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1957 Supreme(Cal) 36
HIGH COURT OF CALCUTTA
CHAKRABARTI, DAS GUPTA
STANDARD VACUUM OIL CO. - Appellant
Versus
THE COMMERCIAL TAX OFFICER - Respondent
Matter 58 Of 1956
Decided On : FEBRUARY 19, 1957
E.R.Meyer
A certificate under Article 132 (1) of the Constitution, while it authorises an appeal, does not by itself bring an appeal into existence. A further petition is necessary to bring an appeal into existence.
Headnote:
CERTIFICATE UNDER ARTICLE 132 - GRANT OF CERTIFICATE - FURTHER APPLICATION TO COURT TAKING SUPREME COURT MATTERS - NECESSITY - PROCEDURE - STAY OF PROCEEDINGS AND LEVY OF TAX - DIRECTIONS.
Fact of the Case:
The petitioner, Standard Vacuum Oil Company, sought to appeal to the Supreme Court from an order passed by Sinha, J., who had discharged a Rule nisi issued by himself upon an application made under Article 226 of the Constitution. The petitioner prayed for a certificate under Article 132 or Article 133 of the Constitution.
Finding of the Court:
The court held that after an intending appellant has obtained a certificate under Article 132 (1) from the trial Judge, it is not necessary for him to obtain a further certificate from the Court, taking Supreme Court matters, for the purpose of including in his appeal grounds not covered by Article 132. For taking such grounds, he will have to obtain the leave of the Supreme Court. However, a further application to the Court taking Supreme Court matters is necessary to bring an appeal into existence. The petition of appeal must be made within the period of limitation prescribed for appeals to the Supreme Court and must implead the necessary parties.
Issues: 1. Whether a further certificate from the Court taking Supreme Court matters is required after a certificate under Article 132 (1) has been granted by the trial Judge? 2. Whether a further application to the Court taking Supreme Court matters is necessary after a certificate under Article 132 (1) has been granted? 3. Whether the petitioner is entitled to a stay of proceedings and levy of tax during the pendency of the appeal to the Supreme Court?
Ratio Decidendi: 1. A further certificate from the Court taking Supreme Court matters is not required after a certificate under Article 132 (1) has been granted by the trial Judge for the purpose of including in the appeal grounds not covered by Article 132. 2. A further application to the Court taking Supreme Court matters is necessary after a certificate under Article 132 (1) has been granted to bring an appeal into existence. The petition of appeal must be made within the period of limitation prescribed for appeals to the Supreme Court and must implead the necessary parties. 3. The petitioner is entitled to a stay of proceedings and levy of tax during the pendency of the appeal to the Supreme Court, subject to the condition that the petitioner shall submit monthly returns of its sales of aviation spirit to foreign-bound aircraft, as required by the Bengal Motor Spirit Sales Taxation Act, 1941, as amended up to date.
Final Decision: The court directed that a formal certificate under Article 132 (1) be drawn up and issued to the intending appellant. The court also directed that Messrs. Fowler and Co., shall hold the sum of Rs. 2,00,000 (two lacs of rupees), already deposited with them, free of lien and until further orders and that of long as the appeal to the Supreme Court may remain pending, the petitioner shall submit to respondent No. 1 returns of its sales of aviation spirit to foreign-bound aircraft month by month, as required by the Bengal Motor Spirit Sales Taxation Act, 1941, as amended up to date.
( 1 ) THE petitioner, the Standard Vacuum Oil Company, wants to appeal to the Supreme Court from an order passed by Sinha, J. , whereby he discharged a Rule nisi issued by himself at the instance of the petitioner upon an application made under Article 226 of the Constitution. The prayer in the petition is that 'if necessary', a certificate be granted in terms which appear to be the terms contemplated by both Article 132 and Article 133.
( 2 ) IT appears that a certificate under Article 132 has already been granted by the learned trial Judge himself by an observation made by him at the end of his Judgment. He has certified that the case involves a substantial question of law as to the interpretation of the Constitution. No particular form is required for a certificate under Article 132. It is also well settled that on questions covered by Article 132, an appeal lies directly to the Supreme Court from the decision of even one learned Judge sitting singly, if he gives the necessary certificate. The prayer in the present petition for a certificate that the proposed appeal involves a substantial question of law as to the interpretation of the Constitution appears to be misconceived and a surplus age.
( 3 ) THERE is, however, a prayer for a certificate which would seem to be a certificate of the kind contemplated by Article 133. The grounds which are intended to be taken in the proposed appeal are set out in para. 16 of the petition and at least one of them, namely, ground (d), does not seem to have any concern with the interpretation of the Constitution. The proposed, appeal, therefore, is intended to cover grounds contemplated by Article 132 and also other grounds which are outside the ambit of that Article. It need hardly be said that the latter grounds would not be covered by the certificate granted by the learned trial Judge under Article 132 and, therefore, the first question which arises is whether a further certificate from this Court is required in order to enable the petitioner to take before the Supreme Court grounds oilier than those covered by Article 132.
( 4 ) IT appears to me that no such further certificate is required. Clause (3) of Article 132 provides as follows;--"where such a certificate is given'' -- that is to say, a certificate under Article 132 (1) -- "or such leave is 'granted'' -- that is to say, special leave by the Supreme Court under Article 132 (2) -- "any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided and, with the leave of the Supreme Court, on any other ground. "it would appear from the terms of Clause (3) of Article 132 that if any appellant to the Supreme Court who has obtained from the High Court a certificate under Clause (1) wishes to urge other grounds in his appeal, he can do so if the Supreme Court gives him the necessary leave and only if such leave is given. There would seem to be no scope for the High Court granting a further certificate under Article 133 for the purpose of authorising the further grounds to be taken in the appeal. .
( 5 ) IN that regard, the corresponding provision in Section 205 (2) of the Government of India Act, 1935, was noticeably different. That Sub-section provided as follows:--"where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate had been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave. "it is clear that the provision, above quoted, contemplates an appeal (i) on grounds concerning the interpretation of the Constitution Act under a certificate granted under Section 205 (1), (ii) on further grounds on which an
