JAGMENDAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution for a writ of certiorari or any other suitable writ or direction has been filed by five petitioners on the following allegations. Raj Bahadur Ch. Randhir Singh died on 9th of November 1954. Before his death, on 13-2-1952 the deceased gifted 6/7th share of his agricultural land situated in village Durina, Tehsil Jhajjar, District Rohtak, in favour of the following persons: Jagmendar Singh, his son; Smt. Sudhi Devi, his wife; Smt. Chanderman Devi, his daughter; Smt. Suraj Kaur Devi, wife of Ch, Sampuran Singh, son of the deceased; Narishpal Singh minor so of Ch. Sampuran Singh through his mother Smt. Suraj Kaur Devi, and Sampuran Singh son of the deceased. The gifted land comprised about 754 bighas and the share of each one of the aforesaid donees was one-six. In addition to the above gift, the deceased had also gifted 38 bighas and 8 biswas of land situated in village Sura in favour of Harijans of that village. It is alleged that the gift made in favour of the petitioners operated as an obsolete transfer of the property and the donees became full and absolute owners thereof, though the land was being managed by the deceased donor as manager and as co-share in the holding, 6/7th of which had been gifted by him in favour of the petitioners and Sampuran Singh. Out of the income of the land so gifted, the following amounts had been deposited by the deceased in favour of the following persons: 1. Ch. Sampuran Singh, elder son of the deceased. Rs. 10,138.00 2. Jagmendar Singh, younger son of the deceased and petitioner No. 1. Rs. 10,097 3. Smt. Sudhi Devi wife of the deceased and petitioner No. 3 Rs. 10,000.00 The Assistant Collector, Estate Duty, in his orders dated 31st of December, 1956, held this amount to be a part of the estate of the deceased; he further held that the aforesaid land gifted in favour of the petitioners and Ch. Sampuran Singh should be deemed to pass only on the death of the deceased under S. 10 of the Estate Duty Act. It is averred that the Assistant Controller Estate Duty has wrongly held that the land gifted in favour of the Harijans of village Sura is to be admitted back. It is alleged that petitioners No. 2, 3 and 4 being pardanashin ladies, their interests were not properly represented before the Estate Duty Department and petitioners Nos. 1 and 5 being minors when the case for the assessment was started, were also not in a position to properly safeguard their interests; petitioner No. 5 Narishapal Singh is still a minor, though petitioner No. 1 has since become major. It is also pleaded that the amount of Rs. 4,300/- invested in Cash Savings Certificates by the deceased has also been wrongly included by the Assistant Controller Estate Duty in the property which is to pass on the death of the deceased Shri Methan Dass Gupta, Advocate, was engaged for the purposes of representing the petitioner's case but the Assistant Controller did not allow the counsel to appear before him. The following four items are also alleged in the petition to have been wrongly held by the Assistant Controller, per his order dated 31st of December, 1956, to be a part of the estate of the deceased which passed to the heirs on his death:

(2.) This petition is resisted by the Union of India on a large number of grounds and in para 8 of the reply it is contended that the petitioners had a further remedy under S. 64 of the Estate Duty Act which was proper, adequate and efficacious alternative remedy and for this reason the present petition is liable to be dismissed. Section 64 of the Estate Duty Act provides for a reference to the High Court on a question of law arising out of an order by the Board so that the High Court may express its opinion thereon. Under sub-s. (4) of S. 64 if the Board is of opinion that either on account of the importance of any question of law involved in the case or on account of a conflict in the decisions of different High Courts in respect of any particular question of law arising therefrom, it is expedient that a case should be stated direct to the Supreme Court, the Board is empowered to so state the case even direct to the Supreme Court. The Advocate-General submits that the Estate Duty Act itself has provided an alternative, adequate and equally efficacious remedy and that the extraordinary remedy by way of a writ under Art. 226 of the Constitution should on this ground be refused to the petitioners. Ch. Ram Sarup has contended that the alternative remedy is not equally efficacious and convenient because notwithstanding a reference made under S. 64 the estate duty would be payable by his clients in accordance with the determination made by the Board. This, according to the counsel, makes the alternative remedy inefficacious and inconvenient. In the second place, Ch. Ram Sarup submits that the decision of a reference under section 64 takes a much longer time in its disposal than a writ petition, with the result that the amount of delay caused in the disposal of such references makes the remedy inadequate, inconvenient and inefficacious. In support of his contention Ch. Ram Sarup has placed reliance on Valji Korji v. Collector of Kutch, AIR 1954 Kutch 11, Brij Lal Suri v. State of Uttar Pradesh, AIR 1954 All 393, Himmatlal Harilal v. State of M. P., AIR 1954 SC 403, Kanpur Oil Mills, Harriesgani v. Judge (Appeals) Sales-tax, Kanpur Range, (S) AIR 1955 All 99, and Narain Singh v. State of U. P., AIR 1956 All 564. He has also referred me to the observations contained at page 186 of "Extraordinary Legal Remedies" by Ferris, where it is stated that in order to be a bar, the other remedy must be adequate and that an adequate remedy is one which is equally beneficial, speedy and sufficient, not merely one which at some time in the future will bring about relief; it is further stated in this book that where the exigencies of the case are such that the ordinary methods of appeal or error may not prove adequate either in point of promptness or completeness, so that a partial or total failure of justice may result, then certiorari may issue. Ch. Ram Sarup has also relied on two unreported decisions of this Court in civil Writ No. 57 of 1958 and Brij Mohan v. State of Punjab, Civil Writ No. 773 of 1958. The counsel emphasises that in the instant case the amount of duty comes to about Rs. 35,000/- and if he is bound to pay the duty, in spite of a reference having been made, then this remedy cannot be considered to be equally convenient, effect or efficacious. The learned Advocate-General meets this objection by referring me to S. 70 of the Act which empowers the Controller in a fit case to allow payment of estate duty to be postponed for such period, to such extent, and on payment of such interest not exceeding 4 per cent and on such other terms, as he may think fit. Sub-section (2) of this section further enables the accountable person to pay the estate duty in four equal yearly instalments or eight equal half-yearly instalments with interest at the rate of 4 per cent or any higher interest yielded by the property. The counsel contends that not only is it open to the Controller in a fit case to postpone payment of estate duty but the accountable person is also entitled to make the payment in reasonable instalments, if he so desires. With respect to the argument based on delay Mr. Sikri replies that a reference under the Act is in the very first instance heard by a Division Bench and in a proper case the reference can even be made directly to the Supreme Court; he further controverts the assertion made by Ch. Ram Sarup that a reference made under the Act takes longer to be heard than a writ petition; it is in this connection emphasised that decision in proceedings for a writ is initially given by a single Judge and this is appealable to a Division Bench which means that final decision in such proceedings in this Court is likely to take longer than in the proceedings by way of a reference under the Estate Duty Act.

(3.) In my opinion, the preliminary objection raised by Mr. Sikri has force and must be upheld. As observed by the Supreme Court in K. S. Rashid and Son v. Income-tax Investigation Commission, AIR 1954 SC 207, the remedy provided for in Art. 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant a writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. In the reported case the assessee had availed himself of the remedy provided in S. 85 of the Investigation Commission Act and a reference had been made to the High Court a Allahabad in terms of that provision which was awaiting decision. In those circumstances the Supreme Court observed that it was not proper to permit the assessee to invoke the discretionary jurisdiction of the High Court under Art. 226 of the Constitution. It is true that in the present case the petitioners have not chosen to utilise the provisions of S. 64 of the Estate Duty Act, but that in my opinion, is not very material and it would hardly made any real difference. If the alternative remedy, which is adequate and effective, is open to the petitioners the mere fact that they chose not to avail of it cannot deprive the alternative remedy of its adequacy or effectiveness and would not on that account entitle them to claim relief under Art. 226. The ratio of the Supreme Court decision clearly shows that such a remedy is adequate, convenient and efficacious so as to disentitle the assessee o the accountable person, as the case may be, to claim relief by way of a prerogative writ from this Court. It must also in this connection be borne in mind that even under Art. 226 of the Constitution the petitioners are not as of right entitled to claim a stay order from this Court with respect to the payment of estate duty. The Parliament, in its wisdom having laid down a detailed statutory provision for affording effective relief to accountable persons, this Court would, while exercising its extraordinary powers under Art. 226 of the Constitution, grant relief by way of stay in its discretion and only in special cases in which the normal statutory relief is not likely to meet the ends of justice. No such special circumstance has been made out in the instant case. A writ of certiorari, indisputably, cannot be granted as a matter of course and merely because the amount of duty payable is large is, by itself, hardly, a valid ground to permit the petitioners to by-pass the usual statutory provision and to invoke this Court's extraordinary jurisdiction of granting prerogative writs. The authorities relied upon by the counsel for the petitioners are clearly distinguishable and are of no avail in face of the ration of the Supreme Court decision in the case K. S. Rashid and Son, AIR 1954 SC 207.