Input:
ivil Appeal Nos.
171 172 of 1973.
From the Judgment and Order dated 9 3 1972 of the Calcutta High Court in I.T Reference No. 117/67.
D. V. Patel, section P. Nayar and Miss A. Subhashini for the Appellant.
B. B. Ahuja (Amicus Curiae) for the Respondent.
TULZAPURKAR, J.
These two appeals by certificate raise an important question as regards the proper construction of section 33B of the Indian Income Tax Act, 1922 with particular bearing on the scope of sub section
(4) thereof and the effect of sub section
(2) (b) on the sub section
The facts giving rise to the aforesaid question may briefly be stated: The assessment years involved are 1957 58 and 1958 59 corresponding to the accounting years ending March 31, 1957 and March 31, 1958 respectively.
On or about August 5, 1960 the respondent assessee submitted voluntary returns, inter alia, for the said two assessment years alongwith a declaration dated August 8, 1960.
The assessment for these years were completed on August 12, 1960 by the Income Tax Officer, 'E ' Ward, District II(1) Calcutta on total incomes of Rs. 7,000/ and 7,500/ respectively, the same having been made in the status of unregistered firm consisting of three partners, namely, 273 Asha Devi Vaid, Santosh Devi Vaid and Sugni Devi Vaid with equal shares.
On August 2, 1962, the Commissioner of Income Tax issued a notice to show cause why the said assessments should not be cancelled under section 33B of the Act as he felt that the completed assessments were erroneous as being prejudicial to the interests of the revenue and that the Income Tax Officer, 'E ' Ward, District II(1) Calcutta had no territorial jurisdiction over the case of the assessee.
The notice was served on the assessee on August 3, 1962 and the hearing was fixed by the Commissioner for August 6, 1962.
On the ground that none appeared and that there was no application for adjournment, the Commissioner passed his order under section 33B ex parte on that date.
By his said order the Commissioner cancelled the assessments made by the Income Tax Officer on August 12, 1960 on three grounds: (a) that some of the partners were minors and were not competent to enter into any partnership agreement with the result that the status of unregistered firm assigned to the assesse by the Income Tax Officer was clearly wrong and as such the assessments deserved to be cancelled, (b) that the books of account were unreliable and they were not properly examined by the Income Tax Officer with the result that the assessments made were prejudicial to the interests of the revenue and (c) that the Income Tax Officer concerned had no territorial jurisdiction over the case which fell within the jurisdiction of Income Tax Officer, District III(II) Calcutta, and directed the I.T.O. having proper jurisdiction to make fresh assessments after examining the record of the assesse in accordance with law.
In the appeals preferred to the Appellate Tribunal under section 33B(3) the respondent assessee challenged the said order of the Commissioner on various grounds.
The Tribunal, negativing all other contentions of the respondent assessee, came to the conclusion that on merits the facts justified the assumption of jurisdiction under section 33B by the Commissioner but held that the Commissioner had not conformed to the requirements of natural justice by putting to the respondent assessee what case it had to meet and by giving due opportunity for explaining the same.
The Tribunal noted that the Commissioner had disposed of the matter at 11.30 A.M. when none appeared on behalf of the respondent assessee while the notice served upon the latter permitted filing of objections at any time during the course of August 6, 1962 and objections had been filed by the respondent assessee later in the day.
The Tribunal, therefore, allowed the appeals, vacated the Commissioner 's order dated August 6, 1962 and remanded the case to him with the 274 direction to dispose it of afresh after giving due opportunity to the respondent assessee.
Feeling aggrieved by the Tribunal 's aforesaid order dated July 5, 1965 the appellant sought to refer a set of six questions of law said to arise out of the said order to the Calcutta High Court but the Tribunal referred the following two questions only for the opinion of the High Court: "1.
Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the assumption of jurisdiction by the Commissioner under section 33B of the Income Tax Act was valid in law? 2.
Whether, on the facts and in the circumstances of the case, the Tribunal acted properly by vacating the order of the Commissioner under section 33B of the said Act and in directing him to dispose of the proceedings under the said section afresh after giving due opportunity to the assessee?" The High Court disposed of the Reference (I.T. Reference No. 117 of 1967) by its judgment dated March 9, 1972 whereby it answered the first question in the affirmative against the assessee, that is to say, on merits it held that the assessments made by the Income Tax Officer required revision at the hands by the Commissioner.
As regards the second question the High Court was of the view that it comprised two aspects, one relating to the vacating of the Commissioner 's order and the other relating to the giving of a direction to him to dispose of the case under section 33B afresh after giving due opportunity to the assessee and the High Court held that in exercise of its appellate powers the Tribunal acted properly in vacating or cancelling the Commissioner 's order but did not act properly in directing him to dispose of the case afresh under section 33B(1) because the period of limitation of two years prescribed under section 33(2)(b) for him to act under section 33B(1) had expired and answered the question accordingly (i.e. in the affirmative on the first aspect and in the negative on the second aspect).
In doing so the High Court held that the provision of sub section 2(b) was absolute and covered even a revisional order of the Commissioner passed in pursuance of a direction given by any appellate authority and relied in that behalf on the aspect that, unlike 2nd proviso to sec.
34(3), there was no provision removing or relaxing the bar of limitation on the power of the Commissioner under section 33B(2) (b) .
The High Court preferred the view of the Assam High Court in C.I.T. vs Sabitri Debi 275 Agarwalla(1) to the view of the Bombay High Court in C.I.T. vs Kishoresingh Kalyansinh Solanki(2).
The Revenue has come up in appeal to this Court challenging the aforesaid view of the High Court.
Since the question relates to the proper construction of section 33B of the Act with particular bearing on the scope of the appellate powers of the Tribunal under sub section
(4) thereof and the effect of sub section
(2) (b) thereon, it will be desirable to note the material provisions of section 33B.
Under sub section
(1) power has been conferred upon the Commissioner to revise Income Tax Officer 's orders but the exercise of such power is regulated by the two conditions mentioned therein, namely, (a) he must consider the order sought to be revised to be erroneous as being prejudicial to the interests of the revenue and (b) he must give an opportunity to the assessee of being heard before revising it.
Sub section
(2) (b) prescribes a period of limitation in negative words by providing that "no order shall be made under sub section
(1) after the expiry of two years from the date of the order sought to be revised.
" Sub section
(3) confers on the assessee a right to prefer an appeal to the Appellate Tribunal against the Commissioner 's order made under sub section
(1) while sub section
(4) indicates the powers of the Appellate Tribunal in dealing with such appeal by providing that "such appeal shall be dealt with in the same manner as if it were an appeal under sub section
(1) of section 33".
Two things stand out clearly or a fair reading of the two concerned provisions, namely, sub section
(2) (b) and sub section
The bar of limitation contained in sub s (2) (b) is on the Commissioner 's power to pass revisional orders under sub section
(1) and the same appears to be absolute in the sense that it applies to every order to be made under sub section
At the same time sub section
(4) confers on the Appellate Tribunal very wide powers which it has while dealing with an appeal under section 33(1).
In other words, the Appellate Tribunal has power "to pass such orders thereon (i.e. on the appeal) as it thinks fit".
In Hukumchand Mills(3), case this Court has explained that the word "thereon" restricts the jurisdiction of the Appellate Tribunal to the subject matter of the appeal which merely means that the Tribunal cannot adjudicate or give a finding on a question which is not in dispute and which does not form the subject matter of the appeal but the words "pass such orders thereon as it thinks fit" include all the powers (except possibly the power of enhancement) which are conferred on the Assistant Appellate Commissioner by section 31 and consequently the Tribunal has authority in exercise of its appellate powers to set aside the order appealed against and direct fresh assessment in the light of the observations made by it in its 276 judgment.
In other words, similar power is possessed by the Appellate Tribunal while dealing with the appeal under sub section (4) of section 33B.
The question that arises for our consideration is whether such a direction to dispose of the case afresh can be given to the Commissioner by the Appellate Tribunal when the period of limitation prescribed under sub section
(2) (b) has expired ? In other words, whether sub section (2) (b) of section 33B has the effect of attenuating or curtailing the appellate powers of the Tribunal under sub section
(4) ? Counsel for the Revenue contended that it was a well settled principle that all the parts of a section or statute should be construed together and that every clause of a section should be construed with reference to the context and other clauses thereof, so that the construction put on a particular provision makes a consistent enactment of the whole statute.
He further urged that the object of conferring revisional power upon the Commissioner under section 33B(1) obviously was to correct erroneous orders of Income Tax Officer in so far as they were prejudicial to the interests of the revenue and such object would be defeated if the bar of limitation contained in sub section
(2)(b) is held applicable to revisional orders passed by the Commissioner in pursuance of or in obedience to a direction given or order made by the Appellate Tribunal in appeal under section 33B(4) or for that matter by the High Court or Supreme Court in case the matter is carried to those Courts.
According to him it would be proper to construe the provision in sub section 2(b) as being applicable to suo motu revisional orders passed by the Commissioner under sub section
(1) and not to orders passed by him in pursuance of a direction issued to him by the Tribunal in appeal.
He urged that there was no reason why sub section
(2) (b) should be regarded as having the effect of attenuating or curtailing the very wide appellate powers conferred upon the Tribunal.
He further urged that no argument could be based on the absence of a provision, similar to the 2nd proviso to section 34(3), in section 33B of the Act the support of his contention strong reliance was placed by him upon the Bombay High Court 's decision in Solanki 's case (supra).
On the other hand, counsel for the assessee canvassed the High Court 's view for our acceptance by pointing out that both sections 33B and 34(3) together with the second proviso were introduced in the Act by the same Amending Act 1948 but in section 33B no provision for removing or relaxing the bar of limitation contained in sub section
(2)(b) was made and hence it was not for the Court to supply a casus omissus.
He also relied on the fact that in the 1961 Act the necessary provision has been enacted in section 263(3) which also showed that in the absence of such provision in section 33B of the 1922 Act the bar of sub section
(2) (b) was 277 applicable to every order of the Commissioner irrespective of whether it was made suo motu or in pursuance of a direction issued by the appellate authority.
According to him since the bar of limitation contained in sub section
(2) (b) of section 33B always operated for the benefit of the assessee as the same accorded finality to the assessment orders, the appellate powers of the Tribunal under sub section
(4) must be regarded as having been curtailed to the extent that the Tribunal cannot remand the case to the Commissioner for making fresh assessment if by then the limitation has expired.
Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled.
In regard to the former the following statement of law appears in Maxwell on Interpretation of Statutes (12th Edn.) at page 33: Omissions not to be inferred "It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.
Lord Mersey said: 'It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. ' 'We are not entitled, ' said Lords Loreburn L.C., 'to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. ' A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission in consequence to have been unintentional." In regard to the latter principle the following statement of law appears in Maxwell at page 47: A statute is to be read as a whole "It was resolved in the case of Lincoln College [(1595) 3 Co. Rep. 58b, at p. 59b] that the good expositor of an Act of Parliament should 'make construction on all the parts together, and not of one part only by itself. ' Every clause of a statute is to 'be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute. ' (Per Lord Davey in Canada Sugar Refining Co., Ltd. vs R : 278 In other words, under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.
This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danckwerts L.J. in Artemiou vs Procopiou(1) "is not to be imputed to a statute if there is some other construction available.
" Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction, (Per Lord Reid in Luke vs I.R.C. 1968 AC 557 where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges.
In the light of these principles we will have to construe sub section
(2) (b) with reference to the context and other clauses of section 33B. Section 33B was introduced in the Indian Income Tax Act, 1922 by the Income Tax and Business Profit Tax (Amendment) Act, 1948 with effect from March 30, 1948 and the object of introducing the same was obviously to confer revisional powers upon the Commissioner to correct the erroneous orders of an Income Tax Officer in so far as they were prejudicial to the interests of the revenue.
The language of the sub sec.
(1) clearly suggests that the said power was contemplated to be exercised suo motu by the Commissioner inasmuch as the opening words show that it was upto the Commissioner to call for and examine the record of any proceedings under the Act and on examination of the record if he were satisfied that any order passed by an Income Tax Officer was erroneous as being prejudicial to the interests of the revenue he could revise the same after giving an opportunity to the assessee of being heard.
It is true that sub section
(2) (b) thereof prescribed a period of limitation on his power by providing that no order shall be made under sub section
(1) after the expiry of two years from the date of the order sought to be revised by the Commissioner and a literal construction of sub section
(2) (b) also suggests that the bar of limitation imposed thereby was absolute in the sense that it applied to every kind of order to be made under sub section
(1) and no distinction was made between a 279 suo motu order and an order that might be made by him pursuant to a direction given by any appellate or other higher authority but the question is whether such a literal construction should be accorded to that provision ? As stated earlier sub section
(3) conferred on an assessee a right to prefer an appeal to the Appellate Tribunal against the Commissioner 's order made under sub section
(1) and under sub section
(4) the Tribunal had authority to deal with the impugned order of the Commissioner in such manner as it deemed fit in exercise of its appellate powers; for instance, it could confirm the impugned order, it could annul that order, it could after vacating it remand the case back to the Commissioner for making a fresh assessment in the light of the observations made by it in its judgment or it could, after calling for a remand report, rectify the erroneous order of the Income Tax Officer.
Further there was no period prescribed within which an appeal against the impugned order of The Commissioner had to be disposed of by the Tribunal and in the normal course on rare occasions such appeals would have been heard and disposed of before the expiry of two years from the date of the Income Tax Officer 's order which was regarded as erroneous by the Commissioner.
More often than not such appeals would come up for hearing after the expiry of the said period of two years a fact fully known and within the contemplation of the Legislature when it introduced the section in the Act in 1948.
In these circumstances did the Legislature intend to attenuate or curtail the appellate powers which it conferred on the Appellate Tribunal in very wide terms under sub section
(4) by enacting sub section
(2) (b) prescribing a time limit on the Commissioner 's power to revise an erroneous order of the Income Tax Officer when the Commissioner was seeking to exercise the same not suo motu but in pursuance of or obedience to a direction from the Appellate authority ? According to the construction contended for by the assesses and which found favour with the High Court the answer was in the affirmative because sub section
(2) (b), on its literal construction, was absolute.
In our view such literal construction would lead to a manifest y absurd result, because in a given case, like the present one, where the appellate authority (Tribunal) has found (a) the Income Tax Officer 's order to be clearly erroneous as being prejudicial to the interests of the revenue and (b) the Commissioner 's order unsustainable as being in violation of principles of natural justice how should the appellate authority exercise its appellate powers ? obviously it could not withhold its hands and refuse to interfere with Commissioner 's order altogether for, that would amount to perpetuating the Commissioner 's erroneous order, nor could it merely cancel or set aside the Commissioner 's wrong order without doing anything about the Income Tax Officer 's order, for.
that would result in perpetuating the Income Tax 280 Officer 's order which had been found to be manifestly erroneous as being prejudicial to the revenue.
But such result would flow from the view taken by the High Court which has held that the Tribunal acted properly in vacating the Commissioner 's order but did not act properly in directing him to dispose of the proceedings afresh after giving opportunity to the assesses.
Such manifestly absurd result could never have been intended by the Legislature.
Moreover, it was fairly conceded by the counsel for the assesses before us that in exercise of its appellate powers it was open to the Tribunal itself to call for a remand report from either the Commissioner or the Income Tax Officer and rectify the Income Tax Officer 's erroneous order after giving opportunity to the assesses and in doing so no question of limitation would arise.
It was also not disputed by him that it was equally open to the Tribunal to set aside the Commissioner 's order and remand the case directly to the Income Tax Officer giving the requisite direction to rectify his erroneous order and thereupon the Income Tax Officer could carry out the Tribunal 's direction.
for, admittedly, the bar of limitation under 1) sub section
(2) (b) was only on the Commissioner 's paver to make an assessment afresh and not on the Income Tax Officer.
If this be the correct position then it is gravely anomalous that the Tribunal should not be in a position to set aside the Commissioner 's order and remand the case back to the Commissioner for making a fresh assessment because in the meantime two years ' period of limitation has expired, for, it would mean that the Tribunal was prevented from achieving the desired effect directly through the Commissioner but it could do so indirectly through the Income Tax Officer.
A literal construction placed on subs.
(2) (b) would lead to such manifestly absurd and anomalous results, which, we do not think, were intended by the Legislature.
These considerations compel us to construe the words of sub section (2)(b) as being applicable to suo motu orders of the Commissioner in revision and not to orders made by him pursuant to a direction or order passed by the Appellate Tribunal under sub section
(4) or by any other higher authority.
Such construction will be in consonance with the principle that all parts of the section should be construed together and every clause thereof should be construed with reference to the context and other clauses thereof so that the construction put on that particular provision makes a consistent enactment of the whole statute.
Having regard to the above discussion we are clearly of opinion that the view taken by the Bombay High Court in Solanki 's case (supra) on the construction of sub section
(2) (b) of section 33B is correct and we approve of it.
In Sabitri Devi Agrawalla 's case (supra) the Assam High Court took a contrary view and held that under section 33B(4) of the 281 Act the Tribunal would not be justified in remanding the case to the Commissioner after the two years had expired from the date of the order sought to be revised.
The decision seems to rest on three aspects: (a) it being fiscal statute the same must be strictly construed, (b) the bar of limitation contained in sub section
(2)(b) was absolute and unqualified and covered all types of orders and (c) that unlike the second proviso to section 34(3) there was no provision for removing or relaxing the bar of limitation on the power of the Commissioner under section 33B (2) (b) and that since section 33B as well as section 34(3) with second proviso had been introduced in the Act by the same Amending Act of 1948 there was a deliberate omission to make a provision removing of relaxing the 'oar of limitation in section 33B and for such an omission the remedy lay with the Legislature and not with the Court.
The Assam High Court also alluded to the fact that under the 1961 Act the Legislature had made a provision removing or relaxing the bar of limitation in section 263(3).
As regards aspect (b) we have already dealt with it above.
As regards aspect (a) it is well settled that the principle that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could section 33B be regarded as a charging provision.
As regards aspect (c) we have already pointed out above that a casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both sections 33B and 34(3) together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948 and that in the case of former a relaxing provision was not made as was made in the case of the latter provision, firstly because the two provisions operated in distinct fields and secondly it would be improper to do so without comparing the various stages of amendments through which each set of these provisions had undergone since inception.
The further aspect that the Legislature has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation in section 263(3), is, in our view, not of much consequence.
Irrespective of the question whether the second proviso to section 34(3) was enacted ex majore cautella or not (over which conflicting views obtain), it is clear to us that section 263(3) of the 1961 Act must be regarded as an ex majore cautella provision.
Admittedly, at the time when the said provision was enacted in the 1961 Act, the Bombay view held the field and, there was no decision to the contrary of any other High Court.
Obviously, therefore, the enactment of section 263(3) must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of the Income Tax Bill 1961 where it has been stated that sub cl.
(3) of section 263 was new and had been 19 282 added to get over the difficulty experienced in (wrongly state 'caused by ') the Bombay High Court 's; decision in Solanki 's case (supra) .
The enactment of an ex majore cautella provision in the 1961 Act would, therefore, be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act.
In our view, therefore.
the Assam case was wrongly decided.
Reference may now be made to a decision of this Court in Pooran Mall 's case, where in a similar situation arising under section 132 of the Income Tax Act, 1961, a restricted construction was accorded by this Court to sub section
(5) thereof which prescribed certain period of limitation.
In that case pursuant to an authorisation issued under section 132(1) of the 1961 Act searches were carried out on October 15 and 16, 1971 at the residence and business premises of P, an individual, and at certain office premises of the firms in which he was a partner, and jewellery, cash and account books were seized.
There was also a search of two banks and a restraint order was made under section 132(3) in respect of l 14 silver bars pledged with those banks on the ground that they were the property of P.
On January 12, 1972, the Income Tax Officer passed a summary order under section 132(5) on the basis that all the assets seized and 114 silver bars belonged to P. Thereupon, P & Sons, one of the firms in which P was a partner, and P filed a writ petition in the High Court challenging the order dated January 12, 1972 and on April 6, 1977, on the basis of the consent of the parties, the High Court quashed the order and permitted the department to make a fresh enquiry after giving an opportunity to the petitioner and pass a fresh order within two months.
After a fresh enquiry the Income Tax Officer passed an order on June S, 1972.
holding that the silver bars belonged to P, the individual, and not the firm, P and Sons.
Thereupon, the firm and P again filed a writ petition challenging the second order.
The High Court held that the Income Tax Officer had no jurisdiction to pass that order beyond the period prescribed in section 132(5) and set aside the order and directed the return of the 114 bars of silver.
This Court held, inter alia, that the order made in pursuance of a direction given ' under section 132(12) or by a Court in writ proceedings, was not subject to the limitation prescribed under section 132(5).
At page 394 this Court has observed thus: "Even if the period of time fixed under section 132(5) is held to be mandatory that was satisfied when the first order was made.
Thereafter, if any direction is given under section 132(2) or by a Court in writ proceedings, as in this case, we do not think an order made in pursuance of such a 283 direction would be subject to the limitations prescribed under A section 132 (5) .
Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under section 132(11) within thirty days and that authority can direct the Income Tax Officer to pass a fresh order.
We cannot accept the contention on behalf of the respondents that even such a fresh order should be passed within ninety days.
It would make the sub sections (11) and (12) of section 132 ridiculous and useless.
" It may be pointed out that in section 132 there is no provision removing or relaxing the bar of limitation contained in section 132(5) enabling the Income Tax Officer to pass an order afresh pursuant to any direction issued to him by a higher authority under section 132(12) and even the this Court took the view that the limitation prescribed under section 132(5) will be applicable only to the initial order to be made by the Income Tax Officer and not to an order that would be made by him pursuant to a direction from the Board or notified authority.
The concerned provisions were read together and such construction was put on sub section
(5) of section 132 as made a consistent enactment of the whole statute.
In the result, we are of opinion that the answer given by the High Court to the second aspect of the second question referred to it was clearly wrong and, in our view, the Tribunal 's order vacating the Commissioner 's order and directing the Commissioner to make assessment afresh after giving due opportunity to the respondent assessee was proper.
The appeal is accordingly allowed but in the circumstances, there will be no order as to costs.
V.D.K. Appeal allowed.

Output:
In respect of the accounting years ending March 31, 1957 and March 1958 respectively on the voluntary returns submitted by the respondent, the Income Tax Officer 'E ' Ward District II (1) Calcutta completed the assessment for these years (1957 58 and 1958 59) on total incomes of Rs. 7000/ and Rs. 7500/ respectively, the same having been made in the status of unregistered firm consisting of three partners, namely Asha Devi Vaid, Santosh Devi Vaid and Sugni Devi Vaid with equal shares.
On August 2, 1962, the Commissioner of Income Tax issued notice to show cause why the said assessments should not be cancelled under section 33B of the Act as he felt that the completed assessments were erroneous as being prejudicial to the interests of the Revenue and the Income Tax Officer 'E ' Ward District II(1) Calcutta had no territorial jurisdiction over the case of the assessee.
The notice was served on the assessee on August 3, 1962 and the hearing was fixed by the Commissioner for August 6, 1962.
On the ground that none appeared and there was no application for adjournment, the Commissioner passed his order under section 33B ex parte on that date.
By his said order the Commissioner cancelled the assessments made by the Income Tax Officer on three grounds (a) that some of the partners were minors and were not competent to enter into any partnership agreement with the result that the status of unregistered firm assigned to the assessee by the Income Tax Officer was clearly wrong and as such the assessments deserved to be cancelled; (b) that the books of accounts were unreliable and they were not properly examined by the Income Tax Officer with the result that the assessments made were prejudicial to the interests of the revenue and (c) that the Income Tax Officer has no territorial jurisdiction over the case which fell in the jurisdiction of Income Tax Officer, District III Calcutta and directed the Income Tax Officer having proper jurisdiction to make fresh assessments after examining the records of the assessee in accordance with law.
The appeals preferred to the Appellate Tribunal under section 33B(3) were accepted.
Finding that the Commissioner 's order passed at 11.30 A.M. ex parte was bad in as much as the notice served upon the assessee permitted filing of objections at any time during the course of August 6, 1962 and the objections were in fact filed later in the day, the Tribunal remanded the case with the direction to dispose it of afresh after giving due opportunity to the respondent assessee.
On a reference to the High Court at the instance of the appellant, the 269 High Court held: (a) the assumption of jurisdiction by the Commissioner under section 33B of the Income Tax Act was valid in law; (b) the Tribunal acted properly in vacating or cancelling the Commissioner 's order, but, (c) the Tribunal did not act properly in directing the Commissioner to act under section 33B(1) because the period of limitation of two years prescribed under section 33(2)(b) for him to act under section 33B(1) had expired.
In doing so, the High Court held that the provision of sub section 2(b) was absolute and covered even a revisional order of the Commissioner passed in pursuance of a direction given by any appellate authority.
Allowing the appeal by Certificate, the Court ^ HELD: 1.
Under sub section (1) of section 33B of the Income Tax Act, power has been conferred upon the Commissioner to revise Income Tax Officer 's orders but the exercise of such power is regulated by the two conditions mentioned therein namely, (a) he must consider the order sought to be revised to be erroneous as being prejudicial to the interests of the revenue and (b) he must give an opportunity to the assessee of being heard before revising it.
Sub section
(2)(b) prescribes a period of limitation in negative words by providing that "no order shall be made under sub s(1) after the expiry of two years from the date of the order sought to be revised".
Sub s.(3) confers on the assessee a right to prefer an appeal to the Appellate.
Tribunal against the Commissioners ' order made under sub s.(1) while sub section
(4) indicates the power of the Appellate Tribunal in dealing with such appeal by providing that "such appeal shall be dealt with in the same manner as if it were an appeal under sub s.(1) of section 33".
Two things stand out clearly on a fair reading of the two concerned provisions, namely, sub s.(2)(b) and sub s.(4).
The bar of limitation contained in sub section
(2)(b) is on the Commissioner 's power to pass revisional orders under sub section
(1) and the same appears to be absolute in the sense that it applies to every order to be made under sub s.(1).
At the same time sub s.(4) confers on the Appellate Tribunal very wide powers which it has while dealing with an appeal under section 33(1).
In other words, the Appellate Tribunal has power "to pass such orders thereon (i.e. on the appeal) as thinks fit.
" The word "thereon" restricts the jurisdiction of the Appellate Tribunal to the subject matter of the appeal which merely means that the Tribunal cannot adjudicate or give a finding on a question which is not in dispute and which does not form the subject matter of the appeal but the words "pass such orders thereon as it thinks fit" include all the powers (except possibly the power of enhancement) which are conferred on the Assistant Appellate Commissioner by section 31 and consequently the Tribunal has authority in exercise of its appellate powers to set aside the order appealed against and direct fresh assessment in the light of the observations made by it in its judgment.
In other words, similar power is possessed by the Appellate Tribunal while dealing with the appeal under sub s.(4) of section 33B. [275 A H, 276 A] Hukamchand Mills 's case, ; applied.
Two principles of construction are relating to casus omissus and the other in regard to reading the statute as a whole are well settled.
Under the first principle, a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and 270 for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.
This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.
[277 B, 278 A B] Artemiou vs Procopiou, , Luke vs Inland Revenue Commissioner and 577 Quoted with approval.
The object of introducing Section 33B with effect from March 30, 1948 was to confer revisional powers upon the Commissioner to correct the erroneous orders of an Income Tax Officer in so far as they were prejudicial to the interests of the revenue.
The language of the sub sec.(1) clearly suggests that the said power was contemplated to be exercised suo motu by the Commissioner inasmuch as the opening words show that it was upto the Commissioner to call for and examine the record of any proceedings under the Act and on examination of the record if he were satisfied that any order passed by an Income Tax Officer was erroneous as being prejudicial to the interests of the revenue he could revise the same after giving an opportunity to the assessee of being heard.
It is true that sub s.(2)(b) thereof prescribed a period of limitation on his power by providing that no order shall be made under sub s.(1) after the expiry of the two years from the date of the order sought to be revised by the Commissioner and a literal construction of sub s.(2)(b) also suggests that the bar of limitation imposed thereby was absolute in the sense that it applied to every kind of order to be made under sub s.(1) and no distinction was made between a suo motu order and an order that might be made by him pursuant to a direction given by any appellate or other higher authority.
Sub s.(3) conferred on an assessee a right to prefer an appeal to the appellate Tribunal against the Commissioner 's order made under sub section (1) and under sub s.(4) the Tribunal had authority to deal with the impugned order of the Commissioner in such manner as it deemed fit in exercise of its appellate powers; for instance, it could confirm the impugned order, it could annul that order, or it could after vacating it remand the case back to the Commissioner for making a fresh assessment in the light of the observations made by it in its judgment or it could after calling for a remand report, rectify the erroneous order of the Income Tax Officer.
Further there was no period prescribed within which an appeal against the impugned order of the Commissioner had to be disposed of by the Tribunal and in the normal course on rare occasions such appeals would have been heard and disposed of before the expiry of two years from the date of the Income Tax Officer 's order which was regard as erroneous by the Commissioner.
More often than not such appeals would come up for hearing after the expiry of the said period of two years a fact fully known and within the contemplation of the Legislature when it introduced the section in the Act in 1948.
[278 E H, 279 A D] 4.
The Legislature did not intend to attenuate or curtail the appellate powers which it conferred on the appellate Tribunal in very wide terms under sub s.(4) by enacting sub section 2(b) prescribing a time limit on the Commissioner 's power to reverse an erroneous order of the Income Tax Officer when the Commissioner was seeking the exercise the same not suo motu but in pursuance of or obedience to a direction from the appellate authority.
Any contrary and literal construction would lead to manifestly absurd result, because in a given 271 case, like the present one where the appellate authority (Tribunal) has found (a) the Income Tax Officer 's order to be clearly erroneous as being prejudicial to the interests of the revenue and (b) the Commissioner 's order unsustainable as being in violation of principles of natural justice; it would be difficult for the appellate authority to exercise its powers.
Obviously it could not withhold its hands and refuse to interfere with Commissioner 's order altogether, for, that would amount to perpetuating the Commissioner 's erroneous order, nor could it merely cancel or set aside the Commissioner 's wrong order without doing anything about the Income Tax Officer 's order, for that, would result in perpetuating the Income Tax Officer 's order which had been found to be manifestly erroneous as being prejudicial to the revenue.
Moreover, in exercise of its appellate powers it was open to the Tribunal itself to call for a remand report from either the Commissioner or the Income Tax Officer and rectify the Income Tax Officer 's erroneous order after giving opportunity to the assessee and in doing so no question of limitation would arise.
It was equally open to the Tribunal to set aside the Commissioner 's order and remand the case directly to the Income Tax Officer giving requisite direction to rectify his erroneous order and thereupon the Income Tax Officer would carry out the Tribunal 's direction for, admittedly, the bar of limitation under sub s.(2)(b) was only on the Commissioner 's power to make an assessment afresh and not on the Income Tax Officer.
If this be the correct position then it is gravely anomalous that the Tribunal should not be in a position to set aside the Commissioner 's order and remand the case back to the Commissioner for making a fresh assessment because in the meantime two years ' period of limitation has expired, for, it would mean that the Tribunal was prevented from achieving the desired effect directly through the Commissioner but it could do so indirectly through the Income Tax Officer.
A literal construction placed on sub s.(2) (b) would lead to such manifestly absurd and anomalous results, which, were not intended by the Legislature.
Therefore, the words of sub section 2(b) should be construed as being applicable to suo motu orders of the Commissioner in revision and not to orders made by him pursuant to a direction or order passed by the Appellate Tribunal under sub s.(4) or by any other higher authority.
Such construction will be in consonance with the principle that all parts of the section should be construed together and every clause thereof should be construed with reference to the context and other clauses thereof so that the construction put on that particular provision makes a consistent enactment of the whole statute.
[279 D H, 280 A G] Commissioner of Income Tax vs Kishoresingh Kalyan Singh Solanki, ; approved.
It is well settled that the principle that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could section 33B be regarded as charging provision.
[281 C D] 6.
A casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both sections 33B and 34(3) together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948 and that in the case of former a relaxing provision was not made as was made in the case of the latter provision, firstly because the two provisions operated in distinct fields and secondly it would be improper to do so without compar 272 ing the various stages of amendments through which each set of these Provisions had undergone since inception.
The further aspect the Legislature has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation, in section 263(3), is, not of much importance.
Irrespective of the question whether the second proviso to section 34(3) was enacted ex majore cautella or not (over which conflicting views obtain) it is clear that section 263(3) of the 1961 Act must be regarded as an ex majore cautella provision.
Admittedly, at the time when the said provision was enacted in the 1961 Act, the Bombay view held the field and there was no decision to the contrary of any other High Court.
Obviously, therefore, the enactment of section 263(3) must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of the Income Tax Bill 1961 where it has been stated that sub cl.
(3) of section 263 was new and had been added to get over the difficulty experienced in (wrongly stated 'caused by ') the Bombay High Court 's decision in Solanki 's case.
The enactment of an ex majore cautella provision in the 1961 Act would, therefore, be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act.
[281 E H, 282 A] C.I.T. vs Sabitri Devi Agarwalla, over ruled.
Pooran Mall 's case, ; relied on.


Input:
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.

Output:
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.