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Petitioner: THE PROVINCE OF EAST BENGAL VS Respondent: DEWAN ABDUL ALIM
P L D 1960 Dacca 274
P L D 1960 Dacca 274
Before Amin Ahmad, A. C. J. and Rahman, J
THE PROVINCE OF EAST BENGAL‑Appellant
versus
Dewan ABDUL ALIM‑Respondent
Appeal from Original Decree No. 45 of 1953, decided on 23rd August 1955.
(a) Jurisdiction‑Civil Court‑Exclusion of‑Whether could be inferred from mere provision in statute of an alternative machinery for determination of rights or liabilities created by the statute‑Bar created by either S. 67, Income‑tax Act, (XI of 1922) or S. 65, Bengal Agricultural Income‑tax Act (IV of 1944)‑Not absolute or unqualified.
Mere provision in a statute of an alternative machinery for the determination of the rights or liabilities created by the statute is not per se sufficient to lead to the inference that the jurisdiction of the Civil Courts in respect of those rights and liabilities is impliedly barred. Not only is the mere presence of an alternative machinery not by itself sufficient to oust the jurisdiction of the Civil Courts, but even the existence of express provision in that behalf coupled with the alternative machinery may not always have the effect of completely ousting the said jurisdiction in all cases e.g., in cases where the Statutory Tribunal or authority set up to give effect to the said alternative machinery acts manifestly in excess of the jurisdiction given to it by the statute or purports to do that which is expressly prohibited by the statute itself or is clearly outside the scope of the statute.
The bar created by either section 67 of the Income‑tax Act, 1922 or section 65 of the Bengal Agricultural Income‑tax Act, 1944, which are in identical terms, is not absolute or unqualified. It will be operative only when the subject‑matter of the suit is also a matter which falls strictly within the competence of the taxing authorities to determine, and that too only if no question of fraud or abuse of the machinery provided by the statute is involved.
It was argued that where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it, the aggrieved party in such a case must adopt the form of remedy given by the statute. The liability to pay agricultural income‑tax, it was said, is a totally new liability created by the Bengal Agricultural Income‑tax, Act, 1944, which has also made elaborate provisions for enforcing the liability created by it and, therefore, it was urged, that the legislature intended that the remedy provided by the statute would be the only remedy available to an aggrieved party.
Held, that unless the statute contains some words clearly evidencing the intention of the legislature to exclude the jurisdic tion of the Civil Courts, the most that can be said is that a choice of remedies has been given and if a party elects to pursue one remedy, he ought not to be allowed, after failing therein, to reagitate the same matter in an another forum.
(b) Bengal Agricultural Income‑tax Act (IV of 1944), S. 4 (b) Whether particular income is to be included in total income or not‑Taxing authorities competent to determine all questions necessary for coming to that decision.
(c) Bengal Wakf Act (XIII of 1934), S. 46‑A‑Decision under, in no way affects the jurisdiction of taxing authorities to decide whether income derived from wakf is held wholly for religious or charitable purposes so as to be entitled to exemption under S. 4 (b), Bengal Agricultural Income‑tax Act (IV of 1944).
A decision under section 46‑A of the Bengal Wakf Act, 1934 that a wakf is not a Wakf‑alai‑aulad can by no means amount to a decision as to whether the income derived from the wakf is held wholly for religious or charitable purposes so as to be entitled to the exemption granted by clause (b) of section 4 of the Bengal Agricultural Income‑tax Act, 1944. The finality, if any, attaches to a decision under section 46‑A which is confined to a decision upon the specific issues mentioned in the said section and since the subject‑matter of enquiry contemplated under section 4 (b) of the Bengal Agricultural Income‑tax Act, 1944 is not the same as of a decision on the said issues, it cannot be said that the taxing authorities by inquiring into the latter question could in any way be affecting the finality of the question decided under section 46‑A, Bengal Wakf Act, 1934 by the Commissioner of wakfs. Neither the decision of the Commissioner of the wakfs that the wakf is not a wakf‑alal aulad nor the enrolment nor registration of the wakf as a public wakf in the office of the Commissioner of Wakfs in any way affects the jurisdiction of the taxing authorities under the Bengal Agricultural Income‑tax Act. 1944.
(d) Suit-Nature of‑Cannot depend upon decree actually made or result of suit itself.
Wolverhamtan New Waterworks Co. v. Hawkesford (1859) 6 C B (N S) 336, 356 ; Neville v. London Express Newspaper, Limited 1919 A C 368, 391 ; Raleigh Investment Company, Limited v. Governor‑General‑in‑Council P L D 1947 P C 19 ; The Secretary of State, represented by the Collector of South Arcot v. Mask and Company 67 1 A 222 (236); The Colonial Bank of Australasia and John Turner, the Official Agent of the Golden Gate Gold Miniug Company, Registered v. Robert Willan, a share‑holder in the said Mining Company (1874) L R 5 P C 417 (442) ; The Queen v. The Commissioners for Special Purposes of the Income‑tax (1888) L R 21 Q B D 313 (319) ; Secretary of State for India in Council v. V. M. Meyyappa Chettiar alias Kasi Meyyappa Chettiar I L R 1937 Mad. 211 ; A. H. Forbes v. Secretary of State for India I L R 42 Cal. 151 ; Ravi Paint Colour and Varnish Works, Ltd. v. Federation of Pakistan P L D 1954 Lah. 551 ; Commissioner of Income‑tax, Punjab, North‑West Frontier and Delhi Provinces, Lahore v. Tribune Trust Lahore P L D 1947 P C 247 ; Janda Rubber Works, Ltd. v. The Income‑tax Officer, Salaries Section and another A I R 1950 East Pb. 210 ; Messrs Dinshaw cg Co. v. Income‑tax Ofcer, Lucknow A I R 1941 Oudh 260 ; Governor‑General in Council through the Commissioner of Income‑tax, Punjab, N.‑W. F. and Delhi Provinces, Lahore v. Sargodha Trading Company, Limited, (in liquidation) through Khawja Nazir Ahmad, Official Liquidator, Lahore, I L R 24 Lah. 706 ; Haji Rahamtulla Haji Tar Mahomed and another v. Secretary of State A I R 1926 Bom. 50 ; Raja of Ramnad v. Secretary of State for India I L R 52 Mad. 12 ; Bejoy Krishna Swarnakar and others v. Governor‑General of Pakistan, Karachi, and others P L R 4 Dacca 79 ; Trustees of the Tribunal Press, Lahore v. Commissioner of Income‑tax, Punjab, Lahore 66 I A 241 ; Sahebzada Hafiz Syed Muhammad Hashmi v. The Commissioner of Wakfs, Bengal 51 C W N 267 ; The Commissioner of Wakfs, Bengal v. Sahebzada Muhammad Jahangir Shah 48 C W N 157 and Bhandi Singh v. Ramadhin Roy 10 C W N 991 rej: and discussed.
M Asir, Senior Government Pleader, and Syed A. B. Mahmud Hussain, Assistant Government Pleader for Appellant.
B. K. De and Sidique Ahmad Chowdhury for Respondent.
JUDGMENT
RAHMAN, J.‑This appeal is by the defendant, the Province of East Bengal, and it is directed against the judgment and decree of the Subordinate Judge, 2nd Court, Mymensingh, made on the 8th September 1952.
2. The said suit was instituted by the respondent in his capacity of a mutwalli of a wakf estate for a declaration that the wakf, being a public one, the assessment for the year 1947‑48 made jointly upon the income thereof, and on that of the personal estate of the respondent, is illegal, ultra vires, without jurisdiction, null and void, and for a permanent injunction to restrain the appellant from enforcing the assessment. The allegations upon which the above reliefs were claimed in the suit were that the plaintiff, apart from being the mutwalli of the wakf estate, dedicated wholly for religious and charitable purposes and duly enrolled with the Commissioner of wakfs, East Bengal, as a public wakf, had also a personal estate of his own ; that in assessing the agricultural income‑tax due from the plaintiff' for the year 1945‑46, the income of the wakf estate was wrongly assessed along with the income from the personal estate ; that the plaintiff preferred an appeal against the said assessment to the Assistant Commissioner of Income‑tax, Dacca, who also erroneously took the view that the wakf was a private wakf, and confirmed the assessment ; that the plaintiff did not move the higher authorities against the said order of the Assistant Commissioner, since in assessing the income for the year 1946‑47 the income of the wakf estate had been excluded from the assessment, but that in assessing the income for the year 1947‑48, the income from the wakf estate had again been included in and jointly assessed with that of his personal estate. This the plaintiff claimed the taxing authorities had no jurisdiction to do because, according to him, by virtue of the provisions of clause (b) of section 4 of the Bengal Agricultural Income‑tax Act (IV of 1944), any agricultural income derived from property held under trust wholly for religious or charitable purposes is not included within the taxable agricultural income of any person and hence "in view of the fact that a joint assessment including the income of the wakf estate" had been made, it had become necessary, the plaintiff alleged, to seek a declaration that the same was ultra vires, without jurisdiction and unenforceable.
3. The defendant in its written statement denied that the wakf was one which could be wholly for religious or charitable purposes, disputed that the enrolment of the wakf by the Commis sioner of wakf as a public wakf was in any way binding on the Agricultural Income‑tax authorities and maintained that the assessment had been properly made. The defendant further con tended that the Civil Court had no jurisdiction to entertain the suit which was barred by section 65 of the Bengal Agricultural Income‑tax Act, and the only remedies which the plaintiff had were those which had been provided by the said Act itself.
4. Although a specific issue was raised as to the jurisdiction of the Court to try the suit, it does not appear that in the trial Court any arguments were advanced either as to the scope and effect of the provision of section 65 of the said Act or as to the principles upon which the defendant claimed that the jurisdiction of the Civil Courts had been excluded with regard to such suits. It is, therefore, not surprising that the Court took the view that the main question for decision in this suit was whether the wakf was a public wakf created wholly for religious or charitable pur poses so as to fall within the first part of clause (b) of section 4 of the Bengal Agricultural Income‑tax Act for, according to it, if it did so, then the assessment would be without jurisdiction and the Civil Court would be quite competent to make a declaration to that effect. Having formed this view, the trial Court went on to consider the terms and conditions of the documents creating the wakf, and after doing so came to the conclusion that "they are public wakfs, the income of which was intended by the wakif to be devoted wholly for religious and charitable purposes". It accordingly declared that the endowments in question were public wakfs wholly for religious or charitable purposes, that the assess ment made for the year 1947‑48 was ultra vires and without jurisdiction, and granted a permanent injunction restraining the defendant from enforcing the assessment.
5. It is against this decree that the present appeal has been preferred by the Province of East Bengal which does not seek, in this appeal, to challenge any finding of fact arrived at by the Court below but assails its judgment and decree mainly, indeed solely, on the ground that it erred in holding that the Civil Court had jurisdiction to hear and determine such a suit, even if it be assumed that the income was, as held by the trial Court, income derived from property held under trust wholly for religious or charitable purposes.
6. The arguments advanced on behalf of the appellant by the learned Senior Government Pleader in developing this point are threefold
7. The first, which is the widest, is based on the now too well established principle enunciated by Willes, J., in the case of Wolverhamton New Waterworks Co. v. Hawkesford ((1859) 6 C B (N S) 336, 356), and sub sequently approved of by the House of Lords in the case of Neville v. London Express Newspaper, Limited (1919 A C 368, 391), viz.
"There are three classes of cases in which a liability may be established by Statute. There is that class where there is a liability existing at common law, and which is only re‑enacted by the Statute with a special form of remedy ; there, unless the Statute contains words necessarily excluding the common law remedy, the plaintiff has his election of pro ceeding either under the Statute or at common law. Then there is a second class, which consists of those cases in which a Statute has created a liability, but has given no special remedy for it ; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the Statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it . . . . . With respect to that class it has always been held that the party must adopt the form of remedy given by the Statute."
It is urged that the present case falls within the third class as the liability to pay agricultural income‑tax is a totally new liability created by the Agricultural Income‑tax Act which has also provided a special and particular method or remedy for enforcing it which is not only adequate but also as effective and complete as the remedy by way of a suit itself. It is pointed out that section 34 of the said Act provides for an appeal from the decision of the Income‑tax Officer to the Assistant Commissioner, section 36, provides for a further appeal from the Assistant Commissioner to the Appellate Tribunal, section 37, empowers the Commissioner in certain cases to revise orders of Assistant Commissioners, section 63 (1) provides that in cases in which either the assessee or the Commissioner is dissatisfied with the order of the Appellate Tribunal, the latter may be required to refer questions of law arising out of its order for the opinion of the High Court, and if it refuses to do so, then the party concerned may under sub section (2) of the said section himself apply to the High Court which may direct the Tribunal to state a case for the opinion of the High Court and lastly under section 64, the party aggrieved by the opinion of the High Court may even go up on appeal to the Federal Court in any case which the High Court certifies to be a fit one for appeal. By making such elaborate provisions for enforcing the liability created by it, the Legislature, it is argued, clearly intended that the remedy provided by the Statute would be the only remedy available.
8. The difficulty, however, in the way of our accepting this otherwise very attractive argument is created by the provisions of section 65 of the said Bengal Agricultural Income‑tax Act itself, which are in these terms:
"No suit shall be brought in any Civil Court to set aside or modify any assessment made under this Act, and no prosecution, suit or other proceeding shall lie against any officer of the Crown for anything in good faith done or intended to be done under this Act."
To accede to this very wide proposition of law advanced on behalf of the appellant, therefore, would, in our opinion, have the effect of rendering the entire section 65 redundant. It was, at one stage, actually also suggested by the learned Senior Government Pleader that the said section was redundant, and, in support of this proposition, he drew our attention to the doubt expressed by their Lordships of the Privy Council, in the penultimate paragraph of their opinion expressed in the case of Raleigh Investment Company, Limited v. Governor‑General in Council (P L D 1947 P C 19), regarding the necessity of making an express provision in the Income‑tax Act, 1922, for excluding the jurisdiction of the Civil Courts to set aside or modify an assessment under that Act, as had been done by section 67 of the said Act which is in identical terms.
9. Notwithstanding the use of such words of doubt by their Lordships in the above‑mentioned case, it is significant that their Lordships' actual decision, in that case, appears to be based upon the construction of that very section itself, and the fact that the said Act itself contained machinery which enabled an assessee to raise effectively in the Courts the question whether a particular provision of the said Act is or is not ultra vires was regarded by their Lordships merely as a matter pertinent to the purposes of the construction of the said section 67. What their Lordships actually said was that : "The presence of such machinery, though by no means conclusive, matches with a construction of the section which denies an alternative jurisdiction to enquire into the subject-matter." It is clear, therefore, that the Judicial Committee did not go so far as to say that the said section was mere surplusage or that the exclusion of the jurisdiction of the Civil Courts could be inferred from the provision of the alternative machinery alone. The wide rule of construction sought to be established by the learned Senior Government Pleader not only is not supported by the said decision relied upon by him, but does not also appear to have been approved of in such wide form, in any case, except one with which we shall deal later.
10. It seems to us that unless the Statute contains, in addition, some words clearly evidencing the intention of the Legislature to exclude the jurisdiction of the Civil Courts, the most that can be said is that a choice of remedies has been given and, if a party elects to pursue one remedy, he ought not to be allowed, after failing therein, to reagitate the same matter in another forum.
11. This brings us to the second argument of the learned advocate for the appellant, viz., that section 65 read with the other provisions of the Bengal Agricultural Income‑tax Act providing special remedies creates an absolute and unqualified bar to the institution of any suit for any relief which may have the effect of setting aside or modifying any assessment made by the Agricultural Income‑tax authorities. But even in this slightly restricted form, the proposition cannot, in our opinion, be accepted without being subjected to further limitations, for, as stated by the Judicial Committee in the case of The Secretary of State, represented by the Collector of South Arcot v. Mask & Company (67 IA 222, 236):
"It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well‑settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the Statutory Tribunal has not acted in conformity with the funda mental principles of judicial procedure."
This latter enunciation of the law does not appear to us to have been departed from or even doubted in any subsequent decision of the Judicial Committee. The criticism contained in the opinion of the Judicial Committee in Raleigh Investment Company, Limited v. Governor‑General in Council, viz., that a method of construction by which "jurisdiction is made to depend not on subject‑matter, but on the correctness of the suitor's contention as respects subject‑matter," is "a capricious method of determining jurisdiction" appears to us to be directed not so much against the above principle, but against the arguments advanced before the Judicial Committee in the latter case, which clearly went beyond the principle laid down in The Secretary of State, represented by the Collector of South Arcot v. Mask & Company. In our opinion what is intended by the last sentence of the observation quoted above is simply this that where the Statutory Tribunal concerned has acted clearly beyond the scope of the powers vested in it by the Statute, the jurisdiction of the Civil Courts to examine into such cases is not taken away even if the Statute contains words purporting to exclude such jurisdiction. This is certainly not the same thing as saying that jurisdiction has been made to depend upon the correctness or otherwise of the suitor's contention as respects the subject‑matter.
12. From the current of decisions on this subject, it seems to us that the Courts lean so strongly against a construction of a Statute which would have the effect of ousting or limiting their own jurisdiction that whenever their jurisdiction is sought to be curtailed by enactments of a competent Legislature setting up Statutory Tribunals or other authorities with exclusive jurisdictions over certain matters, the Courts always regard such Tribunals or authorities as having only a limited jurisdiction strictly confined within the four corners of the Statute creating such Tribunals or authorities. It is in this view of the matter that their Lordships of the Privy Council observed in the case of The Colonial Bank of Australasia and John Turner, the Official Agent of the Golden Gate Gold Mining Company, Registered v. Robert Willan, a share‑holder in the said Mining Company ((1874) L R 5 P C 417 (442)).
"There must, of course, be certain conditions on which the right of every Tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and condition of the Tribunal, or upon the nature of the subject‑matter of the enquiry or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry."
And then went on to hold that where such a Tribunal having general jurisdiction over the subject‑matter properly enters upon the enquiry but miscarries in the course of it, then its decision cannot be interfered with, as it does not suffer from any "manifest defect of jurisdiction". In so holding, however, their Lordships enunciated the proposition of law, for which this case is often cited as an authority, that where such a Tribunal acts beyond the limits of its jurisdiction or is moved to exercise its jurisdiction by the fraud of the party moving it, then notwithstanding express words excluding the jurisdiction of the superior Courts, the latter will be entitled to interfere with and quash the orders passed by such Tribunals in excess of their jurisdiction.
19. The precise limits within which the powers of such inter ference may be exercised were further clarified by Lord Esher, M. R., in the case of The Queen v. The Commissioners for Special Purposes of the Income‑tax ((1888)LR21 QBD313(319)), thus:
"When an inferior Court or Tribunal or body, which has to exercise the power of deciding facts, is first established by an Act of Parliament, the Legislature has to consider what powers it will give that Tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such Tribunal or body before it proceeds to do certain things, it shall have juris diction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may intrust the Tribunal or body with jurisdictions, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. In the second of the two cases I have mentioned, it is an erroneous application of the formula to say that the Tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends ; . . . . . ."
14. It will thus be observed that even within these limits the authorities do leave a certain residium of jurisdiction in the Civil Courts even in cases where specific provisions affecting such jurisdiction are t6 be found in the Statute itself and, therefore, it cannot be said, as urged by the learned Senior Government Pleader, that the bar created by section 65 of the Bengal Agri cultural Income‑tax Act is in any way absolute or unqualified. The cases cited by the learned Advocate do not also support this contention of his. In Raleigh Investment…
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