STATE OF KERALA A

K. T. SHADULI YUSUFF ETC.

March 15, 1977

[P. N. BHAGWATI, R. S. SARKARIA AND S. MURTAZA FAZAL Au, JJ.,] B

Kera/a General Safes Tax Act, 1963-S. 17(3)-Scope of-Best judgment .assessn1ent 1nade relying 011 entries in account books of other dealers-Assessee -If e11titlcd to cross-exan1ine the dealers.

Natural iustice-Scope in tax matters-Best Judgment assessnient made relyuig on en/lies in account books of other dealers-Cross-examination of dealers-If par/ of pruiciples of 11atr11al Justice.

Section 17(3) of the Kerala General Sales Tax Act 1963 provides that if the return submitted by an assessee appears to be incorrect or incomplete, the assessing authority may assess the dealer to the best of its judgment.

The oroviso to the sub-section enacts that before taking action under the sub-cc iion, the dealer shall be given a reasonable opportuniry of being heard aud, Yihere a return has been submitted, to prove the correctness of completeness of

uch return.

Relying on the evidence furnished by entries in the books of acc9unt of 5ome olher dealers, the Sales Tax Officer disbelieved the assessee's a~(..OUnts and came to the conclusion that the return field by hin:1 was incorrect and incomplete and made a best judgment assessment under s. 17(3). fhe

assesee's request to cross-examine the dealers in regard to the correctne:-.s of their accounts was rejected by the Sales Tax Officer. Jn revision the High Court quashed the order of the Sales Tax Officer.

Dismissing the State's appeal,

(Per Bhagwati and Sarkaria, JJ}

HELD .

The assessee was entitled to cross-examine the dealers under thi.: second part of the proviso to s. 17(3).

The Sales Tax Officer's refi.,_al to summon the dealers for cross-examination by the assessee constituted infraction

of ti1e right conferred on the assessee by the second part of the prov1su and F that vitiated the order of assessment made against him. [239 F]

(I) The rule which requires an opportunity to be heard to be given ro a person likely to be affected by a decision is not an inflexible rule having a fixed connotation.

It has a variable co:i; iten_t epending on the. na.ture of the .inquiry, the framework of the law under which 1t rs held, the const1tutton of the atthority hoiciing the inquiry, the nature and character of the right affected and tne coHsequences :flo\ving from the decision.

The rule of audi alterem partc1n does not require in every case a specified procedure to be followed.

In a given case, G the rule of audi alterem parte1n may import a requirement that witnesses, wilo5e statemenls are sought to be relied upon by the authority holding the inquiry, should be permitted to be cross-examined by the party affected while in s0me other cases it mav not. The procedure required to be adopted for giving an

opiJortunity to a person to be heard must necessarily depend on the facts and circumstances of each case. rz37 B-Dl

(2) (a) It is only on the existence of one of two conditions, namely, that H n.J return is submitted by the assessee or the return submitted appears to be incorrect or incomplete that the Sales Tax Officer gets the jurisdiction to make a be'St judgn1ent assessment. [237 H]

.II

(b) The second. part of the proviso lays down that here a return has been . submitted, the assessee should be given a reasonable opportunity to pro,•e, the correctness or completeness of such return. ..To prove"' means to establish the correctness or. completeness of the return by any mode permissible under taw.

The Oppor_tun1ty to prove would, !herefore, necessarily carry with it the right to CxaDllne w1esses and that would include equally the right to cross-exarniae wt nesses examined by the Sales Tax Officer. [238 G-HJ

Jn the instant case, the assessee could prove the correctness and completnes~ of his return only by showing that the entries in the books of account of the dealers on which the Sales Tax O_fficer relied, were false, bogus or manipulated and that bis return should not be disbelieved on the basis of such entries. 'I his could not be done unless an "opportunity to: cross exan1ine the dealers was given.

[239 BJ · ,

.-.I

.i.-turlimohan Prabhudayal v. State of Orissa~ 2~ S.T.C. 22 and 1.1. Appukutry

v. Stt:t_e of Kera/a~ 14 S.T.C. 489 approved,

Fazal Ali, J. (concurring).

Section 17(3) with the proviso'. thereto and r. 15, have given a statutory right to tl1e assc,, e to prove the correctness of his return and the assesee \\'~J fntitled to cross..examine the wholesale dealers, relying on whose accounts the Sales Tax Officer 1nade a best judgment assessment. [247 E]

(1) Th: ,,_.ell-settled rules in regard to best judgment assessment are (i) The taxing authority must not act dishonestly or vindictively or capriciously.

He must make what he honestly believes to be a fair estimate of the proper figures of assessment and for this purpose, he must be able to take into consideration all matters which he thinks will assist him in arriving at a fair and proper estimate. Though it must necessarily be guess work it must be honest guess Work. [241 EJ ·

'ii) Although tax proceedings are quasi-judicial and tt..e-Salcs Tax Officer is_ noL bound strictly by rules of evidence, yet he must base his order on materials known to the assesee and after he has been given a chance to rebut the same.

[244 E) .

(iii) Admissibilitv of a document or material in evidence is quite different from the value \vhiCh the authority would attach to such materia1. 1'he tax auttrority can even. base its conclusion on private .opi!1ion or asSessmcttt provided the same is fu11y disclosed to the assessee and he ts given an opportunity to rebut the same. [242 E]

lnconie-t.a:t ClJmmissioller v." Badridfis Ra111rai Shop, Al..ofa ! 1

1)37; 64 I.A. 102 114 115 and Dhakeswari Cotton !.-fills Ltd. v. Com1nissio11er of 111cometax,' Wesi Bengal, [1955] 1 S.C.R. 941 followed.

Uar; T1ubar 11.fandal Harihar Mandal v. State of Bihar 8 S.T.C. 770 and C~ Vasaniilal & Co. v. C.l.T. Bombay City 45 LT.R. 206 referred to.

Seth Gurmukh Singli v.

Comissioner of Income-tax Punjab, (1944] 12 J.T.R. 393 approved •

., flJ The \\l"'rds "opportunity of being heard" ills. lil3) ace Of very wide amPlide.

Ai that the court has to see is whether the assesee had been gi".en , a fair hearing. \Vhether the hearing would extend to ttie r1gnt of demandLng crossexamination oL witnesses or not, 'Y?uld depend upo!1 the. nature of the matetials r\!lled uron by the tax autbonuc,,. the manner tn wh1cl\ the a<; Sessee cars rebut those materials and the facts and circumstances of each case. [234

F-G]

KERALA v. K. T. SHADULI YUSUFF (Bhagwati, J.) 235

(b) The second part of the proviso confers benefit on the assessee for giving him an opportunity not only of being heard but also of proving the correctness or completeness of his return.

Secondly, r. 15 clearly shows that where the retu1n of the assessee is incorrect or incomplete he must be called upon to prove the correctness or completeness of the same.

It also enjoins on. the Sales Tax Officer that a reasonable opportunity of being heard should be given to .the assessee to prove the correctness and completeness of the return.

The requirement of the second part of the proviso to s. 17(3) is reiterated in r. 15. [244 F;

247 DJ

In the instant case, if the assessee desired the dealers whose accounts were used against him to be cross-examined to prove that his return was not incorrect or incomplete, he could not be denied this opportunity.

The dealers might have made the entries to embarrass the assessee or they might have animus or business rivalry with the assessee.

The assessee could establish the correctness of his return only if he was allowed to cross examine the dealers. 1244 Hl

Jayalllilal Thakordas v. State of Gujarat 23 S.T.C. 11 distinguished.

M. Appukutty v. State of Kerala, 14 S.T.C. 489 and Muralimohan Prabhudayal v. State of Orissa, 26 S.T.C. 22 approved.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 572-574 and 575 of 1972.

(Appeals by Special Leave from the Judgment and Order dated D 13-7-1971 of the Kerala High Court in Tax Revision Cases Nos. 42, 45, 58 and 44 of 1970.)

S. V. Gupte (In CA No. 572/72), K. M, K. Nair and A. C.

Pudissery for the appellant in all the appeals.

T. A. RamachRndran, for the respondents in all the appeals.

The Judgment of P. N. Bhagwati and R. S.

Sarkaria, JJ. was delivered by Bhagwati, J., S. Murtaza Fazal Ali, J. gave a separate opinion.

BHAGWATI, , J.

The facts giving ri'se to these appeals are set out in the judgment about to be delivered by our learned brother S.

Murtaza Fazal Ali and we do not think it necessary to reiterate them.

So far as Civil Appeals 572-57 4 of 1972 are concerned, it would be sufficient to state briefly lhe following facfs as these are the only facts necessary for appreciating the question of Jaw which arises for determination in these appeals. In the assessments of the assessee to sales tax for three assessment years the returns filed by him on the basis of his books of account appeared to the Sales Tax Officer to be incorrect and incomplete since certain sales appearing in the books of account of one Haji P. K. Usmankutty as having been effected by the assessee in his favour were not accounted for in the books of account maintained by the assessee. The assessee applied to the Sales Tax Officer for affording him an opportunity to cross-examine Haji Usmankutty in regard to the correctness of his accounts, but this opportuntry wa:~ denied to him and the Sales Tax Officer proceeded to make a best jud!lffient assessment under section 17, sub-section (3) of the Kerala _General Sales Tax, 1963. The assessee appealed but without success and this was followed by a revision application . to

the High Court. The High Court took the view that the assessee was entitled to an opportunity to cross-examine Haji Usmankutty before any finding could be arrived at by the Sales Tax Officer that the returns filed by the assessee were incorrect and incomplete so as l:o warrant the making of the best judgment assessment and since no such opportunity had been given to the assessee, the High Court quashed the order of the Sales Tax authorities and remanded the case to the Sales Tax Officer for making fresh assessmen\s according to law after giving an opportunity to the assesse to cros_s-examine Haji Usmankutty. The facts in Civil Appeal No. 575 of 1972 are almost identical, save that instead of Haji Usmankl1tty, certain wholesale dealers were sought to be cross-examined in that case and the opportunity to cross-examine them was denied by the Sales Tax authorities.

Since the High Court quashed the orders of assessments in both cases, the State preferred an appeal by special leave in each case challenging the correctness of the view taken by the High Court.

Now, the law is well settled that tax authorities entrusted with the power to make assessment of tax discharge quasi-judicial functions and they are bound to observe principles of natural justice in reaching their conclusions. It is true, as pointed out by this Court in Dhakes-

1\'ari Cotton Mills Ltd. v.

Commissioner of Income Tax, West Bengal(') that a taxing officer "is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a court of law", but that does not absolve him from the obligation to comply with the fundamental rules of justice which have come to be known in the jurisprudence of administrative law as principles of natural justice. It is, however, necessary to remember that the rule's of natural justice are not a constant : they are not absolute and rigid rules having uni versa! application. lt was pointed out by this Court in Suresh Koshy George v. The University of Kerala & Ors. (2) that. "the rules of natural justice are not embodied rules" and in the same case this Court approved the following observations from the judgment of Tucker, L. J. in Ru; sel v.

Duke of Norfolk and Ors. (3) :

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt whh, and so forth.

Accordingly. 1 do not derive much assistance from the definitions of natural justice which have been from time io time used, but. whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."

One of the rules which constitutes a part of the principles of natural justice is the rule of audi alterem partem which requires that

(2) [1969] I S.C.R. 317.

(3) [1949] 1 AU. England Reports 108.

KERALA v. K. T. SHADULI YUSU).'F (Bhagwati, l.) 237

no man should be condemned unheard. It is indeed a requirement of the duty to act fairly which lies on all quasi judicial authorities and this duty has been extended also to the authorities holding administrative enquiries involving civil consequences or affecting rights of parties because, as poinied out by this Court in A. K. Kraz'pak and Ors. v. Union of India,(') "the aim of the rules of natural justice is .to secure justice or to put it negatively to prevent miscarriage of justice"

and justice, in a society which has accepted socialism as its article of faith in the Constitution, is dispensed not only by judicial or quasi judicial authorities but also by authorities discharging administrative functions.

This rule which requites an opportunity to be heard to be given to a person likely to be affected by a decision is also, like the g,,; ms of which it is a species, not an inflexible rule having a fixed connotation. It has a variable content depending on the nature of the inquiry, the framework of the law under which it is held, the constitution of the authority holding the inquiry, the nature and character of the rights affected and the consequences flowing from the decision.

It is, therefore, not possible to say that in every case the rule of audi alterem partem requires [that] a particular specified procedure to be followed.

It may be that in a given case the rule of audi alterem partem may import a requirement that witnesses whose statements are sought to be relied upon by the authority holding the inquiry should be permitted to be cross-examined by the party affected while in some other case it may not.

The procedure required to be adopted for giving an opportunity to a person to be heard must necessarily depend on the facts and circumstances of each case.

Now, in the present case, we are not concerned with a situation where the rule of audi alterem partem has to be read .into the statutory provision empowering the taxing authorities to assess the tax. Section 17, sub-section ( 3), under which the assessment to sales tax has been made on the assessee provides as follows :

"If no return is submitted by the dealer under subsection ( 1) within the prescribed period, or if th~ return submitted by him appears to the assessing authority to be inco; rect or incoll!plete, . the assessing authority shall, after makmg such enqmry as 1t may consider necessary and after taking into account all relevant materials gathered by it, assess the dealer to the best of its judgment :

Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of being heard and, where a return has been submitted, to prove the correctness or completeness of such return.''

It is clear on a plain natural construction of the language of this provision that it empowers the Sales Tax Officer to make a best Judgment assessment only where one of two conditions is satisfied :

(l) [19701 I S.C.R. 457.

either no return is submitted by the assessee or the return submitted by him appears to the Sales Tax Officer to be incorrect or incomplete. It is only on the existence of one of these two conditions that the Sales Tax Officer gets the jurisdiction to make a best judgment assessment.

The fulfilment of one of these two pre-requisites is, therefore, a condition precedent to the assumption of jurisdiction by the Sales Tax Officer to make assessment to the best of his judgment.

Now, where no return has been submitted by the assessee, one of the two conditions necessary for the applicability of section 17, subsection ( 3) being satisfied, the Sales Tax Officer can, after making such inquiry as he may con'sider necessary and after taking into account all relevant materials gathered by him, proceed to make the best judgment assessment and in such a case, he would be bound under the proviso to give a reasonable opportunity of being heard to the assessee.

But in the other case, where a return has been submitted by the assessee, the Sales Tax Officer would first have to satisfy himself that the return is incorrect or incomplete before he can proceed to make the best judgment assessment.

The decision making process in such a case would really be in two stages, though the inquiry may be continuous and uninterrupted : the first stage would be the reaching of satisfaction by the Sale's Tax Officer that the return is incorrect or incomplete and the second stage would be the making of the best judgment assessment.

The first part of the proviso which requires that before taking action under sub-section ( 3) of section 1 7, the assessee should be given a reasonable opportunity of being heard would obviously apply not only at the second stage but also at the first stage of the inquiry, because the best judgment assessment, which is the action under section 17, sub-section (3), follows upon the inquiry and the "reasonable opportunity of being heard" must extend to the whole of the inquiry, including both stages.

The requirement of the first part of the proviso that the assessee should be given a

"reasonable opportunity of being heard" before making best judgment assessment merely embodies the audi alterem partem rule and what is the content of this opportunity would depend, as pointed out above, to a great exte_nt on the facts and circumstances of each case.

The question debated before us was whether this opportunity of being heard granted under the first part of the proviso included an opportuuity to cross-examine Haji Usmankutty and other wholesale dealer's on the basis of whose books of accounts the Sales Tax Officer disbelieved the account of the assessee and came to the finding that the return submitted by the as'sessee were incorrect and incomplete. But it is not necessary for the purpose of the present appeals to decide this question since we find that in any event the assessee was entitled to this opportunity under the 'second part of the proviso.

The second part of the proviso lays down that where a return has been submitted, the assessee shonld be given a reasonable opportunity to prove the correctness or completeness of such return.

This requirement obviously applies at the first stage of the enquiry before the Sales Tax Officer comes to the conclusion that the return submitted by the assessee is incorrect or incomplete so as to warrant the making of a best judgment assessment.

The question is what is the content

XERALA v. K. T. SHADULI YUSUFF (Bhagwati, ].) 239

of this provision which imposes an obligation on the Sales Tax Officer to give and confers a corresponding right on the assessee to be afforded, a reasonable opportunity "to prove the correctness or completeness of such return". Now, obviously "to prove" means to establish the Correctness or comrleteness of the return by any mode permissible "Under law.

The usl.lai mode recognised by Jaw for proving a fact is by production of evidence and evidence includes oral evidence of witnesses.

The opportunity to prove the correctness or completeness of the return would, therefore, necessarily carry with it the right to examine witnesses and that would include equally the right to cross-examine witnesses examined by the Sales Tax Officer.

Here, in the present •Case, the return filed by the assessee appeared to the Sales Tax Officer to be incorrect or incomplete because certain sales appearing in the books of Hazi Usmankutty and other wholesale dealers were not shown in the books of account of the assessee. The Sales Tax Officer relied on the evidence furnished by the entries in the books of account of Hazi Usmankutty and other wholesale dealers for the purpose of coming to the conclusion that the return filed by the assessee was incorrect or incomplete.

Placed in these circumstances, the a'ssessee could prove the correctness and completeness of his return only by showing that the entries in the books of account of Hazi Usmankutty and other wholesale dealers were false, bogus or manipulated and that the return submitted by the assessee should not be disbelieved on the basis of such entries, and this obviously, the assessee could not do, unless he was given an opportunity of cros's-examining Hazi Usmaukutty and other wholesale dealers with reference to their accounts.

Since the evidentiary material procured from or produced by Hazi

Usmankutty and other wholesale dealers was sought to be relied upon for showing that the return submitted by the assessee was incorrect and incomplete, the assessee was entitled to have Hazi Usmankutty and other wholesale dealers summoned as witnesses for cross-examination. It can hardly be disputed that cross-examination is one of the most efficacious methods of establishing truth and exposing falsehood.

Here, it was not disputed on behalf of the Revenue that the assessee in both cases applied to the Sales Tax Officer for summoning Hazi Usmankutty and other wholesale dealers for cross-examination, but his application was turned down by the Sales Tax Officer. This act of the Sales Tax Officer in refusing to summon Hazi Usmankutty and other wholesale dealers for cross-examination by the assessee clearly constituted infraction of the right conferred on the assessee by the second part of the proviso and that vitiated the orders of assessment made against the assessee.

We do not wish to refer to the decisions of various High Courts on this point since our learned brother has discussed them in his iu.dgment. Y1e are f the opinion that the view taken by the Orissa Htgh Court m Muralimohan Prabhudayal v. State of Orissa(I) and

the Kerala High Court in M. Appukulty v. State of Kerala(2) and the present cases represents the correct Jaw on the subject.

We accordingly dismiss the appeals with no order as to costs.

(I) 26 S.T, C, 22.

(2) 14 S.T.C, 489.

FAZAL Au, J.-These appeals by special leave involve an interesting question of law as to the interpretation of s. 1 7 ( 3) of the Kerala Genera\ Sales Tax, 1963-hereinafter referred to as 'the Act'-and the proviso thereof read with r. 15 framed under the Act.

The assessment years in question are 1965-66, 1966-67 and 1967-68 in the case of the respondent K. T. Shaduli in Civil Appeals Nos. 572-574 of 1972 and 1967-68 in the case of Nallakandy Yusuff in Civil Appeal No. 575 of 1972. But both the cases involve an identical question of law.

In this view of the matter, we propose to deal with all these appeals by one common judgment.

The assessee in Civil Appeals Nos. 572-574 of 1972 filed his sales-tax returns before the Sales Tax Officer who on an examination C of the accounts found that the returns submitted py the a; sessee were both incorrect and incomplete inasmuch as certain entries in the books of account of Haji P. K. Usmankutty revealed certain transactions which were not accounted for in the assessces books of account.

The Sales Tax Officer, after hearing the ossessee, made an assessment to the best of his judgment under s. 17(3) of the Act read with r. 15 made under the Act.

The Sales Tax Officer thus rejected the D accounts of the assessee as they did not reflect the goods said to have been purchased by Haji P. K. Usmankutty. The assessee sought an opportunity to cross-examine Haji Usmankutty with respect to the correctness of his accounts which were relied upon by the Sales Tax Oflker, but this opportunity was refused to him by the Sa)es Tax Ofticer as also the other appellate authorities.

Similarly in the case of the respondent Nallakandy Yusuf!, in Civil Appeal No. 575 of 1972, E the return filed by the assessee was rejected by the Sales Tax Officer on the ground that certain transactions shown in the accounts of 41 some wholesale dealers were not reflected in his books of account and i the opportunity asked for by the assessee for cross-examining the said wholesale dealers was refused to him.

The order of the Sales Tax Officer was confirmed by the Appellate Authorities under the Act.

Both the assessees then filed a revision application before the Hib F Court which allowed the application of the asscssees, quashed the orders of the Sales Tax Authorities and remanded ti.e cases to the Sales Tax Officer for giving an opportunity to the respondents for cross-examining the wholesale dealers concerned and then making assessments in accordance with the law.

The State having obtained special leave from this Court-hence these appeals before us.

G The short question that fell for determination before the High Court was, whether under the provisions of the Act the opportunity of being heard which was to be given to the assessees, would include within its sweep the right of cross-examination of a third party whose accounts were the basis of the best judgment assessments made by the Sales Tax Officer and the examination of which later on showed that the returns filed by the assessees were incorrect and incomplete.

H The High Court, on a coi:isideration of s. 17 ( 3) and the Rules made under the Act came to the conclusion that the assessees were entitled to a fair hearing and the opportunity of being heard could not be said to be complete unless in the circumstances of these cases the as-

KERALA v. K. T. SHADULI YUSUFF (Fazal Ali,!.) 241

sessees were allowed to cross-examine Haji P. K. Usmankutty and other wholesale dealers on whose accounts reliance was placed by the Sales Tax Authorities.

A provision of law authorising the Taxing Authorities to. make. a best judgment assessment in default of the assssee .complymg with the le•al requirements is not a new one, but existed m s. 23 ( 4) of the !;, come-tax Act, 1922 as amended by the Indian Income-tax (Amendment) Act, 1939, the relevant part of which runs thus:

If any person fails to make the return required by any notice given under sub-section (2) of sectin 22 and has not made a return or a revised return under ;; uh-section

(3) ot the same section or fails to comply with aU the terms of a notice issued under sub-section ( 4) of the same section or, having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of this sec- '.ion, the Income-tax Officer shall make the assessment to the best of his judgment and determine the sum payable bv the asscssee on the basis of such Qssessn1ent and, in the case of a firm, may refuse to register it or may cancel its registration if it is already registered :

Provided x x x x"

Describing the nature and character of a best iudgment assessment, Lord RusseU of Killowen in delivering the judgment of. the Privy Council in Income-tax Commissioner v.

Badridas Ramrai Shop, A kola,(') observed as follows:

"The Officer is to make an assessment to the best of hiJ; judgment aganst a person who is in default as regards supplying informatiQn.

He must not act dishonestly or vindictively or capriciously, because he must exercise judgment in the matter.

He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose h.e must, their Lordships think,

b~ able to take into consideration local knowledge of previous returns by and assessments of the a&'l; essee, and all other matters which he thinks will assist him in arriving at a fair and proper es<imate; and though there must necessarily be guess-work in the matter, it must be honest guesswork."

These observations were quoted with approval by this Court in Raghbar Mand al Harihar Manda/ v. State of Bihar(2).

Mr. Gupte learned counsel for the appellant submitted that he main object of the best judgment assessment was to penalise the H

(1) (1937) 64 IA. 102, 114-115.

(2) 8 S.T.C.7i0.

assessee for either not filing a return or for filing a return which was defective and if at this stage he is given a full-fledged hearing inclnding the right to summon and cross-examine witnesses, then this would amount to condoning the default committed by the assessee. lt'was also argued that as the Income-tax authorities are not bound by the technical rules of evidence, the assessee cannot claim cross-examination of witnesses as a matter of right.

In support of his submission he relied upon a decision of this Court in Dhakeswari Cotton Mills Ltd

v. Commissioner of Income Tax, West Bengal('), where agreeing with a similar argument put forward by the Solicitor-General in that

case this Court observed thus :

"As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the Income-tax Officer is not fettered bv technical rules of evidence and pleadings, and that he is cl1titled to act on material which may not be accepted as evidence , in a Court of law, bl!t there the agreement ends, because it is equally clear that in JTiaking the assessment under sub-section (3) of section 23 of the Act, the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all.

There must be something more than bare suspicion to support the assessment under section 23 ( 3)."

There can be uo doubt that the principle that as the tax proceedings are of quasi-judicial nature, the Sales Tax authorities are not strictly bound by the rules of evidence which means that what the authorities have to consider is merely the probative value of the materials produced before them.

This is quite different from saying that even the rules of natural justice do not apply to such proceedings so as to deny the right of cross-examination to the assessee where the circumstances clearly justify such a course and form one of the integral parts of the materials on the basis of which the order by the Taxing Authorities can be passed.

The admissibility of a document or a material in evidence is quite different from the value which the authoriiy would attach to such material.

The Privy Council has held that the Taxing Authorities can even base their conclusion on their private opinion or assessment provided the same is fully disclosed to the assessee and he

is given an opportunity to rebut the same.

In these circumstances, therefore, we do not agree with Mr. Gupte that merely because the technical rules of evidence do not strictly apply, the right of cross-· examination cannot be demanded by the assessee in a proper case governed by a particular statute.

This Court further fully approved of the four propositions laid down by the Lahore High Court in Seth Gurmukh Singh v. Commissioner of Income-tax, Punjab( 2 ). This Court was of the opinion that the Taxing Authorities bad violated certain fundamental rules of

(I) [1955] l S.C.R. 941.

(2) (1944) 12 I.T.R. 393.

KER,\LA v. K. T. SHADULI YUSUFF (Fazal Ali, J.) 243

natural justice in that they did not disclose to the assessee the information supplied to it by the departmental representatives.

This case was relied upon by this Court in a later decision in Raghubar Mandal Har.ihar Mandal's case (supra) where it reiterated the decision of this Court in Dhakeswari Cotton Mills Ltd."s case (supra), and while

further endorsing the decision of the Lahore High Court in Seth Gurmukh Singh's case(2) pointed out the rules laid down by the Lahore High Court for proceeding under sub-s. (3) of s. 23 of the Income-tax Act and observed as follows :

"The rules laid down in that decision were these : ( 1) While proceeding under sub-section (3) of section 43 of the Income-tax Act, the Income-tax Officer is not bound to rely on such evidence produced by the assessee as he considers to be false; (2)1 if he proposes to make an estimate in disregard of the evidence, oral or documentary, kd by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate;

(3) he is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and ( 4) . in case he proposes to use against the asessee the result of any private inquiries niade by him, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and should further give him amp!~ opportunity to meet it, if possible."

It will .thus be noticed that this Court clearly laid down that while the Income-taic Officer was not debarred from relying on any material against the assessee, justice and fair-play demanded that the sources of information relied upon by the Income-tax Officer must be disclosed to the assessee so that he is in a position to rebut the same and an opportunity should be given to the assessee to meet the effect of the aforesaj_d information.

We, however, find that so far as the present appeals are concerned, they are governed by the provisions of the Kerala General Sales Tax Act, the provisions of which are not quite identical with the provisions of the Income-tax Act and the Kerala Act appears to have fully incorporated all the essential principles of natural justice in s. 17 (3) of the Act. In these circumstances, therefore, the answer to the question posed in these appeals would have to turn up.on the scope, inter· pretation and content of s. 17 (3) of the Act, the proviso thereto and r. 15 framed under the Act. It is true that the words "opportunity

of being heard" are of very wide amplitude but in the context the sales-tax proceedings which are qua'si-judicial proceedings all that the Court has to see is whether the assessee has been given a fair hearing.

Whether the hearing would extend to the right of demanding cross-examination of witnesses or not would naturally depend upon the nature of the materials relied upon by the sales-tax

authorities, the manner in which the assessce can rebut those malerials and the facts and circQmstances of each case.

It is difficult to lay down any hard and fast rule of universal application. We would, therefore, first try to interpret the ambit of s. 1 7 (3) and the proviso thereof in order to find out whether a right of cross-examination of witnesses whose accounts formed the basis of best judgment assessment is conferred on the assessee either expressly or by necessary intendmcnt.

Section 17 ( 3) of the Act runs thus :

"If no return is submitted by the dealer under sub-section ( 1) within the prescribed period, or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such enquiry as it mzy consider necessary and after taking into account all relevant materials gathered by it, assess the dealer to the best of its judgment :

Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of being heard and, where a return has been submitted, to prove the correctness or completeness of such return."

An analysis of this provsion would 'show that this sub-section contemplates two contingencies-(!) where the assessee does not file his return at all; and (2) where the assessee files his return which, however, is found to be incorrect or incomplete by the assessing authority.

The sub-section further enjoins on the assessing authority a duty to consider the necessary materials and make an enquiry before coming to its conclusion.

The proviso expressly requires the assessing authority to give to the assessee a reasonable opportunity of being heard even if the assessee had committed default in not filing the return. Since the statute itself contemplates that the assessee

should be given a reasonable opportunity of being heard, we arc not in a position to agree with the contention of the learned counsel for the appellant that if such an opportunity is given, it will amount to condonation of default of the assessee.

The tax proceedings are no doubt quasi-judicial proceedings and the Sales-tax authorities arc not bound strictly by the rules of evidence, nevertheless the authorities must base their order on materials which are known to the assessee and after he is given a chance to rebut the same.

This principle of natural justice which has been reiterated by this Court in the' decisions cited above has been clearly incorporated ins. 17(3) of the Act as mentioned above.

The statute does not stop here, but the second part of the proviso confers express benefit on the a'ssessee for giving him an opportunity not only of being heard but also of proving the correctness or completeness of such return.

In view of this pro; ision it can hardly be argued with any show of force that if the assessee desires the wholesale dealers whose accounts are used against him to be cross-examined in order to prove that his return is not incorrect or incomplete he should not be conceded this opportunity.

Apart from anything else, the second part of the proviso itself confers this specific right on the assessee. It is difficult to conceive as to how the

KERALA v. K. T. SHADULI YUSUFF (Fazal Ali, l.) 245

assessees would be able to disprove the correctness of the accouns of Haji P. K. Usmankutty or the other wholesale dealers, unless.he. is given a chance to cros~-examine them with resp.eel to te cred1b1hty

, of the accounts maintamed by them.

It ts qmte possible .that te wholesale dealers may have mentioned certain transacttons m heir books of account either to embarrass the assessees or due to ammus ' or business rivalry or such other reasons which can only be established

'. B when the persons who are responsible ior keeping the accounts are

brought before the authorities and allowed to be cross-examined by the assessees.

This does not mean that the assessing anthority is bound to examine the wholesale dealers as witnesses in presence of the assessees : it is sufficient if such wholesale dealers are merely tendered by the safos-tax authorities for cross-examination by the assessees for whatever worth it is.

In view of the express provision of the second par\ of the proviso, we are fully satisfied that the respondents had the undoubted right to cross-examine the wholesale dealers on the basis of whose accounts the returns of the assessees were held to be incorrect and incomplete.

We are fortified in our view by a decision of this Court in C. Vasantilal and Co. v. Commissioner of Income-tax, Bombay City('), where this Court observed as follows :

"The Income-tax Officer is not bound bv anv technical rules of tl!e law of evidence. It is open to him to collect materials to facilitate assessment even by private enquiry.

But if he desires to use the material so collected, the assessee must be informed of the material and must be given an adequate opportunity of explaining it." E

It will be noticed that if the Sales-tax authorities refused the prayer of the assessees to cross-examine the wholesale dealers, then such a refusal would not amount to an adequate opportunity of explainino the material collected by the assessing authority.

Mr. Gupte learned counsel for the appellant relied on a decision of the Gujarat High Court in Jayantilal Thakordas v. State of Gujarat('). In the first place the Gujarat High Court in that case was concerned wit~ the. Bombay Sales. Tax Act which did not contain any express provtston hke the one which is to be found in the second part of the proviso to s. 17(3) of the Kerala General Sales Tax Act and therefore, any decision given by the Gujarat High Court would hav~ no application to the facts of the present appeals.

In Jayantilnl Thakorda_s's case (supra) the Court was merely called upon to interpret the import of the words "reasonable opportunity of being heard" and the Judges held that as ample opportunity was given to the assessee concerned to show cause why the sales said to have been suppressed

(1) (1962) 45 I.T.R. 206, 209.

(2) 23 S.T.C. 11.

(3) 14 S.T.C. 489.

by him should not be included in his turnover, the rules of natural justice were duly complied with.

The Court further pointed out that the sales-tax authorities were not strictly bound by the rules of evidenctl nor did the Act require the assessing authorities to do more tha11 what they had done in that case.

The Gujarat High Court seems. to have dissented from the view taken by a single Judge of the Kerala High Court in M. Appukutty v. State of Kerala( 3). Finally, it does not appear from the facts mentioned in the judgment of the Gujarat High Court that the assessee had at any time made a specific prayr:r for cross-examining the representatives of the firm of M/s A. Alibhai & Co.

In these circumstances, therefore, Jayantilal Thakordas's case (supra) does not appear to be of any assistance to the appellant.

We might, however, state that we are not prepared to go to the extent to which the Gujarat High Court has gone even in interpreting the content and ambit of an opportunity given to the assessee of being: heard so as to completely exclude the right of cross-examination. We have already held that whether the reasonable opportunity would extend to such a right would depend upon the facts and circumstances. of each case.

We feel that the correct law on the subject has been laid down by a Division Bench of the Orissa High Court in Muralimohan Prabhudayal'

v. State of Orissa(') where the High Court, while adumbrating thG 4th proposition, namely, as to how the assessee was to rebut the material used by the Department against him, observed as follows :

"It is the amplitude and ambit of this fourth proposition which needs examination.

There cannot be any controversy that the assessee can adduce independent evidence of his own to disprove the particulars proposed to be used against him. . . . . . . .

A third party's accounts are proposed to be used against the assessee and if such accounts are relied on, the assessee's accounts are to be discarded. . . . . . . . . .

If the assessee gets an opportunity by cross-examination, he can establish that the accounts of the third party are wrong and manipulated to suit the interest of the third party, or that they were intended to be adversely used agamst the assessee with whom the third party had inimical relation-· ship.

It is difficult to accept the contention in such a case that the ample and reasonable opportunity to be given to the assessee would not include within its sweep the right of cross-examination."

The High Court in the present appeals has relied on its earlier decision in Appukutty v. State of Kerala (supra) where a sing!e Judge of he Kerala High Court pointed out that the fact. that a. th1!d arty mamtaining some secret accounts had _made crta1!1 nt~1e~ m his accounts which may connect the assesee will. not give 1unsd1ctton to the assessing authority to use that mformat1on unless the assessee has been•

(!) 26 S.T.C. 22.

KERALA v. K. T. SHADULI YUSUFF (Fazal Ali, J.) 247

given an ?Pportunity to crosscexamine J1im effectively.

As no such opportumty was given, the Court held that the proceedings stood vitiated.

In our opinion, the decision of the Kerala High Court was substantially correct and in consonance with the language of s. 17 (3) and the proviso thereto.

Other cases have also been cited before us which, however are based on the peculiar language of the statutes which the Cour<s 'were construing and which are diherent from the language used in the Act.

Finally, apart from the provisions of s. 17 (3) and the proviso thereto, the rules further reiterate what the proviso contemplates. Rule 15 which deals with provisional assessment where a re, urn is incorrect and incomplete runs thus :

"If the return submitted by the dealer appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, afcer issuing a notice to the dealer calling upon him to produce his accounts to prove the correctness or completeness of his return at time and place to be specified in the notice and after scrutiny of all the accounts if any, produced by the dealer and after taking into account all relevant materials gathered by it determine the turnover of the dealer to the best of its judgment, and fix provisionally the annual tax or taxes payable at the rate or rates speci!Jed in Section or notified under Section 10.

Before determining the turnover under this rule, the dealer shall be given a reasonable opportunity of being beard and also to prove the correctness or completeness of the return submitted by him."

The Rule clearly shows that where the r_eturn of the assessee is incorrect or incomplete he must be called upon to prove the corrcctnss

or completeness of the same.

It also enj0:ins that a reasonable opportunity of being he.ard should be given to the assessee to prove the correctness or completeness of the return submitted by him.

Thus F .the requirement of the second part of the proviso to s. 17 (3) is reiterated in r. 15.

We understand that such a provision in the Act is peculiar to the Kerala Act and is not to be found in other sales-tax statutes which provide for best judgment assessment.

Thus on a true interpretation of s. 17(3), the proviso thereto and r. 15, the inescapable conclusion would be that the assessee has been given a statutory right to prove the correctness of his return by showing that G the materials on the basis of which his return is found to be incorrect or incomplete are wrong and if for this purpose the assessee makes an express prayer for cross-e.xamining the wholesale dealers whose accounts formed the sheet-anchor of the notice issued to the assessee, he is undoubtedly entitled to cross-examine such wholesale dealers.

In view of the language in which the Rules are cbuched it seems to us that a determinative issue arises in this case-the Depart- H ment taking the stand that the returns filed by the assessees ar.e incorrect and incomplete, whereas the assessees contend that their

17-240SCI/77

A returns are correct and that the accounts of the wholesale dealers which formed the basis of the information of the Sales-tax Authorities were wrong and incorrect. Such an issue can only be determined after examination of the accounts of both the parties and after affording the assessees the right to cross-examine the wholesale dealers concerned, particularly when the assessee makes a specific prayer to 'this effect.

B For these reasons, therefore, we are convinced. that the judgment passed by the High Court in all these appeals is correct in law and the High Court has righJy decided the issues involved.

The appeals accordingly fail and are dismissed with no order as to costs.

P.B.R.

Appeals dismissed.

STATE OF KERALA

A

K. T. SHADULI YUSUFF ETC

March 15, 1977

P. N. BHAGWATI

R. S. SARKARIA

General Safes Tax Act, 1963

S. 17(3)

Section 17(3)

Kerala General Sales Tax Act 1963

s. 17(3)

Bhagwati

Sarkaria

s. 17(3)

Appukutry

Fazal Ali

Section 17(3)

[1955] 1 S.C.R. 941

s. 17(3)

S. V. Gupte

K. M

K. Nair

A. C.

T. A. RamachRndran

P. N. Bhagwati

R. S.

Sarkaria

S. Murtaza Fazal Ali

BHAGWATI

S.

Murtaza Fazal Ali

Haji P. K. Usmankutty

Haji Usmankutty

section 17

Haji Usmankl1tty

Tucker

Section 17

section 17

section 1

section 17

Haji Usmankutty

Hazi Usmankutty

Hazi Usmaukutty

Hazi

Usmankutty

Hazi Usmankutty

Orissa Htgh Court

Kerala High Court

FAZAL Au

s. 1

K. T. Shaduli

s. 17(3)

Nallakandy Yusuf

Hib F Court

s. 17

s. 23

RusseU of Killowen

Gupte

section 23

section 23

Lahore High Court

Raghubar Mandal Har.ihar Mandal

Dhakeswari Cotton Mills Ltd.

Seth Gurmukh Singh

s. 23

Income-tax Act

section 43

Income-tax Act

Income-tax Act

s. 17

s. 17

s. 1

Section 17

Haji P. K. Usmankutty

Gujarat High Court

s. 17(3)

Jayantilnl Thakorda_s

A. Alibhai

Jayantilal Thakordas

Orissa High Court

s. 17

s. 17

Section 10

s. 17

s. 17(3)


RADHAKRISHNA AGARWAL & ORS.

STAIB OF BIHAR & ORS.

March 17, 1977

[M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ.J

Constitution of India, 1950- Article 226 cannot be invoked for alleged breaches of contract-Remedy lies through ordinary civil .uit for da1nages.

Constitution of India, 1950-Article 14-Discrimination should be alleged at the stage of entry into the contractual area to attract the application of Art. 14.

Constitution of India, 1950-Articles 298 and 299-Scope of-Whether the State has any special obligations and privileges attached to it even when it acts within the contractual field.

Plea for adjournment of the hearing of the case until after the emergency is lifted-Stay orders presumably obtained earlier on representation n1ade that no aspect of enforcen1ent of Art. 14 of the Constitution was involved-Propriety of

the continuance of stay.

A contract called a "lease:'' to collect and exploit sal-seeds from forest area was entered into in 1970, between the respondent State and the appellants in

1970. Clause (3) in the written contract executed in accordance with the provisions of Art. 299 of the Constitution provided for the revision of the rate of royalty at the expiry of every three years in consultation with the lessee and was to be binding on the lessee. Under clause ( 4) of the lease, the lessee had to' establish a factory within the State of Bihar for processing of sal-seeds and extraction of oil therefrom within a period of five years from the date of the E agreement, failing which the agreement itself was to terminate. In 1974, the respondent State revised the rate of royalty payable by the appellants. and after that, canceUed the lease by a letter dated 15th March 1975. The \Vrit petitions challenging the said orders were dismissed by the Patna High Court. On appeals by certificates, the appellants contended : (i) the State acting in its executive capacity through its Government or its officers even in the contractual field. cannot escape the obligation imposed upon it by Part III of the Constitution; (ii) Article 14 of the Constitution has been infringed and (iii) Principles. of natural F justice have been violated as no opportunity ta show cause against the cancellation of lease was given.

Dismissing the appeals the Court,

HELD : ( 1) Article 14 of the Constitution imports a limitation or imposes an obligation upon the State's executive power unde-r Art. 298 of the Consti~ tution. The rule of law which regulates. the operation are organs of Government functioning under the Constitution is that all constitutional powers carry G corresponding obligations with them. [254 &F]

Erusian Equipment & Chemicals Ltd. v. State of West Bengal and Anr. 1975(2) SCR 674 at 677, referred to.

(2) The State acts purely in its executive capacity and is bound by the obligations which dealings of_ the State with the. individual citizens import into every trans.action entered into in exercise of its constitutional powers, only at H the time of entry into the field of consideration of persons with whom the Govemmenl could contract at all. But, after the State or its agents have

entred into the field of ordinary contract the relations are no longer gOverned by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. [255 C-D]

·· iso

SUPREME COL'RT REPORTS

[1977] 3 S.C.R.

(3) Article 14 or of any _othel'. constitutional. provision is not violated when the State or fas agents purporting to act within the contractual field perform any act.

In this sphere they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract. In the instant case, the contracts do not contain any statutory terms or obligations and no statutory power or obligation which could attract the application of Art. 14 of the Constitution is involved. [255 D-E, 260 E-F]

(4) The doctrine of discrimination cannot be availed of against the State's action purporting to be taken solely within the contractual field when no aspect cf any statutory or constitutional obligation appears either from incontrovertible facts or of facts.

The appellants', cases do not raise any question of discrimi~ nation alleged at the stage of entry into the contractual area which could attract the application of Article 14. [258 FG, 259 Al

C. K. Achuthan v. Star. of Kera/a and Ors. 1959 Supp. (I) SCR 787. applied.

Erusian E.quipment &: Chemicals v. State of West Bengal &:. Anr. (1975) 2 SCR 674. distinguished.:

(5) Before any adjudication on the question; whether Article 14 of the Constitution could possibly be held to have been violated as between persons governed by similar contracts, they must be properly put in issue and_ established'.

The question whether Article 14 could at all be held to operate within the contractual field whenever the State enters into such contracts is such that it cannot be decided without a detailed 'adduction of evidence which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its officers, has discriminated between parties identically situat-· ed.

In the instant case allegations on which a violation of Art. 14 could be1 based are neither properly made nor established.

It is the contract and not the executive power regulated by the Constitution. which governed the relation~. of the parties. [259 A-DJ

( 6) Proceedings under, Art. 226 are: summary proceedings reserved for extra· ordinary cases where the exceptional and what are described perhaps not quite~ accurately as ~'prerogative" powers of the court are invoked. If the facts are disputed and require assessment of evidence, the correctness of which can only be tested satisfactorily by taking detailed evidence involving examination and cross-examination of witnesses, the case could not be conveniently or satisfac· torily decided in proceedings under Art. 226 of the Constitution. Even in casei~ where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question of violation of Art. 14 could arise.

The appellants' cases are not such in which powers under Article 226 of the Constitution could be invoked.

[253 E-G]

Lekhraj Satnam Das Lalvani v. M. M. Shah, Deputy Custodtan-cum-Manag~ ing Officer AIR 1966 SC 334; Banchhanidhi Rath v. The State of Orissa & Ors.

AIR 1972 SC 843 @ 845 and Har Shankar & Ors. etc. etc. v. The Dy. Excis(~

& Taxation Con1111r. & Ors. 3 (1975) 3 SCR 254 @ 265, reiterated.

D. F. Sout!t Kheri v. Ran1 Sanghi Singh AIR 1973 SC 205; K. N. Guruswamy v. Stare of Mysore, AIR 1954 SC 592; Calcutta Gas Co. (Proprietary') Ltd. v. State of West Bengal & Ors. AIR 1962 SC 1044; Bas!ieshar Nath v. Commissioner of Income Tax, 1959 Supp. (1) SCR 528; State of M.P. v.

Thakur Bharat Singh 1967(2) SCR 454 and S. S. Sawhney v. D. Ramarathnam, Assistant

Pass port Officer, Govt. of India, New Delhi & Ors. 1967 (3} SCR 525, held not applicable.

(7) The Patna High Court had very rightly divided the types of cases ill which breaches of alleged obligation by the State or its agents can be set up into three types: (i') Where a petitioner makes a grievanc.e of breach. of m~ obligation of the State in cases where on an assurance or representation o!', the State, he has acted to his prejudice and detriment but the agreement is

.....

RADHAKRISHNA V. BlliAR (Beg, C.J.) 251

short of. a contract. within the meaning of Art. 299 of the Constitution; (ii) Where the contract entered into between the person aggrieved and the State is in exercise of -a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on tho part of the State; (iii) Where the contract entered into between the State and the person aggrieved is nonstatutory and purely contractual and the rights ; md liabilities of the parties are governed by the termSi of the contract and the petitioner complains about breach of such contract by the State. The High Court rightly held that the appellants cases should be placed in the third category where questions of pure alleged breaches of contract are involved and that no writ or order can issue under Article 226 of the Constitution in such cases to compel the authorities to remedy a breach of contract pure and simple [255 H, 256 A-B, F-G]

Umakant Saran v. The State of Bihar AIR 1973 SC 964 and Lekhraj Satram Das v. N. M. Shah AIR 1966 SC 334, followed.

B. K. Sinha v. State of Bihar AIR 1974 Patna 230, approved.

Union of lndia v. Mis. Anglo-Afgan Agencies AJR 1968 SC 718; Cenfury C Spinning and Manufacturing Company Ltd. v. Ulhasnagar Municipal Council AIR 1971 SC 1021; Robertson v. Minister of Pensions (1949)(1) K.B. 227; K. N.

Guruswamy v. State of Mysore AIR J954 SC 592; D. F. South Kheri v. Ram Sang/ii Singh AIR 1973 SC 205; Mis. Shrikrishna Gyanaday Sugar Ltd. v. The State of Bihar AIR 1975 Patna 123, distinguished and held inapplicable.

(8) The object of the appellants is to hold up any adjudication on the cases, by taking shelter behind Article 14 so that the stay orders obtained by them may continue. To accede to the prayer to adjourn the hearing of the cases D until after the e1nergency is lifted and yet to continue the stay orders is to permit circumvention of the constitutional mandate contained in Art. 359 and to countenance gr05s abuse of the process of the court. [259 D-E]

(9) The interim stay or order or injunction could not be justified at all because so long as the Presidential Order under Art. 359 of the Constitution is operative, the enforcement of Fundamental Rights, falling under Art. 14 of the Constitution is suspended.

Jn such cases even if a petition or a suit is entertained and can be pending no stay order could be passed because that would E amount to indirectly enforcing the Fundamental Rights conterred by Art. 14 of the Constitution. It is only where a prima facie case {or an injunction of stay can be made out, uqite apart from a right governed by Art. 14 of the Constitution or of any other Fundamental Rights whose enforcement may have been suspended, that an injunction could be granted at all in suitable cases on suitable tertns. [260 C-El

Additional District Magistrate, Jabalpur v. Shivkant Shukla AIR 1976 SQ 1207 @ 1288-1976 Supp. SCR, 172 referred to.

(10) The appellai'.its are not entitled to an opportunity' to show cause against the cancellation of the leases.

The questipn of distinguishing bet\veen an administrative and quasi-judicial decision can only arise in the exercise of powers exercised under statutory provisions.

Rules of natural justice are attached tc. the performance of certain functions regulated by statutes or rules made thereunder involving decisions affecting rights of pa.rties. \.Vhen a contract is sought to be terminated by the officers of the State purporting to act under the terms of an agreement between parties, such action is not taken in purported exercise

of an agreement between parties, such action is not taken in purported exercise cannot operate upon1 powers which are governed by the terms of an agreement exdusively. The only question which normally arises in such cases is whether the action complained of is or is not in consonance with the terms of the agreement. [259 F-H, 260 Cl

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 227 and 228/ 1976.

(From the Judgment and Order dated 8-1-1976 of the Patna High Court in C.W.J.C. No. 1053 and 1054 of 1975).

L. M. Singhvi, Sri Narain and K. J. John, for the appellants.

L. N. Sinha, Sol. Genl. U. P. Singh and Shambhu Nath Iha, for the respondents.

The Judgment of the Court was delivered by

BEG, C.J.

These appeals are before us after certification of the cases, raising identical questions of law as fit for appeal to this Court, dealt with by one judgment and orders of a Division Bench of the Patna High Court on two writ petitions. The petitions were directed against orders of the State Government passed in 1974 revising the rate of royalty payable by the petitioners appellants under a lease of 1970, and, after that, cancelling the lease by a letter of 15th March,

1975. The petitioners' case was that the revision of the rate of royalty payable by the petitioners for the lease to collect and exploit sal-seeds from the forest area was illegal during the subsistence of the lease, and, thereafter, cancellation of the lease itself was illegal for various reasons.

Primarily, the case of the petitioners is that of a breach of contract for which the State would be liable ordinarily to pay damages if it had broken it. If the petitioners could establish some right, either contractual or equitable, to continue in possession, the State could be prevented, by appropriate proceedings, from ousting the petitioners from the forest land from whicji the petitioners have be, en gathering sal-seeds.

The petitioners had also set up mala fides on the part of the Conservator of Forests, in enhancing the royalty unreasonably and then cancelling the lease, allegedly acting ander 1:he influence of friends and associates of the Forest Minister of Bihar.

. -

The relevant clause relating to revision of royalty in the written ;,; contract reads as follows :-

"The rate of royalty will be revised every three years' cycle in consultation with the lessee and the decision will be binding on the lessee".

Apparently, there is no restriction, under the terms of the contract, upou the amount by which the royalty could be increased by a revision after a three years' cycle under this clause.

The lessee is only entitled, under the contract, to be consulted before a revisi.on.

But, the decision of the Governmental authorities to enhance is binding upon him after that.

Hence, if this was the only term of the contract on this question, the petitioners could not complain of unreasonable enhancement in the revised rate of royalty.

Under clause 4 of the lease, the lessee had to establish a factory within the State of Bihar for processing of sal-seeds arid extraction of oil therefrom within period of five years from the date of the agreement, failing which the agreement itself was to terminate.

The questions which apparently arose appertained to action alleged by the

State to fall within the terms of the agreement between the parties regulated by the duly signed contract which was presumably executed in compliance with the provisions of Article 299 of the Constitution.

Prima facie, therefore, the appellants can only get their

RADHAKRISHNA v. BlliAR (Beg, C.J.) 253

remedies, if they can obtain any at all, through ordinary suits for A damages or for injunctions to restrain breaches of contract provided they could show how the contracts were broken or were going to be broken.

The writ petitions, however, raise questions relating not only to action lying within the sphere regulated by the law of contract, but, according to the petitioners, by constitutional provisions relating to B the exercise of the executive powers of the State Government contained in Article 298 which reads as follows :- ·

"298. The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose : c Provided that-

( a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make Jaws, be subject in each State to legislation by the State; and

(b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws be subject to legislation by Parliament''.

It is urged vehemently by Dr. L. M. Singhvi, appearing on behalf of the petitioners-appellants, that the State, acting in its executiw

capacity through its Government or its officers, even in the contractual field, cannot escape the obligations imposed upon it by Part III of the Constitution. The only article, however, in Part III of the Constitution relied upon by Dr. Singhvi is Article 14 which'8ays :

"14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".

It can be and has been urged on behalf of the State that Governmental authorities when acting in the contractual field, could not be controlled by Article 14 of the Constitution at all.

When the State had entered into contracts with citizens who carry on their trade and pay the royalties. In accordance with the agreemenfs reached between the State and citizens, it does not exercise any G special governmental or statutory powers.

In such cases, the State as well as the citizen with whom it contracts are both eqnally subiected to the law of contract. It has been urged on behalf of the respondent State that there has been no breach of contract in the cases before us.

The State is, according to the learned Solicitor General, appearing for the State of Bihar, not claiming to be above the law of contract governing all parties which subject themselves H to the law of contract. The dispute whether there is or there is not a breach of contract should, according to the contention on behalf of the State, be determined by ordinary civil courts as in every case

bdween ordinary litigants who cannot invoke the powers of the High Courts under Article 226 of the Constitution simply because there is a dispute whether an agreement has been broken or not.

Equal subjec; tion of all parties, including the State, to the same procedural reqwrements, when such disputes are to be adjudicated upon, means that the State 'should be placed on the same footing a,, an ordinary litigant.

It should neither enjoy special benefits and privileges, nor be subjected to special burdens and disadvantages.

This should, it is urged, follow from a strict application of Article 14 if the State were to be, as a party to a contract and a litigant, placed on the same footing as other parties who enter intosuch contracts.

It is true that the special provisions of Article 299 of the Constitution are there to protect public interest so that the contracts by or on behalf of the Government have to comply with the special requirements of form.

But, once the State enters into the contraotual sphere after the requirements of form, contained in Article 299, have been complied with, does it .have to take its place, in the eye of law, side by side with ordinary parties and litigants or has it any special obligations or privileges attached to it even when it acts within this field ?

Dr. Singhvi's argument that the State Government had some special obligations attached to it would have appeared more plaiisible if it could be shown that the State or its officers or agents had practised some discrimination against the petitioners-appellants at the very threshold or at the time of entry into the field of contract so as to exclude them from consideration when compared with others on any unreasonable or unsustainable ground struck by Article 14 of the Constitution. It is true that the Article 14 of the Constitution imports a limitation or imposes an obligation upon the State's executive power under Article 298 of the Constitution. All constitutional powers carry corresponding obligations with them.

This is the rule of Jaw which regulates the operation of organs of Government functioning under a Constitution.

And, this is exactly what was meant to be laid down by this Court in Erusian Equipment & Chemicals Ltd. v. State of Wset Bengal & Anr.,(') on which learned counsel for the appellants sought to rely strongly. It was held there (at p.

677) :-

"Under Article 298 of the Constitution the Executive power of the Union and the State shall extend to the carryin2 on of any trade and to the acquisition, holding and G disposal of the property and the making of contracts for any purpose.

The State can carry on executive function by making a law or without making a Jaw.

The exercise of such powers and functions in trade by the State is subjeot to Part ill of the Constitutiori.

Article 14 speaks of equality before the law and equal protection of the laws.

Equality of opportunity should apply to matters of public H contracts.

The State has the right to trade. The State has therefore the duty to observe equality. An ordinary individual

r (I) [19751 2 S.C.R. 674 at 677.

<:an choose not to deal with any person.

The Government cannot choose to exclude persons by discrimination.

The order of black-listing has the effect of depriving a person of equality of opportunity in the matter of public contract.

A person who is on the. approved list is unable to enter into advantageous relations with the Government because of the order of black-listing.

A person who has been dealing with the Government in the matter of sale and puchases of matt>- rials has a legitimate interest or expectation.

When the State

 sets to the prejudice of a person it has to be supported by legality". •.' It is thus clear .. that the Erusian Equipment & Chemicals Ltd.'s ease (supra) involved discrimination at the very threshold or at the time 0£ entry into the field of consideration of persons with whom the Government could contract at all.

At this stage, no doubt, the State acts purely in its executive capacity and is bound by the obligations which dealings of the State with the indivilual citizens importinto every transaction entered into in exercise of its constitutional powers.

But, after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines right& and obligations of the parties inter se. No question •arises of violation of Article 14 or of any other constitutional provision when the Sta~ or its agents, purporting to act within this field,

perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute sfeps in and confers some special statutory power or obligation on the State in the contractual field which i~ apart from contract.

In the cases before us the contracts do not contain any statutory terms or obligations and no statutory power of obligation which could attract the application of Article 14 of the Constitution is involved here.

Even in cases where the question is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question <>f a violation of Article 14 could arise. If those facts are dis puled and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, "prerogative" powers of the Court are invoked. We are certain that the cases before us are not such in which powers under Article 226 of the Constitution could be invoked .

The Patna High Court had, very rightly divided the types of cases in which breaches of alleged obligation by the State units agents can be i; et up into three types. These were st_ated as follows :-

"(i) Where a petitioner makes a grievance of breach of promise on the part of the State in rnses where an assurance

or promise made by the State he has acted to his prejudice and predicament, bnt the agreement is short of a contract within the meaning of article 299 of the Cpnstitution;

(ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under cerl'ain Act or Rules framed -thereunder and the petitiol!er alleges a breach on the part of State; and

(iii) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State."

It rightly held that the cases such as Union of India v. M/s. Anglo- Afghan Agencies,(') and Century Spinning & Manufacturing Co. Ltd.

v. U!hasnagar Municipal Council('); and, Robertson v. Minister of Pensions,(") belong to the first category where it could be held that public bodies or the State are as much bound as private individaal are to carry out obligations incurred by them because parties seeking to bind the authorities have , altered, their position to their disadvantage or have >acled to their detnment on the strength of the representations made by these authorities. The High Court thought that in such cases the obligation could sometimes be appropriately enforced on a Writ Petition even though the obligation was equitable only.

We do not propose to express an opinion here on the question whether such an obligation could be enforced in proceedings under Article 226 of the Constitution now, It is enough to observe that the cases before us do not belong to this category.

The P'atna High Court also distinguished cases which belong to the second category, such as K. N. Guruswami v. The State of Mysore;(•) D. F. South Kheri v. Ram Sanehi Singh;(") and M/s, Shree Krishna Gyanoday Sugar Ltd. v. The State of Bihar,(6 ) where the breach complained of was of a statutory obligation. It correctly pointed out that

the cases before us cfo not belong to this class either.

It then, very rightly, held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved, It held, upon the strength of U makant Saran

v. The State of Bihar;(') and Lekhrai Sathram Das v. N. M. Shah;(') and B. K. Sinha v.

State of Bihar(') that no writ order can issue under Article 226 of the Constitution in such cases "to compel the authorities to remedy are a breach of contract pure and s'mple".

(I) A.LR. 1968 S.C. 718.

(2) A.I.R. 1971 S.C. 1021.

(3) [1949] 1 King's Bench 227.

(4) A.I, R. 1954 S.C. 592.

(5) A.LR. 1973 S.C. 205.

(6) AI.R. 1975 Patna 123.

(7) A.LR. 1973 S.C. 964.

(8) A.LR. 1966 S.C. 334.

(9) A.LR. 1974 Patna 230.

Learned counsel for the appellants has, however, relied upon a passage from Lekhraj Sathram Das's case (supra) where this Court observed (at p. 231);

" .... until and unless in the breach is involv_ed violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus, mere breach of contract cannot be remedied by the Court in exercise of its powers under Article 226 of the Constitution".

Learned counsel contends that in the cases before us breaches of public duty are involved.

The submission made before us is that, whenever a State or its agents or officers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of contract between the parties, there is a dealing between the State and the citizen which involves performance of "certain legal and public duties." If we were to accept this very wide proposition every case of a breach of contract by the State or its agents or its officers would call for interlerence under Article 226 of the Constitution. We do not consider this to be a sound proposition at

al!.

I.earned counsel for the appe_llants cited certain authorities in an attempt to support his submission that the State and its Officers are clothed with special Constitutional obligations, including those under Article 14 of the Constitution, in all their dealings with the public even when a contract is there to regulate such dealings. The anthorities cited were : D. F. South Kheri v. Ram Sanehi Singh (supra) where all that was decided, relying upon K. N. Guruswamy v. The State of Mysore (supra), was that, where the source of a right was contractual but the action compfained of was the purported exercise of a statutory power, relief could be claimed under Article 226; and, Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal & Ors.,(') where the real question considered was whether the petitioner had a locus standi to question the validity of an enactment; Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan and Anr., (2) which has nothing to do with any breach of contract but only lays down that "Article 14 protects us from both legislative and administrative tyranny of discrimination"; State of M.P. & Anr. v. Thakur Bharat Singh.(') which lays that even executive action must not be exercised arbitrarily but must have the authoritv of law to support it; S. S. Sawhney v. D. Ramarathnam, Assistant Passport Officer. Govt. of India, New Delhi & Ors.,(') which repeats requirements of action which satisfy Article 14 and 21 of the Constitution where compliance with these provisions is obligatory.

(1) A.l.R. 1962 S.C. 1044.

(2) [1959] Suppl. 1 S.C.R. 528 at 551.

2-436SCI/77

We do not think that any of these cases could assist the appellants or is at all relevant. None of these cases lays down that, when the State or the officers purport to operate within the contractual field and the only grievance of the citizen could be tlrat the contract between the parties is broken by the action complained of, the appropriate remedy is by way of a petitio11under Article 226 of the Constitution and not an ordinary suit.

There is a formidable array of authority against any such a proposition.

In Lekhraj Sathramdas Lalwani v.

M. M. Shah, Deputy Custodian-cum-Ma1111ging Officer, Bombay & Ors., (supra) this Court said (at p. 337);

"In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution".

In Banchhanidhi Rath v. The State of Orissa & Ors(l) this Court declared (at p. 845) : :,_ "If a right is claimed in terms of a contract such a right cannot be enforced in a writ petition."

In Har Shankar & Ors. etc. etc. v. The Dy. Excise & Taxation Commr. & Ors.,( 2 ) a Constitution Bench of this Court observed (at p. 265): "The appellant have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations".

Learned Solicitor General, appearing for the State, contended that there could be no aspect of Article 14 of the Constitution "involved in a case where no comparison of the facts and circumstances of a particular petitioner's case with those of other persons said to be similarly situated is involved. In such a case, he submitted, there was no possibili!y of inferring a discrimination. In reply, learned counsel for the appellants sought to direct our attention towards some allegations showing that there was discrimination between appellants and other parties governed by similar contracts in other areas. We doubt very much whether the doctrine of discrimination can be at all availed of against the State's section purporting to be taken solely within the contractual field when no aspect of any statutory or constitutional obligation appears either from incontrovertible facts or applicable legal provisions.

Indeed, it has been held in C. K. Achutan v. State of Kerala & Ors.,(') that no question of a violation of Article 14 arises even where one out of the several persons' is selected by the State for a particular contractual transaction. Learned counsel for the appellants submitted that there was a conflict between what was laid down here and the law declared by this Court in Erusian Equipment & Chemicals Ltd.'s cse (supra). We think that the two cases are distinguishable on facts. The propositions of law laid dO\vn in the two cases must b<: read in the context of facts established in each case. In any event,

(I) A.l.R. 1972 S.C. 843 at 845.

(2) [l975] 3 S.C.R. 254 at 265

(3) 119591 Suppl. (I) S.C.R. 787.

---.

- __ ......

the cases before us do not raise any question of discrimination alleged at the stage of entry into the contractual area which could attract the application of Article 14.

In the cases. before us, allegations on which a violation of Article 14 could be based are neither properly made nor established. Before any adjudication on the question whether Article 14 of the Constitution could possibly be said to have been violated, as between persons governed by similar contracts, they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Article 14 of the Constitution and this Article could at all be held to operate within the contractual field whenever the State enters into such contracts, which we gravely doubt, such questions of fact do not appear to have been argued before the High Court. And, in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence, which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its Officers, has discriminated between parties identically sitirated.

On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already inidicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties on facfs apparent in the cases before us.

The real object of the appellants seems to be to hold up a, ny adjudication on the cases before us by taking shelter behind Article 14 so that the stay orders obtained by them, presumably on representations made to this Court that no oaspect of enforcement of Article 14 of the Constitution 'was involved. We think that to accede to the prayer on behalf of the appellants to adjourn the hearing of these cases until after the Emergency is lifted and. yet to continue the stay orders is to permit a circumvention of the Constitutional mandate contained in Article 359 and to countenance a gross abuse of the processes of the Court.

A rather desparate argument which has been addressed to us on behalf of the appellants jg that they were entitled to an opportunity to show cause against the cancellation of the leases. It was urged, on the sfrength of A. K. Kraipak & Ors. etc. v. Union• of India & Ors.,(1) that the distinction made between administrative and quasi-judicial action is thin and a vanishing one. This argument appears to us to be wholly irrelevoant inasmuch as a question of the distinction between an administrative and quasi-iudicial decision can only arise in the exercise of powers under statutory provisions. Rules of natural justice are attached to the performance of certain functions regulated by stoatutes or rules made thereunder involving decisions affecting rights of parties. When a contract is sought to be terminated by the Officers of the State, purporting to act under the terms of an agreement between parties, such action is not taken in purported exercise of a smtutorv power at all. · .

In Adlfilional District Maiistrate, Jabalpur, v. Shivakant Shukla,(•) 1t was pmnted out (at p. 1288):

(\) \1970] 1 S.C.R. 457.

(2) A.l.R. 1976 S.C. 1207 at 1288.

"The principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follow from them. They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Dicey's principles of the Rule of Law is found embodied.

Sometimes, they may be implied and read the legislation dealing with rights protected by Article 19 of the Constitution.

They could at times, be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable".

The !imitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively.

The only question which normally arises in such cases is whether the action complained of i's .or is not in consonence with the terms of the agreement.

As already pointed out by us, even if by some stretch of imagination some case of unequal or discriminatory treatment by the officers of the State of persons governed by similar contracts is sought to be made out, a satisfactory adjudication upon the unusual facts of such a case would necessitate proper pleadings supported by acceptable evidence. In that case, the interim stay order or injunction could not be justified at all because so long as a Residential Order, under Article 359 of the Constitution, is operative, the enforcement of fundamental rights falling under Article 14 is suspended.

In such cases even if a petition or suit is entertained and kept pending no stay order could be passed because that would amount to indirectly enforcing the fundamental rights conferred by Article 14 of the Constitution. It is only where a prima fade case for an injunction or stay can be made out, quite apart from a right covered by Article 14 of the Constitution or by any other fundamental right whose enforcement may have been suspended, that an injunction or stay could be granted at all on suitable terms. As we have already said it was on such an assumption that t)lis Court had, apparently, granted the interim stay which must now be discharged.

Consequently, we dismiss these appeals with costs throughout, and discharge the stay orders.

SR.

Appeals dismissed.

RADHAKRISHNA AGARWAL & ORS

March 17, 1977

M. H. BEG, C.J.

A. C. GUPTA

P. S. KAILASAM, JJ

Constitution of India

Article 226

Constitution of India

Article 14

Art. 14

Constitution of India

Articles 298 and 299

Art. 14

Art. 299

the State of Bihar for

15th March 1975

Patna High Court

Article 14

Article 14

Art. 298

Article 14

Art. 14

Article 14

(1975) 2 SCR 674

Article 14

Article 14

Art. 14

Art. 226

Art. 226

Art. 14

Article 226

AIR 1966 SC 334

AIR 1972 SC 843

(1975) 3 SCR 254

AIR 1973 SC 205

AIR 1954 SC 592

AIR 1962 SC 1044

RADHAKRISHNA V. BlliAR

Art. 299

Article 226

AIR 1973 SC 964

AIR 1966 SC 334

AIR 1971 SC 1021

AIR 1973 SC 205

Article 14

Art. 359

Art. 359

Art. 14

Art. 14

Art. 14

L. M. Singhvi

Narain

K. J. John

L. N. Sinha

U. P. Singh

Shambhu Nath Iha

BEG

clause 4

Article 299

Article 298

Parliament

L. M. Singhvi

Singhvi

Article 14

India

Article 14

State of Bihar

Article 226

Article 14

Article 299

Article 299

Article 14

Article 14

Article 298

Article 298

Article 14

Erusian Equipment & Chemicals Ltd.

Article 14

Article 14

Article 14

Article 226

Article 226

article 299

Article 226

P'atna High Court

Article 226

Lekhraj Sathram Das

Article 226

Article 226

Article 14

Article 226

Article 14

Article 14 and 21

Article 226

Art. 226

Article 14

C. K. Achutan

Article 14

Article 14

Article 14

Article 14

Article 14

Article 14

Article 14

Article 359

1970] 1 S.C.R. 457

Article 14

Dicey

Article 19

Article 19

Article 359

Article 14

Article 14

Article 14