COLLECTOR OF CUSTOMS, CALCUTTA versus EAST INDIA COMMERCIAL CO. LTD.

WANOHOO, .J.-This is an appeal· on a. certificat.e ~ranted· by the Calcutta. High Court. The brief facts neceBBary for present purposes a.re these. The respondent had import.ad 2,000 drums of mineral oil. Out of this quantity, the appellant, the Collector of Customs, Calcutta., confiscated 50 drums by order dated September 20, 1950. He also imposed a personal penalty of Rs.61,000/on the respondent under the Sea. Customs Act, No. 8 of 1878, (hereinafter referred to as the Act). The respondent appealed to the Central Boa.rd of Revenue under s. 188 of the Act, and this appeal was dismissed in April 1952. Thereupon the respondent filed a petitfon under Art. 226 of the Contitution in the High Court. We are in the present appeal not concerned with the merits , of the case put forward · by the respondent, for the matter h'iB not yet been heard on the merits. When. the petition ea.me up before a. lea.med Single Judge a. question was raised as ·to the jurisdiction of the Hi$h Court to hear the ·petition in view of the decision of this Court in Election OommiS&ion I rUJ,ia v. Saka Venkata Stthba Rao.(1) As the learned Single Judge considered the p6int important,· he referred the matter to a. larger bench; .a.nd eventually the question was considered by a. Full-Bench of the High Court. The. Full-Bench addressed itself two questions in that connection, namely, (i) whether · any writ could issue against the Central Boa.rd of Rev'?nue which w.as a party to the writ· P!'titien and. which was permanently located outside the jurisdiction of the High court, and (ii) whether if no writ could iUue against the Central Board ,of Revenue a.ny writ could be issued against the appellant, which was the original authotity kl pa.es the order under challenge, when the appellate n osss) s.c.R.

p. 565

authority (namely, the Central' Board of' Revenue) had merely dismissed the app~al. ·.

p. 566

The Full-Bench held' on'-the• first ·question that the High· 'Cou'rt had no jurisdiction to issue a writ against the Central ·Board of Reveriue in view of the decision in the case of' Sake Venkata _Subba Rao.('). On tpe second question; it held th~t as the Central· Board of Revenue had merely dismissed the appeal against the order of the Collector of Customs Calcutta, the really o~ruiiue order was the order of the ·appellant, which{~:,.:a:5;iliicated

p. 566

within the jurisdiction of the HigIBJ Cou'tt, and· . · therefore it had ·jurisdiction to pass; an order against the Collector of Customs in Hpite · of the fact tliat that order · had been ·taken . in appeal (which ·was dismissed) ··to· the Central ;Board of Revenue to which no writ could ' be issued. · The Full-Bench further directed that the petition · would be placed before the· learned . Single Judge for disposal in tho light of ·its decision or. the question of jurisdiction. Thereupon there was an application for a· certificate to appeal to this . Court, which . was granted; and that in how the matter has come uii liefore us: · .

p. 566

The only question · which fells for decision before us in the second question debated in the High Court; namely, whether the High Court would have jurisdiction to issue a writ. against the Cullector of Customs Calcutta. in 'spite of the fact. that his order was 'taken in appeal to.the Central Board of Revenue against which th_e High Court could not issue a·writ and the appeal had been dismissed. There seems to have be.en a difference of opinion amongst the High Courts in this· matter. The Rajas than High Courts in Barko.tali v. CU.stodian GP.neral of Evacuee P.roperty \ held:that where ··th_e ~ original authority passing the order was within the jurisdiction of the High Court but the appellate authority was not within such jurisdiction, the High Court would still have jurisdiction to issue a writ to the original authority, where the appellate authority had merely dismissed the appeal and the order of the original authority stood confirmed without any modification whatsoever. On the

pp. 566–567

other hand, the PEPSU High Court in , ., Jo?JiruJ£r Singh Waryam Singh v. Dfre,()tor, Rural Rehabilit,ation, Pepsu, Patiala,(') the Nagpur High Court in Burhanpur National I'extile Worker8 UnWri v. Laboui· Appellate Tribunal of India at Bombay(') and the Allahabad High Court in Azmat Ullah v. CUBtodian, Evacuee Property (') held otherwise, ta.king the view that even where the appeal was merely dismissed, the order of the original authority merged in the order of the appellate authority, and if the appellate authority was beyond the territorial· jurisdiction of the· High Court, no writ could issue

p. 567

even to the original authority. It may be mentioned " that the Rajasthan High Coui:t had occasion to reconsider the matter after the decision of this Court in A. Thangal Kunju Mudaliar v. M. Venkitacha'lam Patti ( •). and held that in view of .that decision, its earlier decision in Barkatali's case (•) was no longer good law. The High Court has however not noticed this later decision of ·the Rajastha.n High Court to which the learned Chief

p. 567

Justice who was party to the earlier Rajasthan case ;-i' was also a party. The main rea.s.on which impelled the High Courts, .which held otherwise, was that ~e order of the original authority got merged in the order of the ~ppellate authority when the appeal was disposed of and therefore if the High Court had no territorhl jurisdiction to issue a writ . against· the appellate authority it could not issue a writ (9) A. I. s. c.

p. 567

A.LL (!Zi) aga.inst the origina.l a.uthority, even though the a.ppella.te a.uthority ha.d merely dismissed the a.ppeal without a.ny modification of the order passed by the original a.uthority.

pp. 567–568

The question therefore turns on whether the order of the origina.l authority becomes merged in the order of the a.ppella.te a.uthority even where the appella.te authority merely dismiBBeR the a.ppeal without any modification of the order of the origina.l a.uthority. It is obvious tha.t when a.n a.ppea.l is ma.de, the appella.te a.uthority oa.n do one of thr1ie things, namely, (i) it ma.y revel'!le the order under a.ppeal, (ii) it ma.y modify that order, a.nd (iii) it ma.y merely dismiBB the a.ppea.I and thus confirm the order without a.ny modifica.tion. It is not disputed tha.t in the fil'llt two oases where the order of the original authority is either reversed or modified it is the order of the a.ppellate a.uthority which is the opera.tive order a.nd if the High Court h~ no jurisdiction to iBSue a writ to the appellate a.uthority it ca.nnot iBBue a writ to the origina.l a.uthority. The question therefore is whether there is a.ny difference between these two oa.ses a.nd the third case where the a.ppellate authoriiy dismiBSes the a.ppea.l a.nd thus confirm• the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders pa.seed by the a.ppellate autho· rity and the third kind of order pa.ssed by it. ·In all these three cases a.fter the appellate authority has disposed of the appea.l, the opera.tive order is the order of the a.ppellate authority whether it has reversed the original order or modified it or con· firmed it. In la.w, the a.ppella.te order of confirmation is quite as efficacious as an opera.tive order as an appellate order of revel'll&l or modification. Therefore, if the a.ppellate authority is beyond the \erritorial juriadiot.ion of ~ High Conn A -diftlml\ to 1aoJd eftD in a - wllms the appelll&e authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ t.o the appellate authority which has confirmed the order of the original authority. In effect, by i~suing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order or the original authority even though it hns no territorial jurisdiction to issue any writ to the appt:illate aut.hority. We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority

pp. 568–569

for want of territorial jurisdiction it. :Would· not " be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal.

p. 569

It is this principle, viz., that the appellate order is the operative order !tfter the appeal is

p. 569

disposed of, which is in our opinion the basis of the ' · rule that the decree of the lower court merges in.

p. 569

the decree of the appellate court, and on the same principle it would riot be incorrect to. say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-whether of reversal or modification or mere coiifirmatiOn. This matter has been considered by this Court on a number of occasions after the decision in Saka Venkata Subba Rao'B case~ ( ii.._ In A. Thangal T\unju Mudaliar'a caRe ( though the point was not directly in issuo in that case, the Court had occl\Siou to consider the matter (see p. 1213) and it approved of the decisions of the PEPSU, Nagpur and Allahabad Hi'!h Courts, (referred to above). Then in Commissioner of Income· f,ax v. Mea.~rs. Amritlal Bhogifal and Company('), a similar question arose as to the merging of an order of the income-tax officer into the order of the Appellate Aasistant Commissioner passed in appeal in connection with the powers of the Commis8ioner "f Income-tax in rnvision. Though in that caso the order of registration by the In<;om<>-tax officer was held not to have morged in the order of the Assistant CommiBBioner on appeal in view of the spccia.J provisions of the Incom1. .. tnx Act, this Court observed a.a follows in that connection at p. 720 :-

pp. 569–570

"There can be no doubt that, if an appeal is provided against an order pas8ed bJ a tribunal, the decision of the appellate nuthority is the operative decision in law. If the appellate authority modifies or reversPs the der:ision of the tribunal, it is obvious that it is the appellate decision that is effective and can he enforced. In law the position would b(' ju.qt the same even if the appellate decision merely confirms the decision of the tribunal. As a result of tho confirmation or affirma1we of the decision ). of the tribunal by the appellate authority the original di>oision merges. in the appellate decision and it is the appellate decision alone which subsista and is operative and capable of enforcement."

p. 570

The matter was con~idered again by this Court in Madan Gopal Rungta v. Secreiary to tl1eGovernment of Orissa. (') in connection with an order of the (JIU) .lt. ~- Central Government in revision under the Minaral Concession RuYes, 1949, framed under the ·MiiieA and Minerals (Regulation and 'Development)' Act, (No. 53 of 1948) and it was' held that when the Central Government rejected the review petition against the order of the State Government· under the Mineral Concession Rules it was in effeot reject· ing the application of the appellant of that case for grant of the mining lease to him. The question of the original order with the appellate order was also considered in that case, though it was pointed out in view of r.60 of the Mineral Concession Rules that it is the Central Government's order in review which is the effective and final order. Learned counsel for the respondent sou~ht to distinguish Marlan Gopal Rungt,a's case on the ground that it was based mainly on an interpretation of r. 60 of the Mineral Concession Rules 1949, though he did not pursue this further when s. 188 of the ·sea Customs Act was pointed out to him.

pp. 570–571

The main reliance however of the respondent both in the High Court and before us is on the decision in the State of Uttar Pradesh v. Mohmmed Nook('). That was a case where ~a public servant was uismissed on April 20, 1948 before the Constitution had come into force. His appeal from the order of dismissal was dismissed in May 1949 which waa also before the Constitution came into force. Hie revision against tbe order in the appeal was dismissed on 'April 22, 1950, when the Constitution ·had come in to foroe, and the question that arose in that case was whether the dismissed 'public serTant could take advantage of the provisii>ns of the constitution because the revisional order had b~n passed after the Constitution into force. In that case, this Court certainly held that the order of dismissal passed on April 20, 1948 oould not be said to have merged in the orders in appeal ~d ii,t revision. n s s.c;.a. s.c.a. was pointed out that the order of dismisse.l wa.s operative of its own strength a.s from April 20, 1948 and the public servant stood dismisded as from that date and therefore it was a case of dismissal before the Constitution came into force and the public eervUTit could not take advantage of the provisions of the Constitution in view of the fact that his dismissal had taken place before the Constitution had come into force. As was pointed out in Madan Gopal Rungla'8, c.a.se(I) Mohammad Nook's ca~e (') was a special case, which stands on ita own facts. The question there was whether a writ under Art. 226 could be issued in respect of a dismiasal which waR effective from 1948. The relief that was being sought was against an order of di8miesal which came into oxistcnce before the Constitution came into force and remained effective all along even after the dismissal of the appeal and the revision from that order. It was in those special circumstances that this Court held that the dismissal had taken place in 1948 and it could not he tho subject-matter of consideration under Art.226 of the oon~titution, for that would be giving retrospective effect to the Article. The argument based on the principle of merger was repelled by this Court in that case on two grounds, namely, ( i) that the principle of merger applicable to decrees of courts would not be applicable to departmental tribunals, and (ii) that the original order would be operative on its own strength and did not go.in greater effioa.cy by the subsequent order of dismissal of the appeal or revision. In effect, this moans that even if the prinolple of merger were applicable to an order of dismissal like the one in Mohammad N ooh' s c.a.se, (') the fa.ot would still remain that the dismissal was before the Constitution came into force and therefore the person dismiBB could not take advantage of the p!"Ovisions of the Constitution, so far as that dismissal was concerned. That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dea· ling. We have therefore no hesitation in holding conAistently with the view taken by this Court in Mudaliar's case ( as well as in Messrs. Amritlal Blwgilal!s (') that the order of the original authority must be held to have merged in the order of the appellate authority in a ease like the present and it is only the order of the appellate authority which is operative after the appeal is dillposed of. There· fore, if the appellate authority is beyond the terri· torial jurisdiction of the High Court it would not be open to it to i88ue a writ to the original autho· rity which ia within its jurisdiction so long as it can not issue a writ to the appellate authority; It is not in dispute in this case that no writ could be issued to the appellate.authority and in the ciroum· stances the High Court could issue no writ even to the original authority. We therefore allow the appeal, set aside the order of the High Court and dismiss the writ petition with -i..

pp. 571–573

Appeal allowed.

p. 573