TMI Blog1935 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... 1935 to 6th September 1935 and he was thereafter released and then two of these cheques were cashed but. he understands that proceedings for arresting him had already been issued and he seeks to quash them on the ground that they violate Section 46 (7) of the Income Tax Act in that the proceedings were not commenced within the expiration of one year from the last day of the year in which any demand was made under the Act and also in contravention of the provisions of Section 48 of the Revenue Recovery Act which requires as a condition precedent that there should be wilful default. 2. On behalf of the Government a preliminary objection has been taken that the jurisdiction to issue a writ is barred under Section 106(2) of the Government of India Act, and even assuming jurisdiction, no writ can lie for quashing a ministerial act as in this case what is sought to be quashed is the warrant issued. It was further contended that even the preliminary order in and by which the warrant was directed to be issued is also ministerial. The argument based on Section 106 Clause (2) is thus put: Income Tax is revenue. The proceedings that are sought to be quashed were in respect of acts ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengal, Bihar and Orissa. 4. Therefore it is necessary to note what were the powers and limitations of the Supreme Court at Fort William in 1800. The Supreme Court at Fort William was itself established by virtue of the East India Act, 1772, 13 Geo. III Ch. 63. Under the Letters Patent by which the Supreme Court of Bengal was onstituted, one of the powers it had was the power to issue a writ of certiorari conferred on it by Section 4 of the Letters Patent. It is a well known fact that owing to the conflict which arose between the Judges of that Court and the Executive Government it was thought desirable to define and restrict the powers of the Supreme Court. Accordingly 21 Geo. III Ch. 70 was passed. Among others there were two limitations imposed on the powers of the Supreme Court: (1) That the Governor General and Council of Bengal shall not be subject, jointly or severally, to the jurisdiction of the Supreme Court of Fort William in Bengal for or by reason of any act or order, or any other matter or thing whatsoever counselled, ordered or done by them in their public capacity only, and acting as Governor General and Council. (2) And... the said supreme Court shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts to be established under this Act shall have and exercise all such civil criminal, admiralty and vice-admiralty, testamentary, intestate, and matrimonial jurisdiction, original and appellate and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent as aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of original, Civil and Criminal jurisdiction beyond the limits of the presidency towns as may be prescribed thereby; and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor General of India in Council, the High Court to be established in each presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last mentioned Courts. 9. Dealing with this section Venkatasubba Rao, J., observed in Penugonda Venkataratnam v. Secretary of State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion being only such jurisdiction which the Supreme Court had, his application to this Court for the writ of certiorari cannot lie. I do not agree with Mr. Krishnaswami Ayyar that the phrase original jurisdiction in Section 106(2) should be confined to ordinary original Civil jurisdiction. There is no doubt an observation of the late Chief Justice in Govindarajulu v. Secretary of State I.L.R.(1926) 50 Mad. 449 : 53 M.L.J. 355 which appears to lend support to the contention of Mr. Krishnaswami Ayyar. The learned Chief Justice on page 455 commenting on Section 106 Clause 2 of the Government of India Act observes thus: In matters affecting the revenue, the Original Side of this Court and that side alone is debarred from interfering in revenue matters. 12. The learned Judges in that case were not considering the power of the High Court to issue a writ of certiorari. Under Section 106, it will be seen the High Court is vested with (1) the original jurisdiction more specifically described in Clause 12 and 13 of the Letters Patent and (2) the original jurisdiction of the abolished Supreme Court which is conferred by the words such jurisdiction, powers and authority as are vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of original jurisdiction, (2) a matter concerning revenue or the collection thereof. In their Lordships' view as aforesaid there was no matter concerning revenue in the case. I do not think their Lordships meant to decide there was no exercise of original jurisdiction as Section 45 of the Specific Relief Act refers to ordinary original civil jurisdiction. 16. Mr. Krishnaswami Ayyar attempted to argue that Income Tax is not revenue but this argument is not open to him after the ruling in Messrs. Best and Company v. Collector of Madras (1918)35MLJ23 . 17. Another argument of Mr. K.V. Krishnaswami Ayyar may be noticed namely even if the statute has taken away the writ, when a judicial body acts ultra vires this Court can nevertheless issue the writ. The short answer to this is that the High Court had never any jurisdiction to issue the writ in matters concerning revenue. 18. It was next contended by Mr. K.V. Krishnaswami Ayyar that the exception can only be in favour of acts which have been done according to the law for 'the time being in force and therefore if the act is not in conformity with the law and in direct contravention of it the jurisdiction is not barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gularly done, but leaving them liable for things done wholly without jurisdiction. 21. The question in this case is entirely different. It is not merely exemption from liability in a personal action. In Spooner v. Juddow (1850) 4 M.I.A. 353 their Lordships considered the jurisdiction of the Court from the point of view of the subject matter and ruled that in respect of the subject matter the jurisdiction of the Court had been entirely taken away if the officer acted in the belief that he had jurisdiction. In the present case it is not denied that certificates were issued in accordance with the provisions of Section 46 of the Income Tax Act and orders for arrest made and warrants issued in pursuance of the said provision. Whether the said orders were justified on a right construction of the said provision does not matter; but what matters is whether the Collector bona fide believed that he was acting according to the said provision. If so, the jurisdiction of the Court to deal with the said act is gone. In this case it has been conceded that the Collector was not acting mala fide. I have therefore come to the conclusion that the preliminary objection must prevail and that this Co ..... 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