Court : Kolkata
Reported in : [1943]11ITR393(Cal)
DERBYSHIRE, C.J. - This matter originally came before McNair, J., who referred it to the Chief Justice, under rule 3 of Chapter V of the Original Side Rules which is as follows :-'Where it shall appear to any judge at any stage of a suit, application or other matter, that it involves a substantial question of law as to the interpretation of the Government of India Act, 1935, or any order in council made thereunder, he shall report to that effect to the Chief Justice, who shall constitute a Bench of two or more judges to hear the suit, application or other matter.'Put shortly the plaintiffs claim that certain provisions of the Indian Income-tax Act of 1922 as amended by the Income-tax Act of 1939 are beyond the law making powers of the Indian central Legislature and that in consequence certain money they have paid under protest to the Government of India as income tax under the protest to the Government of India as income tax under the said provision was not legally payable by them; the...
Tag this Judgment!Court : Kolkata
Reported in : AIR1943Cal285
Derbyshire, C.J.1. This rule was issued upon the District Magistrate of Jessore to show cause why the conviction of the applicant and 14 other persons should not be set aside. The accused persons are all policemen and, according to the evidence, were directed to secure the person of a fellow policeman who was said to have become mentally deranged and instead of obeying orders they disobeyed them and behaved in a riotous manner. The District Magistrate, acting under powers conferred upon him by the Government of Bengal, directed a Special Magistrate, appointed under ordinance 2 of 1942, to try the case with the result that the Special Magistrate convicted the 15 applicants of offences under Sections 147, 149 and 832, Penal Code, and also under Rule 38(1)(a) and 5)/Rule 34 (6b)(c) of the Defence of India Rules, committing a prejudicial act. He passed no sentence in respect of the offences under the Penal Code, but as regards the offences under the Defence of India Rules he sentenced all ...
Tag this Judgment!Court : Chennai
Reported in : AIR1943Mad691; (1943)2MLJ339
Horwill, J.1. The suit institution, Sri Silambani Chidambara Vinayagar Devasthanam, is managed by the descendants of one Thungan Chettiar. In 1932, one branch of his family brought a suit O.S. No. 78 of 1932 on the file of the Subordinate Judge of Devakottai, for a declaration that they, as well as the defendants, who are the members of another branch of the family, were entitled to manage the temple properties in accordance with an arrangement entered into in 1907 by an agreement which is marked as Ex. P in this suit. As the affairs of the temple were being neglected because of the quarrel between two branches of the family, a receiver, Mr. S. Krishna Ayyar, was appointed to recover sums of money collected by various members of the family while managing the affairs of the temple. He is the plaintiff in the suit out of which this appeal arises. He contended that the defendant in the suit owed a sum of Rs. 51,759-11-6 to the temple, consisting of Rs. 15,237-5-6 due in 1903 and acknowled...
Tag this Judgment!Court : Allahabad
Reported in : AIR1943All331
ORDERIqbal Ahmad, C. J.1. This is an application under Section 491, Criminal P. C, and was filed on 27th April last by one Baldeva Das with a view to secure the release of Pt. Kamlapati Tewari from detention under an order purporting to be made under Rule 26 of the Defence of India Rules. The application is supported by an affidavit which shows that Kamlapati Tewari, who is a member of the Legislative Assembly, United Provinces, attended a meeting of the All India Congress Committee at Bombay and, on his return journey from Bombay was arrested at the Allahabad Railway Station on the night of 10th August 1912, and is at present detained under Rule 26. Sir Tej Bahadur Sapru, who appeared for the applicant, contended that Rule 26 of the Defence of India Rules was invalid and submitted that it had been so held in a recent case by the Federal Court. On 27th April I adjourned the hearing of the application to this date to enable Sir Tej Bahadur Sapru to file a certified copy of the judgment ...
Tag this Judgment!Court : Chennai
Reported in : AIR1943Mad714
Horwill, J.1. These applications under Section 491, Criminal P.C., have been filed because of the decision of the Federal Court, not yet published in the regular reports, that Rule 26 of the Rules framed under the Defence of India Act is somewhat different in its scope from Section 2(2)(x), Defence of India Act, under which the rule has been framed, and that Rule 26 was therefore ultra vires of the Central Government which framed the rule. From that decision it follows that the petitioner before the Federal Court, as the petitioners here, was detained unlawfully. Since that judgment was pronounced however the Governor-General has issued Ordinance 14 of 1943 amending Section 2 (2)(x), Defence of India Act, to bring it into conformity with Rule 26.2. Two main points have been raised on behalf of the petitioners. The first is that the Governor-General had no power to amend an Act of the Indian Legislature, and the other is that the amendment could not have any retrospective effect. On the...
Tag this Judgment!Court : Mumbai
Reported in : (1945)47BOMLR525
Viscount Simon L.C., J.1. This appeal is brought, by leave of the Madras High Court, from an order of that Court dated November 5, 1937, dismissing the appellants' application that a writ of certiorari should issue to the Board of Revenue at Madras to bring up, in order to be quashed, an order made by the Collective Board, on October 9, 1936, under Section 172 of the Madras Estates Land Act, 1908.2. The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should 'be certified' of the proceedings to be investigated and the object is to secure, by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not ...
Tag this Judgment!Court : Privy Council
VISCOUNT SIMON L. C: This appeal is brought, by leave of the Madras High Court, from an order of that Court dated 5th November 1937, dismissing the appellants' application that a writ of certiorari should issue to the Board of Revenue at Madras to bring up, in order to be quashed, an order made by the Collective Board, on 9th October 1936, under S. 172, Madras Estates Land Act, 1908. The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should "be certified" of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct...
Tag this Judgment!Court : Kolkata
Reported in : AIR1945Cal75
Das, J.1. In this suit the petitioner prayed for a decree declaring that the marriage in fact (but illegally) celebrated between her and the respondent was and is null and void. The respondent not having appeared after personal service of the writ of summons together with a certified copy of the petition this suit came up for hearing as an undefended suit on May 7th last. After hearing the evidence adduced before me I passed a decree on that date declaring that the marriage in question was null and void. Requisition for drawing up of the decree having been furnished a draft of the decree was prepared by the decree department and sent to the petitioner's solicitors for their approval. This draft was drawn up in the same form as such a decree in a suit for nullity of marriage is nowadays drawn up in England, namely in the form of a decree nisi. Mr. Barwell who appeared for the petitioner at the hearing mentioned the matter to me and contended that in a suit for nullity of marriage the Co...
Tag this Judgment!Court : Kolkata
Reported in : AIR1943Cal377
Mitter, J.1. The nine persons on whose behalf applications under Section 491, Criminal P.C. have been made before us by their relations have been detained in different jails in pursuance of orders passed under Rule 26, Defence of India Rules, on diverse dates between 24th October 1940 and 8th March 1943. Those applications were made on 24th April 1943 after the Federal Court had declared the said rule to be ultra vires Section 2, Sub-section (2), Clause (x), Defence of India Act (35 of 1939), in Keshav Talpade v. Emperor . On the same date, nine rules were issued on the Crown to shew cause why the said persons should not be released, Those rules came on for hearing/before us on 7th May 1943. At an early stage of the hearing, seven out of the nine detenus applied to us to give them facilities to swear affidavits in jail. We granted their prayer. They swore affidavits and those affidavits have been put on the record with liberty to the Crown to file affidavits in answer. Another affidavi...
Tag this Judgment!Court : Kolkata
Reported in : AIR1944Cal163
B.K. Mukherjea, J.1. This appeal is on behalf of defendants 2 and 3 in a suit commenced by the plaintiffs under Section 92, Civil P.C. The suit relates to certain immovable properties situated at Rai Sahib Bazar in the town of Dacca, with regard to which he alleged one Khidir Buksh Khansama to have made a wakf for the upkeep of a mosque built. The plaintiffs are the members of the Mahomedan public who are interested in the mosque, two of them being the brother's grandsons of Khidir Buksh, and the suit was commenced with the sanction of the Collector of Dacca as contemplated by Section 98, Civil P.C. According to the plaintiffs the wakf was created by a towliatnama executed by Khidir Buksh on 9th May 1851, by which the properties specified in sch. A of the plaint were dedicated to the mosque which is itself described as property No. 1 of Sch. B. Another person named Miran who lived in the same locality is said to have dedicated a plot of land to the services of the same mosque by a deed...
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