the basis of the definition of I judgment' by Sir <NAME> in the <ORG> decision of <ORG> to which reference has been made (1). According to <NAME> to find out whether an order is a I judgment ' or not, we have to look to its effect upon the particular suit or proceeding in which it is made. If its effect is to terminate the suit or proceeding, the decision would be a 'judgment' but not otherwise. As this definition covers not only decisions in suits or actions but 'orders' in other proceedings as well which start with applications, it may be said that any final order passed on an application in the course of a suit, e.g., granting or refusing a party's prayer for adjournment of a suit or for examination of a witness, would also come within the definition. This seems to be the reason why the learned Chief Justice qualifies the general proposition laid down above by stating that "an adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of the Letters Patent. "

As stated already, it is not our purpose in the present case to frame an exhaustive definition of the word 'judgment' as used in clause 15 of the Letters Patent. We have indicated what the essential features of a I judgment' are according to both the Calcutta and the Madras <ORG> and all that we need say is that, in our opinion, an order under clause 13 of the Letters Patent does not satisfy the tests of a 'judgment' as formulated by either of these <ORG>. (1) <CITATION> , 35 Mad, 1, The question that requires determination in an application under clause 13 of the Letters Patent is, whether a particular suit should be removed from any court which is subject to the superintendence of <ORG> and tried and determined by the latter as a court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case, a single Judge of <ORG> has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a ' judgment'. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by <NAME> in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed. Mr. <NAME> in the course of his arguments placed considerable reliance upon the pronouncement of <ORG> in <CITATION> (1), where it was held by Court C.J. and (1) 13 Beng, L.R. 91.

<ORG> that an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a 'judgment' under clause 15 and could be challenged by way of appeal. This decision was followed by <ORG> in <NAME> v. <NAME>); and it is argued by Mr. <NAME> that there is no difference in principle between an order of that description and an order transferring a suit under clause 13 of the Letters Patent. The contention of Mr. <NAME> undoubtedly receives support from the judgment of <ORG> in <NAME> v.

Thanikachala(2),where precisely the same line of reasoning was adopted. In our opinion, this reasoning is not sound and there is an essential difference between an order rescinding or refusing to rescind leave to sue granted under clause 12 of the Letters Patent and one removing a suit from a subordinate court to <ORG> under clause 13 of the Letters Patent, and this distinction would be apparent from the observations of Sir <NAME> in the Madras <ORG> case(3) mentioned above, to which sufficient attention does not appear to have been paid by the learned Judges of the same court who decided the later case. Referring to the decision of <ORG> in <NAME> v. <NAME>), <ORG> observed as follows:

"As regards the Bombay authorities I may refer to <NAME> v. Camaji(1), where it was held that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file. Here the adjudication asked for, if made, would have disposed of the suit. So also would an order made under an application to revoke a submission to arbitration. I think such an order is appealable."

Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded. the (1) I.L.R. 29 Bom. 249. (2) I.L.R. 47 Mad. 136. (3) <CITATION> 35 Mad. 1 (F.B.).

<NAME>

suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the other hand, an order is made dismissing the Judge's summons to show cause why the leave should not be rescinded, the result is, as Sir <NAME> pointed out(1), that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive, against him so far as the court making the order is concerned. This brings the order within the category of a 'judgment' as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is a difference between ail order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another, and there is no good reason to hold that the principle applicable to one applies to the other also. The result, therefore, is that, in our opinion, the view taken by <ORG> is right and this appeal should fail, and is dismissed with costs.

Appeal dismissed.

Agent for the appellant: <NAME>.

Agent for the respondent No. 1 : <NAME> for <NAME>.