1963 PLP 867 (PTD)

INAMULLAH, J. This reference to the Full Bench has arisen from an application under sub clause (2) of section 66 A of the Income tax Act, 1922 (hereinafter called the Act) for a certificate for appeal to the Supreme Court. Sub clause (2) of section 66-A runs as under :- "66-A (2). An appeal shall lie to the Supreme Court from any judgment of the High Court delivered on a reference made under section 66 in any case which the High Court certifies to be a fit one for appeal to the Supreme Court." Mr. Noorul Arifin, the learned Advocate for the Income tax Department, took a preliminary objection that the application was not maintainable in view of clause (3) of Article 58 of the Constitution which lays down that an appeal to the Supreme Court from a judgment, decree order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal. On the other hand, the learned Advocate for the assessee, has relied on Article 60 of the Constitution which lays down that in addition to the jurisdiction conferred on the Supreme Court by the Constitution the Supreme Court shall have such other jurisdiction as may be conferred on it by law. In order to appreciate the contentions, of the learned Advocates of the parties it would be necessary to reproduce Articles 58 and 60 of the Constitution. They run as under : "58. (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court. (2) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right where (a) the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution ; (b) the High Court has sentenced a person to death or to transportation for life ; or (c) the High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Article 123.

60. In addition to the jurisdiction conferred on it by this Constitution, the Supreme Court shall have such other jurisdiction as may be conferred on it by law." The question for the decision of this Bench is whether the right of appeal of a party to the Supreme Court on a certificate by the High Court that it is a fit case for appeal to the Supreme Court is taken away by the Constitution. The question is not free from difficulty. The question is also an important one. The decision of this question will have bearing on clause (c) of section 109 of the Civil Procedure Code, the language of this clause is ad aidem which confers a right of appeal to the Supreme Court in civil disputes. Sub clause (2) of section 66 A of the Income tax Act would limit the right of appeal only in the event of a certificate being granted.

2. Mr. Noorul Arifin, the learned Advocate for the Income-tax Department, raised three fold contentions before us, namely : (1) that the word `only' in clause (3) of Article 58 is indicative of the intention of the framers of the Constitution so as to limit the right of appeal to the cases mentioned in clause (2) of Article 58; in all other cases appeals including an appeal against a judgment of the High Court delivered on a reference made under section 66 of the Act would lie to the Supreme Court only if the Supreme Court grants leave to appeal ; (2) that the words " may be conferred on it by law " occurring in Article 60 have a reference to future legislation ; and (3) that the words " other jurisdiction " in Article 60 of the Constitution would indicate that the intention of the framers of the Constitution was to confer some other jurisdiction and not appellate jurisdiction.

3. I have given my consideration to the questions raised by the learned Advocate for the Department. I have come to the conclusion that the intention of the framers of the Constitution was not to take away the valuable right of appeal conferred by section 66 A of the Act. I would now proceed to dispose of the contentions of the learned Advocate in order.

4. The word ` only ' occurring in clause (3) of Article 58 has not been used, I venture o say, so as to restrict the right of appeal of a litigant to cases where the Supreme Court grants leave to appeal. In the first place, the force of the word ` only ' is considerably modified by Article

60. If the word ` only ' was to be given the meaning contended by the learned Advocate for the Department, the Supreme Court cannot have jurisdiction to hear appeals even where the Legislature were to confer such jurisdiction on it. In the second place, the words " in addition to the jurisdiction conferred on it " in Article 60 are very significant. This would indicate that the jurisdiction of the Supreme Court is not restricted to cases in which leave to appeal has been granted. These words clearly modify the restrictive force of the word `only'. Moreover, the word `only' in clause (3) of Article 58 has been used in contradiction to the words " as of right " occurring in sub clause (2) of Article

58. The use of the words " as of right " necessitates the word `only'. I would illustrate my point by the following sentence. The members of the club can use the bar as of right but guests can do so only by permission. The word `only' has been used so as to emphasise the words " as of right ". In the same way `only' has been used in clause (3) of Article 58 so as to emphasise the importance of the words "as of right" in clause (2) of Article 58.

5. The word `only ' therefore cannot be said, especially in view of the words " in addition to the jurisdiction conferred on it " (Supreme Court) to take away the right of a party under sub-clause (2) of section 66-A of the Act to file an appeal before the Supreme Court after a certificate has been granted by the High Court.

6. The words " may be conferred on it by law " occurring in Article 60 do not necessarily have reference to future legislation. In this connection it would be useful to reproduce a passage from Maxwell on the Interpretation of Statutes, 10th Edition, page

128. It runs as under : "It is, perhaps, on the general presumption against an intention to disturb the established state of law, or to interfere with the vested rights of the subject, that so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts, although this feeling may owe its origin to the pecuniary interests of the Judges in former times, when their emoluments depended mainly on fees. It is supposed that the Legislature would not make any important innovation without a very explicit expression of its intention especially since in recent years such an intention has often been very explicitly expressed. It would not be inferred for instance, from the grant of a jurisdiction to a new tribunal over certain cases that the Legislature intended to deprive the superior Court of the jurisdiction which it already possessed over the same cases." In the light of the above the presumption would be that the framers of the Constitution did not intend to impliedly repeal sub clause (2) of section 66-A of the Act.

7. It would be unreasonable to suppose that the intention of those who framed Article 60 was only to contemplate the future possibility of Legislature conferring jurisdiction on the ,q Supreme Court, and to repeal the enactment where the Legislature had already conferred such a power. In this connection I would reproduce a passage from Maxwell page

160. It runs as under : " An author must be supposed to be consistent with himself, and, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the Legislature is treated in the same manner as that of any other author, and the language of every enactment must be construed as far as possible in accordance with the terms of every other statute which it does not in express terms modify or repeal." The framers of the Constitution must be aware of the existence of sub clause (2) of section 66 A of the Act or similar other provisions in other Acts. If they wanted to repeal these provisions they would have done so expressly and not left room for debate.

8. It has not been contended by the learned Advocate for the Department that Articles 58 and 60 of the Constitution have expressly repealed sub clause (2) of section 66 A. The contention was that the same has been repealed by implication. In this connection it would be useful to reproduce clauses (1) and (4) of Article 225 of the Constitution. They run as under : " 225 (1) Except as provided by this Article, all existing laws shall, subject to this Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. 225 (4) For the purpose of bringing the provisions of any existing law into accord with the provisions of this Constitution (other than Part II of this Constitution), the President may, within a period of two years after the commencing day, make, by Order, such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any Order so made shall have effect (or be deemed to have had effect) from such date, not being a date earlier than the commencing day, as may be specified in the Order." The above provisions would show that sub clause (1) of Article 225 has made the existing laws applicable. If the intention of the President was to bring the provision of section 66 A of the Act in accordance with the Constitution sub clause (2) of the same would have been omitted. It would, therefore, appear that sub clause (2) of section 66 A has not been impliedly repealed.

9. No reason whatsoever has been pointed out by Mr. Noorul Arifin to indicate as to why the existing law in respect of grant of certificate for leave to appeal to the Supreme Court has been taken away by the framers of the Constitution. In the absence of any reason it is difficult to construe implied repeal of the existing law. The principle of necessary implication cannot be readily resorted to unless the intention can be gathered from the language itself.

10. It was very strenuously contended by Mr. Arifin that under Article 60 of the Constitution the intention of the framers of the Constitution was to confer some other jurisdiction than the jurisdiction mentioned in Articles 57, 58 and

59. In other words, he contended that the jurisdiction contemplated by Article 60 is not that of original, appellate or advisory jurisdiction of the Supreme Court . The argument is an ingenuous one but does not stand scrutiny. I think " other jurisdiction " in Article 60 is wide enough to include appellate jurisdiction such as under sub. clause (2) of section 66 A of the Act.

11. I have come to the conclusion, for the reason given above, that the right of the litigant to apply under sub clause (2) of section 66 A of the Income tax Act for certificate for leave to appeal to the Supreme Court is not taken away by the Constitution. MASUD AHMAD J. I am in respectful agreement with the view expressed by my learned brother, Inamullah, J., that the right of a litigant to apply under clause (2) of section 66 A of the Income tax Act for a certificate for appeal to the Supreme Court is not taken away by the Constitution, but would like to add a few words.

12. If clause (3) of Article 58 of the Constitution had stood alone and if it had not been followed by Article 60, this Court, in my opinion, would not have been competent to grant the certificate asked for, because, an appeal to the Supreme Court, in cases not covered by clause (2) of Article 58 of the Constitution, could lie only if that Court granted leave to appeal. The word " only ", occurring in clause (3) of Article 58, indicates that in cases not covered by clause (2) of that Article, no such appeal shall lie to the Supreme Court until and unless that Court grants leave to appeal. However, Article 60 provides that in addition to the jurisdiction conferred on the Supreme Court by the Constitution, that Court shall have such other jurisdiction as may be conferred on it by law. The question is whether Article 60 refers to future legislation, or whether it would apply to existing laws, as well as to future laws by which such jurisdiction is conferred on that Court. If instead of using the words " may be " the word "is" had been employed, there would not have been the slightest doubt that the jurisdiction conferred by the existing as well as by future laws, on the Supreme Court to hear appeals would be exercisable by that Court. The use of the words " may be " does not, however, necessarily indicate that the jurisdiction to hear such appeals is to be derived only from laws to be passed in future. In my opinion, if the intention of the framers of the Constitution had been to disturb the established state of law and to take away the power conferred by section 66-A (2) of the Income tax Act, section 109(c) of the Code of Civil Procedure and other laws on the subject, which conferred jurisdiction on the Supreme Court to hear appeals, the intention would have been made clear by employing express words to that effect. As this was not done, we would be justified in presuming that the framers did not intend to take away the power conferred by these laws, which have been saved by Article 225 of the Constitution. Order accordingly.