STATE OF UTTAR PRADESH Vs. VIJAY ANAND MAHARAJ

JUDGEMENT

(1.) (For himself, Sinha, C. J. and N. Rajagopala Ayyangar and Venkatarama Aiyar JJ.) This appeal by special leave is directed against the judgment and order of a division Bench of the Allahabad High Court confirming those of a single Judge of that court dismissing the application filed by the appellants to review the order of the High Court dated November 22, 1958.

(2.) The facts leading up to the filing of this appeal may be briefly stated. The respondent held certain zamindari and agricultural properties in different districts of the State of Uttar Pradesh. On December 22, 1952, the Additional Collector, Banaras, in exercise of the powers conferred on him under the provisions of the U. P. Agricultural Income-tax Act (Act III of 1949), assessed the respondent to an agricultural Income-tax of Rs. 99,964-12-0 for the year 1359 fasli. On September 30, 1955, the respondent filed a petition before the High Court under Art. 226 of the Constitution for quashing the said order on the ground that the Additional Collector, Banaras, had no jurisdiction to make the said assessment. On November 22, 1955, Mehrotra, J., allowed the writ petition quashing the said assessment. The State of Uttar Pradesh did not prefer an appeal against the said order and allowed it to become final. On February 9, 1956, the State of Uttar Pradesh promulgated an Ordinance, being Ordinance No. II of 1956, which was subsequently replaced by U.P. Act XIV of 1956. Under the provisions of the Ordinance, the assessments made by the Additional Collector were retrospectively validated and, under S. 6 thereof, a right was conferred upon any party to the proceedings under the U. P. Agricultural Income Tax Act, 1948,(hereinafter called the Principal Act), wherein any assessment made by an Additional Collector or Additional Assistant Collector was set aside merely on the ground that the assessing authority had no jurisdiction to make the assessment, to apply within 90 days from the date of the commencement of the said Ordinance for a review of the said proceedings in the light of the provisions of the Ordinance, and a statutory injunction was imposed upon a court to review the said order accordingly. Pursuant to the provisions of S.6 of the said Ordinance on March 14, 1956 the appellants filed an application in the High Court at Allahabad for review of its order dated November 22, 1956. Subsequently as stated earlier, the Ordinance was replaced by the U.P. Act XIV of 1956, hereinafter called the Act. In the course of the judgment we shall refer only to the provisions of the Act. The said application was heard, in the first instance, by Mehrotra, J., and he held that S. 11 of the Act, which corresponds to S. 6 of the Ordinance, did not entitle the appellants to file an application for review of an order made by the High Court under Art. 226 of the Constitution. The appellant's petition was dismissed on that ground. The appellants preferred an appeal against the said order to a division Bench of that court. Mootham, C. J., and Srivastava, J., who heard the appeal, dismissed it on two grounds, namely, (1) under Ch. VIII R. 5 of the Rules of Court, a special appeal against an order of a single judge of the court can be maintained only if that order amounts to a "judgment", and an order refusing an application for review not being a "judgment" cannot be the subject of an appeal. (2) on merits, that is on the construction of S. 11 of the Act the view taken by Mehrotra, J. was correct. The present appeal as already stated, was preferred against the said order.

(3.) Mr. C. B. Aggarwala, learned counsel for the appellants, has raised before us the following points: (1) The order of Mehrotra, J., dismissing the application for review of his earlier order is a "judgment" within the meaning of Ch. VIII R. 5 of the Rules of Court and, therefore, an appeal lies against that order to a division Bench of that Court. (2) The terms of S. 11 of the Act are comprehensive enough to take in an order made by the High Court under Art. 226 of the Constitution quashing the order of assessment, and even if there is some lacuna, the provisions shall be so construed as to carry out the clear intention of the Legislature. (3) In any view, the application for review filed by the appellants could be treated as one filed under Order 47 of the Code of Civil Procedure, and the earlier order reviewed on the ground that there is an error apparent on the face of the record. We shall take the questions in the order they were argued.