judgement:
Appeals Nos. 220, 221, 349 and 497 of 58.
Appeals from the judgment and decrees dated 1955 March 24,1956 September 15 and 1956 April 12 of the former Saurashtra High Court at Rajkot in Civil Second Appeals Nos.
123 of 1953 & 104 of 1955 and Civil Appeals Nos.
42 of 1953 and 50 of 1954.
M. C. Setalvad, Attorney General for India, C. K.Daphtary, Solicitor General of India, B. Sen and R. H. Dhebar, for the Appellant (In all the Appeals).
I. N. Shroff for the Respondents (In C. As.
Nos. 220 and 221 of 1958).
G.S. Pathak, N. P. Nathnwni and K. L. Hathi for the Respondents (In C.A. No. 349 of 1958).
J.P. Mehta, J. B. Dadachanji, Onkar Chand Mathur and Ravinder Narain, for the Respondents C.A. No. 497 of 1958).
October 3.
The Judgment of Sinha, C.J., section K. Das and N. Rajagopala Ayyangar,, JJ.
was, delivered by section K. Das, J. The Judgment of Sarkar and J. R. Mudholkar, JJ., was delivered by J. R. Mudholkar, J. section K. DAs, J. These four appeals which have been brought to this Court on certificates granted by the then High Court of Saurashtra under article 133 of the Constitution fall into three groups, and have been heard together.
The essential facts relating to these appeals are the same, and 'a common question of law now falls for determination on those facts.
973 The State of Gujarat., within whose territories the disputed properties are now situate, is the appellant in the appeals.
The respondents and in some cases their.
ancestors, obtained grants from the then Nawab of Junagadh, which was then a ruling State, in respect of lands and, in one case, of a building known as "Datar Manzil '.
These grants were repudiated or cancelled and the property, subject of the grant, was resumed by the Administrator who took over charge of the administration of Junagadh on behalf of the Dominion of India in 1947 in circumstances which we shall presently state.
The respondents brought suits challenging the validity of the orders made by the Administrator.
These suits were decreed by the lower court and the decrees were substantially upheld by the High Court of Saurashtra.
The principal point for decision in these appeals is whether the impugned orders made by the Administrator arose out of and during an act of State which was not justiciable in the municipal courts.
This is the only point which has been agitated before us on behalf of the, appellant State and very strong reliance has been placed on the decision of this Court in the State of Saurashtra vs Memon Haji Ismail Haji (1) where, in circumstances same as those of the appeals before us, it was held that the act of the Dominion of India in assuming the administration of Junagadh was an act of State pure and simple and the resumption of the grant in question therein having been made by the Administrator before that act was completed and at a time when the people of Junagadh were aliens outside the State, the act of resumption, however arbitrary, was an act of State on behalf of the Government of India and was not, therefore, justiciable in the municipal courts.
It may be here noted that by that decision this Court over ruled the earlier decision of the Saurashtra High Court in State of Saurashtra vs Memon Haji Ismail Haji Valimamad(2), (1) ; (2) A.I.R. 1953 Saurashtra 180. 974 a decision on the basis of which the High Court decided the cases under consideration in these appeals.
The learned Attorney General has submitted that the decision of this Court in the State of Saurshtra vs Memon, Haji Ismail Haji completely covers and concludes the present appeals.
On behalf of respondents it has been, contended that the decision aforesaid proceeded on a finding that the, act of State,.
was not completed before the impugned orders were made and that finding being a finding of fact does, not bind the respondents who were not parties to the case in which the decision was rendered.
In the appeals before us the main contention on behalf of the respondents has been that the impugned orders were made after the assumption of sovereignty by the Dominion of India was completed, and therefore the decision of this Court in the State of Saurashtra vs Memon Haji Ismail Haji(1) is not determinative of the problem which arise,% in these, appeals.
It has been further argued that, after full sovereignty, had, been assumed by the Dominion of India, the petition of the people of Junagadh, including the respondents was not that of.
aliens outside the State, but their position on such assumption of sovereignty was that of citizens of India against whom there could be no act of State and they had rights as such citizens in respect of which they could ask for relief in the municipal courts.
We have set out above, in brief outline, the principal point which falls for decision in these appeals and the respective contentions of.
the parties relating thereto in order to highlight the main problem presented for solution in these appeals.
But we must first set out the essential facts which are relevant for the solution of the problem ' We have already stated that the essential facts , are the same in these appeals, though the facts relating (1) [1960] I section C R. 537.
975 to each ' of the grants made in favour of the respondents are, different We shall state the essential facts bearing upon.
the main problem and then briefly refer to the grants made in each of the India attained independence in 1947.
As from the 15th day of August, 1947, two independent Dominions were set up known respectively as India and Pakistan under the Indian Independence Act, 1947 (10 & 11 Geo.
C. 30).
Under section 7 of the said Act, the suzerainty of Iris Majesty over the Indian States including Junagadh lapsed.
It released those States from all their obligations to the Crown.
The White Paper on Indian States said (at page 32) : "It was evident that if in consequence the Indian States became separate independent entities, there would be a serious vacuum not only with regard to the political relationship between the Central Government and the States, but also in respect of the co ordination of all India policies in the economic and other fields.
All that the Dominion Government inherited from the Paramount Power was the proviso to section 7 of the Indian Indepen dence Act, which provided for the continuance, until denounced by either of the parties, of agreements between the Indian States and the Central and Provincial Governments in regard to specified matters, such as Customs, Posts and Telegraphs, etc.
(Appendix IV).
" A process of accession was therefore begun and by August 15, 1947 all the States in the geographical limits of India barring Hyderabad, Kashmir and Junagadh had acceded to the Indian Dominion.
The Nawab of Junagadh however, did not accede to the new Dominion of India by executing an Instrument of Accession as did the other Rulers in Saurashtra.
He fled the country and the affairs of Junagadh State fell into disorder and chaos.
At the request 976 of the Nawab 's Council, the Government of India decided to take over the administration of the State.
On November 9, 1947, the Regional Commissioner, Western India and Gujarat States Region, assumed charge of the administration of the State on behalf of the Government of India.
A proclamation was issued on that date which.
said that the Regional Commissioner had assumed charge of the administration of the Junagadh State at 18 00 hours on November 9, 1947.
On November 14, 1947 the Regional Commissioner appointed Shri section W. Shiveshwarkar as Administrator of Junagadh State.
The Administrator passed certain orders which are the orders impugned in these appeals and to which we shall presently refer, but we must first complete the general picture of political changes that took place in Junagadh.
In February, 1948 the Government of India held a referendum in Junagadh State to ascertain the choice of the people in regard to accession and the people voted by a large majority in favour of accession to the Dominion of India.
The Administrator then decided with the approval of the Government of India to appoint an Executive Council with himself as President and three other persons as members thereof.
In December, 1948 the elected representatives of the people of Junagadh resolved that the administration of the State be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra ' State with a view to framing a, common Constitution for Saurashtra and the Junagadh State.
It is necessary to state now how this integration took place.
On January 23, 1948, thirty rulers of the principal States of Kathiawar signed a covenant bringing into existence the United State of Kathiawar (later I known as the ' United State of Saurashtra) comprising the territories of their States for the welfare of the people and entrusted to a Constituent, Assembly the.
task 977 of drawing up a democratic Constitution for that State within the frame work, of the Constitution of India, to which they had already acceded.
On that date Junagadh State had no Ruler nor was any Covenant signed on behalf of the Junagadh State.
Later, in December, 1948, the elected representatives of the people of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh recommended to the Government of India and the Government of the United State of Saurashtra, as it was then called, that the administration of the States mentioned above be integrated with the United State of Saurashtra.
The Rulers of the Covenanting States thereupon entered into a Supplementary Covenant with the concurrence of the Government of India to provide for such integration and for the participation of the elected representatives of the people of these States into the Saurashtra Constituent Assembly.
Article 3 of the, Supplementary Covenant was in these terms (See White Paper on Indian States, page 249) : "From a date to be agreed upon between the Government of the said States and the Government of the United State of Saurashtra, with the concurrence of the Government of India, the administration of the said States shall be integrated with that of the United State of Saurashtra and thereafter the legislative and executive authority, powers and jurisdiction of the United State of Saurashtra shall extend to the said States to the same extent as it extends to the territory of any Covenanting State. . . " The administration of the Junagadh State was thereafter integrated with that of the United State of Saurashtra on January 20, 1949.
Therefore, as from that date the legislative and executive authority and jurisdiction of the United State of Saurashtra extended to the Junagadh State to the same extent as it extended to the rest of the territories of the Covenanting States.
978 Further political changes took place after January 20, 1949, but with those changes we are not concerned in the present appeals.
The two dates which are important for our purpose are November 91 1947, when the Regional Commissioner first took over charge of the administration of Junagadh and January 20, 1949 when Junagadh merged into the United State of Saurshtra.
Now, as to the impugned orders made by the, Administrator.
In Civil Appeal No. 349 of 1958 the ancestor of the respondents, had obtained grants from the then Nawab of Junagadh of two villages called Handla and Venderwad some time between the years 1865 and 1868.
A detailed history of the grants so made is not necessary for our purpose.
On December 6, 1947, the Administrator made the following order "It has come to the Administrator 's notice that Aba Salem Bin Abs Mahmed Hindi the alienee of Handla village, (i) was maintaining many Arab employees of Timbdi it his house in Junagadh, (ii) was uttering threats to massacre all Hindus of Handla village,.
(iii) was keeping in Hendla fifty animals at the expense of the poor village people, (iv) did not pay any remuneration to Dhedh employees of his garden and was exacting Veth from them, (V) was buying exhorbitant cesses from the village people, (vi) had converted into Islam three Hindus, and (vii) had taken the, following arms from Hand to Junagadh about a month ago,: 979 (a) 12 bore guns and (b) one M. I. gun.
It is, therefore, ordered that.
the village J. of Handla should be taken under the State manager.
The Revenue Commissioner should mak e necessary managements for the same and report compliance.
By that order the management of Kandla was taken over by the State, Though there is no reference to the other village Venderwad in the order the admitted position is that the management of both the villages was taken over.
Then on January 8, 1949, the Administrator passed the following order: "The Junagadh State Government is pleased to order that the land and villages comprising the Handla estate which is an Inam grant be resumed by the State forthwith.
" This order also refers only to the Handla estate, but the admitted position is that both the villages were resumed by the order of the Administrator.
It is the order dated January 8, 1949, which is impugned by the respondents in this appeal.
In Civil Appeal No 497 of 1958 the grant was in respect of a bungalow or building known as 'Datar Manzil '.
On 1 March 9, 1948 the Administrator made the following order: " The State building situated near Gadhrup Wada at Junagadb, was granted to Khan Shri Abdullkanmiyan Mahomedkhanmiyan hereditarily by Way of gift, under Dewan "Daftar Tharay No. 3379 dated lot August, The said Tharay is hereby cancelled and it is hereby ordered in the interest of the State that the said building along with all the superstructures thereon should be resumed and managed by the State as State property.
" 980 In Civil Appeals Nos. 220 and 221 of 1958 a the impugned order is dated July 27, 1948, and is in these terms: "Twenty five Santis of land from the village of Khokhardea under Vanthali, Mahal was granted as a gift 'hereditarily to Mr. Mohamed Abdulla, son of late.
Jamadar Abdulla Moosa under Hazur Farman No. 279 dated 30th April, 1943.
In view of the principles of Alienation settlement of 1897 no grant can be wantonly favoured to anybody in contravention of the well established principles of resumption attaching to such grants.
It is hereby ordered that Hazur Farman No. 279 dated 30th April, 1943, is cancelled and the land in question should be resumed by the State forthwith by setting aside the settlement made thereon.
" It will be noticed, from what has been stated above that the impugned orders ' were all made after November 9, 1947, but, before January 20, 1949.
The question before us is whether the orders were made in pursuance of acts of State not justiciable in the municipal courts.
There can, be no doubt that if the decision of this Court in State of Saurashtra vs Memon Haji Ismail Haji (1) applies, then these appeals must be allowed.
Learned counsel for the respondents has however sought to distinguish that decision on the ground that the decision proceeded on the footing that the Dominion of India assumed sovereignty over Junagadh on January 20, 1949.
His contention is that when the Dominion of India assumed charge of the administration of Junagadh State on November 9, 1947, through the Regional Commissioner, Western India and Gujarat States Region, there was a complete changeover of sovereignty, the act of State was complete, and the.
Dominion of India became the new sovereign; thereafter, (1) [1960] I.S.C.R. 537.
981 the people of Junagadh including the respondents, so the argument proceeded, became citizens of the Dominion of India and had rights as.
such citizens it in respect of which they could ask for relief in the municipal courts.
It would be apparent that this argument consists of two steps: the first step in the argument is that there was a complete changeover of sovereignty on November 9, 1947 and the act of State was complete; the second step in the argument which is really based on the correctness of the first step is that on such a change over of 'sovereignty the people of Junagadh, including the respondents, became citizens of the Dominion of India and were no longer aliens outside the Dominion.
, We shall now consider the validity of the first step in the argument.
In doing so we must make it clear that we must not be understood to have assented to the submission of learned counsel for the respondents that a finding as to change over of sovereignty or completion of an of State, is a finding of fact pure and simple.
In our view, the question essentially is what inference in law should be drawn from the fact proved or admitted relating to the change over of sovereignty.
As the matter was not argued from this stand point in the State of Saurashtra vs Memon Haji Ismail Haji(1), we have allowed learned counsel for the respondents to address us on this question.
Learned counsel for the respondents has made a two fold submission: firstly, he has submitted that the question as to when the change over of ,sovereignty took place is a political question, and must or should be referred to the Government of India for opinion and the Court should abide by that opinion; secondly,he has submitted that on the facts admitted in this case, it should be hold that there.
was a complete change over of sovereignty on November 9, 1947, and the act of State was complete.
We do not think that either of these two submissions of learned counsel for the respon dents is correct.
On the first snbmission he has (1) ; 982 drawn our attention to para.
603 at pages 285 286, Vol. 7 of Halsbury 's Laws.
of England, 3rd 'Ed.
That paragraph is in these terms : .lm15 " There is a class of facts which are conveniently termed "facts of State".
It consists of matters and questions the, determination of which is solely in the hands of the Crown or the government, of which the following are examples (1) Whether a state of war exists between the British Government and any other State, and if so, When it began; the municipal courts have no power of inquiring into the validity of a declaration by the Crown whether a state of war exists or whether it has ended: (2) whether a particular territory is hostile, or foreign, or within the boundaries of a particular state; (3) whether and when a particular government is to be recognised as the, government of an independent state,, (4) The status of a person claiming, immunity from judicial process on the ground of diplomatic privilege.
The court takes judicial notice of such facts of state, and for this purpose in any case of uncertainty, seeks information from a Secretary of State; and the information so received is conclusive.
Learned counsel has also referred us to some of the English decisions on which the statements in the paragraph quoted above axe based.
We consider it unnecessary to examine those decisions.
, It appears to us that the question with which we are concerned in the present appeals is not a question on which it is necessary to seek information from to relevant department of the Government of India; for ' one thing, it does not appear to us that there is any uncertainty in the matter; secondly, as we shall 983 presently show, the Government of India in the relevant department has already spoken with sufficient clarity in the: White Paper on Indian States with regard to the political changes in Junagadh and what the Government of India has stated therein shows clearly enough that there was no changeover of assumption of sovereignty on 'November 9, 1947 in the sense 'which learned counsel for the respondents has contended for; lastly, it appears to us that the question with which we are concerned in these appeals is not essentially a question as to any disputed ""facts of State" the determination of which is solely in the hands of government; rather it is a question which must be determined by the court.
What we have to determine in these appeals is not; the status or boundaries of a particular State territory, but the validity or otherwise of the plea taken on behalf of the appellant State that the impugned orders made by the administrator were acts "of State not justiciable in the municipal courts.
There is a long line of decisions in which such a plea has been determined by courts ' of law without the necessity of obtaining the opinion of Government.
The plea is really a plea with regard to the maintainability of the suits brought by the respondents and must be determined by the courts concerned.
At one stage of the arguments learned counsel for the respondents referred us to s.6 of the Extra Provincial Jurisdiction Act, 1947 (XLVII of 1947) and contended that under that section it was obligatory on this court to refer the question to the Ventral Government.
When however it was brought to his notice that section 6 in terms did not apply to the proceedings out of which these appeals have arisen he submitted that even if, it be not obligatory to refer the question to the Central Government, it is expedient that it should be so referred inasmuch as the answer to the question depends on "the extent of the jurisdiction" which the Dominion of India, assumed in Junagadh on November 9, 1947.
This according to learned counsel, is a " 'fact of State" which only; Government can determine.
984 We have already stated there is no uncertainty about.
the facts on which the plea of the appellant State is based, and Government has already spoken about them with sufficient clarity.
What are these facts and how has Government spoken? We refer to para.
223 at pages 113 and 114 of the White Paper on Indian States issued by the Government of India, Ministry of States, a publication to which this Court has referred in several earlier decisions as containing the authentic opinion of Government on the political questions involved.
"The position of Junagadh and certain other adjoining States in Kathiawar may also be briefly stated here.
After the Nawab of Junagadh had left the State for Pakistan, the administration of the State was taken over by the Government of India on November 9, 1647, at the request of the Nawab 's Council.
Obviously, the action taken by the Govern.
ment of India had the fullest approval of the people of Junagadh in that the results of the referendum held in Junagadh and the adjoining smaller States in February 1948, showed that voting in favour of accession to India was virtually unanimous.
During the period the Government of India held charge of the State an Administrator appointed by the Government of India assisted by three popular rep resentatives conducted the administration of the State.
In December 1948, the elected representatives of the people of Junagadh resolved that the administration of the Stat e be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State with a view to framing a common Constitution for Saurashtra and the Junagadh State.
Similar resolutions were adopted by the representatives of Manavadar, Mangrol,.
Bantwa, Babariawad and Sardargarh.
Accordingly a Supplement Covenant (Appendix XXXVI) was 985 executed by the Rulers of Kathiawar States with a view to giving effect to the aforemen tioned resolutions.
The administration of Junagadh was taken over by the Saurashtra Government on January 20, 1949, and of the other States some time calling.
Accordingly the Constitution treats Junagadh and these States as part of Saurashtra.
" It would be clear from the aforesaid paragraph that the various steps in the assumption of sovereignty over Junagadh by the Dominion of India, between the dates November 9, 1947, and January 20, 1949, were these: (1) The administration of Junagadh was taken over by the Government of India on November 9, 1947 at the request of the Nawab 's Council; (2) during the period the Government of India held charge of the State, an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of the State; (3) in February, 1948 there was a referendum and the people of Junagadh voted in favour of accession to India; but no actual accession took place by the execution of any Instrument of Accession; (4) in December, 1948 the elected representatives of the people of Junagadh resolved that the Administration of the State be made over to the Government of Saurashtra and the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State; (5) a Supplementary Covenant (Appendix XXXVI of the White Paper) was executed by the Rulers of Kathiawar States with a: view to giving effect to the resolutions aforesaid; and (6) lastly, the administration of Junagadh was taken over by the Government of Saurashtra on January 20, 1949.
986 In M/s. Dalmia Dadri Cement Co., Ltd. vs The Commissioner of Income tax (1) this Court observed.
.lm15 "In law, therefore, the process of acquisition of new territories is one continuous act of State terminating on the assumption of sovereign powers de jure over 'them by the new sovereign, and it is only thereafter that rights accrue to the residents of those territories as subjects of that sovereign.
In other words under the dominion of a new sovereign, the right of citizenship commences when the act of.
State terminates and the two therefore cannot co exist.
" There may be cases where by a treaty or an agreement there is a change, over of de lure sovereignty at one and the same time and in such a circumstance the change over may not be a process, but that is not what happened in the case of Junagadh.
The administration of Junagadh fell into chaos and disorder and the Government of.
India stepped in at the request of the Nawab 's Council and took charge of the administration through an Administrator, on November 9, 1947, the Ruler having fled the country before that date.
It is clear to us that there was no change over of de jure sovereignty on that date.
Junagadh State still continued as such and did not cease to exist; otherwise there would be no meaning in the referendum held in February, 1948 or the resolutions passed in December, 1948, by the elected representatives of the people of Junagadh.
Nor, would there be any meaning in the Supplementary Covenant executed by the Rulers of Kathiawar States.
It is also worthy of note that there was no accession to India by the Junagadh State by the execution 'of any Instrument of Accession.
We may in this connection refer to sections 5 and 6 of the Government of India Act, 1935, as they stood at the relevant time.
Section stated inter alia that the Dominion of India shall, (1) [1959] section C. R. 729, 741.
987 as from the 15th day of August, 1947, be a Union, comprising (a) the, Governor is ' Provinces, (b) the; Chief Commissioners ' Provinces,(c) the Indian States acceding.
to the, Dominion in the manner provided by section 6, and (d) any other areas that, may with the consent of the Dominion be included, in the Dominion.
Junagadh was neither a Governor 's nor a Chief Commissioner 's Province.
It did not accede in the manner laid down in section 6.
It was not, therefore, a State acceding to, the Dominion.
Nor do we think that the territory of, Junagadh State was included within the territory of the Dominion in the sense of el.
(d) of section 5 as from November 9, 1917.
The process of assumption of sovereignty was not yet complete and the Dominion of India did not treat the territory of Junagadh, as part of its own territory.
The Dominion Government gave its concurrence to the Supplementary Covenant executed by the Rulers of Kathiawar by which the States of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh were to be integrated with Saurashtra.
It is significant that in this Supplementary, Covenant Junagadh was mentioned as a separate State, the administration of which was to be integrated with the United State of Saurashtra.
It was only when, this.
integration took place that Junagadh ceased to be a separate State.
This position appears to us to be beyond any doubt and has been made sufficiently clear by the statements made in, par&. 223 of the White Paper on Indian States.
Learned Counsel for the respondents has relied on certain observations made in well known text books on International law and has contented that State sovereignty and.
, State jurisdiction are complementary and co extensive; and a right of property and control exercised by the State is really a right of territorial severeignty and therefore the acquisition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory.
(See Sohwarzenberger: International , Vol. 1, page 79: Charles Cheney Hyde: International Law, 2nd revised edition, Vol.
I, page 319; Oppenheim 's International Law, 8th Edn.
I, page 545).
He has contended that in view of the aforesaid observations, it must be, held that the Dominion of India assumed sovereignty over Junagadh on November 9, 1947; because, so learned counsel contends, exercising control over a parti cular territory is exercising sovereignty over it.
We do not think that the observations to which learned counsel has referred help in the solution of the problem before us.
In cases where the acquisition of new territory is a continuous process, a distinction must be made between de,facto exercise of control and de jure assumption of sovereignty.
The problem before us is, as was stated in M/s. Dalmia Dadri Cement Co., Ltd. V. The Commissioner of Income tax (1), as to when the act of State was complete; in other words, when did the assumption of sovereign powers de jure, by the new sovereign over territories acquired by it take place? The problem is really one of State succession; namely succession to International Persons as understood in International law.
Such a succession takes place when one or more International Persons take the place of another International Person in consequence of certain changes in the latter 's condition; there may be universal succession or partial succession.
In the case before us, as long as Junagadh State ' continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and exercised control therein, it did not assume de jure sovereignty over it.
Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de, jure sovereignty over Junagadh by its integration into the United State of Saurashtra.
It is perhaps necessary here to refer to two decisions on which learned counsel for the (1) [1959] section C. R. 729, 741.
989 respondents has relied: In re: Southern Rhodesia(1) and Sammut vs Strickland (2).
In the first decision it was observed in connection with the conquest of certain territories in Southern Rhodesia, that a proclamation of annexation is not essential to constitute the Crown owner of the territory as completely as any sovereign can be owner of lands publici juris; a manifestation of the Crown 's intention to that effect by Orders in Council dealing with the lands and their administration, is sufficient for the purpose.
These observations were made in the context of a question not between State and State but between sovereign and subject.
Lord Sumner said: " No doubt a Proclamation annexing a conquered territory is a well understood mode in which a conquering Power announces its will urbi et orbi.
It has all the advantages (and the disadvantages) of publicity and precision.
But it is only declaratory of a state of fact.
In itself it is no more indispensable than is a declaration of war at the commencement of hostilities.
As between State and State special authority may attach to this formal manner of announcing the exercise of sovereign rights, but the present question does not &rise between State and State.
It is one between sovereign and subject.
The Crown has not assented to any legislative act by which the declaration of its will has been restricted to one definite form or confined within particular limits of ceremonial or occasion.
The Crown has not bound itself towards its subjects to determine its choice upon a conquest either out of hand or once and for all.
If her 'Majesty Queen Victoria was pleased to exercise her rights, when Lobengula was defeated by her and her subjects, as to one part of the dominions in 1894 and as to another.
part not until 1898, (1) (2) 990 if she was pleased to do so by Public acts of State which indicate the same election and confer the same supreme rights of disposition over his conquered realm as annexation would have done it is not for one of her subjects to challenge her policy or to dispute her, manner of giving effect to it.
, We do not think that these observations help to establish the contention of learned counsel for the respondents that any exercise of administrative control in acquired territory must mean at once that there is an assumption of sovereignty ' by the incoming State so as to terminate the act of State.
The observations made by Lord Sumner merely show that with regard to territory which the 'Crown has Conquered the Crown 's intention can be manifested in more than one way, and not necessarily by a proclamation.
In the case before us a proclamation was issued by the Administrator, but that merely announced that he had assumed charge of the administration of Junagadh State under orders of the Government of India.
It made no announcement as to assumption of sovereignty.
In the second decision one of the questions raised was the true nature of the title of the Crown to the sovereignty of Malta, and a distinction was sought to be drawn between ceded territories those acquired by an act of cession from some sovereign power, and those ceded by the general consent or desire of the inhabitants.
It was held that so far as concerned the prerogative right of the crown to legislate by Letters Patent or Orders in Council for the ' ceded colony, the distinction was of no materiality '.
It is difficult to see how this decision affords any assistance to the respondents.
It is indeed true that the people of Junagadh voted for accession to the Dominion of India , but no Accession actually took place and later there was a merger in ' the United State of Saurashtra with the consent of the people of, Junagadh and the Government of 991 India Till, such merger there was,, no "cession" of territory in the I sense either with or without the Consent of the people.
In view, the only conclusions which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20, 1949.
This disposes of the main argument advanced on, behalf of the respondents, and it is unnecessary in these appeals to consider the further argument to what rights the subjects of the ex sovereign in the acquired territory carried with them as against the new; sovereign.
At one stage of his argument learned counsel for, the respondents commended for our acceptances the view of Chief Justice John Marshall in United States vs Percheman (1) that when 'the inhabitants of the acquired territory change their allegiance and their relation to the old sovereign is dissolved, their rights of property, remain undisturbed, and, he suggested that this view was consistent with modern usage of nations and was accepted by the Permanent Court of Inter.
national Justice.
(See the Advisory Opinion of the Permanent Court on the Settlers of German Origin in Territory ceded by Germany to Poland, Series B, No. 6, particularly pp. 35 36).
He conceded, however that this Court has accepted the view expressed by the English Courts in Cook vs Sprigg(2) and the decisions which followed it.
That view proceeds on the doctrine that acquisition of territory by conquest, cession or; annexation being an act of State ', municipal tribunals have no authority to give a remedy in respect of any actions arising therefrom (See M/s. Dalmia Dadri Cement Co., Ltd.,V.
The Commissioner of Income tax(3) and State of Saurashtra vs Memon Haji Ismail Haji(4) Therefore learned counsel,was at great pains establish that the act of State was complete on November 9, 1947, (1) ; , 86 87.
(2) (3) [1959] section C. R. 729, 741 (4) 7. 992 and he argued that thereafter the respondents be came citizens of the Dominion of India and under section 299 of the Government of India Act, 1935, they could not be deprived of property, save by authority of law.
He relied on two decisions of this Court: Thacker vs State of Saurashtra (1) and Virendra Singh vs State of Uttar Pradesh (2).
In view of our finding that the act of State did not terminate till the process of acquisition was complete on January 20, 1949, it becomes unnecessary to consider this second step in the argument of learned counsel.
But per haps it is necessary to add that the decision in Virendra Singh vs State of Uttar Pradehe (2) was based on the special circumstances mentioned there in which led to the making of the Constitution of India.
The learned Attorney General appearing for the appellant State has submitted that the principle of Virendra Singh 's case (2) cannot be extended to the entirely different set of circumstances in which the Government of India Act, 1935, was made and a. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State.
He also drew our attention to a decision of this Court in Jagannath Agarwala vs The State of Orissa (a) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force.
of the Constitution, it was held that unless the now sovereign had expressly or impliedly admitted the claims, the municipal courts bad no jurisdiction in the matter.
We consider it unnecessary to give our decision on these 'submissions, because it is obvious that before the Dominion of India assumed de jure sovereignty over Junagadh, the respondents were not in a position to call to their aid the provisions of section 299 of the Government of India Act, 1935.
(1) A.I.R. 1954 S.C.680.
(2) (3) ; 993 In the appeals before us we are dealing with orders made the Administrator before the act of ,State was complete.
The action taken by the impugned orders &rose out of and during an act of State.
That being the position, it is clear that the municipal, tribunals had no authority to give a remedy in respect of such action.
It remains now to consider the last argument advanced on behalf of the respondents.
As was observed in State of Saurashtra vs Memon Haji Ismail Haji (1) an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded.
On behalf of the respondents it has been contended that the Administrator purported to cancel or :resume the grants under consideration in these appeals in pursuance of law; therefore, it was not open to the appellant State to take up the plea of an act of State.
We 'do not think that there is any substance in this argument.
Learned counsel for the respondents in Civil Appeal No. 349 of 1958 has drawn our attention to the pleadings, particularly to par&. 8 of the written statement filed on behalf of the appellant State.
In that paragraph it was stated the order of resumption dated January 8, 1949 was legal and the Administrator had authority to resume such inam grant.
On the basis of this paragraph 'it has been contended that inasmuch as the Administrator purported to act under authority of law it was not open to the appellant State to raise the plea of an act of State.
In this connection we must also refer to para.
17 of the written statement where the appellant State specifically pleaded that the plaintiff respondent had no right to bring the suit against Government.
In the trial court a specific issue was ;struck on the question as to whether the court had jurisdiction to hear and determine the suit.
and under this issue the argument advanced was that the order of resumption was an act od State not justiciable in the municipal.
courts.
It appears, however, that the appellant State (1) [1960] 1 S.C.R.537.
994 also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State.
The trial, court, held that the order of resumption was not an act of State It further held that the order of resumption was not justified by the rules in: force in the Junagadh State.
In these circumstances it cannot be said that the appellant State did not plead an act of State; nor can it be said that it was not open to the appellant State to raise, that plea ' , In the High Court also the same plea of: act of State was urged on behalf of the appellant State but was rejected by the High Court on the basis of its decision in State of Saurashtra vs Memon Haji Ismail Haji Valimamad(1).
That decision, we have stated earlier, was overruled by this Court in State of Saurashtra vs, Memon Haji Ismail Haii Learned counsel for the respondents then, referred us to an order dated February 9, 1949, 'in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orders passed on January, 8, 1949, could not be cancelled.
Apparently the orders dated February.
, 9, 1949 was passed on some representation made, at the instance of the plaintiffs respondents.
We have to read the two orders, one dated January 8, 1949, and the other dated February 9, 1949, together.
If so read, it is clear that the order dated January 8, 1949, was, made by the Administrator not under the authority of any law but as an act of State.
Learned counsel for the respondents relied on the decision in Forester vs The Secretary.
of State for India(3).
In that case, the Privy Council, upon a construction of the treaty, or agreement made by the British.
Government in August, 1805, with Begum Sumroo, held that the Begum was not a sovereign princess but a mere Jagirdar under obligation to keep up a body, of troops to be employed when called upon in, the (1) All.
R. 1953 Saurashtra 180.
(2) (1960) I section C. R. 537.
(3) 995 service of the sovereign.
On that finding it was held that the resumption of the lands by the British Government upon the death of the Begum was not an act of State but an act done under legal title.
We do not think that the principle of that decision applies to the facts of these cases.
In Vejesingji ji Joravarsingji vs Secretary of State for India (1) Lord Dunedin said that no plea specifically using the words " 'act of State" was required and the moment cession of territory was admitted.
, the onus was on the plaintiffs respondents to prove that the right which they claim had been expressly or tacitly recognised by the new sovereign.
If there was ,no such recognition and none was pleaded in these cases the municipal courts would have, no jurisdiction to give any relief.
In this view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents.
The action being an act of State was not ;justiciable in the municipal courts, even if the same were arbitrary.
We have, therefore, come to the conclusion that the courts below were wrong in holding that the suits were maintainable and in enquiring into the merits of the cases.
The appellant State is entitled to succeed on the plea that the orders of resumption made by the Administrator arose out of and during, an act of State and were not, therefore, justiciable in the municipal courts.
We would accordingly allow these appeals and the suits will stand dismissed with costs throughout.
There will be one hearing fee for the hearing in this court.
MUDHOLKAR, J. We also agree that the appeals be allowed.
but we wish to I say a few words.
To appreciate the points which arise in these cases certain broad facts common to all appeals may well (1) (1924) L. R. 511 A. 357.
996 be stated.
The respondents held certain properties in that part of the present State of Gujarat which was formerly the ruling State of Junagadh, by virtue of grants from its Ruler.
After India attained independence on August 15, 1947, the suzerainty which the British Crown held over the State of Junagadh lapsed and that State became completely sovereign.
That was the effect of the Indian Independence Act.
Shortly thereafter, the Ruler of Junagadh went to Pakistan leaving the State to its fate, with the result that the affairs of that State fell into disorder.
At the invitation of the people of the State the Government of India decided to step in and accordingly took over its administration through the Regional Commissioner, Western India and Gujarat States Region on November 9, 1917.
A proclamation was issued by him to the effect that he had assumed the administration of Junagadh as from that date.
On November 14, 1947, he appointed an Administrator for administering the territory.
The Administrator passed orders on different dates resuming the grants in favour of the respondents and dispossessed them.
Thereafter on January 20, 1949, the territory of Junagadh was with the approval of the Government of India integrated with the United States of Saurashtra and the Administrator ceased to exercise any functions as from that date.
The resumption of the grants and the validity of their dispossession were challenged by the respondents by instituting, suits for possession of the property after the integration of Junagadh with the United State of Saurashtra upon the ground that they could not be deprived of their properties by executive action.
According to them the act of the Dominion of India in taking over the administration of Junagadh territory on November 9, 1947, amounts to assumption of sovereignty over it, that ' thereby its residents became citizens of the Dominion of India as from that date and, therefore, no not of state 997 such as resumption of their properties could be committed against them by the Indian Dominion.
According to the appellants no municipal court could grant the relief claimed by the respondents because the act complained of was an act of state.
The plea of the respondents was accepted by the High Court of Saurashtra following the decision in the State of Saurashtra vs Memon Haji Ismail Haji Valimamd(1).
The present appeals are, from its judgment.
The Attorney General who appeared for the appellants stated that this Court has reversed that decision in State of Saurashtra vs Memon Haji Ismail Haji (2) and that, therefore, these appeals should be allowed.
In that case this Court held that the Indian Dominion merely assumed the administration of Junagadh State on November 9, 1947 at the request of the Ruler 's Council but did not formally annex it till January 20, 1949.
Mr. Pathak 's contention is that as the respondents were not parties to the decision in Memon Haji 's case (2) they are not bound by the finding of this Court that the Junagadh State was annexed by the Indian Dominion on January 20, 1949.
It seems to us, however, that the question whether Junagadh was annexed on January 20, 1949, or.
earlier would make little, difference to the result of the appeals before us.
Nor again would the question whether the, I Extra Provincial Jurisdiction Act was applicable to the orders made by the Administrator and this was a display of sovereignty, as contended for by Mr. Pathak, would make any difference.
In along catena of cases beginning from Cook vs Spriggs (3) and going upto Asrar Ahmed vs Durgah Committee, Ajmer(4) the Privy Council has stated the legal position of the subject of a displaced sovereign vis a vis the now sovereign.
In the words (1) A. I. R. 1953 Saurashtra 180.
(2) ; (3) (4) A. I. R. 1947 P.C I. 998 of Lord Dunedin in Vajesinghji vs Secretary of State for India(1), it is as follows When a territory is acquired by,& sovereign State for the first time that is an act of State.
It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, 'it may be by occupation of territory hitherto unoccupied by a recognised ruler.
In all cases the result is the same. 'Any inhabitant of the territory can make good in municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized.
Such rights as he had tinder the rule of predecessors avail him nothing.
Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce those stipulations in the municipal courts.
The right to enforce remains only with the high contracting parties.
" This statement of the law has ' been accepted by this Court in M/s. Dalmia Dadri Cement Co., Ltd. vs Commissioner of Income tax (2) upon which ;reliance has been placed in State of Saurashtra V. Memon Haji Ismail Haji (3) and recently also in Jagannath Aggarwala vs The State of Orissa (4).
Thus even if on the respondents ' own showing that the Junagadh territory must be deemed to have been annexed by the Indian Dominion by assuming administration over it and thereupon its residents became citizens of India, they could assert and establish in the municipal courts of the new sovereign only such rights as were recognized by the.
Indian Dominion.
The respondents claim to be grantees from the Ruler of Junagadh but their grants avail them nothing in the courts of the now sovereign unless they were recognized by that sovereign.
The burden of showing that they were so recognized lay on the respondents.
(1) (1921) L.R. 51 I. A. 357.
(2) (3) ; (4) ; 999 A perusal of the orders passed by the administrator would clearly show that, far from recognizing those grants 'they Were in effect repudiated by him.
The administrator in fact resumed the grants but whatever the form his orders took in truth and in substance they were no" more than a clear arid unequivocal declaration of the fact that the right ' claimed by the respondents to the 'properties in question by virtue of the grants made in their favour by the former Ruler.
were not, recognized by the new sovereign.
Recognition or refusal of recognition of rights of erstwhile aliens who had no legal enforceable , rights cannot be said to be an act of state because in the Indian Dominion other had already vested in the Indian Dominion at the moment it occupied Junagadh territory The right to retain Possession was also dependent, upon recognition by the Dominion of India and by dispossessing the respondents the former exercised its choice and refused to recognise their rights.
On the principle accepted by this Court in the decisions already referred to, the res pondents "were disentitled from obtaining any redress from 'a court in the Indian Dominion, and after the commit into force 'of the constitution, from a court in the union of India, in the absence of recognition of their rights by it or by the Union of India.
We may now ' advert to another point, urged by Mr. Pathak, According to him, if we understood him correctly, the Extra Provincial Jurisdiction Act was applied to Junagadh, that thereunder the local laws prevailing therein were continued and that the Alienation Settlement Act which was one of such laws, conferred on the granted of rights against the Ruler.
By continuing this law the Dominion of India, accordant, to him,. must be deemed to have recognized the respondents rights under the grants.
For enabling us to consider, the point it was necessary for the respondents to place before us the Order of the Dominion of India under 1000 section 4 of the Extra Provincial Jurisdiction Act, 1947 Which alone empowered it to prescribe the laws which of the Indian Dominion, over which it had assumed sovereignty or administrative control.
Similarly they had to place the Alienation Settlement Act of Jungadh before us.
the absence of this material we cannot consider the argument at all.
Mr. Pathak, however contended that if sovereignty was assumed on November 9, 1947, the residents of Junagadh became the citizens of the Indian Dominion and were therefore, entitled for the protection of section 299(1) of the constitution Act, 1935.
` This provision runs thus: "No person shall be deprived of his property save by authority of law".
What section 299(1) protects are the rights of a person to property which he had when section 299(1) cases into force or applied to him.
It does not add to any property right of any person, though it contains an admonition to the State against deprive in any person of his property by mere executive action.
For ascertaining whether the provision has been violated we must first examine the existance and the nature of.the rights possessed by the respondents on November 9, 1947, that is, at the moment of assumption of administration by the Dominion of India over Junagadh territory assuming of,courge that this amounted to assump tion of sovereignty over Junagadh).
Their rights were as grantees from the former ruler and although it thay be that according to the principles of international law their rights as grantees ought not to be affected, no municipal court has their right to enforce the obligation of the new sovereign to respect them.
For, as oitited out by Venkatarama Iyer J., who delivered he judgment of this Court in Dalmia Dadri Cement Co., Ltd. vs Commissioner of Income tax(1): (1) [1959] S.C.R. 729, 741.
1001 "It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign, and that as subjects of the new sovereign, they have only such rights as are granted or recognised by him One of the decisions relied on by this Court in that case is that of the Privy Council in Secretary of State for India vs Bai Rajbai(1) in which they have observed "The relation in which they stood to their native sovereign before this cession and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters.
They could not carry on under the new regime the legal rights, if any, which they might have enjoyed under the old.
The only legal enforceable rights they could have as against their new sovereign, were those, and only those, which that new sovereign by agreement express or implied, or by legislation, chose to confer upon them." Thus, before the respondents could claim the 'benefit of section 299(1) of the Constitution Act, 1935 they had to establish that on November 9, 1947, or thereafter they possessed legally enforceable rights with respect to the properties in question as against the Dominion of India.
They could establish this only by showing that their pre existing rights, such .as they were, were recognized by the Dominion of India.
If they could not establish this fact, then it must be held that they did not possess any legally enforceable rights against the Dominion of India and, therefore, section 299(1) of the Constitution Act, 1935 avails them nothing.
As already stated a. 299(1) did not enlarge anyone 's right to property but only protected the one which a person already had.
Any right to property which in its very (1) (1915) L. R: 42 I.A. 229.

dataset_name: IN-Abs

summary:
The Nawab of junagadh State made grants of properties in favour of the respondents before 1947.
After India attained independence the Nawab fled the country.
At the request of the Nawab 's Council the Government of India took over the administration of the State and on November 9, 1947 the Regional Commissioner assumed charge of the administration on behalf of the Government of India.
The Regional Commis sioner appointed an Administrator of junagadh State.
In December 1948, the elected representatives of Junagadh and certain other neighbouring States recommended to the Govern ment of India and to the United State that of Saurashtra that the States be integrated.
Thereafter, the administration of junagadh State was integrated with the United State of Saurashtra on January 20, 1949.
On different dates between November 9, 1947, and january 20, 1949, the Administrator passed orders cancelling the grants in favour of the respondents and took possession of the properties.
The respondents filed civil suits for the recovery of the properties on the ground that 971 they had been taken away without the authority of law.
The appellant contended that the orders made by the Administrator arose out of and during an act of State and were not justiciable in the municipal courts.
The respondent contended that the ,question as to when the change over of sovereignty took place was a political question which should be referred to the Government of India for its Opinion and the Court should abide by that opinion and that the facts of this case showed that there was complete change over of sovereignty on November 9, 1947, and the act of State was complete.
I Held, (per C. J., Das and Ayyangar, jj.) that the impug ned orders arose out of and during an act of State and they could not be questioned before municipal tribunals.
There was no change over of de jure sovereignty on November 9,1947 when the administration was taken over and junagadh continued to exist as such even after this date.
junagadh was not a State which acceded to the Dominion nor was its territory included within the territory of the Dominion as from November 9, 1947.
It was only on January 20, 1949, that the Dominion of India assumed de jure sovereignty over junagadh by its integration into the United State of Saurashtra and the act of State came to an end.
It was not necessary to seek information from the Government of India as to the date of the change over as there was no uncertainty about it and also as the Government of India had spoken with sufficient clarity in the White Paper on Indian States.
State of Saurashtra vs Memon Haji Ismail Haji, ; and M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of lncome tax, (1959) S.C.R. 729, followed.
In re: Southern Rhodesia, and Samaut vs Strickland , referred to.
Per Sarkar and Mudholkar JJ.
Even if it be accepted that junagadh was annexed on November 9, 1947, and the respondents became citizens of India they could assert and establish, in the municipal courts of the new sovereign only such rights as were recognised by the Indian Dominion.
The burden of showing that they were so recognised lay on the respondents.
The orders passed by the Administrator show that far from recognizing the grants in favour of the respondents they were repudiated.
The respondents could not claims the benefit of section 299 (1) of the Government of India Act; 1935, as they had to establish that on or after November 9, 1947, they possessed legally enforceable right against the Dominion of India, which they could only do by showing that their pre existing rights had been recognized by the Dominion of India; s.299(1) did rut enlarge any rights to property but only protected those which a person already had.
972 M/s Dalmia Dadri Cement Co., Ltd. vs The Gommissioner of Income tax, (1959) S.C.R. 729, In Re,.
Southern Rhodesia, Samaut vs Strickland, , United States vs Percheman, ; , Cook vs Sprigg, , Phacker vs State of Saurashtra, A.I.R. 1954 S.C. 680 and Virendra Singh vs State of Uttar Pradesh, ;


judgement:
Civil Appeal No. 282 of 1960.
Appeal from the judgment and order dated February 15, 1956, of the Madras High Court in Writ Petition No. 404 of 1952.
K. N. Rajagopala Sastri and P. D. Menon, for the appellant.
R. Gopalakrishnan, for the respondent.
October 20.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
Whether the legal representative of a deceased person, who is assessed in respect of the total income of the latter person, as if he were the assessee, can be ordered to pay a penalty under section 46(1) of the India Income tax Act, is the short question that arises in this appeal.
One Ebenezer died intestate on November, 22, 1945, during his year of account which ended on March 31, 1946.
He left behind him the respondent, E. Alfred, his son, and eight daughters.
For the assessment year, 1946 47, the respondent was assessed under section 24B(2) of the Income tax Act, after a notice was issued to him under s.22(2), ibid.
The assessment was completed on March 26, 1951, and a notice of demand was issued under section 29 of the Act.
The respondent appealed against the order of assessment to the Appellate Assistant Commissioner, but during the pendency of the appeal, a penalty of Rs. 250/ was imposed upon 145 him under s 46(1) of the Act by the Income tax officer, as he had defaulted in payment of tax on the due date.
After the appeal was disposed of with very minor modifications, a notice of demand was again issued to him to pay the tax on or before December 15, 1951.
On his default, a second penalty of Rs. 10,000/ was imposed upon him on March 8, 1952.
The respondent then filed a petition under article 226 of the Constitution in the High Court of Madras challenging the imposition and levy of penalty imposed upon him.
The High Court held in his favour, and quashed the, two orders imposing penalty but granted a certificate of fitness to appeal to this Court.
This appeal was then filed.
In reaching the conclusion that section 46(1) of the Act did not apply to a legal representative, the learned Judges of the High Court held that a legal representative could not be said to be included within the words of that section.
"when an assessee is in default in making a payment of Income tax" because of the scheme of the Act, particularly B. 29, where a distinction is made between "an assessee" and "other person".
According to the learned Judges, a legal representative is assessed as an assessee under a fiction in section 24B(2), and that fiction comes to an end when the computation of the tax Or, in other words, the assessment is made.
The learned Judges drew distinction between the three subsections of 8.
24B, and pointed out that sub section
(1) only created a liability on the legal representative for collection of tax but did not refer to him for that purpose as an assessee and sub s.(3) which did not concern itself with collection, did not refer to the legal representative as an assessee, and held that the fiction in sub section
(2) was created for the limited purpose of assessment, and since that subsection also did not concern itself with collection, the fiction could not be carried beyond assessment resulting in the determination of the tax.
146 Thereafter, according to the High Court, the legal representative is not an assessee within the meaning of section 29, but can only be brought under tho words "other person", and inasmuch as sections 45 and 46 refer to "an assessee in default", the legal 3.
representative cannot be treated as such and no penalty can either be imposed upon him or recovered.
We are concerned with the definition of "assessee" before its amendment in 1953.
That definition read as follows: "assessee" means a person by whom income tax is payable" The generality of this definition is sufficient to include even a legal representative who is to pay the tax, though out of the assets of the deceased person.
Section 24B, which makes it legal representative liable, is as follows: 24B. (1) Where a person dies, his executor, administrator, or other legal representative shall be liable to pay out of the estate of the deceased person to the extent to which the estate is capable of meeting the charge the tax assessed as payable by such person, or any tax which would have been payable by him under this Act if he had not died.
(2) where a person dies before the publication of the notice referred to in subsection (1) of section 22 or before he is served with a notice under sub section (2) of section 22 or section 34, as the case may be, his executor, administrator or other legal representative shall, on the serving of the notice under subsection (2) of section 22 or under section 34, as the case may be comply therewith, and the Income tax officer may proceed to assess the total income of the deceased person as if such executor, administrator or other legal representative were the assessee.
147 (3) where a person dies, without having furnished a return which he has been required to furnish under the provisions of section 22, or having furnished a return which the income tax officer has reason to believe to be incorrect, or incomplete, the Income tax officer may make an assessment of the total income of such person and determine the tax payable by him on the basis of such assessment and for this purpose may, by the issue, of the appropriate notice which would have had to be served upon the deceased person had he survived, require from the executor, administrator or other legal representative of the deceased person any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 have required from the deceased person".
The scheme of the section, which was inserted by the Second Amendment Act of 1933 and modified further by the Amendment Act of 1939 is as follows: Subsection (1) of a 24B makes, inter alia the legal representative liable to pay out of the estate of deceased person to the extent to which the estate is capable of meeting the charge, the tax assessed as payable by such person or any tax which would have been payable by him under the Act, if he had not died.
By this sub section, a legal representative is made liable to pay the tax which might have been assessed but not paid by the deceased person or which might be assessed after his death.
It covers all situations and contingencies and makes the liability absolute, limited, however, to the extent to which the estate of the deceased is capable of meeting the charge.
The subsection does not provide for issue of notices, assessment collection or anything connected with the imposition, levy and collection of the tax, Subsection (2) and (3) next provide for different contingencies.
Subsection (2) provides that where a person dies 148 before the publication of a general notice or before he is served with a special notice under s.22 or s.34 his legal representative shall, on the service of the special notices comply with these notices, and the Income tax officer may proceed to assess the total income of the deceased person as if the legal representative were the assessee.
Sub section (3) provides that where a person dies after he has been required to furnish a return but without having furnished such return, or where he has furnished the return but the Income tax officer has reason to believe it to be incorrect, the Income tax officer may make the assessment of the total income of such deceased person, and determine, the tax after serving such notices, as may be required under s.22 or 23, upon the legal representative of the deceased person to produce the accounts, documents or other evidence.
In the present case, the matter fell to be governed by the second sub section, because Ebenezer died before the end of his year of account.
The service of the notice upon the respondent and his assessment, as if he were the assessee, were made under the second sub section.
By reason of this assessment, the respondent became liable under the first sub section to pay out of the estate of Ebenezer the tax assessed, to the extent to which Ebenezer 's estate was capable of meeting the charge but he himself was deemed to be the assessee.
No doubt, the fiction made the respondent an assessee for the purpose of assessing the total income of Ebenezer.
But the question is whether the fiction came to an end after the assessment, so that he remained a mere debtor thereafter to the Department.
The answer to this question would determine the further application of the other sections of the Act.
When a thing is deemed to be something else it is to be treated as if it is that thing, though, in fact, it is not.
The original assessee being dead before the notice, either general or 149 special, to him, he could not be treated as all assessee, and the process of the Act is, by the fiction made available against a different person like a legal representative, who is fictionally deemed to be an assessee for purposes of assessment.
The word "assessment" bears different meanings, and in one sense, it comprehends the entire process of computation and levy of the tax.
It is in this sense that the legal representative becomes an assessee by the fiction, and it is this fiction which has to be fully worked out, without allowing the mind "to boggle" as was said in Commissioner of Income Tax vs Teja Singh(1) applying the dictum of Lord Asquith in East End Dwellings Co., Ltd. vs Finsbury Borough Council(2).
If we turn to the definition of "assessee", it says that an assessee means a person by whom income tax is payable.
A legal representative who by fiction, is decreed to be an assessee therefore, comes within this definition, because he is a person by whom income tax is payable, though out of the assets left by a deceased person.
The assessment of the legal representative is then made under section 23 of the Act, and he has the right to appeal under B. 30, which he would not have, if he ceased to be an assessee after the determination of the tax.
We are not concerned in this case with the position of the legal representative under the third sub section of s.24 B, and are not required to consider what his position would be, if he made a default in the payment of the tax.
The fiction is enacted at least for the purpose of sub section
(2), and it is to that subsection that we are confined in this case.
Nor can the fiction in that sub section be limited by provisions of law for a totally different situation.
Under s.45, if a notice of demand is issued under s.29 on an assessee and has not been complied with the assessee is deemed to be in default, and under section 46 (1), if the assessee is in default, a penalty, can be imposed.
All these stages the respondent (1) (1959) Supp.
1 S.C.R. 394.
(2) , 132. 150 went through in this case.
He was himself an assessee qua the assets and liability to tax, of Ebenezer he was, therefore, an assessee in default and liable to the imposition of penalty for this default.
The question is whether s.29, which makes a distinction between an assessee and "other person", makes any difference.
The High Court as well as the learned counsel for the respondent (who pressed upon us the reasons of the High Court) referred to the words of s.29 where in addition to an "assessee" liable to pay the tax occur the words "other person" liable to pay such tax, and observed that the respondent would fall to be governed by the words "other person" liable to pay such tax and not by the words "the assessee" liable to pay such tax.
The High Court reasoned, therefore, that the words "an assessee" in sections 45 and 46 in their application are limited to an assessee, who is assessed on his own behalf and not "other person", who is not an assessee.
This distinction, it observed, must be borne in mind in interpreting the word "assessee" used in sections 45 and 46, and so construing, limited the word "assessee" in those two sections to an assessee proper.
The words "other Person" cannot apply to a legal representative, if he is an assessee by fiction, and the section has to be worked out to its logical conclusion.
If he falls within the word "assessee ', as has been shown above, he does not fall within the words "other person" and it is not necessary to find in this case what persons are there meant to be included.
In our opinion, the penalty could be imposed on respondent as an assessee.
The appeal thus succeeds, and is allowed with costs here and in the High Court.
Appeal allowed.

summary:
One died intestate during his year of account Leaving g behind him his son A the respondent and eight daughters.
After notice under section 22 (2) of the Income Tax Act was issued, A was assessed under section 24 (2) of the Act and notice of demand was issued under section 29.
The respondent appealed to the Appellate Assistant Commissioner, but during the pendency of the appeal a penalty was imposed upon him under section 46 (1) of the Act by the Income tax officer as the respondent had defaulted in payment of tax on the due date.
After the appeal was disposed of a notice of demand was again issued to the respondent to pay the tax.
On respondent 's default, a second penalty was imposed upon him.
Respondent challenged this order by writ.
The High Court quashed the order inter alia holding that section 46 (1) did not apply to a legal representative as he was assessed as an assessee under a fiction in section 24B (2) and that fiction came to an end when the assessment was made, for the fiction was created for the limited purpose of assessment, and since that subsection was not concerned with collection, the fiction could not be carried, beyond assessment resulting in the determination of tax.
The question was whether the fiction came to an end after the assessment, so that the Legal representative remained a mere debtor to the department or could he be ordered to pay penalty under section 46 (1) of the Act. ^ Held, that the fiction made the respondent an assessee for the purpose of assessing the total income of E.
That fiction did not come to an end after the assessment.
When a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact it is not E being dead before the notice, either general or special, to his, could not be treated as an assessee, and the process of the Act, was, by fiction, made available against the legal representative who was the assessee for purpose of assessment which meant the entire process of computation and law of the tax and the fiction had to be worked out to its logical conclusion.
The definition of 144 the word assessee being defined in the Act as a person by whom income tax is payable, the legal representative came within the definition and his assessment being made under section 23, he had also a right of appeal under section 30 since he did not cease to be an assessee after the determination of the tax at least for the purpose of sub section
(2) of section 24 B, and section 29 applied to the legal representative in his position as the assessee.
Commissioner of Income tax vs Teja Singh, [1959] Supp. 1 S.C.R. 394 and East End Dwellings Co. Ltd. vs Finsbury Borough Council,[1952] A.C. 109, referred to.


judgement:
Civil Appeal No. 60 of 1961.
2 Appeal from the judgment and order dated September 15, 1958, of the Mysore High Court at Bangalore in Writ Petition No. 144 of 1957.
K. N. Rajagopal Sastri and P. D. Menon, for for the appellant.
Rameshwar Nath, section N. Andley and P. L. Vohra, for the respondent.
October 5.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal on a certificate of the High Court under article 133 (1)(c) of the Constitution against the judgment and order of the High Court of Mysore passed in a petition under article 226 of the Constitution of India.
The appellant before us is the 1st Additional Income tax officer and the respondent is the assessee, and the matter relates to the assessment year 1948 49 the accounting year being 1947 48.
The facts of this appeal are as follows.
On November 27, 1956, a notice was issued to the respondent under B. 34 (1)(a) of the Indian Income tax Act calling upon him to make a return on the ground that his income had escaped assessment for the assessment year ending 31st March, 1949.
This notice was served on the respondent on November 29, 1956.
The respondent objected that no notice under B. 34 of the Income tax Act could be issued to him because of the lapse of eight years from the end of the accounting year.
This objection was overruled and the respondent filed on June 12, 1957, in the High Court of Mysore, a petition under article 226 of the Constitution for a writ of certiorari quashing the order made by the Income tax officer.
The High Court held on a construction of s 34 of the India Income tax Act, that the words 'any year" as used in section 31(1)(a) mean not the assessment year but the accounting year.
It is that question which is required to be decided in this appeal.
Section 34(1 )(a) reads: 3 section 34(1) "If (a) the Income tax officer has reason to believe that by reason of the omission or failure on the part of an assessee to make, a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year income, profits or gains chargeable to income tax have escaped assessment for that year, or have been under assessed, or assessed at too low a date, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or (b) . . . . . . he may in cases falling under clause (a) at any time within eight years serve on the assessee, or if the assessee is a company on the principal officer thereof, a notice containing all or any of the requirement which may be included in a notice under sub section (2) of section 22 and may proceed to assess or re assess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so for as may be, apply accordingly as if the notice were a notice issued under that sub section;".
The argument is that the words "any year" in cl.(a) refer to the assessment year because under the Income tax Act the income of the previous year is assessed for the assessment year.
For this purpose reference was made to some of the other provisions of the Income tax Act.
In section 3 of that Act, which is the charging section, it is provided: section 3 "Where any (Central Act) enacts that income tax shall be charged for any year at any rate or rates tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions 4 of, this Act in respect of (the total income) of the previous year of every (individual, Hindu undivided family, (company and other local authority, and of every firm and other ar association of persons or the partners of the firm or the members of the association individually)` ' .
This shows that income tax is charged for "any year" at the rate or rates set out in a Central Act and the reference is to the Indian Finance Act in this case to that of 1948, (Act XX of 1948): Section 9 of that Act reads as follows: section 9(1) "Subject to the provisions of sub sections (3),(4), (5) and (6), for the year beginning on the 1st day of April, 1948, (a) income tax shall be charged at the rates specified in Part I of the Second Schedule to this Act, and (b). . . . . . (2) In making any assessment for the year ending on the 31st day of March, 1949,. . . (3) In making any assessment for the year ending on the 31st day of March, 1949, (a) . . . . . (b) . . . . .
It is quite clear from this section that according in to the Finance Act 1948, the income tax was to be charged at the rates specified in the Schedule attached thereto for the year beginning on the 1st day of April, 1918, and the assessment was for the year ending on March 31, 1949 under sub sections
(2) and (3).
Thus according to the Indian Finance Act assessment was to be made for the year ending March 31, 1949 at rates specified for the year beginning April 1, 1948.
Coming now to 8.
22(1) it is there (1) provided that section 22(1) "The Income tax officer 5 shall, can or before the 1st day of May in each year give notice by publication in the press and publication in the prescribed manner, requiring every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income tax to furnish, within such period less than sixty days as may be specified in the notice, a return, in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total income and total world income during that year: . . " It shows, therefore, that a return has to be made for the year of assessment in regard to the total income during the previous year which is the accounting year; in other words income tax is assessed for the assessment year on total income of the previous year.
When under section 34 (1) (a) a return is required the return has to be made under section 22 for any year, and when the reference is to omission to make a return of the income under section 22 for any year, the year is the assessment year, although the income which is declared relates to the previous year.
The reference in cl.
(a) of sub section
(1) to B. 22 of the Act therefore makes the meaning of the phrase for any year" referable to an assessment year.
The clause makes it clear that an assessee can be called upon to make a full and true disclosure of all materials necessary for his assessment of that year which necessarily must mean an assessment year and it is, in our opinion, erroneous to say that a return under section 22 of the assessees income for any year would have a different meaning in the first part from that dealing with the full and true disclosure of all material facts necessary for the assessment for that year.
With due respect to the learned Judges of the High Court who gave the decision, the view 6 taken by them as to the meaning of "any year" was erroneous, and the correct way of interpreting section 34 (1) (a) is that the words "for any year" mean for any assessment year and not for any accounting year because as we have said above, the assessment is for the assessment year although of the income which accrued in the previous year.
It may be added that the previous year for different heads of income falling under different sections of the Indian Income tax Act may vary and it could not have been the intention of the Legislature to give different starting points of limitation for different sources of income.
Reading the various sections of the Indian Income Tax Act, which are set out above and the provisions of Indian Finance Act 1948, it is clear that the words "that year." in section 31(1) (a) have reference to the assessment year and not the accounting year.
Our attention was drawn to a, judgment of this court in Pannalal Nandlal Bhandari vs Commissioner of Income tax, Bombay City(1).
In that case it was held that once a notice is given in the prescribed manner under section '22 (1) of the Income tax Act every person whose income exceeds the maximum amount, exempt from tax, is obliged to submit a return, and, if he does not do so it will be deemed that there was an omission on his part within section 34 (1) (a).
The question now debated was not raised there but it was observed that the notices had been issued within eight years from the end of the years of assessment and if cl.
(1) (a) of section 34 was applied the assessment was not barred by the law of Limitation.
It was also observed at page 79 that "the appellant not having submitted a return in pursuance of the notice issued under section 22 (1 ) the Income tax officer was competent under section 34 (1) (a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax".
(1)[1961] 2 section C. R. 35. 7 The appellant also relied upon C.W. Spencer vs Income tax officer, Madras(1).
It was there observed: The period of limitation, whether it is eight years for cases falling under section 34 (1) (a) or four years falling under section 34 (1) (b), has to be computed from the end of that year.
Though the expression "year" has not been further defined by section 34 itself, it should be clear from the context to the section itself that the year referred to is the assessment year and has no reference to the accounting year, which is elsewhere specified by the Act itself as the previous year.
" In our opinion therefore, the view taken by the Madras High Court in C. W. Spencer 's (1) case is the correct view and the view taken by the learned judges of the Mysore High Court is erroneous.
We therefore allow this appeal, set aside the judgment and order of the High Court by which the proceedings taken against the respondent were quashed.
The respondent will pay the costs of the appeal in this court and in the High Court.

summary:
In 1956 a notice was issued to the respondent under section 34(1)(a) of the Indian Income tax Act, calling upon him to make a return on the ground that his income had escaped assessment for the year ending 31st March, 1949 The respondent contended that notice under section 34 of the Act could not be issued to him because of the lapse of eight years from the end of the accounting year.
This contention was not accepted by the Income Tax officer.
The assessee then filed an application under article 226 of the Constitution.
The High Court held on a construction of section 34 of the Act, that the words 'any year ' as used in section 34(1)(a) mean.
not the assessment year but the accounting year.
The Income tax officer appealed The contention was that the words 'any year ' in cl.
(a) refer to the assessment year.
^ Held, that the correct way of interpreting section 34(1)(a) of the Indian Income tax Act, 1922, read with the provisions of the Indian Finance Act, 1948, is that the words 'for any year ' mean for any assessment year and not for any accounting year because the assessment is for the assessment year although of the income which accrued in the previous year (year of account) The Previous year for different heads of income falling under different sections of the Indian Income tax Act may vary but does not give different starting points of limitation for different sources of income.
Panna Lal Nand Lal Bhandari vs Commmissioner of Income Tax, Bombay City, ; , referred to.
C. W. Spencer vs Income tax officer, Madras, , approved.


judgement:
Civil Appeal No. 494 of 1960.
Appeal by special leave from the judgment and under dated April 21, 1958 of the Orissa, High Court in O.J.C. No. 107 of 1954.
G. C. Mathur, for the appellants.
H. N. Sanyal, Additional Solicitor General of India, R. N. Rajagopal Sastri, G. K. Mishra and T. M. Sen, for the respondents.
October 26.
The Judgment of the Court was delivered by SHAH, J.
Messrs.
Buarmah Construction Company a firm carrying on business as building and works contractors executed several contracts in the State of Orissa for construction of buildings roads, bridges etc.
Messrs. Burmah Construction Company, who are hereinafter referred to as the appellants, were registered as dealer in Orissa under the Orissa Sales Tax Act, 1947 from the quarters ending June 30, 1949.
The Sales Tax officers treating the transfer of the materials used in the construction of the buildings, roads and bridges, as sale of goods, assessed the appellants to tax under the Orissa Sales Tax Act.
The tax so assessed under the diverse orders of assessment was paid from time to time.
For the quarters ending June 30, 1949, to March 31, 1954, the appellant paid Rs. 1,17,869 80 as tax and Rs. 2,917 11 0 as penalty.
The following table sets out the tax and penalty paid to the Sales Tax Authorities for the twenty quarters: Srl.
Circle Regist Tax Penalty Total No. Name.
ration paid.
amount No paid Rs. A.P.Rs.
A.P. Rs. A.P. 1.
PU II 1755 35636 7 0 350 00 35686 70 53990 6 6 310 00 54300 66 244 2719 30 . 2719 30 4.
MB 806 3376 60 1352 40 4728 100 5 BP 1560 5349 10 . . .5349 10 6.
CU III 1375 10913 120 905 70 11819 30 7.
CU I 3940 6184 60 . 6184 60 1178869 86 2917 110 120787 36 Relying upon the judgment, of the Madras High Court in Gannon Dunkerly & Co. Ltd .
vs State of Madras(1), the appellant applied on August 9, 1954, to the High Court of Judicature, Orissa for (a) a declaration that the provision of the Orissa Sales Tax Act, 1947 authorising imposition of the sales tax on a turnover of works contracts and repair works were ultra vires the State Legislature; (b) a declaration that the assessment made by the State Sales Tax Authorities on the appellant 's works contracts which had resulted in payment of Rs. 1,20,787 3 6 by was of sales tax and penalties for different quarters were without jurisdiction and illegal and liable to be quashed and that the appellant was entitled to get refund of the said amount; (c) a direction restraining the State and its Sales Tax officers from taking any steps in making any further assessment or complete the assessments pending before them in respect of the appellant 's works contracts with the State Government and levying and collecting any sales tax from the appellant on works contracts; and (d) issue of appropriate writ or directions direting the State of Orissa and its Sales Tax Officers to refund the amount of sales tax and penalties realised from the appellant.
(1)A.I.R. (1954)Mad.1130 245 Following the judgment of this Court in the State of Madras vs Gannon Dunkerly &, Co., Ltd.(1) which confirmed the decision of the Madras High Court in 5 S.T.C. 216, the High Court declared that the assessment of sales tax was not in accordance with law and directed that no steps, either by certificate proceedings or otherwise should be taken to realise the arrears of sales tax in respect of those contracts.
The High Court also directed refund of tax paid, if recovery thereof was not barred under 8.14 of the Orissa Sales Tax Act 1947 on the date of the filing of the application.
The High Court also directed the Sales Tax; Authorities to revise the assessments made in the light of the decision of this Court in respect of assessments made after the date of the petition.
The appellants have appealed to this Court with special leave challenging the order in so far as their claim for refund is partially declared to be barred by the rule of limitation prescribed by ff.
14 of the Orissa Sales Tax Act.
The appellants challenge the correctness of the Order declaring that the portion of the tax paid refund whereof is beyond the period of limitation under B. 14 of the.
Orissa Sales Tax Act, 1947 on the date of the filing of the application under article 226, as not refundable on two grounds: (1) that section 14 of the Act is ultra vires the State Legislature; (2) that an application under B. 14 which imposes a statutory obligation upon the Collector to refund the tax unlawfully recovered subject to certain conditions is not the only remedy open to the tax payer from whom tax has been unlawfully recovered and the power of the High Court to direct refund of tax illegally recovered is not restricted by section 14 of the Act.
To the enforcement of other remedies the bar prescribed by the proviso to section 14 does not apply.
[1959] S.C.R. 246 Section 14 of the Orissa Sales Tax Act, 1947, provides: "14.
The Collector shall, in the prescribed manner, refund to a dealer applying in this behalf any amount of tax paid by such dealer in excess of the amount from him under this Act, either by cash payment or, at the option of the dealer, by deduction of such excess from the amount of tax due in respect of any other period: Provided that no claim to refund of any tax paid under this Act shall be allowed unless it is made within twenty four months from the date on which the order of assessment was passed or within twelve months of the final order passed on appeal, revision, review or reference in respect of the order of assessment, whichever period is later.
" By the first paragraph, 8. 14 imposes an obligation upon the Collector to refund to a dealer any amount paid by such dealer in excess of the amount due from him under the Act.
But the obligation is restricted; refund is not to be made unless an application is made within 24 months of the date on which the order of assessment was passed or within 12 months of the final order passed on appeal, revision, review or reference in respect of the order of assessment, whichever period is later. 'the orissa Sales Tax Act was enacted by the Orissa legislature in exercise of the Legislative authority conferred upon it by item 48 of List II of the Seventh Schedule of the Government of India Act, 1935.
in dealing with the vires of 8.
14A of the orissa Sales Tax Act, which was incorporated in the amended Act 28 of 1958 and which sought to confer a right to claim refund by an application to the collector upon the person from whom tax was collected by the dealer, this Court observed in The State of Orissa vs The Orient Paper Mills Ltd" that 'The power to legislate with respect to a tax.
247 comprehends the power to impose the tax, to prescribe machinery for collecting the tax, to designate the officers by whom the liability may be enforced and to prescribe the authority, obligations and indemnity of those officers.
The diverse heads of legislation in the Schedule to the constitution demarcate the periphery of legislative competence and include all matters which are ancillary or subsidiary to the primary head.
The Legislature of the Orissa State was therefore competent to exercise power in respect of the subsidiary or ancillary matters of granting refund of tax improperly or illegally collected '.
If the power to legislate in respect of tax comprehends the power to legislate in respect of refund of tax improperly or illegally collected, imposition of restrictions on the exercise of the right to claim refund will not be beyond the competence of the Legislature.
Granting refund of tax improperly or illegally collected and the restriction on the exercise of that right are both ancillary or subsidiary matters relating to the primary head of tax on sale of goods.
The provisions of s.14 of the Act are therefore not ultra vires the State Legislature.
It is not necessary to consider in this case whether section 14 prescribes the only remedy for refund of tax unlawfully collected by the State.
The appellants have not filed any civil suit for a decree for refund of tax unlawfully collected from them.
This appeal arises out of a proceeding filed in the High Court substantially to compel the Collector to carry out his statutory obligations under section 14 of the Act.
The High Court normally does not entertain a petition under article 226 of the constitution to enforce a civil liability arising out of a breach of contract or a tort to pay and amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose.
But an order for payment of money may sometimes be made in a petition under article 226 of the constitution against the State or against an 248 officer of the State to enforce a statutory obligation.
The petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a tax illegally collected and it was maintainable: but it can only be allowed subject to the restrictions which have been imposed by the Legislature.
It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable.
We are therefore of the opinion that the High Court was right in restricting the order of refund in the petition under article 226 of the constitution.
The order of refund passed by the High Court, however, requires to be slightly modified and we direct that it shall run as follows: "That part of the sales tax which has been paid by Messrs. Burmah Construction Co. shall be refunded by the State of Orissa to the Burmah Construction company if the order of assessment pursuant to which payment was made was within 24 months of the date on which the petition was filed in the High Court, namely, 9th of August, 1954.
Without deciding whether the Burmah Construction Co. has the right to recover the balance of the amount of ' the tax paid by other appropriate proceedings, the claim to recover the balance of the tax paid is dismissed.
The appeal substantially fails and is dismissed with costs.
Appeal dismissed.

summary:
The appellant who executed works contracts was assessed to sales tax for quarters ending June 30, 1949, to March 31, 1954, and paid the tax.
On August 9, 1954, the appellant filed a writ petition before the High court for a declaration that the provisions of the orissa Sales Tax Act, 1947, permitting levy of sales tax on works contracts were ultra vires, for a declaration that the assessments were illegal and for a refund of the amount paid as tax the High court declared that the assessments were not in accordance with the law and directed refund of the tax paid, if recovery thereof was not barred under section 14 of the Act on the date of the filing of the writ petition.
Section 14 provided that no claim for a refund shall be allowed by the Collector unless it was made within 24 months from the date of the assessment order or within 12 months of that order passed on appeal, revision, review or reference.
The appellant contended that section 14 was ultra vires and that the bar of limitation in section 14 was not applicable to the writ petition before the High Court for refund of tax illegally recovered. ^ Held, that provisions of section 14 of the orissa Sales Tax Act, 1947, were not ultra vires the State Legislature.
The power to legislate in respect of refund of tax improperly or illegally collected, and imposition of restrictions on the exercise of the right to claim refund which was an ancillary or subsidiary matter was not beyond the competence of the legislature.
State of Orissa vs The orient Paper Mills Ltd., A. 1.
R. , relied on.
Held, further, that the bar of limitation in section 14 of the Act was applicable to the case.
The proceedings before the High Court were substantially to compel the Collector to carry out his statutory obligations under section 14, and it could only be allowed subject to the restrictions imposed by the statute.
it was not open to the appellant to rely upon the statutory right and to ignore the restrictions subject to which the right was made enforceable.