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TMI Blog1965 (9) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... n disputed areas of land were not theirs but were the holdings of their wives or sons or brothers in view of a partition of the joint family properties between the members of the family, by a partition decree or by a will or by a partition deed. In some cases the petitioners urged that they had transferred the land to others and that they were not liable to be taxed for such areas. 4. The assessing authority did not accept the petitioners' case. In its view mere partition by a decree or deed or sale by a registered deed was insufficient, but that the petitioners must, in addition, prove that the partition or sale was recognised in the revenue records and that there was a de facto separation of management and cultivation of the holding. The petitioners went up in appeal but the Commissioner upheld this view. The petitioners thereafter filed a revision under Section 12 of the Act before the Board of Revenue. Before the Board of Revenue reliance was placed by the petitioners on a Division Bench decision of this Court in Mohan Lal v. State, reported in 1962 All LJ 842. 5. Till this decision came, the Board of Revenue had taken the view that the holding tax has to be levied on a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1959 and 1960 while orders in appeal were, passed in 1960 and 1961. The orders of the Hon'ble High Court were passed in 1962. The new interpretation of law cannot be given retrospective effect. Till 1960 and 1961 the interpretation of law was that the recorded entries should be the guiding factor in coming to the conclusion whether a person was a landholder or not. It has also been held by the Board of Revenue in 1964 RD 161, Sampuran Singh v. State, that a decision on a point of law in accordance with the prevalent interpretation of law at the time of decision is not to be regarded as a wrong exercise of jurisdiction in the light of a subsequent interpretation of law. These cases must, therefore, be judged according to the law as it was interpretated till 1961 and not according to interpretation of law as given by the Hon'ble High Court subsequently on 17-5-1962." 7. Similar view has been taken by the Board of Revenue in deciding the revisions in the cast of other petitioners all of which were dismissed. This view of the Board of Revenue raises the following questions: (1) What is the effect of declaration of law by a Court? (2) Is the Board of Revenue entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in operation. 12. The decision of the Privy Council in Balwant Rao v. Baji Rao AIR 1921 PC 59is in point. One Bapuji died leaving a daughter Saraswati. The question was if Saraswati succeeded to a limited or a full estate. The family of Bapuji had lived in Bombay Presidency. Amongst Hindus, the law of succession is determined according to the particular school of Hindu Law which governs the individual. The rule obtaining in the Bombay Presidency was declared by the High Court of Bombay in 1859 in the case of Pranjivandas v. Deokuvarbai (1859) 1 B HC 130 to be that a daughter gets a full estate and not merely a limited estate. At the time of his death Bapuji was living at Chikai in the Central Provinces. 13. The Judicial Commissioner of Nagpur did not agree with the Bombay High Court's view. He got out of it by holding that the Bombay decision which was rendered in 1859 will not be applicable to the family of Bapuji which had migrated out of Bombay in 1800. In other words, he held that the Bombay High Court's view would operate only from 1859; "In this, their Lordships hold "observed the Privy Council" that he was clearly wrong. He was treating the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confers power upon a tribunal and defines the nature of the subject-matter upon which that power is to operate, the decision of the tribunal whether a particular subject-matter is of that nature or not will relate to the condition precedent for the exercise of the power. Such a question would relate to the jurisdiction of the Tribunal. The Tribunal cannot give itself jurisdiction by wrongly deciding such an issue. It is a jurisdictional issue, where power has been given to permit a person to take materials from land other than a park, R. v. Bradford (1908) 1 KB 365 or an orchard, Rule v. Armagh JJ. 1942 2 IR 55, or to acquire compulsorily land which does not form part of a park. White and Collins v. Member of Health (1939) 3 KB 838, it was held that the question whether a piece of land is a park or orchard is collateral, being a condition precedent to the exercise of jurisdiction. 18. The jurisdiction of an industrial tribunal under the Industrial Disputes Act 1947 is dependent upon the dispute being an 'industrial dispute' as defined in the Act. The Supreme Court held that the finding whether a dispute is an industrial dispute, relates to the condition precedent, and is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion is not to be regarded as a wrong exercise of jurisdiction in the light of a subsequent interpretation of law. The Full Bench rested its decision entirely upon a ruling of the Gujarat High Court reported in Kantilal v. Gopaldas AIR1963Guj143 . The Gujarat High Court held that in a revision the High Court must only consider the law as it stood on the date when the Subordinate Court had decided the matter and not on the date when the revision was being decided. In the Gujarat case an ordinance was involved. The Ordinance was passed subsequent to the judgment of the subordinate court. It was held that the Court cannot be said to have acted illegally or with material irregularity in not considering the Ordinance. 23. The Gujarat case was concerned with an Ordinance which is a law made by a law-making agency. The Gujarat case was not concerned at all with the nature or effect of a court's declaration or interpretation of law. That case does not afford any assistance to the question which was raised before the Full Bench namely as to the effect of the High Court's decision on the pending cases. The Full Bench decision does not lay down correct law. 24. If any court or autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the proceedings themselves would be without jurisdiction." The objection before the Board of Revenue was that the proceedings have been decided by the taxing authority contrary to the law declared by the High Court. Those proceedings were without jurisdiction. It was incumbent upon the Board of Revenue to have interfered in the matter. In refusing relief the Board of Revenue has laid itself open to comment and disapproval. 26. In many of the cases the respondents have in their judgments remarked that the partition had been made with the object of evading the tax and that it was only a paper transaction. See for instance the judgments of the Assessing Officer and the Commissioner in Civil Misc. Writ No. 418 of 1965 (Kunwar Jeoti Swamp v. Assessing Officer). In the case of Kunwar Jeoti Swamp a large volume of oral and documentary evidence including partition decrees of courts of law and registered partition deeds have been filed. The respondents have discarded the whole evidence on the suspicion that the transactions had been entered into for the purpose of avoiding payment of holding tax. The Board of Revenue has in the case of State v. Sri Shiam Behari Lal 1957 All LJ 88 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-1961. Now a ceiling of 30 acres has been imposed. No one can have more than 30 acres. The excess vests in the State. The agrarian policy of the State legislature appears to have been to level down Large Land Holdings to a maximum of 30 acres for an individual. If a person has a larger holding, he has been encouraged to break it up, divide it or sell it, as the case be, on pain of paying the holding tax for same years, and later on, by having to part with the excess land altogether, under the Ceiling Act. The setting in which the Large Land Holdings Tax Act has been passed does not indicate that it frowns upon the breaking up of large holdings. On the other hand, it is designed to encourage it. 29. In the cases of Kunwar Jeoti Swamp, Jai Prakash and Deep Chand Jain the assessees raised an objection that the holding is a joint family holding coming down from their ancestors and that the same has been partitioned. The respondents did not accept the partition for one reason or the other. In this connection the question whether Section 4 (2) would apply is also relevant. As held in Mohan Lal's case 1962 All LJ 842, Section 4 (1) of the Act would apply to all land held or occupied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is of no consequence whether the transfer has been recorded in the revenue papers or not. This was so held in Mohan Lal's case 1962 All LJ 842 (supra) also. The Board of Revenue was, therefore, in error in rejecting the claim of these assessees with respect to the land which had been sold away to other people on this ground. The other findings of the Board in these cases were not challenged. 31. In the result, all the petitions succeed and are allowed with costs. In Writ Petitions Nos. 1432, 1433, 1434, 1435, 1436 and 1437 of 1965 the judgment of the Board of Revenue is quashed and the cases are sent back to the Board of Revenue for decision afresh, in accordance with the law in the light of the observations made above, regarding the question of exclusion of land which has been sold away by those petitioners. In Writ Petitions Nos. 418 and 419 of 1965 of Kunwar Jeoti Swamp, Writ Petitions Nos. 324, 325 and 326 of 1965 of Sri Deep Chand Jain and Writ Petitions Nos. 935, 1136 and 1137 of 1965 of Sri Jai Prakash the judgments and orders of the Board of Revenue, the Additional Commissioner (or the Commissioner, as the case be) and the Assessing Authority are all quashed and set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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