judgement:
ons Nos. 66 and 67 of 1956, 8 of 1960, 77 of 1957, 15 of 1957 and 5 of 1958.
Writ Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
Naunit Lal, for the petitioner in W. Ps.
Nos. 66 and 67 of 1956.
C. P. Lal, for respondent No. 1 in W. Ps.
Nos. 66 and 67 of 1956.
Bhawani Lal and P. C. Agarwal, for respondents Nos.
3a and 4 in W. Ps.
Nos. 66 and 67 of 1956.
C. B. Agarwala and K. P. Gupta, for the petitioner in W. P. No. 8 of 1960.
Veda Vayasa and C. P. Lal, for respondent in W. P. No. 8 of 1960.
Pritam Singh Safeer, for the petitioner in W. P. No. 77 of 1957.
section M. Sikri, Advocate General, Punjab, N. section Bindra and D. Gupta, for respondent No. 1 in W. P. No. 77 of 1957.
Govind Saran Singh, for respondent.
No. 2 in W. P. No. 77 of 1957.
A. N. Sinha and Raghunath, for petitioner in W. P. No. 15 of 1957.
C. K. Daphtary, Solicitor General for India, N. S Bindra and R. H. Dhebar, for respondent in W.P. No 15 of 1957.
577 B. R. L. lyengar, for the petitioner in W. P. No. 5 of 1958.
C. K. Daphtary, Solicitor General for India, R. Gana Dar pathy Iyer and R. H. Dhebar, for the respondent in W. P. No. 5 of 1958.
March 27.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These six writ petitions filed Gaje, under article 32 of the Constitution have been placed before the Court for final disposal in a group because though they arise between separate parties and are unconnected with each other a common question of law arises in all of them.
The opponents in all these petitions have raised a preliminary objection against the maintainability of the writ petitions on the ground that in each case the petitioners had moved the High Court for a similar writ under article 226 and the High Court has rejected the said petitions.
The argument is that the dismissal of a writ petition filed by a party for obtaining an appropriate writ creates a bar of res judicata against a similar petition filed in this Court under article 32 on the same or similar facts and praying for the same or similar writ.
The question as to whether such a bar of res judicata can be pleaded against a petition filed in this Court under article 32 has been adverted to in some of the reported decisions of this Court but it has not so far been fully considered or finally decided; and that is the preliminary question for the decision of which the six writ petitions have been placed together for disposal in a group.
In dealing with this group we will set out the facts which give rise to Writ Petition No. 66 of 1956 and decide the general point raised for our decision.
Our decision in this writ petition will govern the other writ petitions as well.
Petition No. 66 of 1956 alleges that for the last fifty years the petitioners and their ancestors have been the tenants of the land described in Annexure A attached to the petition and that respondents 3 to 5 are the proprietors of the said land.
Owing to communal 73 578 disturbances in the Western District of Uttar Pradesh in 1947, the petitioners had to leave their village in July, 1947; later in November, 1947, they returned but they found that during their temporary absence respondents 3 to 5 had entered in unlawful possession of the said land.
Since the said respondents refused to deliver possession of the land to the petitioners the petitioners had to file suits for ejectment under section 180 of the U. P. Tenancy Act, 1939.
These suits were filed in June, 1948.
In the trial court the petitioners succeeded and a decree was passed in their favour.
The said decree.
was confirmed in appeal which was taken by respondents 3 to 5 before the learned Additional Commissioner.
In pursuance of the appellate decree the petitioners obtained possession of the land through Court.
Respondents 3 to 5 then preferred a second appeal before the Board of Revenue under section 267 of the U. P. Tenancy Act, 1939.
On March 29, 1954, the Board allowed the appeal preferred by respondents 3 to 5 and dismissed the petitioner 's suit with respect to the land described in Annexure A, whereas the said respondents ' appeal with regard to other lands were dismissed.
The decision of the Board was based on the ground that by virtue of the U. P. Zamindary Abolition and Land Reforms (Amendment) Act XVI of 1953 respondents 3 to 5 had become entitled to the possession of the land.
Aggrieved by this decision the petitioners moved the High Court at Allahabad under article 226 of the Constitution for the issue of a writ of certiorari to quash the said judgment.
Before the said petition was filed a Full Bench of the Allahabad High Court had already interpreted section 20 of the U. P. Land Reforms Act as amended by Act XVI of 1953.
The effect of the said decision was plainly against the petitioners ' contentions, and so the learned advocate who appeared for the petitioners had no alternative but not to press the petition before the High Court.
In consequence the said petition was dismissed on March 29, 1955.
It appears that section 20 has again been amended by section 4 of Act XX of 1954.
It is under these 579 circumstances that the petitioners have filed the present petition under article 32 on March 14, 1956.
It is plain that at the time when the present petition has been filed the period of limitation prescribed for an appeal under article 136 against the dismissal of the petitioners ' petition before the Allahabad High Court had already expired.
It is also clear that the grounds of attack against the decision of the Board which the petitioners seek to raise by their present petition are exactly the same as the grounds which they had raised before the Allahabad High Court; and so it is urged by the respondents that the present petition is barred by res judicata.
Mr. Agarwala who addressed the principal arguments on behalf of the petitioners in this group contends that the 'principle of res judicata which is no more than a technical rule similar to the rule of estoppel cannot be pleaded against a petition which seeks to enforce the fundamental rights guaranteed by the Constitution.
He argues that the right to move the Supreme Court for the enforcement of the fundamental rights which is guaranteed by article 32(1) is itself a fundamental right and it would be singularly inappropriate to whittle down the said fundamental right by putting it in the straight jacket of the technical rule of res judicata.
On the other hand it is urged by the learned Advocate General of Punjab, who led the respondents, that article 32(1) does not guarantee to every citizen the right to make a petition under the said article but it merely gives him the right to move this Court by appropriate proceedings, and he contends that the appropriate proceedings in cases like the present would be proceedings by way of an application for special leave under article 136 or by way of appeal under the appropriate article of the Con stitution.
It is also suggested that the right to move which is guaranteed by article 32(1) does not impose on this Court an obligation to grant the relief, because as in the case of article 226 so in the case of article 32 also the granting of leave is discretionary.
In support of the argument that it is in the discretion of this Court to grant an appropriate relief or refuse to do so reliance has been placed on the observations 580 made in two reported decisions of this Court.
In Laxmanappa Hanumantappa Jamkhandi vs The Union of India & Another (1), this Court held that as there is a special provision in article 265 of the Constitution that no tax shall be levied or collected except by authority of law, cl. 1 of article 31 must be regarded as concerned with deprivation of property otherwise than by imposition or collection of tax and as the right conferred by article 265 is not a fundamental right con ferred by Part III of the Constitution, it cannot be enforced under article 32.
In other words, the decision was that the petition filed before this Court under article 32 was not maintainable; but Mahajan, C.J. , Who spoke for the Court, proceeded to observer that "even otherwise in 'the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court".
The learned Chief Justice has also added that when this position was put to Mr. Sen he fairly and rightly conceded that it was not possible for him to combat this position. 'To the same effect are the observations made by the same learned Chief Justice in Dewan Bahadur Seth Gopal Das Mohta vs The Union of India & Another (2).
It will, however, be noticed that the observations made in both the cases are obiter, and, with respect, it would be difficult to treat them as a decision on the question that the issue of an appropriate writ tinder article 32 is a matter of discretion, and that even if the petitioner proves his fundamental rights and their unconstitutional infringement this Court nevertheless can refused.
to issue an appropriate writ in his favour Besides, the subsequent decision of this Court in Basheshar Nath vs The Commissioner of Income tax, Delhi and, Rajasthan (3) tender to show that if a petitioner makes out a case of illegal contravention of his fundamental rights he may be entitled to claim an appropriate relief and a plea of waiver cannot be raised against his claim.
It is true that the question of res judicata did not fall to be considered in that case but the tenor of all the judgments, which no doubt disclose a (1) , 772, 773 (2) ; , 776.
(3) [1959] SUPP.
1 S.C.R. 528 581 difference in approach, seems to emphasise the basic importance of the fundamental rights guaranteed by, the Constitution and the effect of the decision appears to be that the citizens are ordinarily entitled to appropriate relief under article 32 once it is shown that their fundamental rights have been illegally or unconstitutionally violated.
Therefore, we are not impressed by the argument that we should deal with the question of the applicability of the rule of res judicata to a petition under article 32 on the basis that like article 226 article 32 itself gives merely a discretionary power to the Court to grant an appropriate relief.
The argument that article 32 does not confer upon a citizen the right to move this Court by an original petition but merely gives him the right to move this Court by an appropriate proceeding according to the nature of the case seems to us to be unsound.
It is urged that in a case where the petitioner has moved the High Court by a writ petition under article 226 all that he is entitled to do under article 32(1) is to move this Court by an application for special leave under article 136; that, it is contended, is the effect of the expression "appropriate proceedings" used in article 32(1).
In our opinion, on a fair construction of article 32(1) the expression "appropriate proceedings" has reference, to proceedings which may be appropriate having regard to the nature of the order, direction or writ which the petitioner seeks to obtain from this Court.
The appropriateness of the proceedings would depend upon the particular writ or order which he claims and it is in that sense that the right has been conferred on the citizen to move this Court by appropriate proceedings.
That is why we must proceed to deal with the question of res judicata on the basis that a fundamental right has been guaranteed to the citizen to move this Court by an original petition wherever his grievance is that his fundamental rights have been illegally contravened.
There can be no doubt that the fundamental right guaranteed by article 32(1) is a very important safeguard for the protection of the fundamental rights of the citizen, and as a result of the said guarantee this 582 Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country.
The fundamental rights are intended not only to protect individual 's rights but they are based on high public policy.
Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights.
This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself.
It is because of this aspect of the matter that in Romesh Thappar vs The State of Madras (1), in the very first year after the Constitution came into force, this Court rejected a preliminary objection raised against the competence of a petition filed under article 32 on the ground that as a matter of orderly procedure the petitioner should first have resorted to the High Court under article 226, and observed that "this Court in thus constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of Ruch rights".
Thus the right given to the citizen to move this Court by a petition under article 32 and claim an appropriate writ against the unconstitutional infringement of his fundamental rights itself is a matter of fundamental right, and in dealing with the objection based on the application of the rule of res judicata this aspect of the matter had no doubt to be borne in mind.
But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity.
Now, the rule of res judicata as indicated in section 11 of the Code of Civil Procedure has no doubt, some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is (1) ; 583 founded on considerations of public policy.
It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts ' of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.
If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under article 32.
In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William de Grey, (afterwards Lord Walsingham) in the leading Duchess of King8ton 's case (1).
Said Sir William de Grey, (afterwards Lord Walsingham) "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose".
As has been observed by Halsbury, "the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation" (2 ).
Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause" (p. 187, paragraph 362).
"Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds embodied in various maxims of the common law; the one, (1) 2 Smith Lead.
13th Ed., pp. 644, 645.
(2) Halsbury 's Laws of England, 3rd, Ed., Vol. 15, para.
584 public policy and necessity, which makes it to the, interest of the State that there should be an end to s litigation interest republican ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause nemo debet bis vexari pro eadem causa" (1).
In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel. "Estoppel rests on equity able principles and res judicata rests on maxims which are taken from the Roman Law" (2).
Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under article 32 cannot be accepted.
The same question can be considered from another point of view.
If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law.
Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution itself.
The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis.
As Halsbury has observ ed "subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences"(3).
Similar is the statement of the law in Corpus Juris: "the doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to an (1) Corpus juris, VOl.
(2) Ibid.
P. 745 (3) Halsbury 's Laws of England, 3rd Ed., VOl.
22, P 780, paragraph 1660.
585 action between the same parties for the same cause in the same court or in another court, whether the latter has concurrent or other jurisdiction.
This rule is subject to the Limitation that the judgment in the former action must have been rendered by a court or tribunal of competent jurisdiction" (1).
"It is, however ' essential that there should have been a judicial determination of rights in controversy with a final decision thereon" In other words, an original petition for a writ under article 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under article 226.
There can be little doubt that the jurisdiction of this Court to entertain applications under article 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under article 226.
Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Art,.
32 of the Constitution.
It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision.
Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution.
In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained.
This Court had occasion to consider the application of the rule of res judicata to a petition filed under article 32 in Pandit M. section M. Sharma vs Dr. Shree Krishna Sinha (3).
In that case the petitioner had moved this (1) Corpus juris Secundum, VOI.
50 (judgments), p. 603.
(2) Ibid.
p. 608.
(3) 74 586 Court under article 32 and claimed an appropriate writ against the Chairman and the Members of the Committee of Privileges of the State Legislative Assembly.
The said petition was dismissed.
Subsequently he filed another petition substantially for the same relief and substantially on the same allegations.
One of the points which then arose for the decision of this Court was whether the second petition was competent, and this Court held that it was not because of the rule of res judicata.
It is true that the earlier decision on which res judicata was pleaded was a decision of this Court in a petition filed under article 32 and in that sense the background of the dispute, was different, because the judgment on which the plea was based was a judgment of this Court and not of any High Court.
Even so, this decision affords assistance in determining the point before us.
In upholding the plea of res judicata this Court observed that the question determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which are substantially the same.
In support of this decision Sinha, C. J., who spoke for the Court, referred to the earlier decision of this Court in Raj Lakshmi Dasi vs Banamali Sen (1) and observed that the principle underlying res judicata is applicable in respect of a question which hag been raised and decided after full contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject matter of the dispute was not exactly the same in the two proceedings.
We may add incidentally that the Court which tried the earlier proceedings in the case of Raj Lakshmi Dasi (1) was a Court of exclusive jurisdiction.
Thus this decision establishes the principle that the rule of res judicata can be invoked even against a petition filed under article 32.
We may at this stage refer to some of the earlier decisions of this Court where the presedt problem was posed but not finally or definitely answered.
In Janardan Reddy vs The State of Hyderabad (2), it (1) ; (2) ; , 370 587 appeared that against the decision of the High Court a petition for specialleave had been filed but the, same had been, rejectedand this was followed by petitions under article 32.These petitions were in fact entertained though on the merits they were dismissed, and in doing so it was observed by Fazl Ali, J., who delivered the judgment of the Court, that "it may, however, be observed that in this case we have not considered it necessary to decide whether an application under article 32 is maintainable after a similar application under article 226 is dismissed by the High Court, and we reserve our opinion on that question".
To the same effect are the observations made by Mukherjea, J., as he then was, in Syed Qasim Razvi vs The State of Hyderabad (1).
On the other hand, in Bhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana (2) the decision of the High Court was treated as binding between the parties when it was observed by reference to the said proceedings that "but that is a closed chapter so far as the Courts including this Court also are concerned inasmuch as the petitioner 's conviction stands confirmed as a result of the refusal of this Court to grant him special leave to appeal from the judgment of the Bombay High Court".
In other words, these observations seem to suggest that the majority view was that if an order of conviction and sentence passed by the High Court would be binding on the convicted person and cannot be assailed subsequently by him in a proceeding taken under article 32 when it appeared that this Court had refused special leave to the said convicted person to appeal against the said order of conviction.
The next question to consider is whether it makes any difference to the application of this rule that the decision on which the plea of res judicata is raised is a decision not of this Court but of a High Court exercising its jurisdiction under article 226.
The argument is that one of the essential requirements of section 11 of the Code of Civil, Procedure is that the Court which tries the first suit or proceeding should be competent (1) (2) ; 588 to try the second suit or proceeding, and since the High Court cannot, entertain an application under article 32 its decision cannot be treated as res judicata for the purpose of such a petition.
It is doubtful if the technical requirement prescribed by section 11 as to the Competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata; but assuming that it is, in substance even the said test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Art,. 226 is substantially the same as the jurisdiction of this Court in entertaining an application tinder article 32.
The scope of the writs, orders or directions which the High Court can issue in appropriate cases under article 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under article 32.
The cause of action for the two applications would be the same.
It is the assertion of the existence of a fundamental right and its illegal contravention in both cases and the relief claimed in both the cases is also of the same character.
Article 226 confers jurisdiction oil the High Court to entertain a suitable writ petition, whereas article 32 provides for moving this Court for a similar writ petition for the same purpose.
Therefore, the argument that a petition under article 32 cannot be entertained by a High Court under article 226 is without any substance; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain a petition under article 32 must be rejected.
It is, however, necessary to add that in exercising its jurisdiction under article 226 the High Court may sometimes refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of laches and in that sense the issue of a high prerogative writ may reasonably be treated as a matter of discretion.
On the other hand, the right granted to a citizen to move this Court by appropriate proceedings under article 32(1) being itself a fundamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that 589 the petitioner has a fundamental right which has been illegally or unconstitutionally contravened.
It is not unlikely that if a petition is filed even under article 32 after a long lapse of time, considerations ma arise whether rights in favour of third parties which may, have arisen in the meanwhile could be allowed to be ' affected, and in such a case the effect of laches on the, part of the petitioner or of his acquirence may have to be considered; but, ordinarily if a petitioner makes out a case for the issue of an appropriate writ or ' order he, would.
be entitled to have such a writ or, order under article 32 and that may be said to constitute a difference in the right conferred on a citizen to move the High Court under article 226 as distinct from the right conferred on him to move this Court.
This difference must inevitably mean that if the High, Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata.
if, however, the matter has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the same party on the same facts and for the same reliefs under article 32.
In this connection reliance has been placed on the fact that in England habeas corpus petitions can be filed one after the other and the dismissal of one habeas corpus petition is never held to preclude the making of a subsequent petition, for the same reason.
In our opinion, there is no analogy between the petition for habeas corpus: and petitions filed either under article 226 or under article 32.
For historical reasons the writ for habeas corpus is treated as standing in a category by itself; but, even with regard to a habeas corpus petition it has now been held in England in Re, Hastings (No. 2) (1) that "an applicant for a writ (1) (1958) 3 All E.R. Q.B.D. 625.
590 of habeas corpus in a criminal matter who has once been heard by a Divisional Court of the Queen 's Bench Division is not entitled to be heard a second time by another Divisional Court in the same Division, since a decision of a Divisional Court of the Queen 's Bench Division is equivalent to the decision of all the judges of the Division, just as the decision of one of the old common law courts sitting in bank was the equivalent of the decision of all the judges of that Court.
" Lord Parker, C. J., who delivered the judgment of the Court, has elaborately examined the historical genesis of the writ, several dicta pronounced by different judges in dealing with successive writ petitions, and has concluded that "the authorities cannot be said to support the principle that except in vacation an applicant could go from judge to judge as opposed to going from court to court" (p. 633), so that even in regard to a habeas corpus petition it is now settled in England that an applicant cannot move one Divisional Court of the Queen 's Bench Division after ano ther.
The said decision has been subsequently applied in Re Hastings (No. 3) (1) to a writ petition filed for habeas corpus in a, Divisional Court of tile Chancery Division.
In England, technically an order passed on a petition for habeas corpus is not regarded as a judgment and that places the petitions for habeas corpus in a class by themselves.
Therefore we do not think that the English analogy of several habeas corpus applications can assist the petitioners in the present case when they seek to resist the application of res judicata to petitions filed under article 32.
Before we part with the topic we would, however, like to add that we propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution.
That is a matter with which we are not concerned in the present proceedings.
There is one more argument Which still remains to be considered.
It is urged that the remedies available to the petitioners to move the High Court under article 226 and this Court under article 32 are (1) [1959] 1 AR E.R. Ch.D. 698.
591 alternate remedies and so the adoption of one remedy cannot bar the adoption of the other.
These remedies are not exclusive but are cumulative and so no bar of res judicata can be pleaded when a party who has filed a petition under article 226 seeks to invoke the jurisdiction of this Court under article 32.
In support of this contention reliance has been placed on the decision of the Calcutta High Court in Mussammat Gulab Koer vs Badshah Bahadur (1).
In that case a party who had unsuccessfully sought for the review of a consent order on the ground of fraud brought a suit for a similar relief and was met by a plea of res judicata.
This plea was rejected by the Court on the ground that the two remedies though co existing were not inconsistent so that when a party aggrieved has had recourse first to one remedy it cannot be precluded from subsequently taking recourse to the other.
In fact the judgment shows that the Court took the view that an application for review was in the circumstances ail inappropriate remedy and that the only remedy available to the party was that of a suit.
In dealing with the question of res judicata the Court examined the special features and conditions attaching to the appli cation for review, the provisions with regard to the finality of the orders passed in such review proceedings and the limited nature of the right to appeal provided against such orders.
In the result the Court held that the two remedies cannot be regarded as parallel and equally efficacious and so no question of election of remedies arose in those cases.
We do not think that this decision can be read as laying down a general proposition of law that even in regard to alternate remedies if a party takes recourse to one remedy and a contest arising therefrom is tried by a court of competent jurisdiction and all points of con troversy are settled the intervention of the decision of the court would make no difference at all.
In such a case the point to consider always would be what is the nature of the decision pronounced by a Court of competent jurisdiction and what is its effect.
Thus considered there can be no doubt that if a writ petition filed by a party has been dismissed on the merits (1)(1909) 1 592 by the High Court the,, judgment thus pronounced is binding between the parties and it cannot be circumvented or by passed by his taking recourse to article 32 of the Constitution.
Therefore, we are not satisfied that the ground of alternative remedies is well founded.
We, must now proceed to state our conclusion on the preliminary objection raised by the respondents.
We hold that if a writ petition filed by a party under article 226 is considered on the merits as & contested matter, and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution.
It would not be open to a party to ignore the said judgment and move this Court under article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.
If the petition filed in the High Court under article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under article 32.
If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order.
If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated.
If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata.
It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide 593 what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar The petition filed under article 32.
If the petition is dismissed as withdrawn it cannot be a bar to a subsequent Gaj petition under article 32, because in such a case there has been no decision on the merits by the Court.
We wish to make it clear that the conclusions thus reached by us are confined only to the point of res jadirata which has been argued as a preliminary issue in these writ petitions and no other.
It is in the light of this decision that we will now proceed to examine the position in the six petitions before us.
In Petition No. 66 of 1956 we have already seen that the petition filed in the High Court was on the same allegations and was for the same relief The petitioners had moved the High Court to obtain a writ of certiorari to quash the decision of the Revenue Board against them, and when the matter was argued before the High Court in view of the previous decisions of the High Court their learned counsel did not press the petition.
In other words, the points of law raised by the petition were dismissed on the merits.
That being so, it is a clear case where the writ petition has been dismissed on the merits, and so the dismissal of the writ petition creates a bar against the competence of the present petition under article 32.
The position with regard to the companion petition, No. 67 of 1956, is exactly the same.
In the result these two petitions fail and are dismissed; there would be no order as to costs.
In Writ Petition No. 8 of 1960 the position is substantially different.
The previous petition for a writ filed by the petitioner (No. 68 of 1952) in the Allahabad High Court was withdrawn by his learned counsel and the High Court therefore dismissed the said petition with the express observation that the merits had not been considered by the High Court in dismissing it and so no order is to costs was passed.
This order the writ petition withdrawn which was 75 594 passed on February 3, 1955, cannot therefore support the plea of res judicata against the present petition.
It appears that a co lessee of the petitioner had also filed a similar Writ Petition, No. 299 of 1958.
On this writ petition the High Court no doubt made certain observations and findings but in the end it came to the conclusion that a writ petition was not the proper proceeding for deciding such old disputes about title and so it left the petitioner to obtain a declaration about title from a competent civil or revenue court in a regular suit.
Thus it would be clear that the dismissal of this writ petition (on 17 3 1958) also cannot constitute a bar against the competence of the present writ petition.
The preliminary objection raised against this writ petition is therefore rejected and it is ordered that this writ petition be set down for hearing before a Constitution Bench.
In Petition No. 77 of 1957 the petitioner has stated in paragraph 11 of his petition that he had moved the High Court of Punjab by a writ petition under articles 226 and 227 but the same was dismissed in limine on July 14, 1957.
It is not clear from this statement whether any speaking order was passed on the petition or not.
It appears that the petitioner further filed an application for review of the said order under O. 47, r. 1 read with section 151 of the Code but the said application was also heard and dismissed in limine on March 1, 1957.
It is also not clear whether a speaking order was passed on this application or not.
That is why, on the material as it stands it is not possible for us to deal with the merits of the preliminary objection.
We ' would accordingly direct that the petitioner should file the two orders of dismissal passed by the Punjab High Court.
After the said orders are filed this petition may be placed for hearing before the Constitution Bench and the question of res judicata may be, considered in the light of our decision in the present group.
In Petition No. 15 of 1957 initially we had a bare recital that the writ petition made by the petitioner in the Punjab High Court had been dismissed.
Subsequently, however, the said order itself has been 595 produced and it appears that it gives no reasons for dis missal.
Accordingly we must hold that the said order does not create a bar of res judicata and so the petition will have to be set down for hearing on the merits.
In Writ Petition No. 5 of 1958 the position is clear.
The petitioner had moved the Bombay High Court for an appropriate writ challenging the order of the Collector in respect of the land in question.
The contentions raised by the petitioner were examined in the light of the rejoinder made by the Collector and substantially the petitioner 's case was rejected.
It was held by the High Court that the power conferred on the State Government by section 5(3) of the impugned Act, the Bombay Service Inam (Useful to the Community) Abolition Act, 1953, was not arbitrary nor was its exercise in this particular case unreasonable, or arbitrary.
The High Court also held that the land of the petitioner attracted the relevant provisions of the said impugned statute.
Mr. Ayyangar 'for the petitioner realised the difficulties in his way, and so he attempted to argue that the contentions which he wanted to raise in his present petition are put in a different form, and in support of this argument he has invited am attention to grounds 8 and 10 framed by him in paragraph X of the petition.
We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are substantially the same.
Therefore the decision of the High Court pronounced by it on the merits of the petitioner 's writ petition under article 226 is a bar to the making of the present petition, under article 32.
In the result this writ petition fails and is dismissed.
There would be no order as to costs.
Petition dismissed.

summary/full:
Where the High Court dismisses a writ petition under article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata.
There is no substance in the plea that the judgment of the High Court cannot be treated as res judicata because it cannot 575 under article 226 entertain a petition under article 32 of the Constitution.
Citizens have ordinarily the right to invoke article 32 for appropriate relief if their fundamental rights are illegally on unconstitutionally violated and it is incorrect to say that article 32 merely gives this Court a discretionary power as article 226 does to the High Court.
Basheshar Noth vs Commissioner of Income tax, Delhi and Rajasthan, [1959] SUPP.
1 S.C.R. 528, referred to.
Laxmanappa Hanumantappa jamkhandi vs The Union of India; , , and Diwan Bahadur Seth Gopal Das Mohla vs The Union of India, ; , considered.
The right given to the citizens to move this Court under article 32 is itself a fundamental right and cannot be circumscribed or curtailed except as provided by the Constitution.
The expression "appropriate proceedings" in article 32,(1), properly construed, must mean such proceedings as may be appropriate to the nature of the order, direction or writ the petitioner seeks from this Court and not appropriate to the nature of the case.
Romesh Thappar vs The State of Madras, ; , referred to, Even so the general principle of res judicata, which has it.
; foundation on considerations of public policy, namely, (1) that binding decisions of courts of competent jurisdiction should be final and (2) that no person should be made to face the same kind of litigation twice over, is not a mere technical rule that cannot be applied to petitions under article 32 of the Constitution, Duchess of Kingston 's case, 2 Smith Lead.
13th E d. 644, referred to.
The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under article 226 passed after a hearing on merits as aforesaid must bind the parties till set aside in appeal as provided by the Constitution and cannot be circumvented by a petition under article 32.
Pandit M. section M. Sharma vs Dr. Shree Krishna Sinha, and Raj Lakshmi Dasi vs Banamali Sen, [1053] S.C.R. 154, relied on.
Janardan Reddy vs The State of Hyderabad, ; , Syed Qasion Rezvi vs The State of Hyderabad, [1953] S.C.R. 589 and Bhagubhai Dullabhabhai Bhandari vs The District magistrate, Thana; , , referred to.
It was not correct to say that since remedies under article 226 and article 32 were in the nature of alternate remedies the adoption of one could not bar the adoption of the other, Mussammat Gulab Koer vs Badshah Bahadur, (1909) 13 1197 held inapplicable.
576 Consequently, (1) where the petition under article 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution; (2) Where the petition under article 226 is dismissed I not on the merits but because of laches of the party applying for the writ or because an alternative remedy is available to him, such dismissal is no bar to a subsequent petition under article 32 except in cases where the facts found by the High Court may themselves be relevant even under article 32; (3) Where the writ petition is dismissed in limine and an order is pronounced, whether or not such dismissal is a bar must depend on the nature of the order; (4) if the petition is dismissed in limine without a speaking order, or as withdrawn, there can be no bar of res judicata.


judgement:
Appeal No. 12 of 1958.
Appeal by special leave from the judgment and order dated April 6,1953, of the Madras High Court in Appeal against order No. 54 of 1949.
section T. Desai and K. R. Choudhri, for the appellant.
K. N. Rajagopala Sastri and T. V. B. Tatachari, for respondents Nos.
I to 5.
April 5.
The Judgment of the Court was delivered by MUDHOLKAR, J.
In this appeal by special leave from the decision of the High Court of Madras the appellant challenges the validity of an award made by an arbitrator appointed by the Court in a suit for partition and recovery of possession filed by the appellant of his half share in certain properties upon three grounds.
The first ground is that the reference to arbitration was itself invalid because the Court failed to comply with the mandatory requirements of section 23, sub section
(1) of the (10 of 1940) in the matter of specifying the time within which the award was to be made.
The second ground is that the award was filed in Court by the arbitrator after the expiry of the time subsequently granted by the court for filing the award.
The third ground is that the arbitrator erred in allotting to the appellant less than half the share in the properties in suit.
In our opinion there is no substance in any of these grounds.
It is undoubtedly true that sub section
(1) of a. 23 requires that an order thereunder referring a dispute to an arbitrator must specify the time within which the award is to be made.
What is imperative is the fixation of the time for making the award.
But it does not follow that where the Court omits to specify the time in the order of reference but does so elsewhere in the proceedings, the reference is bad.
In Raja Har Narain Singh vs Chaadhrain Bhagawant Kuar and another (1) which was a case under the Code of Civil (1) (1981) L.R. 18 I.A. 55.
786 Procedure, 1882, the Privy Council had to consider the provisions of section 508 which correspond to those of section 23(l) of the .
While pointing out that the provisions of section 508 are mandatory and imperative they held that though the failure of the Court, to specify the time for making the award in the order of reference was not a strict compliance of the terms of the section still the fact that the Court fixed a date for hearing of the case "might be sufficient.
" There also, as here, subsequent to the mak ing of the reference the Court repeatedly made orders enlarging the time and in those orders Axed the time within which the award was to be made.
Thus the emphasis laid by the Privy Council was on the fixation of time in some manner and not on the necessity of expressly specifying the time in the order of reference itself.
Here the B Form Diary of the court shows that the dispute was referred to arbitration on January 22, 1948.
The entry in the diary of that date reads thus: "Subject matter of suit is referred to Arbitration on joint petition.
Call on. 24 2 1948".
The words "call on" must be interpreted to mean that the arbitrator was required to file his award by the date for which the suit stood adjourned, that is, February 24, 1948.
In our opinion this entry should be read along with the order of reference.
Reading them together it would follow that time was in fact fixed for filing the award by February 24, 1948.
The mere omission to mention this date in the order of reference itself did not vitiate the reference.
As regards the failure of the arbitrator to file the award within the time fixed the argument of learned counsel is that though on March 25, 1948, time was fixed for filing the award by June 23, 1948, the award was not actually filed till July 6, 1948.
A reference to the B Form Diary discloses that on February 24, 1948, the case was adjourned to March 25, 1948.
The Diary contains the remark "call on" and this remark precedes the mention of the adjourned date.
The High Court has interpreted this to mean that the time was extended by the Court on February 24, 1948, to March 25, 1948.
The entry dated March 25, 1948, contains the following: 787 "Further time wanted.
File Award 23 6 1948".
Three further entries are relevant and they are as follows: "23 6 1948 Call on . 28 6 1948 28 6 1948 Call on. 6 7 1948 6 7 1948 Award filed.
Objections 13 7 1948".
It is obvious from these entries that time was extended by the Court to file the award on three occasions.
The award was actually ready on June 28, 1948, and was filed in Court on July 6, 1948.
Learned counsel for the appellant faintly urged that on July 2, 1948, that is, before the award was actually filed, he had made an application to the Court for superseding the arbitration and that, therefore, the award could not be filed thereafter.
A mere application of the kind could not affect the reference.
Apart from that, the award had actually been made before that date and, there fore, the attempt to seek the supersession of the arbitration was, in any case, belated.
As regards the last point the High Court has come to the conclusion that though the area of the land allotted to the appellant is less than half the total area of the land in suit there is nothing to indicate that the value of that land is less than half that of the entire land in suit.
We agree that upon the material on record it would not be possible to say that the appellant has in fact received less than his due share of property.
Apart from that, however, we may point out that under section 30 of the Act an award can be set aside only on the following three grounds: (a). that an arbitrator or umpire has misconducted himself or the proceedings; (b). that an award has been made after the Issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid in under section 35; (c). that an award has been improperly procured or is otherwise invalid.
Plainly this objection would not fall either under el.
(a) or under cl.
(b) nor under the first part of cl.
788 The question is whether it could possibly fall within the second part of cl.
(c), that is, whether the award is I otherwise invalid".
In order to bring the objection within this clause learned counsel contended that the award was bad on its face.
It is difficult for us to appreciate bow the award could be said to be bad on its face.
When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly.
Here, in his judgment the arbitrator has allotted to the appellant certain lands the total area of which is less than half that of the entire I and in suit.
The appellant 's contention is that he is entitled to half the entire land.
This contention was before the arbitrator.
In spite of that he has made the award in the terms in which he has made it.
There appears to be no suggestion that the arbitrator acted dishonestly.
How can it then be said that this award is on its face bad? Agreeing with the High Court we dismiss this appeal with costs to the contesting respondent.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The questions for determination in the appeal were whether the award in question was invalid, (1) by reason of the court failing to comply with the mandatory requirement of section 23(l) Of the , that the time within which the award is to be made, must be specified in the order, and (2) whether the arbitrator was in error in allotting to the appellant less than half share in the properties.
Held, that under section 23(l) Of the , it is imperative that the time for making the award must be fixed; but that does not mean that where the court omits to specify the time in the order of reference and does so elsewhere in the proceedings, the reference is invalid.
Consequently, in a case where the order sheet of the court read with the order of reference made it clear that the arbitrator was to file his award by the date to which the suit was adjourned, it could not be said that the section had not been complied with.
Raja Har Narain Singh vs Chaudbrain Bhagwant Kuar (1891) L.R. 18 I.A. 55, referred to.
Held, further, that the award could not be said to be bad on the face of it and "otherwise invalid" merely because the appellant had received less than his due share.
The court cannot interfere with the findings of an arbitrator based on the best of his judgment unless it is shown that he has acted dishonestly.


judgement:
il Appeals Nos.
273 to 277 of 1960.
Appeals by special leave granted by the Supreme Court by its order dated December 15, 1958, from the judgment and order dated February 4, 1957, of the High Court of Orissa in O. J. C. Nos.
184 to 188 of 1955.
H. N. Sanyal, Additional Solicitor General of India and B. P. Maheshwari, for appellants (In C. As.
Nos. 273 and 274 of 1960) and respondents (In C. As.
275 277 of 1960).
C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and T. M. Sen, for respondents (In ( 'J. As.
Nos. 273 and 274 of 1960) and appellants (In C. As.
275 277 of 1960).
March 24.
The Judgment of the Court was delivered by SHAH, J.
The Orient Paper Mills Ltd., thereinafter called the assessees are a public limited company having their registered office at Brajrajnagar in the 551 district of Sambalpur, Orissa State.
The assessees are manufacturers of paper and paper boards and are registered as dealers under the Orissa Sales Tax Act, 1947 hereinafter referred to as the Act.
The assessees used to collect tax from the purchasers on all sales effected by them including sales to dealers in other States.
For the quarters ending March 31, 1950, June 30, 1950, September 30, 1950, December 31, 1950 and March 31, 195 1, the assessees paid Sales tax which they were assessed by the Assistant Collector of Sales tax to pay, on their turnover which included sales outside the State of Orissa.
After this court delivered the judgment in The State of Bombay and Another vs The United Motors (India) Ltd. and Others (1) the assessees applied for refund under section 14 of the Act of tax paid in respect of goods despatched for consumption outside the State of Orissa contending that according to the law expounded by this court, the transactions of sales outside the State were not taxable under the Act because of the prohibition imposed by article 286(1) (a) of the Constitution read with the Explanation.
Refund was refused by the Assistant Sales Tax Officer and the order was confirmed by the Board of Revenue.
In the view of the taxing authorities, the orders of assessment in respect of the five periods had become final on the diverse dates on which they were made and were not liable to be reopened merely because the law applicable to the transactions was not correctly appreciated by the taxing authorities.
In petitions moved by the assessees for writs of certiorari and mandamus against the orders of the Board of Revenue, the High Court of Orissa held that the only restriction upon the right of a dealer to apply for refund which "is found within the four corners of section 14 of the Act" being the law of limitation prescribed by the proviso to than section, transactions in question not being liable to tax as they were interstate transactions, the tax collected must be refunded on applications submitted within the period prescribed.
The High Court then proceeded to hold that the recovery of tax paid for the first two (1) ; 552 quarters was barred by limitation but not recovery of tax paid for the remaining three quarters, and issued id.
an order in the nature of mandamus directing refund of tax in respect of the last three quarters.
The State of Orissa and the assessees have appealed with special leave against the judgment of the High Court by these five appeals.
Counsel for the State of Orissa contends that no refund could be granted because the orders of assessment had become final and section 14 of the Act applied only to cases of refund in which a superior taxing authority in appeal or revision against the order of assessment directs or declares that the tax has not been properly collected, and it does not apply to cases of assessment which have become final, even if made on an erroneous view of the law.
The assessees support the view of the High Court that section 14 applies to all claims for refund and also contend that the recovery of tax paid for the first two quarters was not barred by the law of limitation.
It is unnecessary for the purposes of these appeals to consider the respective contentions of the parties.
In our view the claim of the assesses must fail because of the retrospective amendment of the Act by the Orissa Legislature.
By section 14A which was incorporated by the Orissa Sales Tax (Amendment) Act, 28 of 1958, it was provided: "Notwithstanding anything contained in this Act where any amount is either deposited by any person under sub section (3) of section 9B or paid as tax by a dealer and where such amount or any part thereof is not payable by such person or dealer, a refund of such amount or any part thereof can be claimed only by the person from whom such person or dealer has actually realised such amounts whether by way of sales tax or otherwise and the period of limitation provided in the proviso to section 14 shall apply to the aforesaid claims.
" In terms, the section provides that refund of tax "id which the dealer was not liable to pay can ' only be claimed by the person from whom the dealer has actually realised it whether as sales tax or otherwise.
553 The section therefore deprives the assessees of the common law right to claim refund of the amounts paid as tax under an error of law that it was recoverable by the taxing authority.
Counsel for the assessees does not dispute that by the amending provision, the right to obtain refund of tax is denied to him by the Legislature.
He contends that the Act is beyond the competence of the State Legislature, and in any event, it is void because it imposes an unreasonable restriction upon the assessees ' fundamental right guaranteed under article 19(1)(f) of the Constitution.
By item 54 of List II of Schedule 7 to the Constitution, the State Legislature was indisputably competent to legislate with respect to taxes on sale or purchase of papers and paper boards.
The power to legislate with respect to a tax 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 matter of granting refund of tax improperly or illegally collected, and the competence of the Legislature in this behalf is not canvassed by counsel for the assessees.
If competence to legislate for granting refund of sales tax improperly collected be granted, is there any reason to exclude the power to declare that refund shall be claimable only by the person from whom the dealer has actually realised the amounts by way of sales tax or otherwise We see none.
The question is one of legislative competence and there is no restriction either express or implied imposed upon the power of the Legislature in that behalf.
article 19(1)(f) of the Constitution prescribes the right to freedom of citizens to acquire, hold and dispose of property; but the right is by cl.
(5) subject to tile 70 554 operation of any law, existing or prospective, in so far as it imposes reasonable restrictions on the exercise of that right in the interest of the general public.
Assuming that by enacting that refund of tax shall only be made to the purchasers from whom the tax has been collected by the dealers and not to the dealers who have paid the tax the fundamental right under article 19(1)(f) is restricted, we are unable to hold that the restriction imposed by section 14A of the Act is not in the interest of the general public.
The Legislature by section 9B(1) of the Act authorised registered dealers to collect tax from the purchasers which they may have to pay on their turnover.
The amounts collected by the assessees therefore primarily belonged not to the assesssees but to the purchasers.
On an erroneous assumption that tax was payable, tax was collected by the assessees and was paid over to the State.
Under section 9B, cl.
(3) of the Act as it stood at the material time, the amounts realised by any person as tax on sale of any goods shall, notwithstanding anything contained in any other provision of the Act, be deposited by him in a Government treasury within such period as may be prescribed if the amount so realised exceeded the amount payable as tax in respect of that sale or if no tax is payable in respect thereof.
As the tax collected by the assessees was not exigible in respect of the sales from the purchasers, a statutory obligation arose to deposit it with the State and by paying that tax under the assessment, the assessees must be deemed to have complied with this requirement.
But the amount of tax remained under section 9B of the Act with the Government of Orissa as a deposit.
If with a view to prevent the assessees who had no beneficial interest in those amounts from making a profit out of the tax collected, the Legislature enacted that the amount so deposited shall be claimable only by the persons who had paid the amounts to the dealer and not by the dealer, it must be held that the restriction on the right of the assessees to obtain refund was lawfully circumscribed in the interest of the general public.
Counsel for the assessees contended that they stood 555 in danger of being compelled at the instance of the purchasers to repay the amount collected as tax even after it is deposited with or paid by them to the State, Government, and a statutory provision which deprives them of their right to claim refund amounts to an unreasonable restriction, because they are under an obligation to pay the amount to purchasers but they cannot reimburse themselves by recourse to the State which holds the amounts.
But by section 9B, the assessees were liable to deposit the amount in excess of what was lawfully recoverable from the purchasers as tax ' When under the orders of assessment they paid amounts to the State, requirements of section 9B were complied with and the amount remained with the State in deposit, subject to the obligation, if a demand was made within the period prescribed, to restore the same to the persons from whom the assessees had recovered it.
We do not think that there is any reason to hold that the assessees would be exposed to any enforceable claims at the instance of the purchasers to refund the tax collected by them if they have deposited it with the State in discharge of the statutory obligation incurred by them.
Appeals Nos. 273 and 274 of 1960 will therefore be dismissed and Appeals Nos.
275 to 277 of 1960 will be allowed.
As the State succeeds relying upon a statute enacted after the judgment was pronounced by the High Court, we direct that there shall be no order as to costs of the appeals in this court.
Appeals Nos. 273 and 274 of 1960 dismissed.
Appeals Nos. 275 to 277 of 1960 allowed.

summary/full:
The appellants who were registered as dealers under the Orissa Sales Tax Act, 1947, used to collect sales tax from the purchasers on all sales effected by them including sales to dealers in other states.
They were assessed to and paid tax on their turnover which included sales outside the State of Orissa, but after the decision of this Court in State of Bombay vs The 'United Motors (India) Ltd.; , , they applied under section 14 of the Act for refund of tax paid on the ground that sales outside the State were not taxable under cl.
(1)(a) of article 286 of the Constitution read with the Explanation.
Refund was refused by the Sales Tax Authorities and the Board of Revenue.
In petitions moved by the appellants for writs of certiorari and Mandamus against the orders of the Board of ,Revenue the High Court ordered refund of tax paid for certain periods and refused it in regard to other periods.
The Orissa Sales Tax Act was, however, amended in 1958 with retrospective effect incorporating section 14 A which provided that refund could be claimed only by the person from whom the dealer had realised the amount by way of sales tax or otherwise.
550 Held, that under section 14 A of the Orissa Sales Tax (Amendment) Act, 1958, refund of tax which the dealer was not liable to pay could 'be claimed by the person from whom the dealer had actually realised it whether as sales tax or otherwise, and not by the dealer.
The legislature was competent to legislate for granting )IS refund of sales tax improperly collected; there, is no reason to exclude the power to declare that refund shall be claimable only by the person from whom the dealer has realised the amount as sales tax or otherwise.
Under section 9B, cl. 3 of the Act, if the amount realised by the assessee exceeded the amount payable as tax such amount must be deposited in the Government treasury, and the assessee having no beneficial interest in such amount the enactment that the amount shall be claimable only by the persons who paid the amounts to the dealers as sales tax is a reasonable restriction imposed on the right of the assessee to obtain refund in the interest of the general public, and does not infringe the provisions of article 19(1)(f) of the Constitution.
If the assessees discharge their statutory obligation to deposit the amount collected by them as sale tax in the Government treasury they cannot be exposed to any claim for refund by the persons from whom the tax is collected, even though such persons were in the first instance not liable to pay the tax.


judgement:
No. 96 of 1959.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
750 section Shaukat Hussain and P. C. Aggarwala, for the petitioners N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents.
April 4.
The Judgment of the Court was delivered by SARKAR, J.
This is a petition raising a question of violation of the fundamental right to hold property guaranteed by article 19 (1) (f) of the Constitution.
It arises out of an order made under the , declaring two houses to be evacuee property.
What had happened was that sometime in September, 1951, two notices were issued under section 7 of the Act addressed respectively to Nusrat Ali and Fateh Ali, requiring them to show cause why they should not be declared evacuees and their properties, being the two houses in dispute, to be evacuee property.
Neither of these two persons having appeared, a declaration was made by the Custodian on January 10, 1952, under that section that Nusrat Ali and Fateh Ali were evacuees and the houses were evacuee property.
Upon such declaration the houses vested in the Custodian under the provision of section 8 of the Act and he took possession of them.
These houses were the property of one Khadim Ali who had never been declared an evacuee and had died on or about October 1, 1950, leaving three sons and five daughters, who thereupon became entitled to them in certain shares.
Nusrat Ali and Fateh Ali were two of the sons of Khadim Ali.
The Petitioners are his other son and two of his daughters.
No notice under section 7 had at any time been issued to them nor were they ever declared to be evacuees.
These facts are not in dispute.
The Petitioners contend that they have been wrongly deprived of their rights in the houses by the action of the Custodian.
They say that for a, long time they had no knowledge of the proceedings taken under the Act in respect of the houses and when they came to know of the order of the Custodian, they took various steps to protect their rights but were unsuccessful.
751 One of such steps appears to have been an appeal preferred by the male petitioner on behalf of all the petitioners to the Custodian General against the order of January 10, 1952.
On this appeal being rejected, they moved this Court by the present petition.
The question is whether the Custodian was entitled to declare the entirety of the two houses evacuee property and deprive the petitioners of their rights in them.
It is well established and not disputed, that no property of any person can be declared to be evacuee, property unless that person had first been given a notice under B. 7 of the Act: see Ebrahim Aboobaker vs Tek Chand Dolwani (1).
Admittedly, no such notice had been issued to the petitioners.
Their interest in the houses, therefore, could not have vested in the Custodian.
Learned counsel for the respondents, the officers concerned with evacuee properties, concedes that so far as the female petitioners were concerned, their interest could not in any way be affected by the order made under section 7 of the Act.
He however contends that the male petitioner, Zafar Ali, having filed the appeal to the Custodian General against the order of January 10, 1952, he personally at least, is bound by the order dismissing the appeal, that order being a quasi judicial decision.
It is said that be cannot, there fore, maintain this petition.
We do not think that this contention is well founded.
Zafar Ali was not a patty to the proceeding in which the order in dispute had been made.
Strictly speaking, no appeal by him against that order lay or was necessary.
Then again the appeal did not decide any question as to the right of Zafar Ali to the houses for, it was dismissed on the sole ground that it bad been filed beyond the time prescribed for it.
There was no judicial determination by the Custodian General of any fact affecting Zafar Ali 's right in the houses.
If, as was conceded, Zafar Ali 's share in the houses could not vest in the Custodian without due notice to him, then we are unable to appreciate how the position becomes different because Zafar Ali filed an appeal (1) ; , 702. 752 which was dismissed as time barred and which he need never have filed at all.
The order of January 10, 1952, was without jurisdiction so far as Zafar Ali 's share in the house was concerned, and it remained so in spite of the appeal.
In our view, the appeal furnishes no answer to the claim made in the petition.
As no notice had been issued to the petitioners under section 7, their interest in the two houses never vested in the Custodian.
The acts of the Custodian in so far as they deprive the petitioners of their property cannot be upheld.
It was also said on behalf of the respondents that the properties had already been acquired under the , and therefore the petitioners had, no longer, any claim to them.
Sub section (2) of section 12 of this Act provides that "On the publication of a notification under sub section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances.
" It was said that a notification mentioned in this section had been issued.
It seems to us that this section does not affect the petitioners ' rights.
It only affects the rights of an evacuee which the petitioners, on the admitted facts, are not.
We may mention here that the petitioner Zafar Ali claims that his father left a will giving him a larger share in the houses than he would have got on intestacy.
We are not concerned in this case with his rights under the will, if any, and say nothing about them.
In the result, we allow the petition and set aside the order of January 10, 1952, in so far as it affected the rights of the petitioners in the properties concerned.
There will be no order as to costs.
Petition allowed.

summary/full:
The Custodian of evacuee properties made a declaration that two houses were evacuee properties.
Notice under section 7 of the , which initiated the proceedings resulting in the declaration had been served on two persons as owners.
These persons did not appear and contest the proceedings.
The petitioners claimed to be entitled to certain shares in the houses.
No notice under section 7 Of the Act had at any time been served on them and they had never been declared evacuees.
One of the petitioners filed an appeal under the Act to the Custodian General which was dismissed as time barred.
The petitioners then filed a petition under article 32 Of the Constitution of India on the ground that they were being wrongfully deprived of their shares in the houses.
Held, that as no notice under section 7 of the Act had been ser ved on the petitioners, their shares in the houses had never become evacuee property nor vested in the Custodian.
The petitioner who had filed the appeal did not thereby lose his rights in the houses either as the appeal did not decide any question as to such rights but was dismissed on the sole ground that it was filed beyond the time prescribed for it.
Strictly, no appeal by him lay as he was not a party to the proceeding resulting in the declaration.
Section 12 of the , only affects the rights of an evacuee in his property.
The notification made under that section did not have the effect of extinguishing the petitioners ' rights in the houses as they had never been declared evacuees.
Ebrahim Aboobaker vs Tek Chand Dolwani, ; , referred to.