judgement:
Appeals Nos. 10 to 12 of 1962.
Appeals from the judgment and order dated February 5, 1960 of the Punjab High Court in T. R. No. 20 of 1956.
895 A.V. Viswanath Sastri and R. Gopalakrishnan for the Appellant.
Gopal Singh and R. N. Sachthey for the Respondent.
August 31.
The Judgment of the Court was delivered by SARKAR, J.
In certain assessment proceedings under the Indian Income tax Act, 1922, the assessee was charged with interest under sub see.
(8) of P. 18A of that Act, That sub section provided that in the cases there mentioned interest calculated in the manner laid down in sub sec.
(6) of a. 18A shall be added to the tax assessed.
The assessee contends that he could not be made liable to pay the interest as in his case it could not be calculated in the manner indicated.
The only question that arises in this appeal is whether this contention is right.
The assessee 's contention was rejected by the Appellate Commissioner but not by the Appellate Tribunal.
The respondent Commissioner thereupon obtained a reference of the following question to the High Court of Punjab for its decision : "Whether, on a true construction of sub Sections(6),(8) and(9 of Section 18A of the Indian Income tax Act, the interest referred to in sub Section (8) is chargeable for failure on the part of an assessee to submit an estimate of his income and pay tax, as required by the terms of sub Section (3) of that Section".
The High Court answered that question against the assessee.
Hence the present appeals by him.
There are three appeals because there are three 896 orders charging interest under s 18A(8), one in respect of each of three assessment years.
It would help now to refer briefly to some of the provisions of section 18A.
That Section deals with advance payment of income tax and Super tax, that is, payment of such taxes on income of the year in which taxes are paid and therefore before assessment Sub section (1) of this section gives power in certain cases to an Income tax Officer to make an order directing a person to make an advance payment of tax of an amount equal to the amount of the tax payable for the latest previous year in respect of which he has been assessed.
Sub section (2) gives an assessee on whom an orders under sub see.
(1) has been make, power to make his own estimate of the advance tax payable by him and to pay according to such estimate instead of according to that order.
Sub section (3) deals with the case of a person who has not been assessed before and requires him to make his own estimate of the tax payable by him in advance and pay accordingly.
This sub section applies to the assessee in the present case for he had not been assessed earlier.
The assessee however neither submitted any estimate nor paid any tax.
It remains now to states that the payment of tax in advance has to be made on June 15, September 15, December 15, and March 15 in each financial year or on such of these dates as may not have expired in the cases contemplated by sub secs.
(2) and (3), and that the income on which tax is payable in advance under the section does not include income in respect of which provision is made by section 18 for deduction of the tax at the source of the income.
Now we shall take up Sub secs.
(6) and (8) of section 18A both of which have to be considered in some detail as the decision in this case depends on the words used in them Sub section (6) is the 897 sub section which has created the difficulty felt in this case and the relevant portion of it is in these terms "Where in any year an assessee has paid tax under sub section (2) or sub section (3) on the basis of his own estimate, and the tax so paid is less than eighty per cent of the tax determined on the basis of regular assessment simple interest at the rate of six per cent per annum from the 1st day of January, in the financial year in which the tax was paid up to the date of the said regular assessment shal l be payable by the assessee upon the amount by which the tax so paid fails short of the said eighty per cent".
It is designed to apply to cases 'where tax has been paid by the assessee according to his own estimate but that estimate is on regular assessment found to be deficient.
Under this sub section interest has to be calculated from January 1, in the financial year in which the tax mentioned was paid and such calculation has to be made on the shortfall between the amount paid and eighty per cent of the tax which was found payable on the regular assessment sub section (8) provides: " where, on making the, regular assessment the income tax Officer finds that no payment of tax has been made in accordance with the foregoing provisions of this section, interest calculated in the manner laid down in sub section (6) shall be added to the tax as determined on the basis of the regular assessment.
The assessee does not dispute that sub secs (3)of section 18A applies to him and that he should have made an estimate and paid tax according to it but he has not done either.
He admits that he is a person to whom sub sec.
(8)applies.
His contention is that in 898 his case since he has not paid tax at all, it is not possible to calculate interest in the manner laid down in sub sec.(6).
Now sub sec.
(8) by its terms applies to a case where no payment of tax has been made and, therefore, there is no first day of January of a financial year in which tax was paid, from which day the calculation of interest has to commence.
Neither, the assessee contends, can any question of a shortfall between eighty per cent of the tax payable on regular assessment and the amount paid arise where nothing had been paid.
The assessee really says that as the language of sub sec.
(6) stands, it can have no operation in his case and therefore he has been wrongly charged with interest.
To clear the ground we may state before proceeding further that the assessee has no other objection to the orders under sub sec.
(8) making him liable for interest.
The question thus raised is one of construction of sub secs.
(6)and (8).
The assessee relies on a rule of construction applicable to taxing statutes which has been variously stated.
Rowlatt J.put it in these words in Cape Brandy Syndicate vs
Inland Revenue Commission, (1).
"In a taxing Act one has to look merely at what is clearly said.
There is no room for any intendment.
There is no equity about a tax.
There is no presumption as to a tax.
Nothing is to be read in, nothing is to be implied.
One can only look fairly at the language used.
" The object of this rule is to prevent a taxing statute being construed "according to its intent, though not according to its words": In re Bethlem Hospital (2).
This Court has accepted this rule.
(1) , 71.
(2) , 459. 899 Bhagwati J. in A. V. Fernandez vs The State of Kerala (1) said, "If. . the case is not covered within the four corners of the provisions of the tax ing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter.
" It has been said that "If the provision is so wanting in clarity that no meaning is responsibly clear, the courts will be unable to regard it at; of any effect." : see Inland Revenue Commissioners vs Baldnoch Distillery Co. Ltd. (2) The assessee therefore contends that on the plain words of sub as.
(8) and (6) he cannot be charged any interest and in fact in a case like his, subsection (8) has to be regarded as of no effect.
Now it is well recognised that the rule of construction on which the assessee relies applies only to a taxing provision and has no application to all provisions in a taxing statue.
It does not, for example, apply to a provision not creating a charge for the tax but laying down the machinery for its calculation or procedure for its collection.
The provisions in a taxing statute dealing with machinery for assessment have to be construed by the ordinary rules of construction, that is to say, in accordance with the clear intention of the legislature which is to make a charge levied effective.
Reference may be made to a few oases laying down this distinction.
In Commissioner of Income tax vs Mahaliram Ramjidas (3) it was said, "The Section, although it is part of a taxing Act, imposes no charge on the subject, and deals merely with the machinery of (1) 7, 847.
(2) , 625.
(3) A.I.R. (1940) P.C. 124.126 127.
900 assessment.
In interpreting provisions of this kind the rule is that construction should be preferred which make the machinery workable utres valeat potius quam pereat." In India United Mills Ltd. vs Commissioner of Excess Profits Tax (1) This Court observed, "That section is, it should be emphasised, not a charging section, but a machinery section.
And a machinery section should be so construed as to effectuate the charging sections.
" We may now profitably read what Lord Dunedin said in Whitney vs Commissioners(2) of Inland Revenue : "My Lords, I shall now permit myself a general observation.
Once that it is fixed that there is liability, it is antecedently highly improbable that the statute should not go on to make that liability effective.
A statute is designed to be workable and the interpreta tion thereof by a Court should be to secure that object, unless crucial omission or clear direction makes that end unattainable.
Now there are three stages in the imposition of a tax: there is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable.
Next, there is the assessment, Liability does not depend on assessment.
That, ex hypothesis, has already been fixed.
But assessment particularises the exact sum which a person liable has to pay.
Lastly, come the methods of recovery, if the person taxed does not voluntarily pay." (1) ; , 816.
(2) , 110.
901 There is one other case to which we think it useful to refer and that is Allen vs Trehearne where section 45(5) of the English Finance Act, 1927 which laid down that "Where in any year of assessment a person ceases to hold an office or employment. chargeable under Schedule 'E ' tax shall be charged for that year on the amount of his emoluments for the period beginning on the sixth day of April in that year and ending on the date of the cessation" came up for construction.
It was contended that a sum of pound 10,000 which became payable to the assessee as the executor of the deceased holder of an office under the terms on which the office was held was not liable to tax under the section as it could not be said to be " his emoluments" since it was payable after his death.
It was observed by Scott L.J., "the rules. in Section 45, Sub section (5) and (6), are rules affecting assessment and collection, and that if there is any difficulty in the precise applicability of the language of those Sub sections, it should be interpreted largely and generously in order not to defeat the main object of liability laid down by Rule 1 of Schedule E." Dealing with the words "his emoluments occurring in the subsection the learned Lord Justice said, "It is quite true that strictly speaking the emoluments in question never became his in the sense that the quantitative amount of pound 10,000 became his property, It never became payable to him, because he died.
But that it was his emoluments under the agreement with the Company in a broad sense seems to me to be obvious, and in order to prevent the Revenue 's failure to get the tax which was intended b Rule 1 of schedule E, it appears to me to be legitimate to treat the words in (1) , 26 27.
902 question as meaning on the amount of the emoluments attaching to the office which he held '.
" On this interpretation of Sub section (5) tax was assessed in this case.
Now it seems to us that we are dealing here with a provision which lays down the machinery for the assessment of interest.
That sub section (8) intended to and did in the clearest term impose a charge for interest seems to us to be beyond dispute.
It says that interest calculated in a certain mariner "shall be added to the tax.
" We do not here have to resort to any equitable rule of constructing or to alter the meaning of the language used or to add to or vary it in order to arrive at the conclusion that the provision intended to impose a liability to pay interest.
That is the plain affect of the language used.
But the Subsection also provides that the interest for which liability was created, has to be calculated in a certain manner.
It is this provision which has given rise to the difficulty.
But obviously this provision only lays down the machinery for assessing the amount of interest for which liability was clearly created; it in substance says that in calculating the amount of interest the machinery of calculation laid down in sub, sec.
(6) shall be applied.
The proper way to deal with such a provision is to give it an interpretation which, to use the words of the Privy Council in Mahairam Kamjidas 's(1)case ', 'makes the machinery workable, utres valeat potius quam pereat".
We, therefore, think that we should read sub sec.(6), according to the provision of which interest has to be calculated as provided in sub sec.(8) in a manner which makes it workable and thereby prevent the clear intention of sub sec.(8) being defeated.
Now, how is that best done? As we have (1) ,126 127.
903 earlier said sub sec.(6) deals with a case in which tax has been pail and therefore it says that interest would be calculated "from the I at day of January in the financial year in which the tax was paid".
This obviously cannot literarily be applied to a case where no tax has been paid.
If however the portion of sub see.
(6) which we have quoted above is read as, "from the 1st day of January in the finan cial ear in which the tax ought to have been paid", the provisions becomes workable.
It would not be doing too much violence to the words used to read them in this way.
The tax ought to have been paid on one or other of the dates earlier mentioned.
The intention was that interest should be charged from January 1 of the financial year in which the tax ought to have been paid.
Those who paid the tax but a smaller amount and those who did not pay tax at all would than be put in the same position substantially which is obviously fair and was clearly intended.
Which is the precise financial year in any case would depend on its facts and this, would make no difference in the construction of the provision.
With regard to the other question about there being no shortfall between eighty per cent.
of the amount of tax found payable on the regular assessment and the amount of tax paid in a case where no tax was paid, it seems to us the position is much simpler.
If no tax is paid, the amount of such shortfall will naturally be the entire eighty per cent.
We also think that the case before us is very near to Allen 's case(1) It remains now to refer to sub s,(9) of section 18A.
That subsection provides for payment of penalty in terms of section 28 upon submission of estimates under sub sees.
(2) and (3) known or reasonably believed to be untrue or upon failure without (1) (138) 16, 17.
904 reasonable cause to comply with the provisions of sub sec.(3).
We are unable to see that this provision in any way affects the construction of sub secs.(6) or (8) or assists in the solution of the, difficulty which has arisen in this case.
The penalty under sub sec.(9) is in addition to the liability under sub sec.
(6) and (8) which his not penalty in the real sence, and is leviable for reasons different from those on which the levy of interest under sub secs.
(6) and (8) is besad.
The result, therefore, is that these appeals are dismissed and the decision of the High Court answering the question framed is upheld for the reasons earlier mentioned.
The respondent will get the costs of these appeals.
Appeals dismissed.

summary:
By Sub section
(8) of section 18 A, " where on making the regular assessment, the Income tax Officer finds that no payment of the tax has been made in accordance with the foregoing provisions of this section, interest calculated in the manner laid down in sub section (6) shall be added to the tax as determined on the basis of the regular assessment".
section (6) of section 18A provided, "where in any year an assessee has paid tax under . sub section(3) on the basis of his own estimate, and the tax so paid is less than eighty percent of the tax determined on the basis of regular assessment. . simple interest at the rate of six per cent per annum from the first day of. ' January in the financial year in which the tax was paid up to the date of the said regular assessment shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty per cent.
" The assessee should have under sub s.(3) of s.18A made an estimate of his income and paid tax according to it but he did neither.
He was thereupon charged with interest under sub s.(8) of s.18A.
He contended that interest could 894 not be so charged because under sub s.(8) interest could be charged only in the manner laid down in sub section
(6) that is, from January 1.
of a year in which tax was paid and on the shortfall between eighty per cent of the tax payable on regular assessment and the amount actually paid, neither of which could be done in his case as he had not paid any tax at all.
Held, the rule that in a taxing statute one has to look merely at what is clearly said and that in such a statute there is no room for any intendment applies only to a taxing provision and does not apply to a provision not creating a charge for the tax but laying down the machinery for its calculation or procedure for its collection.
The provisions in a taxing statute dealing with machinery for assessment have to be construed by the ordinary rules of construction, that is to say, in accordance with the clear intention of the legislature which is to make a charge levied effective.
Commissioner of Income tax vs Mahaliram Ramjidas, A.I.R. , Indian United Mills Ltd. vs Commissioner of Excess Profits Tax, ; Whitney vs Commissioners of Inland Revenue, (1925) 10 'C. 88 and Allen vs Trehearne, , referred to.
Sub s of section 18A is a provision which lays down the machinery for(8) the assessment of interest.
Its plain affect is to impose a liability to pay interest and then it provides that in calculating the interest the machinery laid down in sub section
(6) should be applied.
Sub section
(6) should therefore be read in a manner which makes it workable and prevents the clear intention of the legislature from being defeated.
That sub.
section should, where it is to be applied because of sub section
(8), therefore, be read, as "from the 1st day of January in the financial year in which the tax ought to have been paid" and in such a case the shortfall contemplated in sub section
(6) would be the entire eighty per cent.
The penalty under sub section
(9) of section 18A is in addition to the liability under sub ss (6) and (8).
Sub section
(9) does not arise in the construction of sub sections
(6) and (8).


judgement:
Appeal No, 110 of 1960.
Appeal by special leave from the judgment and decree dated April 13, 1956, of the former Nagpur High Court in F.A. No. 99 of 1947.
Naunit lal, for the appellants.
B. A. Masodkar, B. D. Najbile and Ganpat Rai, for the respondents.
September 12.
The judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal by special leave raises a short question about the construction of section 149 (2) of the C. P. Land Revenue Act, 1917 (No II of 1917) (hereinafter called the Act).
The validity of a revenue sale of their properties held on February 27, 1941 under section 128(f) of the Act was challenged by the appellants by their suit 30 .
filed in the Court of the Additional judge, Nagpur on November 12, 1946.
Ganpatrao Vishwanathji Deshmukh who had purchased the properties at the said auction sale was impleaded as defendant No. 1 to the said suit.
During the pendency of the litigation, the said Ganpatrao has died and his heirs have been brought on the record.
They will be referred to as respondent No. 1 in the course of this judgment.
The appellants challenged the impugned sale on five different grounds.
They alleged that the sale was without jurisdiction; that as the final bid was not accepted by the Dy.
Commissioner, it was invalid; that as the sale was brought about fraudulently by respondent No. 1 in collusion with the Revenue Clerk, it was invalid; that as the Commissioner was not competent to confirm the sale on November 13 1945, it was invalid; and that the sale could not be held validly for the recovery of Rs. 1,354/9/ which was shown in the proclamation of sale as the arrear for which the property was put to sale.
The trial court rejected all the contentions raised by the appellants in impeaching the validity of the sale and so, the relief claimed by the appellants against respondent No. 1 by way of injunction restraining him from recovering possession of the property and disturbing the appellants ' possession thereof was rejected.
The appellants then preferred an appeal in the Nagpur High Court.
The High Court has confirmed the findings of the trial court and accordingly, the appeal has been dismissed.
It is against this decree that the appellants have come to this Court by special leave; and the only point which has been raised on their behalf by Mr. Naunit Lal is that the view taken by the courts below that the impugned sale could not be effectively challenged by the appellants under s.149 (2) is not justified on a fair and reasonable construction of the said provisions.
The material facts leading to this point are very few, and they are not in dispute.
The appellants are Lambardars of Mahal No. 2 of Mouza Gujarkhedi, 31 Tehsil Saoner, District Nagpur, and they held therein an undivided interest of As.
/11/ .
On or about October 4, 1940, they were found to be in arrears of land revenue to the extent of Rs. 730/13/ in respect of the suspended Rabi kist of 1938 39 and the Rabi kist of 1939 40.
The Tehsildar of Saoner .made a report on October 4, 1940 to the Dy.
Commissioner that the said arrears were due from the appellants and asked for sanction to sell by auction the property in suit. 'Along with this report, a draft of the sale proclamation containing the relevant details was also submitted for the signature of the S.D.O. in case the Dy.
Commissioner sanctioned the sale.
The S.D.O. forwarded the said report to the Dy.
Commissioner who accorded sanction to the proposal of the Tehsildar on December 17, 1940.
Thereafter, on December 23, 1940.
the S.D.O. signed the said proclamation and on getting the said documents back, the Tehsildar ordered on January 7, 1941 that the sale proclamation should be published and that the sale should be held on February 26, 1941.
On that date, the sale was adjourned to February 27, 1941 for want of adequate bids.
On the next day the sale was held and the property was sold to respondent No. 1 for Rs. 600/ .
Ultimately, the said sale was confirmed.
It is common ground that though at the relevant time, arrears due from the appellants amounted only to Rs. 730/13/ , in the Parchanama the said amount was shown as Rs. 1,354/9/ and the property in fact was sold to recover the said amount of arrears under section 128(f) of the Act.
The appellants ' contention is that the arrear, Rs. 1,354/9/ , for which his property has been sold under section 128(f) was not due; what was due was the lesser amount of, Rs. 730/13/ and so, the sale in question is invalid under section 149 (2) of the Act.
In dealing with this point, it is necessary to refer to the relevant provisions of the Act.
Chapter X of the Act deals with the collection of land revenue, and it consists of sections 122 to 160.
Section 124 32 confers power on the State Government to regulate payment of sums payable under the Act and provides for the number and amount of the instalments, and the time, place and manner of payment of any sum payable under a settlement or sub settlement, or otherwise under an assessment made under this Act.
Sub section (2) of section 124 requires that unless the State Government otherwise directs, all such payments shall be made as prescribed under sub section
A notice of demand can be issued by Tehsildar or Naib Tehsildar under section 127 and it may be served on any defaulter before the issue of any process under section 128 for the recovery of an arrear.
Section 128 provides for the process for recovery of an arrear and it prescribes that an arrear payable to Government may be recovered, inter alia,. (f) by selling such estate, mahal or land, or the share or land of any co sharer who has not paid the portion of the land revenue which, as between him and the other co sharers, is payable by him.
Section 131 prescribes the procedure for attachment and sale of movables and attachment of immovable property.
Then section 132 provides for holding enquiry into claims of third persons in respect of property attached or proceeded against.
Section 138 (1) provides that the purchaser of any estate, mahal, share or land sold for arrears of land revenue due in respect thereof shall acquire it free of all encumbrances imposed on it, and all grants and contracts.
made in respect of it, by any person other than the purchaser.
Sub sections (2), (3) and (4) make other provisions, but it is unnecessary to refer to them.
Section 143 lays down that if the arrear in respect of which the property is to be sold is paid at any time before the lot is knocked down, the sale shall be stayed.
Section 145 provides for application to set aside sale on deposit of arrear, and section 146 provides for application to set aside sale for irregularity.
Under section 148 it is provided that on the expiry of 30 days from the date of sale if no application has been made under section 145 or 146 or no claim has been made under section 151, or if 33 such application or claim has been made.
and rejected, the Dy.
Commissioner shall pass an order confirming the sale.
Section 151 refers to claims of pre emptions.
That takes us to section 149.
Section reads as follows : "(1) if no application under section 146 is made within the time allowed therefor, all claims on the grounds of irregularity or mistake shall be barred.
(2) Nothing in sub section (1) shall bar the institution of a suit in the Civil Court to set aside a sale on the ground of fraud or on the ground that the arrear for which the property is sold is not due.
" It would thus be seen that the scheme of the relevant provisions of the Act in relation to revenue sales appears to be self contained.
The revenue process for recovering arrears begins with the report as to the arrears and ends with the confirmation of sale.
Provision is made for the examination of claims of third parties as well as for setting aside sales on account of deposit or on account of irregularities committed in conducting the sales.
, It is in the light of this self contained scheme that section 149 (1) provides that if no application under section 146 is made within the time prescribed, all claims on the grounds of irregularity or mistake shall be barred.
In other.
words '.
the effect of this provision is that if a party aggrieved by a revenue sale of his property wants to challenge the validity of the said sale on grounds of irregularity or mistake, the Act has provided a remedy for him by s.146 and it he fails to avail himself of that remedy, it would not be open to him to challenge the impugned sale on the said grounds by a separate suit.
The grounds of irregularity or mistake must be urged by an application made under section 146 and if no such application is made, then the party is precluded from taking the said grounds otherwise.
Thus far there is no difficulty or dispute.
34 Sub section (2) of section 149 provides an exception to sections (1), and it says that the institution of a suit would not be barred in a Civil Court to set aside 'a sale on two grounds; if the sale is challenged on the ground of fraud, a suit will lie; similarly, if a sale is challenged on the ground that the arrear for which the property is sold is not due, a suit will lie.
The effect of this provision is that if fraud is proved in regard to a revenue sale, a suit will lie and the sale will be set aside; similarly, if it is shown that the arrear for which the property is sold was not due, a suit will lie and the sale will be set aside.
There is no difficulty or dispute about this position also.
The question on which the parties are at issue before us is in regard to the interpretation of the clause "the arrear for which the property is sold.
" It has been held by the High Court that what this clause requires is not that the arrear for which the property is sold should be stated with meticulous accuracy, if a mistake is made in showing the actual amount of arrear due from the defaulter for which the property is sold, that mistake would not render the sale invalid; it would be a mistake within the meaning of ss.(1) and so, to cases of that kind sub section (2) will not apply.
On the other hand, Mr. Naunit Lal contends that the clause "the arrear for which the property is sold" is plain and unambiguous.
In considering the question as to whether this clause is attracted or not, one has to look at the proclamation of sale and enquire whether the amount shown as arrears due from the defaulter was in fact due or not.
If the said amount was not due, the clause will apply notwithstanding the fact that a lesser amount may have been due from the said defaulter.
In construing section 149(2) it is relevant to remember that the provision in question is made in relation to revenue sales and there is no doubt that the revenue sales are authorised to be held under the summary procedure prescribed by the relevant sections of the 35 Act, and so, it would not be unreasonable to construe these provisions strictly.
That is why we are not inclined to accept the view that in interpreting the relevant clause, we should assume that the Legislature did not expect the authorities to specify the arrear for which the property is sold with meticulous care.
If the defaulter 's property is being sold under revenue sale and the object of issuing the proclamation is to show for what arrear it is being sold, it is, we think, fair to assume that the said arrear must be stated with absolute accuracy.
It would not be enough to say that some arrear was due and so, the sale should be upheld though it was purported to be held for recovery of a much larger arrear.
Nor is this consideration purely academic.
As we have seen, section 143 provides that if the arrear in respect of which the property is to be sold is paid before the lot is knocked down, the sale shall be stayed.
In the present case, if the arrear had been properly shown at Rs. 730113/ , it is theoretically possible that the appellants may have been in a position to deposit this amount before the lot was knocked down and the sale would have been stayed.
Since the arrear was shown to be much larger, it is theoretically possible that the appellants could not make a successful attempt to deposit the said amount.
Now, in working out the provisions of section 143, there should be no difficulty in determining the amount which the defaulter has to deposit to avoid the revenue sale.
The arrear in question must be correctly stated in the proclamation so that everybody concerned knows the exact amount for which the revenue sale is held.
That is another consideration which supports the construction for which the appellants contend.
Mr. Masodkar for respondent No. 1 argued that the construction for which the appellants contend is mechanical and it may lead to anomalies.
In support of this argument, he took the illustration of a case where the amount of arrears is accurately shown in the proclamation, but after the proclamation is 36 issued, a part of it is paid by the defaulter; (as in fact Rs. 291/ were deposited by the appellants in the present case) the contention is that in such a case, if the original amount ,of arrears continues to be shown in the proclamation, the sale would be invalid on the construction suggested by the appellants.
We are not impressed by this argument.
Our attention has not been drawn to any specific provision of the Act under which a partial payment of the arrear due is allowed +lo be made by the defaulter.
If such a payment is made, it may, at best be treated as deposited on account, and no deduction would be made from the arrear notified to be due from him in the proclamation at that stage.
The only provision which has been cited before us in that behalf is section 143 and section 143 expressly provides for the payment of the whole of the arrear due and lays down that on such payment before the lot is knocked down, the sale shall be stayed.
Therefore, the complication sought to be introduced by Mr. Masodkar by taking a hypothetical case of a part payment of the arrears due from the defaulter, does not affect the construction of section 149(2).
It is then argued that the impugned sale cannot be said to be irregular in the present case, because on the date when it was, actually held, the amount of Rs. 1,354 /9/ was in fact due from the appellants as arrears.
It is common ground that after the proclamation was issued, a further amount of arrears became due from the appellants and on the date of the sale, the total amount came to be Rs. 1,354/9/ .
In our opinion, arrears accumulating.
after an order for sale has been passed and the proclamation in that behalf has been issued, cannot come into the calculation while construing s.149 (2).
Every arrear for which the sale is ordered must be specifically dealt with as provided by the Act.
It is not open to the authorities to deal with a specific arrear as prescribed by the Act and to pass an order for sale of the defaulter 's property on the 37 basis of that arrear and then add to it subsequently accruing arrears without following the procedure prescribed in that behalf.
Once the amount of arrear is determined and sale is ordered by reference to it, it is that amount which must be shown in the proclamation and it is for that amount of arrear for which the property must be sold.
That, in our opinion, is clearly the effect of the relevant clause in section 149 (2).
We must, therefore, hold that the High Court was in error in coming to the conclusion that the sale of the appellants ' property on the 27th February, 1941 was valid.
We are satisfied that the arrear for which the appellants ' property was sold was not due within the meaning of s.149 (2), and so, the sale must be set aside.
In support of his argument that the impugned sale cannot be held to be invalid, Mr. Masodkar relied on a decision of the Privy Council in Rewa Mahton vs Ram Kishen Singh(1).
In that case, the Privy Council was dealing with a question which had reference to the true construction of section 246 of the Civil Procedure Code of 1877 (Act X of 1877).
The said section had provided that if cross decrees between the same parties and for the payment of money be produced in the Court, execution shall be taken out only by the party who holds the decree for the larger sum, and for so much only as remains after deducting the smaller sum.
It appears that contrary to the provisions of this section, an auction sale was held and when the title of the auction purchaser was challenged, it became necessary to consider that the effect of noncompliance with the provisions of section 246 would be on the title of the auction purchaser.
The Privy Council held that a purchaser under a sale in execution is not bound to inquire whether the judgment debtor had a cross judgment of a higher amount such as would have rendered the order for execution incorrect.
If the Court has jurisdiction, such purchaser is no more bound to inquire into the correctness of an (1) (1886) L. R. 13 I. A. 106.
38 order for execution than he is as to the correctness of the judgment upon which execution issues.
In other words, the effect of this decision is that if in contravention of the provisions of section 246 an executing Court orders a sale to be held, the auction purchaser gets a good title notwithstanding non compliance with section 246.
We do not see how this case can assist Mr. Masodkar in the present appeal.
The decision turned upon the construction of section 246.
But the present dispute has to be decided on a construction of section 149 (2).
It is wellknown that execution sales held under the Code of Civil Procedure can be challenged only in the manner prescribed and for the reasons specified, say, for instance, by O. XXI r. 89, 90 and 91.
The fact that certain irregularities committed during the conduct of execution sales would not render the sales invalid, flows from the relevant provisions of the Code and so, it would not be reasonable to invoke the assistance of the decisions dealing with irregularities committed in execution sales in support of the argument that a revenue sale held under section 128 (f) should be judged by the same principles.
The question as to whether the revenue sale is valid or not must obviously be determined in the light of the relevant provisions of the Act and that again takes us to the construction of section 149 (2).
Mr. Masodkar had also relied on the decision of the Calcutta High Court in Ram Prosad Choudhury vs Ram Jadu Lahiri (1)in support of his argument that a revenue sale held under section 128 (f) of the Act would not be rendered invalid merely because the amount of arrears shown in the proclamation is not accurate.
In the case of Ram Prosad Choudhury, the sale had been held under the provisions of the Bengal Land Revenue Sales Act (Act XI of 1859).
Under section 5 of the said Act, notice had to be issued before the sale could be held.
In the notice.
issued prior to the sale had been shown a sum which had then not become due as an arrear along with other sums (1) 39 which had become arrears, and the subsequent sale was held on the footing of the total amount thus shown being the arrears due.
It was urged that the sale was invalid because of the irregularity committed in the issue of the notice under section 5.
This argument was rejected and it was held that despite the said irregularity, the sale was valid.
Now, in appreciating the effect of this decision ' it is necessary to refer to the provisions of section 33 of the said Act under which the sale was challenged.
We have already referred to the fact that section 5 required a notice to be issued prior to the sale.
The notice provided for by this section had to specify the nature and amount of arrear or demand, and the latest date on which payment thereof shall be received.
Section 33 provides that no sale for arrears of revenue shall be annulled, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of '; with the rest of the section we are not concerned.
The argument which was urged in the case of Ram Prosad Choudhury was that the notice under section 5 having been irregularly issued, the sale should be deemed to have been held contrary to the provisions of the said Act, and this argument was not accepted.
It would be noticed that section 33 justifies a claim for annulling the sale only if two conditions are satisfied; that the sale should have been made contrary to the provisions of the Act and that the plaintiff must show that he has sustained substantial injury by reason of the irregularity complained of.
It is in the context of these requirements that the Calcutta High Court held that the inclusion of an amount in the notice which had not become an arrear on the date of the notice did not render the impugned sale invalid.
We do not think that this decision can assist us in interpreting section 149 (2) with which we are concerned.
The scope and effect of the relevant provisions of section 149(2) are not at all similar to the scope and effect of 40 s.33 of the Bengal Act.
Therefore, we are not inclined to accept Mr. Masodkar 's argument that the defect in the sale on which the appellants rely would not render the sale invalid.
The result is, the appeal is allowed, the decree passed by the High Court is set aside and the appellants ' suit decreed, There would be no order as to cost throughout.
Appeal allowed.

dataset_name: IN-Abs

summary:
The appellants are Lambardars of Mahal No.2 of Mouza Gujarkhedi, and they held therein an undivided share of As.
/II / and as they were found in arrears of land revenue to the extent of Rs. 730/13/ , the property was sold for Rs. 600/ but the sale proclamation recited the amount of arrears due as Rs. 1345 9 0 and that the properties were being sold for 29 recovering that amount.
It was contended by the appellants, that it was open to them to have the sale set aside in the Civil Court on the ground that the arrear for which the property was sold was not due.
The trial court dismissed the suit on the ground that the suit did not lie and the High Court affirmed the decision.
Held, that section 149 (2) of the Act was plain and unambiguous and that if the arrear in respect of which the sale was held was not due it gave a right to the owner of the property to have the sale set aside in a Civil Court.
The fact that subsequent to the sale proclamation but on the date of the sale further amounts towards land revenue had become due was not material, the scheme of the Act being that in respect of each specific arrear separate proceedings had to be taken.
Held, further, that mistakes and irregularities contemplated by the Act which would not furnish grounds for invalidating and setting aside the sale were of a different kind and from the scheme of the Act it is clear that a sale for an arrear that was not due was put in a separate category.
Rewa Mahten vs Ram Kishan Singh (1886) L.R. 13 I.A. 106 and Ram Prosad Choudhury vs Ram Jadu Lahiri, (1936) 40 C.W.N. 1054, distinguished.


judgement:
Appeal No. 128 of 1960.
Appeal by special leave from the judgment and decree dated November 4, 1955, of the Punjab High Court in R. section A. No. 493 of 1950.
K. C. Sarpal, section K. Mehta and K. L. Mehta, for appellant.
Anant Ram Whig and J. B. Agarwal, for respondent No. 1. 1962.
September 14.
The judgment of the Court was delivered by SUBBA RAO, J.
This appeal by special leave is filed against the judgment and decree of the High Court of Punjab, at Chandigarh, in Second Appeal No. 493 of 1950 setting aside the order of the Subordinate judge, Amritsar, confirming that of the Revenue Officer, Amritsar, decreeing the appellant 's suit.
The subject matter of the appeal is land measuring 9 kanals and 2 marlas bearing Khasra Nos. 292 and 296 in mauza Kot Syed Mahmud,in the District of Amritsar; the previous corresponding Khasra Nos.
of the land were 324 and 328.
This land formed part of a larger area which originally belonged to a number of co sharers, including Teja Singh and jhandha Singh.
There was a partition among the said co sharers and pursuant to that partition, on April 20, 1929 an application was filed before the Revenue Authorities 57 for mutation of the names in accordance with the terms of the partition; and the petition was signed by all the co sharers including Teja Singh and jhandha Singh.
It was stated in the petition, marked as exhibit
D 6 in the case, that in respect of the said Khasra numbers one share should be entered in the name of Teja Singh and 7 shares in the name of jhandha Singh.
This fact is not admitted.
But in the mutation that was effected on August 26, 1929 the entire extent of the said Khasra numbers was shown against Teja 'Singh alone.
The mutation number was 960.
On August 10, 1934, jhandha Singh, discovering the mistake committed in the revenue record, applied to the Revenue Authorities for correcting the said mistake.
The Revenue Authorities enquired into the matter from August 10, 1934, to October 31.
The record of that enquiry discloses that Mula Singh, the brother of Teja Singh Teja Singh died and Mula Singh was his heir admitted the mistake made in the revenue record before the concerned authorities.
That apart, they had before them a report of the enquiry made by a subordinate officer of the revenue department tracing the history of the said Khasra numbers and 'also giving the relevant facts, namely, the partition between the co sharers and the joint Application filed by them for mutation of their names in respect of the plots allotted to each one of them.
On the material so placed before them, the Revenue Authorities corrected the mistake, and against mutation ,No. 1490 the correct shares of Teja Singh and Jhandha Singh, namely, 1/8 and 7/8 respectively were given.
On October 24, 1934, i.e., after jhandha ,Singh had filed the application for correcting the mutation No. 960, Mula Singh executed a sale deed conveying the said land bearing Khasra numbers 324 and 328 in favour of Gurbaksh Singh, the appellant, i.e., on the very date when Mula Singh had to appear before the Revenue Authorities.
The appellant obtained a security bond from Mula Singh to indemnify him against any loss that might be caused to him in 58 respect of the said property; he also paid the bulk of the consideration only on October 22, 1937, i.e., after three years of the sale deed.
jhandha Singh in his turn sold his 7/8 share in the said Khasra numbers, along with others, to Gopal Singh from whom Nikka Singh, the first respondent, purchased the said share by a sale deed dated October 27, 1936.
The appellant filed a suit under section 117 of the Punjab Land Revenue Act, 1887, out of which the present appeal arises, in the revenue court for a declaration of his exclusive title to the said two Khasra numbers, and in that suit Nikka Singh, the first respondent, and Mula Singh, the second respondent, were the defendants.
The suit has had a chequered career and it.
is not necessary to trace it.
It would be enough if we start with the decision of the Subordinate judge dated February 14, 1949, to whose file the suit was transferred from the file of the revenue court by the District judge after it was remanded by the High Court on an earlier occasion.
The learned Subordinate judge expressed his opinion on the relevant issue thus: . . so far as the land in suit is concerned.
, Mula Singh had sold it to the plaintiff on 24th October, 1934, and any admission by him made on 10th August, 1936 would not affect the plaintiff.
Under Section 37 of the Land Revenue Act, a mutation can be based either on facts proved or admitted.
No facts had been proved before the Officer who attested mutation No. 1490, and Mula Singh was nobody to admit any facts in relation to land which he had sold two years before to the plaintiff.
The mutation entry 1490 was therefore not properly made and I decide issue No. 11 accordingly.
" It will be seen from the aforesaid observations that the learned Subordinate Judge based his finding on the assumption that the admission of Mula Singh 59 could not bind the appellant who purchased his property before the said admission and that there was no the mutation entry No. 1490.
On appeal the learned District judge, though he made certain observations indicating his line of thought, did not give any definite finding on the question of title, but he dismissed the appeal on the finding that the appellant was a bona fide purchaser in good faith.
The first respondent preferred a second appeal to the High Court.
The High Court held that the correction of the earlier mutation No. 960 was made with the consent of both the parties and there is a presumption attached to the correctness of the later mutation and that the appellant was fully cognizant of the real state of affairs, namely, that Mula Singh had only 1/8 share in the said Khasra numbers.
On those findings, the decree of the learned Subordinate judge was set aside and the plaintiff 's suit was dismissed with costs throughout.
Hence the appeal.
Learned counsel for the appellant raised before us the following points: (1) The High Court has no jurisdiction under sections 100 and 101 of the Code of Civil Procedure to set aside concurrent findings arrived at by the two lower courts.
(2) Under section 37 of the Punjab Land Revenue Act there is a presumption in favour of an entry in the revenue record if it is made in accordance with the facts proved or admitted to have occurred; but, as in the present case the entry was corrected on the admission of Mula Singh after he transferred his interest in favour of the appellant, the said admission could not constitute a legal basis for the said entry and therefore no presumption under that section would attach to that entry.
It is true that as early as 1931 the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous findings of fact however gross the error may seem to be, and the said ruling has since been followed by all the 60 courts in India and accepted by this Court in a number of decisions.
But in this case the learned District judge has not given any finding on the question of title, but contented himself to dispose of the appeal on the ground that the appellant purchased the land in good faith from Mula Singh.
The question of title was , therefore, left open and the High Court was certainly within its right in giving its own finding thereon.
The finding given by the learned District judge that the appellant was a bona fide purchaser in good faith was not based on the evidence in the case, but was merely an ipsi dixit, Nor did the District judge 'consider the impact of the provisions of section 41 of the Transfer of Property Act on the facts of the case.
Such a finding arrived at without evidence and without applying the correct principles of law cannot obviously bind the High Court.
Section 41 of the Transfer of Property Act reads: " 'Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not.
be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
" The general rule is that a person cannot confer a better title than he has.
This section is an exception to that rule.
Being an exception, the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had, after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith.
In this case the facts are tell tale and they establish beyond doubt that the appellant had 61 the knowledge that the title of his transferor was in dispute and he had taken a risk in purchasing the same.
The appellant and Mula Singh belong to the same village Kot Syed Mahmud.
Mula Singh sold his property, to the appellant on the very date on which he had to appear before the Revenue Authorities.
Though the sale deed was executed on October 24, 1934, the consideration was actually paid only three years thereafter i.e., on October 22, 1937.
The appellant also took a security bond from Mula Singh to indemnify himself against any loss that might be caused to, him in the property in dispute.
These facts show that the appellant had knowledge of the defect in the title of Mula Singh.
It is, therefore, not possible to hold that he had purchased it in good faith.
The High Court, having regard to the aforesaid circumstances, held that the appellant knew that the transaction was in respect of a property of which the title was extremely doubtful.
There are no permissible grounds for challenging the correctness of that finding before us in an appeal under article 136 of the Constitution.
Nor do we see any merits in the contention that . no presumption can be drawn in favour of the correctness of the impugned entry in the revenue record on the ground that the condition given in the section are not satisfied.
Section 37 of the Punjab Land Revenue Act reads: "Entries in records of rights or in annual records, except entries made in annual records by patwaris under clause (a) of section 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in.
subsequent records otherwise than by (a) making entries in accordance with facts proved or admitted to have occurred; (b) making such entries as are agreed to by all the parties interested therein or are supported 62 by a decree or order binding on those parties; x x x x Section 44 says that an entry made in a record of rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions of that Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.
If the entry No. 1490 substituting entry No. 960 had been made in strict compliance with section 37 of the Punjab Land Revenue Act, it cannot be disputed that there would be a presumption that the new entry was lawfully substituted for the old.
In that event the old entry should yield to the new entry.
This presumption is no doubt rebuttable.
There is force in the contention of learned counsel that Mula Singh, having parted with the interest in the property, could not have admitted the correctness of the new entry or agreed to have the old entry corrected in the manner done so as to bind a purchaser.
But that contention does not avail him in the present case as we are satisfied on a perusal of the record that mutation entry 1490 had been made in accordance with the facts proved before the Revenue Authorities.
There were the following pieces of evidence before the Revenue Authorities, among others: (1) evidence of Mula Singh; (2) the report of the subordinate revenue officer with all the connected annexures, including exhibit D 6, wherein the terms of the partition were recited.
On the said evidence the Revenue Authorities corrected the entry in the record in the manner they did.
It must, there fore, be held that the provisions of section 37(a) of the Punjab Land Revenue Act were satisfied.
If so, there is a presumption that the later entry was correct.
The appellant did not adduce any evidence to rebut the said presumption.
On the other hand, exhibit D 6, the application dated April 20, 1929, for mutation of names in the revenue record, signed by all the cosharers contained the following recital: 63 "Entries with respect to the following Khasra Nos. may be made in the revenue papers in the name of Teja Singh, co sharer No. 5 to the tune of one share and Bhai jhandha Singh co sharer No. 2, to the tune of seven shares: 324 3.16, 328/5.06 etc.
The High Court was, therefore, right in holding that there was a presumption in favour of the correctness of the entry and the appellant had failed to rebut the same.
The judgment of the High Court is correct and the appeal fails and is dismissed with costs.
Appeal dismissed.

summary:
Teja Singh and Jhandha Singh were co sharers in certain agricultural land.
They partitioned the land taking 1 and 7 shares respectively and applied for mutation of names to the revenue authorities.
In the mutation by mistake the entire land was shown against the name of Teja Singh.
On discovering the mistake jhandha Singh applied for correction of the entry.
During the pendency of these proceedings Teja Singh died and his brother and heir Mula Singh sold the entire land in favour of the appellant.
Mula Singh appeared before the revenue authorities and admitted the mistake.
On this admission and on the report of an enquiry made into the matter by a subordinate revenue officer the authorities corrected the mistake and the correct shares of Teja Singh and jhandha Singh were shown as 1/8 and 7/8.
The appellant filed a suit for declaration of his exclusive title to the land.
The trial court decreed the suit holding that the corrected mutation entry which was made on the admission of Mula Singh after he had already sold the property was not properly made.
On appeal the first appellate court upheld the decree, holding that Gurbaksh Singh was a bonafide purchaser in good faith but without giving any finding on the question of title.
In second appeal the High Court reversed the findings and dismissed the suit.
The appellant contended that the High Court had no jurisdiction to set aside concurrent findings of fact in second appeal and that no presumption could arise in favour of the corrected entry.
Held, that the High Court was justified in interfering in second appeal as the first appellate court had given no finding on the question of title.
The finding that the appellant was a bonafide purchaser in good faith was not based upon any evidence and the onus was on the transferee to show that the transferor was the ostensible owner.
The appellant had full knowledge of the defect in the title of Mula Singh.
56 Held, further, that the presumption under section 44 of the Punjab Land Revenue Act arose that the corrected entry was true as the entry was made in accordance with law.
Section 37 provided that such an entry could be made in accordance with facts proved or admitted to have occurred.
Though Mula Singh 's admission after he had parted with the interest in the property, could not have been relied upon, the entry was made in accordance with the facts proved before the revenue authorities by the report of the subordinate revenue officer which recited the, terms of the partition also.
The appellant did not adduce any evidence to rebut the presumption.


judgement:
Appeal No. 205 of 1952.
Appeal from the Judgment and Order dated the 16th September, 1952, of the High Court of Judicature at Madras (Subba Rao J.) in Writ Petition No. 599 of 1952 filed under the Special Original Jurisdiction of the High Court under article 226 of the Constitution of India.
M.C. Setalvad, Attorney General.for India (G. N. Joshi, with him) for the appellant and Intervener.
Mohan Kumaramangalam, for the respondent.
February 27.
The judgment of the court was delivered by PATANJALI SASTRI C.J.
This is an appeal from an order of a Single Judge of the High Court of Judicature at Madras issuing a writ of prohibition restraining the 1146 Election Commission, a statutory authority constituted by the President and having its offices permanently located at New Delhi, from enquiring into the alleged disqualification of the respondent for membership of the Madras Legislative Assembly.
The respondent was convicted by the Sessions Judge of East Godavari and sentenced to a term of seven years ' rigorous imprisonment in 1942, and he was released on the occasion of the celebration of the ludependence Day on 15th August, 1947.
In June, 1952, there was to be a by election to a reserved seat in the Kakinada constituency of the Madras Legislative Assembly, and the respondent, desiring to offer himself as a candidate but finding himself disqualified under section 7 (b) of the Representation of the People Act, 1951, as five years had not elapsed from his release, applied to the Commission on 2nd April, 1952, for exemp tion so as to enable him to contest the election.
No reply to the application having been received till 5th May, 1952, the last day for filing nominations, the respondent filed his nomination on that day, but no exception was taken to it either by the Returning Officer or any other candidate at the scrutiny of the nomination papers.
The election was held on 14th June, 1952, and the respondent, who secured the largest number of votes, was declared elected on 16th June, 1952.
The result of the election was published in the Fort St. George Gazette (Extraordinary) on 19th June, 1952, and the respondent took his seat as a member of the Assembly on 27th June, 1952.
Meanwhile, the Commission rejected the respondent 's application for exemption and communicated such rejection to the respondent by its letter dated 13th May, 1952, which however was not received by him.
On 3rd July, 1952, the Speaker of the Assembly read out to the House a communication received from the Commission bringing to his notice "for such action as he may think fit to take", the fact that the respondent 's application for exemption had been rejected.
A question as to the respondent 's disqualification having thus been raised, the Speaker referred the question to the Governor of 1147 Madras who forwarded the case to the Commission for its "opinion" as required by article 192 of the Constitution.
The respondent having thereupon challenged the competency of the reference and the action taken thereon by the Governor, the Commission notified the respondent that his case would be heard on 21st August, 1952.
Accordingly, the Chief Election Commissioner (who wag the sole Member of the Commission for the time being) went down to Madras and heard the respondent 's counsel and the Advocate General of Madras on 21th August, 1952, when it was agreed that, in case the petitioner 's counsel desired to put forward any further representations or arguments, the same should be sent in writing so as to reach the Commission in Delhi by 28th August, 1952, and the Commission should take them into consideration before giving its opinion to the Governor.
On the same day (21st August, 1952) the respondent applied to the High Court under article 226 of the Constitution contending that article 192 thereof was applicable only where a member became subject to a disqualification after he was elected but not where, as here, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before an Election Tribunal.
He accordingly prayed for the issue of a writ of mandamus or of prohibition directing the Commission to forbear from proceeding with the reference made by the Governor of Madras who was not, however, made a party to the proceeding.
On receipt of the rule nisi issued by the High Court, the Commission demurred to the jurisdiction of the court to issue the writs asked for, on the ground that the Commission was not "with in the territory in relation to which the High Court exercised jurisdiction".
A further objection to the maintainability of the application was also raised to the effect that the action of the Governor in seeking the opinion of the Commission could not be challenged in view of the immunity provided under article 361 (1), and that the Commission itself, which had not to "decide" the question of disqualification, but had merely to give its 1148 "opinion", could not be proceeded against under article 226.
On the merits, the Commission contended that article 192 was, on its true construction, applicable to cases of disqualification arising both before and after the election and that both the reference of the question as to the respondent 's disqualification to the Governor of Madras and the latter 's reference of the same to the Commission for its opinion were competent and valid.
The application was heard by Subba Rao J. who overruled the preliminary objections and held that article 192 on its true construction applied only to cases of supervening disqualifications and that the Commission had, therefore, no jurisdiction to deal with the respondent 's disqualification which arose long before the election took place.
He accordingly issued a writ prohibiting the Commission from proceeding with the enquiry in regard to the question referred to it by the Governor under article 192.
The learned Judge, however, granted a certificate under article 132 that the case involved substantial questions of law as to the interpretation of the Constitution, and the Commission has accordingly preferred this appeal.
A preliminary objection was raised by Mr. Mohan Kumaramangalam, who argued the case for the respondent with marked ability, that the appeal brought from the judgment of a single Judge was barred under article 133(3) of the Constitution despite the certificate granted by the learned Judge overruling the same objection which was also raised before him.
It has been urged that, so far as civil matters are concerned, the more comprehensive provisions in article 133(1) (c) for the grant of a certificate of fitness for appeal to the Supreme Court completely overlap article 132(1) which relates only to one specific ground, namely, a substantial question of law being involved as to the interpretation of the Constitution, and that the court 's power, therefore, to grant a certificate of fitness on any ground including the ground referred to above, must be deem ed to arise under article 133(1) (c), with the result that the exercise of such power is excluded by the opening 1149 words of clause (3) of that article which bars an appeal from the judgment, decree or final order of one Judge of a High Court.
The argument was sought to be reinforced by reference to clause (2) of that article and the proviso to article 145(3) both of which contemplate appeals involving substantial questions of law as to the interpretation of the Constitution being brought without a certificate having been obtained under article 132.
The argument has no force.
While it is true that constitutional questions could be raised in appeals filed without a certificate under article 132, the terms of that article make it clear that an appeal is allowed from "any judgment, decree or final order of a High Court" provided, of course, the requisite certificate is given, and no restriction is placed on the right of appeal having reference to the number of Judges by whom such judgment, decree or final order was passed.
Had it been intended to exclude the right of appeal in the case of a judgment etc., by one Judge, it would have been easy to include a reference to article 132 also in the opening words of article 133(3), as in the immediately preceding clause.
If the respondent 's contention were accepted, not only would article 132 become redundant so far as it relates to civil proceedings, but the object of the Explanation to that article, which was designed to supersede the decision of the Federal Court in section Kuppuswami Rao vs The King (1) and thus to secure a speedy determination of constitutional issues going to the root of a case, would be defeated, as the Explanation is not made applicable to the same expression "final order" used in article 133(1).
The whole scheme of the appellate jurisdiction of the Supreme Court clearly indicates that questions relating to the interpretation of the Constitution are placed in a special category irrespec tive of the nature of the proceedings in which they may arise, and a right of appeal of the widest amplitude is allowed in cases involving such questions.
We accordingly overrule the preliminary objection and hold that the appeal is maintainable.
(1) 149 1150 Turning now to the question as to the powers of a High Court under article 226, it will be noticed that article 225 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the commencement of the Constitution.
Though there had been some conflict of judicial opinion on the point it was authoritatively decided by the Privy Council in the Parlakimedi case(1) that the High Court of Madras the High Courts of Bombay and Calcutta were in the same position had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and the power to issue such writs within those limits was derived by the court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861.
The other, High Courts in India had no power to issue such writs at all.
In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States ' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King 's Bench in England.
But wide as were the powers thus conferred, a two fold limitation was placed upon their exercise.
In the first place, the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued (1) 70 I.A, 129 1151 by the court cannot run beyond the territories subject to its jurisdiction.
Secondly, the person or authority to whom the High Court is empowered to issue such writs must be "within those territories", which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.
Such limitation is indeed a logical consequence of the origin and development of the power to issue prerogative writs as a special remedy in England.
Such power formed no part of the original or the appellate jurisdiction of the Court of King 's Bench.
As pointed out by Prof. Holdsworth (History of English Law, Vol. 1, p. 212 et seq.) these writs had their origin in the exercise of the King 's prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King 's Bench habeas corpus, that the King may know whether his subjects were lawfully imprisoned or not; certiorari, that he may know whether any proceedings commenced against them are conformable to the law; mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition, to oblige the inferior tribunals in his realm to function within the limits of their respective jurisdiction.
See also the introductory remarks in the judgment in the Parlakimedi case(1).
These writs were thus specifically directed to the persons or authorities against whom redress was sought and were made returnable in the court issuing them and, in case of disobedience, were enforceable by attachment for contempt.
These characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the court was asked to issue these writs should be within the limits of its territorial jurisdiction.
We are unable to agree with the learned Judge below that if a tribunal or authority permanently located and normally carrying on its activities elsewhere exercises jurisdiction within those territorial (1) 70 I.A. 129, 140.
1152 limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as "function 'mg" within the territorial limits of the High Court and being therefore amenable to its jurisdiction under article 226.
It was, however, urged by the respondent 's counsel that the High Court had jurisdiction to issue a writ to the Commission at New Delhi because the question referred to it for decision related to the respondent 's right to sit and vote in the Legislative Assembly at Madras and the parties to the dispute also resided in the State of Madras.
The position, it was claimed, was analogous to the court exercising jurisdiction over persons outside the limits of its jurisdiction, provided the cause of action arose within those limits.
Reliance was placed upon the following observations of the Privy Council in the Parlakimedi case(1): "The question of jurisdiction must be regarded as one of substance and that it would not have been within the competence of the Supreme Court to claim juisdiction over such a matter as the present of issuing certiorari to the Board of Revenue on the strength of its location in the town.
Such a view would give jurisdiction to the Supreme Court in the matter of the settlement of rents of ryoti holdings in Ganges between parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first instance.
" We cannot accede to this argument.
, The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority within the territories" in relation to which the High Court exercises jurisdiction.
Nor is much assistance to be derived from the observations quoted above.
That case arose out of proceedings before a special Revenue Officer for settlement of fair rent for certain holdings within the zemindary estate of Parlakimedi situated beyond the local limits of the original civil jurisdiction of the Madras High Court.
Dissatisfied (1) 70 I.A. 129.
1153 with the settlement made by the Revenue Officer, the ryots appealed to the Board of Revenue which had its offices at Madras.
The appeal was accepted by a single member of the Board who reduced the rent as desired by the ryots.
The zemindar appealed by way of revision to the Collective Board which sanctioned an enhancement.
Thereupon the ryots applied to the High Court for the issue of a writ of certiorari to bring up and quash the proceedings of the Collective Board which passed the order complained of in the town of Madras.
The Privy Council considered the question of jurisdiction from two separate standpoints: "(a) independently of the local civil jurisdiction which the High Court exercises over the Presidency town; or (b)solely by reason thereof, as an incident of the location of the Board of Revenue within the town.
" On question (a), they examined the powers of the Supreme Court at Madras to issue certiorari beyond the Presidency Town under clause 8 of the Charter of 1800, as it was suggested that the High Court succeeded to the jurisdiction and powers of the Supreme Court which had been granted the same powers of issuing prerogative writs as the Court of King 's Bench in England throughout the Province, and they recorded their conclusion thus: " Their Lordships are not of opinion that the Supreme Court would have had any jurisdiction to correct or control a country court of the company deciding a dispute between Indian inhabitants of Ganjam about the rent payable for land in that district.
" Then, dealing with question (b) and referring to their decision in Besants case(1) that the High Courts of Calcutta, Madras and Bombay had power to issue certiorari in the exercise of their local jurisdiction, they held that the principle could not be applied "to the settlement of rent for land in Ganjam merely on the basis of the location of the Board of Revenue as a body which is ordinarily resident or located within (1) 46 I.A. I 76.
1154 the town of Madras, or on the basis that the order complained of was made within the town.
if SO, it would seem to follow that the jurisdiction of the High Court would be avoided by the removal of the Board of Revenue beyond the outskirts of the town and that it would never attach but for the circumstance that an appeal is brought to, or proceedings in revision taken by, the Board of Revenue.
" Then followed the passage already quoted on which the respondent 's counsel laid special stress.
It will thus be seen that the decision is no authority for dispensing with the necessity of the presence or location, within the local limits of the court 's jurisdiction, of the person or authority to whom the writ is to be issued, as the basis of its power to issue it.
Their Lordships considered, in the peculiar situation they were dealing with, that the mere location of the appellate authority alone in the town of Madras was not a sufficient basis for the exercise of jurisdiction whereas both the subject matter, viz., the settlement of rent for lands in Ganjam, and the Revenue Officer authorized to make the settlement at first instance were outside the local limits of the jurisdiction of the High Court.
If the court in Madras were, recognised as having jurisdiction to issue the writ of certiorari to the appellate authority in Madras, it would practically be recognising the court 's jurisdiction over the Revenue Officer in Ganjam and the settlement of rents for lands there, which their Lordships held it never had.
That was the "substance" of the matter they were looking at, and their observations lend no support to the view that if the subject matter or the cause of action and the parties concerned were within the territorial limits of the jurisdiction, the High Court could issue prerogative writs to persons or authorities who are not within those limits.
In any case, the decision did not turn on the construction of a statutory provision similar in scope ' purpose or wording to article 226 of the Constitution, and is not of much assistance in the construction of that article.
1155 It was said that it could not have been contemplated that an inhabitant of the State of Madras, feeling aggrieved by a threatened interference with the exercise of his rights in that State by an authority located in Delhi and acting without jurisdiction, should seek his remedy under article 226 in the Punjab High Court.
It is a sufficient answer to this argument of inconvenience to say that, the language of the article being reasonably plain, it is idle to speculate as to what was or was not contemplated.
Our attention has been called to certain decisions of High Courts dealing with the situation where the authority claiming to exercise jurisdiction over a matter at first instance is located in one State and the appellate authority is located in another State.
It is not necessary for the purposes of this appeal to decide which High Court would have jurisdiction in such circumstances to issue prerogative writs under article 226.
In the view we have expressed above as to the applicability of article 226 to the present case, it is unnecessary to enter upon a discussion of the question whether article 192(1) applies only to members who, having been already elected, have become subject to a disqualification by reason of events happening after their election; but having heard the point fully argued before us, we think it right to express our opinion thereon, especially as both sides have invited us to do so in view of its general importance.
The relevant provisions of the Constitution on which the determination of the question turns are as follows: 190.
(3) If a member of a House of the Legislature of a State (a) becomes subject to any of the disqualifications mentioned in clause (1) of article 191 ; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant, 1156 191.
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State, specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament.
(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.
If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State. . when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.
As has been stated already, the respondent 's conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Assembly under article, 191 (1) (e) read with section 7 of the Representation of the People Act, 1951, 1157 passed by Parliament, the period of five years since his release on 15th August, 1947, not having elapsed before the date of the election.
The respondent having thus been under a disqualification since before his nomination on 15th March, 1952, could he be said to have "become" subject to that disqualification within the meaning of article 192 ? The rival contentions of the parties centred round the true interpretation to be placed on that word in the context of the provisions quoted above.
The Attorney General argued that the whole fasciculus of the provisions dealing with "disqualifications of members", viz., articles.190 to 193, should be read together, and as articles 191 and 193 clearly cover both preexisting and supervening disqualifications, articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification.
According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided.
The use of the word "become" in articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope preexisting disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected.
The argument is more ingenious than sound.
Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both preexisting and supervening disqualifications; but it does not necessarily follow that articles 190 (3) and 192 (1) must also be taken to cover both.
Their meaning must de end on the language used which, we think, is reasonably plain.
In our opinion these two articles go together and 150 1158 provide a remedy when a member incurs a disqualification after he is elected as a member.
Not only do the words " becomes subject" in article 190(3) and "has become subject" in article 192(1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting.
The suggestion that the language used in article 190(3) can equally be applied to a pre existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted.
The Attorney General admitted that if the word " is " were substituted for "becomes" or " has become ", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used.
It was said that on the view that articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951.
If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent 's construction of the constitutional provisions.
On the other hand, the Attorney General 's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referrred to above.
For the reasons indicated we agree with the learned Judge below in holding that articles 190(3) and 192(1) 1159 are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondent 's disqualification which arose long before his election.
As, however, we have held that the High Court was not competent under article 226 to issue any prerogative writ to the appellant Commission, the appeal is allowed and the writ of prohibition issued by the learned Judge is quashed.
We make no order as to costs.
Appeal allowed.
Agent for the appellant and the Intervener: G. H. Rajadhyaksha.

summary:
The respondent, who had been convicted and sentenced to rigorous imprisonment for seven years, was elected a member of Madras Legislative Assembly.
At the instance of the Speaker the Assembly, the Governor of Madras referred to the Election Commission, which had its offices permanently located at New Delhi, the question whether the respondent was disqualified and could be allowed to sit and vote in the Assembly.
The respondent thereupon applied to the High Court of Madras under article 226 of the Constitution for a writ restraining the Election Commission from enquiring into his alleged disqualification for membership of the Assembly: Held, that the power of the High Court to issue writs under article 226 of the Constitution is subject to the two fold limitation 1145 that such writs cannot run beyond the territories subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be amenable to the jurisdiction of the High Court either by residence or location within the territories subject to its jurisdiction.
The High Court of Madras bad therefore no jurisdiction to issue a writ under article 226 of the Constitution against the Election Commission.
Held further, that articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after heis elected as such, and neither the Governor nor the Election Commission had jurisdiction to enquire into the respondent 's disqualification which arose long before his election.
A tribunal or authority permanently located and normally carrying on its activities outside the territorial limits of a High Court cannot be regarded as functioning within those territorial limits and therefore amenable to the jurisdiction of that High Court, merely because it exercises jurisdiction within those territorial limits so as to affect the rights of parties therein.
The fact that the matter referred to it for decision related to the opposite party 's right to sit and vote in the Legislative Assembly at Madras and the parties to the dispute resided in the State of Madras could not give jurisdiction to the High Court of Madras to issue such a writ against the Election Commission.
An appeal lies to the Supreme Court under article 132 of the Constitution even from a judgment, decree or final order of a Single Judge of a High Court, provided the requisite certificate is given.