State Of Uttar Pradesh vs Dr. Vijay Anand Maharaj

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 25 of 1961

Decision Date: 26 March, 1962

Coram: Bhuvneshwar P. Sinha, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter titled State of Uttar Pradesh versus Dr. Vijay Anand Maharaj, the Supreme Court of India rendered its judgment on 26 March 1962. The case was heard by a bench consisting of Justice Bhuvneshwar P. Sinha, Justice N. Rajagopala Ayyangar and Justice J. R. Mudholkar, with the petitioner's side identified as the State of Uttar Pradesh and the respondent identified as Dr. Vijay Anand Maharaj. The official citation of the decision is reported in 1963 AIR 946 and 1963 SCR (1) 1, with additional citator references including RF 1965 SC 507, R 1971 SC 2337, RF 1981 SC 1786, RF 1986 SC 1272, and F 1992 SC 1981.

The dispute arose under the Uttar Pradesh Agricultural Income‑Tax Act, 1949 (as amended by Uttar Pradesh Act No. XIV of 1956). The respondent owned agricultural lands in several districts of Uttar Pradesh and was assessed to agricultural income tax by the Additional Collector of Banaras. The respondent filed a petition under Article 226 of the Constitution of India before the Allahabad High Court, challenging the assessment on the ground that the Additional Collector lacked jurisdiction to make the assessment. The High Court quashed the assessment, holding that the assessing authority had no jurisdiction.

Section 6 of the Uttar Pradesh Act No. XIV of 1956 provides that assessments made by the Additional Collector are validated, but also grants any party whose assessment has been set aside on jurisdictional grounds the right to move the appropriate court or authority within a prescribed period for a review of the proceedings. Section 11 further obliges the authority or court to which an application is moved to review the order. Acting on this statutory provision, the State of Uttar Pradesh applied to the High Court for review of its earlier order that had quashed the assessment.

The single judge of the High Court initially held that Section II of the Act did not apply to writ proceedings instituted under Article 226 of the Constitution. The State appealed this view, and a Division Bench of the Allahabad High Court examined the question. The Division Bench concluded that the order made by the single judge did not constitute a “judgment” within the meaning of Chapter VIII, Rule 5, Clause 10 of the Letters Patent of the Allahabad High Court, and consequently held that Section 11 of the Act could not be invoked in respect of a writ proceeding before the High Court.

The State then obtained special leave to appeal before the Supreme Court. In its special leave petition, the State contended that the Division Bench’s conclusion was erroneous. The State further submitted an additional statement of case, arguing that the application for review should be treated as an application under Order 47 of the Code of Civil Procedure. The Supreme Court, delivering its opinion per Chief Justice Sinha, Justice Subba Rao, Justice Ayyangar and Justice Aiyar, examined the interpretation of Clause 10 of the Letters Patent of the Allahabad High Court together with the Rules of the Court. The Court held that, even when the term “judgment” is applied in a narrow sense, it includes the order issued in the present case, thereby giving effect to the statutory right conferred by Section 11 of the Uttar Pradesh Agricultural Income‑Tax Act.

In this case the Court held that the order which finally negatived the party’s request constituted a judgment, and therefore the Division Bench was mistaken in concluding that it was not a judgment. The Court further observed that proceedings filed under Article 226 of the Constitution could not be described as “proceedings” within the meaning of the Act, nor could they be treated as proceedings based on the Act. It emphasized that actions taken under Article 226 were independent and original in nature and did not represent a continuation of the assessment proceedings. The Court referred to several earlier authorities to support this view, namely Venkataratnam v. Secretary of State for India (1930) I.L.R. 53 Mad. 979, Ryots of Garabandha v. The Zamindar of Parlakimedi I.L.R. 1938 Mad. 816, Ramayya v. State of Madras A.I.R. 1952 Mad. 300, Moulvi Hamid Hassan Nomani v. Banwarilal Coy. (1947) II M.L.J. 32, Budge Budge Municipality v. Mangru (1952) 57 C.W.N. 25 and Satyanarayanamurthi v. I.T. Appellate Tribunal A.I.R. 1957 Andhra 123. It stated that the Act must be interpreted in harmony with the Constitution and that the State Legislature possessed no power to compel the High Court to act in a prescribed manner while exercising its jurisdiction under Article 226. Section II of the Act, the Court explained, could apply only where a court or authority other than the High Court, acting under Article 226, had decided the matter. The Court further warned that reading the word “shall” in Section II as “may” would undermine the very purpose of the statutory provision. Finally, the Court rejected the argument that an application under Section 11 of the Act could be treated as an order under Order 47 of the Code of Civil Procedure, describing that contention as untimely and vulnerable to numerous objections, and therefore could not be permitted.

The judgment concerned Civil Appeal No. 25 of 1961, filed by special leave against the judgment and decree dated 26 November 1957 of the Allahabad High Court in Special Appeal No. 235 of 1957. Counsel for the appellants were C.B. Agarwala and C.P. Lal, while counsel for the respondent included the Additional Solicitor General of India, a senior law officer, and three other advocates. The appeal was decided on 26 March 1962. The judgment of Chief Justice Sinha, together with Justices Subba Rao and Ayyangar, was delivered by Justice Subba Rao, and Justice Mudholkar delivered a separate opinion. The appeal challenged the order of a Division Bench of the Allahabad High Court that confirmed the earlier decision of a single judge dismissing the appellant’s application for review of the High Court order dated 22 November 1958. The factual background was that the respondent owned zamindari and agricultural lands across several districts of Uttar Pradesh. On 22 December 1952, the Additional Collector of Banaras, exercising powers under the Uttar Pradesh Agricultural Income‑Tax Act (Act III of 1949), assessed the respondent to an agricultural income tax of Rs 99,964‑12‑0 for the fiscal year 1359 fasli. The respondent subsequently filed a petition before the High Court on 30 September 1955 seeking relief.

In the present matter the respondent had challenged, under Article 226 of the Constitution, an assessment made by the Additional Collector of Banaras on the ground that the collector lacked jurisdiction to make the assessment. On 22 November 1955 Justice Mehrotra allowed the writ petition and set aside the assessment. The State of Uttar Pradesh chose not to appeal that order and permitted it to become final. Subsequently, on 9 February 1956 the State promulgated Ordinance No 11 of 1956, which was later replaced by Uttar Pradesh Act XIV of 1956. The ordinance retrospectively validated the assessments made by the Additional Collector and, under section 6, granted any party to proceedings under the Uttar Pradesh Agricultural Income‑Tax Act, 1948 (referred to as the principal Act) the right to apply within ninety days from the commencement of the ordinance for a review of any assessment that had been set aside solely because the assessing authority was held to have no jurisdiction. The ordinance also imposed a statutory injunction directing courts to review such orders in accordance with its provisions.

Pursuant to section 6 of the ordinance, on 14 March 1956 the appellants filed an application in the Allahabad High Court seeking review of the High Court’s order dated 22 November 1955. After the ordinance was supplanted by Act XIV of 1956, the Court referred only to the corresponding provision of the Act, namely section II, which mirrors section 6 of the ordinance. Justice Mehrotra, hearing the application, held that section II of the Act did not confer a right to seek review of a High Court order issued under Article 226 of the Constitution. Consequently, the application for review was dismissed.

The appellants then appealed that dismissal to a division bench of the High Court. The appeal was heard by Chief Justice Nootham and Justice Srivastava, who dismissed it on two grounds. First, under Chapter VIII, rule 5 of the Rules of Court, a special appeal against an order of a single judge is permissible only if the order constitutes a “judgment”; an order refusing a review application does not qualify as a judgment and therefore cannot be appealed. Second, on the merits, the Court agreed with Justice Mehrotra’s construction of section II of the Act. The appellants, represented by counsel, raised three points before this Court: (1) that the order of Justice Mehrotra dismissing the review application should be treated as a judgment within the meaning of Chapter VIII, rule 5; (2) that section 11 of the Act is sufficiently comprehensive to include a High Court order under Article 226 quashing an assessment, and any gap should be construed to fulfil legislative intent; and (3) that the review application could be regarded as one filed under Order 47 of the Code of Civil Procedure, allowing it to be reviewed on the ground of an apparent error in the record.

The Court observed that the provision in Chapter VIII rule 5 of the Rules of Court authorised an appeal against an order issued by a single judge, and therefore an appeal could be filed to a division Bench of the High Court against the order of the single judge. The Court further held that the language of section 11 of the Act was sufficiently wide to encompass an order made by the High Court under article 226 of the Constitution that set aside an assessment order; even if a gap existed in the statutory language, the provisions must be interpreted in a manner that effectuates the clear intention of the Legislature. The Court also noted that, in any event, the application for review filed by the appellants could be regarded as an application filed under Order 47 of the Code of Civil Procedure, and that the earlier order could be reviewed on the ground that it contained an error apparent on the face of the record. Proceeding to the issues in the order in which they were raised, the first issue was whether an appeal lay against the order of Justice Mehrotra that rejected the appellants’ application for review, the appeal being directed to a division Bench of the High Court. Chapter VIII rule 5 provides for an appeal against an order of a single judge, but stipulates that such a special appeal is permissible only when the order constitutes a “judgment.” The rule implements clause 10 of the Letters Patent of the High Court of Allahabad, which confers a right of appeal against a judgment of a single judge subject to the conditions specified therein. Clause 10 of the Allahabad Letters Patent corresponds to clause 15 of the Letters Patent of the High Courts of Calcutta, Bombay and Madras. The Court pointed out that the meaning of “judgment” had been examined by several High Courts and that divergent views existed. It briefly reviewed the leading authorities on the matter. In the case of The Justices of the Peace for Calcutta v. The Oriental Gas Co., Chief Justice Couch defined “judgment” in clause 15 of the Letters Patent as a decision that affects the merits of the dispute between the parties by determining some right or liability; such a judgment may be final, preliminary or interlocutory, the distinction being that a final judgment decides the entire cause, whereas a preliminary or interlocutory judgment decides only a part, leaving other matters to be determined later. The same High Court, in Hadjee Ismael v. Hadjee Mahommed, held that an appeal was available under the same clause from an order refusing to set aside an order granting leave to sue the plaintiff under clause 12 of the Letters Patent. Chief Justice Couch observed that such an order was not a mere procedural formality; rather, it had the effect of granting the court a jurisdiction it would otherwise lack and could fairly be said to determine a right between the parties, namely the right to sue in a particular court.

In the discussion, the Court observed that the Bombay High Court adopted the view expressed by the Calcutta High Court. The Bombay Court accepted the principle that an order which authorises a suit to be brought in a particular court and which compels defendants who lie outside that court’s jurisdiction to appear, or, failing such appearance, to be held liable for a decree rendered in their absence, falls within the scope of a judgment for the purposes of the Letters Patent.

The leading judgment of the Madras High Court was cited in the case of Tuljaram v. Alagappa (3). In that decision, the Madras Court held that an order issued by a single judge of the Original Side that refused to frame an issue sought by one of the parties did not constitute a “judgment” within the meaning of clause 15 of the Letters Patent. The judgment referred to the earlier authorities (1) (1872) 8 Beng. L.R. 433, 452 and (2) (1874) 13 Beng. L.R. 91, 101, and cited the Tuljaram case itself (3) (1912) 1 L.R. 35 Mad. 1, 7, 15.

White, C.J., then articulated a test for determining whether an adjudication is a judgment. He explained that the test does not depend on the form of the adjudication but on its effect in the suit or proceeding. He stated that if the effect of the adjudication, irrespective of its form or the nature of the application on which it is made, is to bring the suit or proceeding to an end as far as the court before which it is pending is concerned, or if the effect of non‑compliance with the adjudication would also terminate the suit or proceeding, then such adjudication must be regarded as a “judgment” within the meaning of the clause.

Referring to the decisions of the Calcutta High Court, the learned Chief Justice expressed a contrasting view. He said that he was not prepared to follow the rulings in The Justices of the Peace for Calcutta v. The Oriental Gas Company (1) and in Sonbai v. Ahamedbhai Habibhai (2), which required a judgment to affect the merits by determining some right or liability. Nevertheless, the Chief Justice opined that a decision may still be a judgment for the purposes of the section even though it does not affect the merits of the suit or determine any question of right raised therein.

Krishnaswami Ayyar, J., made a similar observation. He remarked that a decision which determines the cause or proceeding as far as the particular court is concerned, even if it refrains from adjudicating the merits, must also be deemed a judgment. He warned that otherwise the rejection of a plaint for a defect of form or for insufficiency of jurisdiction, or the return of a plaint for want of jurisdiction, would fall outside the definition of judgment, which would contradict the learned Chief Justice’s intended meaning. He further noted that the “part” determined may be a separable portion of the claim or a general determination of liability, although the precise measure of liability might remain a matter for account.

The Lahore High Court was noted to have generally followed the view expressed by the Madras High Court on this issue.

The Allahabad High Court, in Muhammad Naim‑Ullah Khan v. Ihsan‑Ullah Khan (1), held that an order which did not fall within the ambit of Order 0.43 Rule 1 of the Code of Civil Procedure could not be appealed under clause 10 of the Letters Patent. A division bench of the same High Court reaffirmed this position in Tirmal Singh v. Kanhayia Singh (2). However, those decisions did not attempt to formulate a definition of the term “judgment” as employed in the Letters Patent. By contrast, the Nagpur High Court, in Manohar v. Baliram (3), after reviewing the prevailing case law, articulated a broader definition. Justice Hidayatullah, delivering the leading judgment, explained at page 522 that a judgment means a decision in an action—whether final, preliminary, or interlocutory—that resolves either the whole or a part of the controversy, conclusively for the court, as far as the court is concerned. He clarified that a judgment does not include a decision confined to a procedural matter nor one that is merely ancillary to the action, even if such a decision might affect the final outcome. The decision need not be immediately enforceable, but if left undisturbed it must inevitably lead to a decree or an executive order directing the performance or non‑performance of something concerning the facts of the controversy. The decision may itself command the performance or may defer it until certain details are ascertained, but it must not be interlocutory for the purpose of ascertaining matters prior to determining the whole or any part of the controversy. This brief analysis demonstrated that the definition given by the Madras High Court was broader than those offered by the Calcutta and Nagpur High Courts. In the present case, it was unnecessary to reconcile those definitions or to devise a new one, because the order issued by Justice Mehrotra would qualify as a judgment within the narrower definition of the term.

The appellants submitted an application seeking review of the High Court’s order that set aside the assessment order issued by the Additional Collector. In their affidavit, they contended that the challenged assessment had been validated under the relevant Ordinance and that, pursuant to section 6 of that Ordinance, they possessed a statutory right to have Justice Mehrotra’s order reviewed. The assessable party, however, denied that any such right existed for the appellants. Ultimately, the statutory entitlement claimed by the appellants to obtain a review of the High Court’s order was denied, and the matter proceeded before the High Court for determination of the issues raised.

In this matter, the dispute that had been raised by the opposite party was brought before the High Court. The Court then examined the specific provisions of the Uttar Pradesh Agricultural Income Tax Act, 1948, which it referred to as the Principal Act. Section 2 of that Act provided that, for clause (4), the term “Collector” was to be understood as defined in the Uttar Pradesh Land Revenue Act, 1901, and that the definition would also include any Additional Collector appointed under that Land Revenue Act. Section 10 dealt with the validation of earlier actions. Sub‑section (1) declared, for the removal of any doubt, that rule 18 of the Uttar Pradesh Agricultural Income Tax Rules, 1949, expressly treated the expressions “Collector” and “Assistant Collector in‑charge of a sub‑division” as inclusive of an “Additional Collector” and an “Additional Assistant Collector in‑charge of a sub‑division” respectively, and that this inclusion was to be deemed permanent. The same sub‑section further stated that all orders, actions, proceedings, directions issued or jurisdiction exercised in accordance with the provisions of the Principal Act or any rule made thereunder before the amendment effected by Section 2 of the present Act would be considered as valid and effective as if Section 2 had been in force on every relevant date. Sub‑section (2) provided that if any question should arise concerning the validity or legality of any assessment made by an Additional Collector in‑charge of a sub‑division, or by an Additional Collector purportedly exercising powers under Section 14 or under the rules framed under clause (c) of sub‑section (2) of Section 44 of the Principal Act, that question would be decided as though Section 2 of the present Act had always been applicable on all material dates. Section 11 concerned the review of proceedings. It prescribed that where, before the commencement of the present Act, any court or authority had, in any proceeding under the Principal Act, set aside an assessment made by an Additional Collector or an Additional Assistant Collector in‑charge of a sub‑division solely on the ground that the assessing authority lacked jurisdiction, any party to such proceedings could, within ninety days from the date the present Act came into force, apply to the appropriate court or authority for a reconsideration of the proceedings in light of the new provisions. The court or authority receiving such an application was required to review the matter and, if necessary, to vary or revise any earlier order so as to give effect to the Principal Act as amended by Sections 2 and 8 of the present Act. Accordingly, under these provisions the assessments that had been made by the Additional Collector were retrospectively validated, and a statutory right was conferred upon any party to the original proceedings, where the assessments had been set aside on the basis of lack of jurisdiction, to approach the court for a review of that earlier order.

A statutory injunction had been issued directing the court to set aside the assessment on the ground that there was no jurisdiction to review the order, and to give effect to the provisions of the Principal Act as amended by sections 2 and 4 of the Act. In effect, a new right was conferred on a party to the earlier proceedings, allowing that party to have the previous order nullified and to obtain a fresh decision from the court based on the amended Act. The Court observed that this constituted a valuable and substantive right for any party to the proceeding. Consequently, the rival contentions centered on whether this newly created right existed for the party and whether the court possessed jurisdiction to enforce it; any determination on that point would amount to a decision defining the parties’ rights. The Court noted that, absent the amending Act, the High Court’s order would have become final. However, because of the amendment, a controversy arose as to whether the binding decision could be reopened and the parties’ rights re‑examined in accordance with the amended provisions. The Court held that the decision of Justice Mehrotra dismissing the application effectively denied the appellants the right that the amending Act purported to grant. Accordingly, the Court found that Justice Mehrotra’s order dismissing the application for review of his earlier order, on the basis that section 11 of the Act did not confer any such right on the appellants, qualified as a “judgment” within the meaning of clause 10 of the Letters Patent and Chapter VIII, rule 5 of the Rules of Court. On that ground, the Court concluded that the Division Bench of the High Court erred in holding that no appeal lay against Justice Mehrotra’s order. Nevertheless, the Court stated that the appellants could not succeed unless the Court differed from the High Court and holds that section 11 of the Act indeed confers a right on the appellants to have Justice Mehrotra’s order reviewed. The Court recalled the two‑part structure of section 11: the first part grants a party to proceedings under the Principal Act the right to apply to the court or authority for a review of the proceeding in light of the Act’s provisions within ninety days from the commencement of the Act; the second part imposes a statutory injunction on the court or authority to conduct such a review and to issue any order necessary to give effect to the Principal Act as amended by sections 2 and 4 of the Act. The Court then posed the initial question of whether Justice Mehrotra’s order, issued in an application under Article 226 of the Constitution, formed part of any proceeding under the Principal Act. It was clear that a petition under Article 226 of the Constitution could not be characterized as a proceeding under the Act; it

It was observed that a petition filed under article 226 of the Constitution is a proceeding that arises under the Constitution and not under the principal Act. The Court noted that some authorities, specifically the passages on page 68 of Maxwell’s Interpretation of Statutes and page 492 of Crawford’s Statutory Construction, state that a judge has a duty to interpret a statute in a manner that suppresses mischief and advances the remedy. Those sources further suggest that a broader meaning may be given to statutory words in order to bring all matters fairly within the scope of the legislation, even if such meaning lies beyond the literal wording, provided it aligns with the spirit or reason of the law. However, both Maxwell and Crawford warned against extending a construction beyond what is naturally conveyed by the language. Maxwell, at page 68, cautioned that “the construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words.” Crawford similarly held that a liberal construction does not justify extending the statute’s reach beyond what the Legislature contemplated.

The fundamental rule of construction, as reiterated by the Court, is that the words and phrases chosen by the Legislature must be given their ordinary meaning and interpreted according to the rules of grammar. When the language of a provision is plain, unambiguous, and admits only one meaning, there is no issue of construction because “the Act speaks for itself.” It is a well‑recognised principle that the meaning of a provision must be derived from the expressed intention of the Legislature. Applying this principle, the Court concluded that there can be no alternative view on the interpretation of the first part of the section under consideration.

Counsel had suggested reading the relevant portion of the first part as “in any proceedings to set aside any assessment made on the basis of the Principal Act.” The Court held that accepting this suggestion would amount to rewriting the section. The provision expressly states that the order to be reviewed is one made in a proceeding under the Principal Act; the argument proposed by counsel seeks to remove the qualification attached to “proceeding” and instead attach it to “assessment.” An alternative argument that the phrase “on the basis of” could simply replace the word “under” also failed to achieve the result sought by counsel.

The Court further determined that it could not be justified, without distorting the language used, to regard a proceeding under article 226 of the Constitution as a proceeding either “under” the Principal Act or “on the basis of” the Principal Act. A petition under article 226 is fundamentally a constitutional proceeding aimed at quashing an order on the ground that it was made in violation of the Act. An additional contention was advanced that a proceeding under article 226 constitutes a continuation of the proceedings before the Additional Collector, and therefore those proceedings should be considered as proceedings under the Act. The Court indicated that this line of reasoning leads to a consideration of the scope of proceedings that fall within article 226 of the Constitution.

Article 226 of the Constitution gave a High Court the authority to issue any writ, order, or direction that is listed in that article for the purpose of enforcing any right guaranteed by Part III of the Constitution or for any other purpose that the Court may deem appropriate. The Constitution therefore assigned to the High Court a jurisdiction that was neither appellate nor revisional. Although the power was not restricted solely to the prerogative writs that had been issued by the English courts, it was fashioned after those writs mainly to enable the High Courts to keep the subordinate tribunals within the limits prescribed by law. Before the Constitution came into force, the chartered High Courts—namely the High Courts at Bombay, Calcutta and Madras—issued prerogative writs that were similar to those issued by the King’s Bench Division and were subject to the same constraints that applied to those writs. In the case of Venkataratnam v. Secretary of State for India (1) a division bench of the Madras High Court composed of Justices Venkatasubba Rao and Madhavan Nair held that the jurisdiction to issue a writ of certiorari was an original jurisdiction. Later, in Ryots of Garabandha v. The Zamindar of Parlakimedi (1) another division bench of the same High Court, consisting of Chief Justice Leach and Justice Madhavan Nair, examined the same issue incidentally and arrived at the identical conclusion that a writ of certiorari could be issued only in the exercise of the High Court’s original jurisdiction. The question of whether proceedings under Article 226 of the Constitution were to be regarded as falling within the original jurisdiction or the revisional jurisdiction of the High Court was again considered in Ramayya v. State of Madras (2). In that case a division bench formed by Justices Govinda Menon and Ramaswami Founder held that the power to issue writs under Article 226 was an original power and that the jurisdiction exercised by the High Court under that article was, therefore, an original jurisdiction.

The Privy Council addressed a related point in Moulvi Hamid Hassan Nomani v. Banwarilal Boy (3), where it was necessary to determine whether the original civil jurisdiction that the Supreme Court of Calcutta possessed over certain classes of persons beyond its territorial limits had been inherited by the High Court. The Judicial Committee observed that the issue of such writs was undeniably a matter of original jurisdiction. The Calcutta High Court reached the same conclusion in Budge Budge Municipality v. Mangru (4), stating that the jurisdiction exercised under Article 226 of the Constitution was indeed original and distinct from any appellate or revisional jurisdiction, while also emphasizing that this original jurisdiction was a special one and should not be confused with the ordinary civil jurisdiction that the High Court enjoyed under its Letters Patent. The Andhra High Court, in Satyanarayanamurthi v. I.T. Appellate Tribunal (1), further described the jurisdiction under Article 226 as an extraordinary original jurisdiction. Consequently, from the character of the power conferred by Article 226 and from the authority of the various decisions cited, it was clear that the High Court exercised an original jurisdiction when it acted under Article 226, and that this jurisdiction was not to be conflated with its ordinary civil jurisdiction.

In this case, the Court explained that when it exercised power under article 226 of the Constitution, it did so with original jurisdiction. However, the Court emphasized that this original jurisdiction must not be mistaken for the ordinary civil jurisdiction that the High Court normally possesses. The Court described this jurisdiction, although original in contrast to the Court’s appellate and revisional powers, as being exercisable throughout the territories over which the Court has authority and, for convenience, may be termed an extraordinary original jurisdiction. Because of this characterization, the Court held that a petition filed under article 226 could not be treated as a continuation of proceedings that had arisen under the statute in question. The Court then identified a further difficulty with the interpretation proposed by learned counsel. The second part of section 11 of the Act permitted a party to a prior proceeding, within a prescribed time, to apply to the court or authority for a review of that proceeding in accordance with the provisions of the Act, and directed that the court or authority hearing the application must review the proceeding and, if necessary, issue an order varying or revising the earlier order so as to give effect to the Principal Act as amended by section 2 of the Act. The Court observed that if this provision were held to apply to an order made by a High Court under article 226, then the statutory mandatory injunction compelling the High Court to make an order in a particular manner would be constitutionally void. The Court noted that under article 245 of the Constitution the legislature of a State derives its authority to make laws, but that article 245 is itself subject to article 226. Consequently, no State law could be enacted in a manner that would diminish the powers of the High Court conferred by article 226. The Court reiterated the settled principle that article 226 confers a discretionary power on the High Courts to issue appropriate orders and writs for the enforcement of any right guaranteed by Part III of the Constitution or for any other purpose. While article 226 grants this discretionary power, the second part of section 11 of the Act imposes on the High Court a duty to make an order in a particular way. The Court declined to adopt a construction of the section that would bring it into conflict with article 226, as such a construction would render the provision invalid to that extent. Instead, the Court adopted a construction that was consistent with the second part of the section, reasoning that if the first part were limited only to an order made by any court or authority other than the High Court exercising jurisdiction under article 226, both parts of the provision would operate together, giving a natural meaning to the wording and preserving the section from constitutional invalidity.

The Court observed that the phrase “or authority, other than the High Court in exercise of its jurisdiction under Article 226 of the Constitution” must be read so that both parts of the statutory provision operate together, giving the words their ordinary meaning and preserving the provision from constitutional invalidity. Counsel for the appellants attempted to overcome this difficulty by arguing that the word “shall” could be interpreted as “may”, thereby retaining the High Court’s discretionary power under Article 226, or alternatively by suggesting that the second part of the section actually consisted of two separate clauses—one permitting an aggrieved party to file an application and the other imposing a statutory duty—so that the first clause could be satisfied by the second and the provision could be upheld. The Court rejected the first argument, stating that it contradicted the clear wording of the statute and the Legislature’s intent; reading “shall” as “may” would extend the mandatory duty to all authorities and courts other than the High Court, which would defeat the purpose of the provision. Conversely, the Court held that when “shall” is given its natural meaning, the provision enforces the Legislature’s objective of imposing a mandatory injunction on courts and authorities to restore an assessment that has been declared invalid. The judgments cited by counsel in support of his construction were found to be of no assistance, because those decisions were based on the interpretation of the specific provisions under consideration in those separate cases. The Court further observed that accepting the second argument would effectively rewrite the statutory language, since the dominant legislative purpose is to command courts and authorities to review their orders on a suitable application, and deleting that command would frustrate the legislative intent. Accordingly, on a plain reading of the unambiguous words, the Court concluded that the section does not apply to an order made by the High Court exercising its powers under Article 226 of the Constitution. The appellants also contended that, even if section 11 were inapplicable, their application before the High Court should be treated as one filed under Order 47 of the Code of Civil Procedure, but the Court identified numerous objections to permitting such a conversion at a very late stage of the proceedings. The Court noted that the application had been filed solely under section 11 of the Act, with no attempt made before Judge Mehrotra or the division bench to seek amendment or to sustain the petition under Order 47, nor was the plea raised in the petition for special leave or in the original statement of case. After the matter was argued for some time on an observation casually made by the Court, the plea to treat the application as an Order 47 proceeding was raised for the first time in the additional statement of case filed by the appellants.

The Court observed that during the hearing a considerable amount of time was spent and that, for the first time, the appellants raised this particular plea in the additional statement of case that they filed. Consequently, the Court described the move as a highly belated attempt to transform an application that had originally been filed on one statutory basis into an application filed on another basis. The Court further explained that even if the plea were to be permitted, it would not be a simple or harmless matter; rather, it presented a number of complex and contentious issues. In particular, the Court identified five distinct questions that the plea raised. First, it asked whether an application that was to be treated as one made under order 47 of the Code of Civil Procedure had been filed within the prescribed period. Second, it considered the situation where the application was out of time and whether the delay could be excused without the appellant filing a separate application for condonation and providing satisfactory reasons. Third, the Court examined whether an order issued by the High Court exercising its powers under article 226 of the Constitution could be reviewed under order 47 of the Code of Civil Procedure, and if not, whether such a review could be pursued under section 151 of the Code. Fourth, it questioned whether an amendment to an Act with retrospective effect could be regarded either as an error on the face of the record or as a sufficient cause within the meaning of order 47 for reviewing final orders and decrees that were based on the law in force at the time those orders were made. Fifth, the Court asked if the order passed by Justice Mehrotra was indeed an order made under order 47, whether an appeal would then lie to a division bench of the High Court under order 43 of the Code. The Court stated that it would not express any opinion on these matters, but concluded that, on the basis of the foregoing considerations, it was not appropriate to allow the appellants to convert their petition into one under order 47 at such a late stage. Accordingly, the Court held that the High Court’s order was correct, dismissed the appeal, and awarded costs. Justice Mudholkar, agreeing with the reasoning of the preceding judgment, also dismissed the appeal, while reserving comment on the question of maintainability of an appeal under the Letters Patent against a single judge’s decision in a case of this nature.