Harbanslal Gupta Vs. Union of India and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. d. m. dharmadhikari, j. :the order passed in this case shall also decide writ petition no. 654 of 1991 (smt. sudarshan gupta vs. union of india) which is filed by the members of the family of the petitioner in relation to the orders of the authorities under the it act and the central excise act pursuant to the search and seizure conducted in the residential-cum-commercial premises of the petitioner.2. the facts, briefly, are that the petitioners office-cum-residence at gwalior was searched with the aid of the police by the it department and central excise department on 22nd march, 1974. in the course of the search, certain cash, gold and silver including hundi khokas were seized and the panchanama for the same was prepared, a copy of which is on record as exhibit p-1. in those seized items, there were articles and valuables which, according to the petitioner, belonged to his mother, bachandevi, and the wife, smt. sudarshan gupta.after issuing a show-cause notice, the customs department passed an order on 20th september, 1976, directing release of gold ornaments of smt. bachandevi only on payment of penalty of rs. 10,000. similar orders were passed in the case of smt. sudarshan gupta. while the proceedings were pending in the central excise department, the it department issued a prohibitory order under s. 226(3) of the it act, 1961 (for short 'the act'), on 24th october, 1976, directing the asstt. collector, central excise, gwalior, to deliver the cash belonging to harbanslal gupta to the it department pending proceedings under the it act. as a result of the above prohibitory order, the excise department refused to hand over the seized valuables to the petitioner and the petitioners filed misc. petn. no. 654 of 1991.thereafter, the it department passed assessment order in case of smt. bachandevi and smt. sudarshan gupta. the assessee went in appeal. the cit(a) reduced the assessable amount from rs. 6,41,310 to rs. 2,64,063.3. the department went up in appeal to the tribunal. the assessees also went in appeal in respect of part of his rejected claim. the appeals were decided by a common order. the appeals preferred by the petitioners were allowed and those filed by the department were dismissed. it was held that the items seized could not be added to the income of harbanslal gupta. it was held that smt. sudarshan gupta was not the benamidar of harbanslal gupta. the applications for reference of certain questions of law under s. 256(1) of the act were filed in the tribunal which were also rejected. the department went up to the high court seeking a reference under s. 256(2) of the act which we have rejected by our orders passed in mcc no. 222 of 1991, decided today along with the order mcc nos. 220, 221, 192 to 199 and 280, all of 1991 [reported as cit vs. harbanslal gupta (1998) 145 ctr (mp) 181]. as a result of the orders of rejection passed in those reference applications, the orders passed by the tribunal have attained finality, in respect of all the petitioners in these two petitions and in relation to different assessment periods in question. on the above facts, the petitioners in these cases claim a writ for quashing the prohibitory order, issued by the it department to the central excise authorities under s. 226(3) of the act and return of all their seized valuables, cash and hundis as per order passed by the tribunal.4. the it department had opposed the two petitions on grounds, amongst others, that the order of the tribunal had not attained finality as the applications seeking references on questions posed under s. 256(2) of the act were pending in this court. in the course of hearing, certain legal objections were raised before this court in support of the prohibitory order and non-return of the valuables, cash and hundis to the petitioner. in the cases for references under s. 256(2) mentioned above, we have already discussed all the legal questions raised on behalf of the department. we have rejected the applications for reference on questions of law to this court. we do not find that there is any impediment now in our directing the two departments of income-tax and central excise to return such seized valuable items and hundis to the assessees which they cannot retain pursuant to the order of the tribunal.5. learned counsel for the assessee rightly points out that cancellation of the prohibitory order under s. 226(3) and return of all his valuables and hundis is his legal right under s. 132(5), 132(6) and 132b of the act. consequently, we allow both these petitions and direct the respondents to return to the assessees the seized valuables, cash and hundis to which they are entitled pursuant to the order passed in their income-tax cases by the tribunal. we direct that the prohibitory order issued under s. 226(3) of the act, for that purpose, shall not remain in operation. however, we make no order as to costs. the amount of security deposit, if any, be returned to the petitioners.