UNION OF INDIA Vs. SATYENDRA NATH BANERJEE

JUDGEMENT

(1.) The fact in these two cases are shortly as follows: One Mewaram Shaw, residing in Calcutta, was assessed to income-tax for the years 1944-45, 1945-46 & 1946-47. In July 1948, he was assessed for income-tax to the extent of Rs. 87066/1/-. Proceedings Under Section 128, Income-tax Act were also drawn up and he was directed to pay a penalty of Rs. 1,00,000.00 in respect of the three assessment years. Mewaram preferred an appeal under Section 31, Income-tax Act and ultimately the Income-tax Appellate Tribunal made certain reductions. He also made an application under Section 66(2) of the said Act to the High Court, but it was unsuccessful. As Mewaram failed to pay the amount, certificate proceedings were drawn up and in Certificate Cases Nos. 173. 174 and 175 of 1949-50, before the Certificate Officer 24-Parganas certain movable and immovable properties were attached, obviously on the footing that they belonged to Mewaram. The immovable properties consisted of four houses in Calcutta, being premises Nos. 36, 39A, 39B, Ghosh Lane and 146, Vivekananda Road. The movable properties were lying at No. 36, Ghosh Lane, where the said Mewaram and his family were residing. After the attachment, four claim petitioners were filed under A. 39 of Schedule 2 Public Demands Recovery Act (3 of 1913). Two of these were by Rajaram Shaw, son of Mewarasn, (respondent 2 in Civil Revn. No. 1145 of 1952) one in respect of the movable properties and the other in respect of premises No. 36, Ghosh Lane, on the plea that the said premises had been gifted to him by his father by a registered deed of gift dated 27/9/1949. The remaining two applications were made by Sin. Saraswati Debi, (respondent 2 in Civil Revn. No. 1146 of 1952) in respect of the premises 39A. and 39B, Ghosh Lane and 146, Vivekananda Road, alleging that the said properties had been gifted to her by her husband by a deed of gift dated 24/9/1949. There were protracted proceedings before the Certificate Officer, 24-Parganas, in course of which evidence was taken. On 16/8/1950, the Certificate Officer 24-Parganas disallowed the claim petitions. The Certificate Officer held that Mewaram with his son and wife lived in 36 Ghosh Lane from before the transfer and continued to do so without any change even after the alleged deed of gift in favour of his son. So far as the alleged gift to Sm. Swaraswati Debi was concerned, she adduced no evidence of possession and failed to produce any written receipts issued by her to the tenants. It appeared that the transfers were made after the service of demand notice in respect of income-tax, and the Certificate Officer was not satisfied as to the genuineness of the transfers. As stated before the claim petitions were disallowed. On or about 28-8-1950, both Rajaram Shaw and Sm. Swaraswati Debi filed appeals against the said order of the Certificate Officer before the Collector 24-Parganas. In September 1950, the Collector 24-Parganas dismissed the appeals on the ground that no appeal lay against the order of the Certificate Officer. Against the said-decisions, appeals were preferred before the Commissioner of the Presidency Division, being appeals Nos. 76 and 77 of 1950. These appeals were also dismissed by the Commissioner -of the Presidency Division on the ground that no appeal lay. On or about 7/2/1951 the said Rajaram Shaw and Sm. Swaraswati Debi applied for review to the Member, Board of Revenue. The Member, Board of Revenue, pointed out that Section 51, Public Demands Recovery Act (hereinafter referred to as the 'Act') gave a statutory right of appeal against any original 'order made under the Act by an officer upto the rank of Collector, the only exception being in respect of an order made under. Section 22 of the Act. He held that the statutory right of appeal given in the body of the Act could not be modified by a rule appended to the Act by way of a schedule. The result was that the petitions were allowed on a question of law and the records sent back to the Additional Collector with instruction that he should deal with the appeals on merits.

(2.) It is against this order that these two Rules have been taken nut by the Union of India asking for a writ in the nature of Mandamus, Certiorari and Prohibition. The short point, therefore, in these two applications is as to whether the' provisions contained in Rules 39 to 43 of Schedule II of the Act constituted a bar or not against preferring an appeal from the order of the Certificate Officer dismissing the claim petitions preferred by the said respondents. Arguing on the analogy of Order 21, Rule 63, Civil P.C. the wordings of which are almost similar to those of Rule 43 of the Certificate Rules, it is stated that the only course of action left open to the claimants was to institute a suit in the Civil Court to establish their rights to the properties in dispute, the order of the Certificate Officer in the claim cases being otherwise conclusive.

(3.) A preliminary point was taken on behalf of the respondents to the effect that the Union of India could not maintain an application of this nature under Article 226 of the Constitution. Firstly, it is said on the authority of a Bench decision of this Court in - 'Re: Banwari Lal Roy', 48 Cal W.N. 766 at p. 803 (A) that the Union of India is not a legal entity or a body corporate which could sue or be sued in that name. In that case it was held that the Provincial Government or Government of Bengal' was not a legal entity or a body corporate, which could sue or be sued, in that name. Das, J., pointed out that the only section authorising such a suit or proceeding is Section 176, Government of India Act, 1935, which authorised the use of the name of the Province only in respect of certain suits and proceedings which did not include an application for the issue of a Writ of 'Quo Warranto'. Reference was also made to the case of -'Doya Narain v. Secy. of State', 14 Cal 256 (B). It was held there that Section 65 of 21 and 22 Vic. Ch. 106 does not constitute the Secretary of State a body corporate who could be sued in that name. It is next argued that our Constitution does not confer any fundamental rights under Part III, upon the Indian Union as such, and consequently, an application under Article 226 does not lie.