TMI Blog1962 (4) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the High Court and dismiss the writ petition. - C.A. 383 OF 1961 - - - Dated:- 30-4-1962 - WANCHOO, K.N., AIYYAR, T.L. VENKATARAMA, SINHA, BHUVNESHWAR P., GAJENDRAGADKAR, P.B. AND AYYANGAR, N. RAJAGOPALA, JJ. For the Appellant : D. R. Prem and R. L. Dhebar, For the Respondent S. P. Desai and B. P. Maheshwari, JUDGEMENT WANCHOO, T.- This is an appeal on a certificate granted by the Calcutta High Court. The brief facts necessary for present purposes are these. The respondent had imported 2,000 drums of mineral oil. Out of this quantity, the appellant, the Collector of Customs, Calcutta, confiscated 50 drums by order dated September 20, 1950. He also imposed a personal penalty of Rs.61,000/on the respondent under the Sea Customs Act, No. 8 of 1878, (hereinafter referred to as the Act). The respondent appealed to the Central Board of Revenue under s. 188 of the Act, and this appeal was dismissed in April 1952. Thereupon the respondent filed a petition under Art. 226 of the Constitution in the High Court. We are in the present appeal not concerned with the merits of the case put forward by the respondent, for the matter has not yet been heard on the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal had been dismissed. There seems to have been a difference of opinion amongst the High Courts in this matter. The Rajasthan High Courts in Barkatali v. Custodian General of Evacuee Property (A.I.R. (1904) Raj. 214) held that where the original authority passing the order was within the jurisdiction of the High Court but the appellate authority was not within such jurisdiction, the High Court would still have jurisdiction to issue a writ to the original authority, where the appellate authority had merely dismissed the appeal and the order of the original authority stood confirmed without any modification whatsoever. On the other hand, the PEPSU High Court in Joginder Singh Waryam Singh v. Director, Rural Rehabilitation. Pepsu Patiala A.I.R. (1955) Pepsu 91, the Nagpur High Court in Burhanpur, National Textile Workers Union, v. Labour- Appellate Tribunal of India at Bombay (A. I. R. (1955) Nag. 148) and the Allahabad High Court in Azmat Ullah, v. Custodian, Evacuee Property (A. I. R. (1955) All- 435) held otherwise, taking the view that even Where the appeal was merely dismissed, the order of the original authority merged in the order of the appellate authority, and if the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to bold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order or the original authority even though it has DO territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmable of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. The matter was considered again by this Court, in Madan Gopal Rungta v. Secretary to the Government of Orissa (1962) (Supp.) 3 S.C.R. 966) in connection with an order of the Central Government in revision under the Mineral Concession Rules, 1949, framed under the Mines and Minerals (Regulation and Development) Act, (No. 53 of 1948) and it was held that when the Central Government rejected the review. Petition against the order of the State Government under the Mineral Concession Rules it was in effect rejecting the application of the appellant of that case for grant of the mining lease to him. The question of the original order with the appellate order was also considered in that case though it was pointed out in view of r.60 of the Mineral Concession Rules that it is the Central Government s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration under Art.226 of the constitution, for that would be giving retrospective effect to the Article. The argument based on the principle of merger was repelled by this Court in that case on two grounds, namely, (i) that the principle of merger applicable to decrees of courts would not be applicable to departmental tribunals, and (ii) that the original order would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision. in effect, this means that even if the principle of merger were applicable to an order of dismissed like the one in Mohammad Nooh s case, (2) the fact would still remain that the dismissal was before the Constitution came into force and therefore the person dismiss could not take advantage of the provisions of the Constitution, so far as that dismissal was concerned. That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
