SYED AHMED AGA ETC.

STATE OF MYSORE & ANOTHER

May 2, 1975

[H. R. KHANNA, M. H. BEG ANDY. V. CHANDRACHUD, JJ.]

Constitution-Articles 19(1) (g), 304(b) & 32-Whether a 32 petition maintainable to chalfenf(e oon-conipliance with proviso to Article 304(b)--Mysore Silk Worm Seed & Cocoon (Regulation of Production, Supply & Distribution)

Act. 1960--A1nendn1ents whether requires fresh sanction rl the President under Article 304(b)-lncrease in quantum of pe1Ullty whether amounts to

-473

additional restrictons-Nature of penalty.

The petitioners challenged the validity of amendments made to Mysore Silk Worm Seed and Cocoon (Regulation of Production, Supply and Distribution) Act, 1960, on the ground that the -amendments imposed aditional restrictions upon the rights of the petitioners to carry on trade and business without obtaining the Presidential sanction required by proviso to Art. 304(b) of the Constitution.·

The Principal Act had received the sanction of the President. 1bc reasona- D bleness of any restrictions ether of th~ principal Act or of the amendments has net been challenged. It is not disputed that the Presidential sanction was not obtained for th~ amendments.

The respondents contended-

( I) No petition under Article 32 of the Constitution can lie to challenge restrictiom covered by Article 304(b), since the freedom of trade envisaged E by Article 304(b) is different from freedom of trade guaranteed by Art. 19(1) (g).

(2) The amendments did not impose additional restrictions on the petitiooers' right to carry on trade and business. Amendments merely introduced the restrictions which were contained in the principal Act and the statutory roles 1nade thereunder and therefore did not impose any additional restrictions.

Section 12 of the princ!ral Act reads as under :

"12. Penalties---(!) Any person who contravenes the provisigns of section 3 er 4 shall be punishable with fine which may extend to one hundred rupees.

(2) any rearer who contravenes the provisions of section 6 or 7 or any other provision of this Act or any rule, order or notification! made thereunder, shall be punishable with fine which may extend to fifty rupees.

(3) Any licensed buyer who contravenes the provisions of sections 7 or 8 or any other provision of this Act or any rule, order or notifi-~

cation made thereunder, shall be punishable with fine which may extend to two hundred and fifty rupees.

(4) Save as otherwise provided in sub-section (!), (2) and (3), any person who contravenes any of the provisions Of this Act or of any rule. order or notification thereunder, shall be punishable with fine which may extend to t\vo hundred and fifty rupees.

(5) (a) Without prejudice to any punishment under the preceding

subsections the Director of Sericulture in Mysore may, after giving a reasonable opportunity to the person conc.erned to be heard suspend or cancel the licence granted to any person for preparing silk~ worm seed if such person is convicted at least twice for an offence under this Act. -

. (b) Any person aggrie\'e<l by the suspension or cancellation of a. licence under clause (a) may :.ippeal to the Government within such time as may be prescribed and the decision of the Government on such appeal shall be final and shall not be 'called in question in anv Couri of Law". ·

Amendments to section 12 \Vere made by section 7 and 8 of the ,-\mending Act which read as under :-

"7. Amendment of section 12. Jn s-ection 12 of the rincipal Act,-

(1) in suf>..section (1), for the words "one hundred rupees·, the words "two hundred rupees" shall be substituted;

(2) in sub-section (2), for the words and figures ;.section 6 or 7 qr any other provision of this Act or any rule, ordler or notification made thereunder", the words, figures, brackets and letter, "section 6'1 or clause (a) of sub-section (I) of section T' shall be substituted;

(3) after sub-section (2), the following sub-section shall be inserted. namely :-

"(2A) Any person who contravnes the provisions of clause (b) of sub-section (1) of section 7 or sub-section (2) of that section shall be punishable with imprisonment which may extend td three months or with fine which may extend to five hundred ntpees or with both" ;

(4) for sub-section (3), the following sub-section shall be substituted, namely :-

"(3) Any person who contravenes the provisions of section 8 shall be punishabJe with fine which may extend to two hundred and fifty n.tpees" ; 1; i '

(5) in sub-section (4), for the words, brackets and figures "subsections (1). 2) and 3)", the words, brackets, figures and letter "subsections (!), (2), (2A) and (3) shall be substituted".

"8. Insertion of ne\v sections l 2A and 12B-After section 12 of the Principal Act, the following sections shall be inrted, namely :-

"12A. Abetment-Whoe\'er abets any offence punishable under this Act shall be punished with the punishment provided in this Act for such offence.

12B. Certain offences to be cognizable-The offences under subsection (2A) of section 12 shall be cognizable"'.

G HELD : A citizen is entitled to come to Court with the allegation that i bis fundamental right to carr}' on business or trade is affected adversely by a provision which does not legally exist The restrictions contemplated by Article 304 (b) may be of a character different from those of an ind.ividual citizen's right to trade, but it cannot be denied that their impact on individual's right is very often direct. [477AB]

HEI.D FURTHER : Stringent reguiations were already existing under the H principal Act and the ntles framed thereunder. No additional restriction is im

posed by th~ Amending Act 4(1): Nw section 7(2) merely makes evasio.n of the requirement to conduct business 1n the cocoon market of an area mo1e difficult.

[481C-D, 482-D]

The amendments to section 12 increase the quantum of penalties.. But the increase in the penalties is such, in view of the change of the value 1n mony, as not to amount. to an appreciable increase in restri.cti.on even from th~ point of view of a person who wants to break the restnct1ve laws.

Penalties are

...

SYED AHMED AGA.V. MYSORE (Beg, J.) 475

really part of the procedure. for _the enforcement of restrictions. They do not A creat, e new offences.

They only make vioJation of whatever restrictions on trade and commerce were there more onerous.

They, therefore) cannot be looked upon as additional restrictions upon freedom of trade and commerce.

I484B-DJ

HELD FURTHER : Amendments requiring some more persons to take out licences, vtho may not have Q.een previously coveredby provisions relating to Jicences does not constitute a ral increase in restriction upon commerce. If the substance of the statutory nde is converted into a statutory provision. there can hardly he sai<l to be additional restrictions impos~ by the amending J..aw. What may be n restriction of his choice, from the point of view of an individual citizen -engaged in a trade may not be a restriction on inter-state or intra-state commerce viewed from the angle of the trade as a bole. Jt is only an additional restriction from the special point of view of Art. 304(b) which requires Presidential sanction. [487C-E]

Petition dismissed.

ORIGINAL JURISDICTION: Writ Petitions Nos. 137 and 203 of 1971.

Petitions under Art. 32 of the Constitution of Jmlia.

A. K. Sen, K. R. Chaudhuri and K. Rajendra Choudhary, for the

:petitioner (In Petition No. 137). D

K. K. Chaudhuri and K. Rajendra Chowdhary, for the petitioner (In petition No. 203). ·

F. S. Nariman, Additional-Solicitor General of India and M.

Veerappa, for the respondents (In petition No. 137).

M: Veerappa, for respondents (In Petition No. 203).

The Judgment of the Court was delivered by

BEG, J. The two writ Petitions before us under Article 32 of the Constitution of India by persons carrying on the business of silk worm cocoon. rearing and reeling challenge the validity of various F .amendments of the Mysore Silkworm Seed and Cocoon (Regulation ·

of Production, Supply and Distribution) Mysore Act 5 of 1960 (her~ inafter referred to as 'the Principal Act') by the Mysore Silkworm Seed and Cocoon (Regulation of Production,. Supply and Distribution) (Amendment) Act, 1969 (hereinafter called as the 'Amending Act').

The petitioners alleged that their fundamental rights guaranteed by Art. 19(1) (g) of the Constitution have been illegally interfered with G 'by these amendments in so far as the amendments impose additional restrictions upon these rights without having secured the Presidential :sanction required by the proviso to Article 304(b) of the Constitution.

Article 304 of the Constitution reads as follows :

"304. Notwithstanding anything in Article 301 or article 303, the Legislature of a State may by law-

( a) impose on goods imported from other States or the

Union territories any tax to which similar goods manufactured or prodc~ i~ that State arc subject, so, however, as not to discnmmate between goods so imported

A and goods so manufactured or produced ; and

(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest :

Provided that no Bill or amenmcnt for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President".

It will be seen that Article 301 of the Constitution provides : c "Subject to the other provisions of this Part, trade, commerce and intercourse throughollt the territory of Iridia shall be free".

Article 302 limits the powers of Parliament to impose "restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India", to such restrictions "as may be required in the public interest".

Restrictions falling under Art. 304(b) must not only be reasonable but are expressly D required to be in public interest. It is in order to ensure that purposes

of Art. 304(b) are satisfied that a bill in a State Ugislature has to obtain the previous sanction of the President. It is worth-remembering that Art. 255 of the Constitution provides for a retrospective curing of the defect of want of previous sanction by the president so that, where this requirement has been overlooked before an enactment, E public interetit may not suffer by any want of sanction.

The only question, on merits, which has been argued before us on behalf of the petitioners is : Do the changes introduced by the Amending Act amount to such additional restrictions as to require the sanction of the President even though the Principal Act had received such sanction at the appropriate stage ? The reasonableness of any restrictions, new or old, has not been challenged before us.

AU that is urged is that the additional restrictions introduced by the Amending Act were bound to obtain the previous sanction of the President before they are introduced in. the form of a Bill in the Legislature of a State because that is the Constitutional mandate.

G As the restrictions covered by Article 304(b) have to be those on "freedom of trade and commerce", which is a broader and some- . what different concept than that of an individual citizen's freedom to trade and carry on business, guaranteed by Article 19(l)(g), a preliminary objection has been raised, on behalf of the State of Mysore, that no petition under Article 32 of the Constitution can lie to challenge such restrictions as they could not be on rights p:uaran- H teed by Article 19( 1) (g). Reliance was placed on Ram Chandra

Pillai & Ors. v. State of Orissa & Ors., ( 1) where there is an observation indicating that the petitioner under Article 32 could not rely upon the guarantee of freedom of inter-State or intra-State trade, embodied in Article 301 of the Constitution. because " ... it is not a fuHdamentaI

(t) r 10%) s.c.R. 2s. -·--- .'1

right conferred by Part III of the Constitution which can be enforced A by a petition under. Article 32". That was a case relating to a pre- Constitution enactment so that Article 305 of the Constitution was held to provide a complete answer to the petitioners' claim. We do not think that the mere fact that the legality of an enactment is challenged for non-compliance with the proviso to Article 304(b) of the Constitution would take aw"ay the character or substance of a peti- B tioner's claim when a citizen comes to Court with the allegation that his fundamental right to carry on business or trade is affected adversely by a provision which does not legally exist. No doubt the restrictions contemplated by Article 304(b) may be of a character different from those on an individual citizen's rights to trade but it cannot be / denied that their impact on individual rights is often very direct. The ' C stage for considering the reasonableness of a direct or indirect restriction of a fundamental right arises only where the restriction is otherwise valid, As this Court has repeatedly .held, restrictions which have no authority or sanction of law to back them would, per se, be bad restrictions. The question of reasonableness of a restriction on indiviaual rights to carry on trade could only arise where the purported law docs not fail on other tests.

Learned Counsel for the petitioners had relied upon the case of Himmatlill. Harilal Mehta v. the State of Madhya Pradesh & Ors.,(') where a reference was made to Mohd. Yasin v. The Town Area Committee Jalalahad & Anr.(2) He also urged, on the strength of District Collector of Hyderabad and Ors. v. M/s. Ibrahim & Co. etc., (3) that Ai ticle 301 of the Constitution guarantees not merely freedom of trade and commerce in the abstract.

In other words, individuals affected by the violation of the guarantees under Articles 301 and 304 could also complain, at the same time, of infringement of their right guaranteed under Article 19 (l) (g) of the Constitution provided a breacb of the former involves violation of the latter also as it would brdinarily do. Therefore, we overrule the preliminary objection.

The State of Mysore has tried to justify the want of Presidential sanction to an:iei; dment~ on the ground that tey do, not impose a?d1t1onal restr.1ctI_ons but ar~ covered by the ob1ects and the provisions of the Pnnc1pal Act which had already obtained the Presidential G sanction at the appropriate stage.

Indeed, the amendments, it was urged, merel; i gave an enacted form to what were previously statutory rules ".llli?ly made und.er the. authority conferred by Section 18 of tne Pnnc1pal Act. This Sectmn provides as follows :

"18. Power of Government to make rules ... ( l) The Government may subject to the condition of previous publication, by notification, make rule to carry out the purposes of this Act. ·

(I) [19541 S.C.R. 1122.

(2) (1952] S.C.R. 572.

(3) (1970] 3 S, C.R .. 498.

A .

(2) In particular and without prejudice to'the generahty of the foregomg power, such rules may provide for- •

(a) the duties and powers of oftkers authorised to enforce the provisions of this Act and the manner of constitution of market committees an'd the powers B ; md duties of such committees;

(b) the qualifications of persons who produce or prepare silkworm seed for rearing of silkworms and other persons to whom licences under this Act may be granted; ,_

(c) the grant of licences and the imposing of conditions in respect of the same and fees for the grant of such 'I licence;

(d) the sanitary arid other conveniences that should be provided for at the production and distribution cen-

A tres of silkworm seed ; D

(e) the grant of duplicate licences and the renewal of

licences and fees for the same ;

(f) appeals from any order under this Act, the authority to which such appeals shall lie, the time within which such appeals should be made and the procedure for E dealing with such appeals ;

(g) the forms of licences to be granted, returns to be submitted and accounts to be maintained under this Act;

(h) the fee payable by the licensed buyer in respect of

F cocoons purchased by him in the cocoon market, such fee not exceeding two per cent of the purchase price; '

(i) the particulars to be furnished by any person of the occurrence of silkworm disease in silkworm or silkworm seed, and the steps to be taken for the prcven- ' G tion or eradication of such disease;

(j) generally regulating the procedure to be followed in I proceedings nnder this Act;

(k) any other matter which may be prescribed under this Act.

(3) All rules made under this Act shall be laid as soon as may be after they are made before each House. of the State Legislature while it is in session for a total penod of thirty days which may be comprised in on.e session or !n two or more 'essions and if before the expiry of the said

periqd, either House of the State Legislature makes any modification in any rule or directs that any rule shall not have effect and if the modification or direction is agreed to -

'..,

by the other House, the said rule shall thereafter have effect, A only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously. done under that rule."

The argument before us on behalf of the State is that no amendments falling beyond the purview of the Principal Act and the rules framed thereunder were made, and, therefore, no fresh restrictions could be said to have been introduced by change of form or even of some substance of those restrictions because they were all, in any da.sc, within the purposes of the Principal Act which had already received Presidential sanction. ·

According to the State, the Principal Act was introduced principally with the object of improving and maintaining the quality of silk which is manufactured; and, in order to be able to do this, it was submitted, it was necessary to keep a record of all those who breed silkworms in the State of Mysore so that a watch may be kept over the genetic purity of silkworms. It was stated that there is no control over pierced cocoons which become useless for purposes of reeling.

Hence, "cocoon" is defined in the Act as a product of mulberry silkworms "either green or stifled, dried or in. any other state or condition, but does not include pierced cocoon". Anyone wanting to use silk for purposes other than reeling could use pierced cocoons. The "cocoon market" is defined in Section 2(b) of the Principal Act as a market established under Section 10 which provides that the Government may, for regulation and distribution of silkworm seed, by notification, specify the places at which cocoon markets, cocoon market yatds, and stores may be located, fix the sericultural areas to be served by each cocoon market where silkworm. cocoon produced by such areas may be sold, and assign zones and markets in which any licenced buyer may carry on his business. It is also provided in Section 10 that all transactions in the cocoon market shall be by vpen auction on payment of cash, Silkworm are defined as mulberry silkworms. Silkworms seeds are defined as cocoons of all kinds (excluding cross-breed cocoons) used or reared for purposes of production. A rearer is a person defined as engaged in rearing silkworms for the production of silkworm c9coons, whether for reproduction or reeling. The preamble of the Act shows that it is intended to consolidate the laws "providing for the regulation, of the production, supply, and distribution of silkworm seed and cocoon in the State of.

Myso~".

It is urged on behalf of the State that the. whole object of this m.acID:nery of .regulation and control of production, supply, and distnbut10n of silkworm seed and cocoons was that, by ensuring the

big~ standard of puritv and quality of Mysore silk, to promote the business. and trade of the Mysore State in silk products, and, thereby, to contnbute to the growth and freer flow of trade. It is stated by the petitioners themselves that almost 7 per cent of the population of Mysore State is engaged in various processes conncted with the

A rearing of silkworms and reeling of silk . and that over two lakh acres

of land in Mysore State are under mulberry cultivation and mulberry is used exclusively to feed silkworms. The raising and maintenance of the quality of silk was, it was submitted, both in the interests of the trade in silk pr<lducts and in public interest.

In order to carry out the purposes of the Principal Act, Sections B 3 to 9 had, even before its amendments, laid down as follows :

"3. Regulation of production, etc., of silkworm seed .... No person shall produce, prepare, store, transport, sell or otherwise distribute or dispose of silkworm seed, except under and in accordance with the terms and conditions of a licence granted under this Act.

4. Regulation of rearing .... (1) No person shall rear silkworms from silkworm seed other than silkworm seed obtained from a person whO holds a licence under this Act.

(2) The Goverrunent may by notification direct that in any specified area no silkworm other than silkworm of specified race shall be reared and that such silkworm shall be reared from silkworm seed obtained from specified sources. On the issue of such notification, no person shall rear in such specified area any other race of silkworm or obtain silkworm sea'cl from any other source. ' E

5. Regulation of possession of silkworm seed ...• No

person shall be in posses.ion of silkworm seed unless-

( a) he is a rearer; or

(b) he holds a licence granted under this Act; or

( c) he is authorised in writing by the prescribed officer to possess silkworm seed.

6. Regulation of disposal of silkworm cocoons.-No rearer shall dispose of or agree to dispose of or in pursuance of an agreement entered into, make delivery of silkworm cocoons for reeling or for reproduction except to persons holding a licence, qnder this Act.

7. Regulation of sale or purchase of silkworm cocoons for reeling. In any area in which a cocoon market is established under this Act, no rearer shall sell or agree to sell, and no Jiccnced buyer shall purchase or agree to purchase silkworm cocoons, for reeling, except in such cocoon market, and except in accordance with such conditions and in such manner as may be prescribed.

8. Regulation of reeling.-No person shall carry on the business of reeling silkworm cocoons unless he holds a licence granted under this Act.

9. Application for licence.-Every person who desires A to obtain a licence under this Act shall make an application to the Licensing Authority in such form as may be presribed."

We find that, as regards regula, tion of rearing, Sect10n 4(1) is -reframcd by the Amending Act, so that now it reads as follows B

No person shall engage in the rearing of silkworms for the production of silkworm cocoons except under and in accordance with the terms and conditions of a licence granted under this Act".

On behalf of the State, it is pointed out that the amended Section 4(1) does not amplify the restrictions which had to be read with Section 3 of the Principal Act set out above and the detailed provisions of Rules 3, 4, and 5 read with definitions given. After going through these rules, the validity of which was not challenged, we are

satisfied that no additional restriction is imposed by the Amending Section 4(1).

We may here indicate the already stringent regulation or restrictions existing under the Principal Act and the rules framed thereunder which were not challenged. Rule 3 ( 1) contained a prohibition against rearing silkworms by any person from silkworm seed other than silkworm seed obtained from a seed preparer licensed under .these rules.

Rule 3(2) imposed a duty upon a person who obtains silkworm seed from a licensed seed preparer, to preserve the bill and the egg sheets issued by the licensed seed preparer in respct of the silkworm seed supplied by such seed preparer, so that, when so required by an officer, it could be produced before him.

Rule 4 (1) prescribed the application form for licensing to be filled in and submitted by Rearers and seed preparers.

Rule 5 provided for the grant of various licences after satisfying the licensing authorities of the qualifications of the applieant. It also enable the licensing authority to refuse licenses to limit the number of seed preparers in an area. The reason for the refusal of the grant of the licence by the licensing authority had to be communicated fo the unsuccessful applicant. Buying of cocoons for reeling had to be licensed. Section 8 read with Rule 5 (b) lays down that no person could carry on "the business of reeling silkworm cocoons" without a license. Section 6, set out above, prohibited disposals and deliveries of silkworm cocoons for reeling and for reproduction except to persons holding licences under the Act.

Section 7 prohibited, in cocoon market areas, the rears of silkworm cocoons from selling oragreeing to sell and licensed buyers from purchasing or agreeing to purchase silkworm cocoon for reeling except in the cocoon market of the area. It is difficult for us to see how the mere change of wording in Section 4(1) of the Act had really amplified or increased the restrictions already there.

Section 4 of the Amending Act amends Section 6 of the Principal Act by omittjn~ words : "for reeling or for reproduction." Section 5 of the Amending Act says :

5. "Substitution of new section for section 7.-For section 7 of the Principal Act, the following section shall be substituted, namely :-

"7. Regulation of sale or purchase of silkworm cocoons for reeling .. (1) In any area in which a cocoon market is established under this Act,-

( a) no rearer shall sell or agree to sell; and

(b) no person shall purchase or agree to purchase, silkworm cocoons except in such cocoon market and except in accordance with such conditions and in s, Uch manner as may be prescribed.

(2) After a cocoon market is established for any area, no person shall except in such cocoon market, use or permit the use or assist in the use of, any building, room, tent, enclosure, vehicle. vassel or place in such area for the sale or purchase of silkworm cocoons or in any manner aid or abet the sale or purchase of silkworm cocoons".

Here also we are unable to find any substance. in the grievance that there has been any significant increase in' restrictions. The new Section 7 (2) merely makes evasion of the requirement to conduct business in the cocoon market of an area more difficult.

E The only amendments complained of are those in Section 12 which,

in the Principal Act, read as follows :-

"12. Penalties.-(!) Any person who contravenes the provisions of Section 3 or 4 shall be punishable with fine which may extend to one hundred rupees.

(2) Any rearer who contravenes the provisions of Section 6 or 7 or any other provision of this Act or any rule, order or notification made thereunder, shall be punishable with fine which may extend to fifty rupees.

(3) Any licensed buyer who contravenes the provisions of Section 7 or 8 or apy other provision of this Act or any rule, order or notification made thereunder, shall be punishable with fine which may extend to two hundred and fift)' rupees.

(4) Save as otherwise provided in sub-section (1), (2) and ( 3), any person who contravenes any of the provisions of this Act or of any rule, order or notification thereunder, shall be punishable with fine which may extend to two hundred and fifty rupees.

(5) (a) Without prejudice to any punishment under the preceeding sub-sections, the Director of Sericulture in Mysore may, after giving a reasonable opportunity to tbe person concerned to be heard, suspend or cancel the licence granted to any person for rearing

silkworm seed if such person is convicted at le, a, st twice for an offence under this Act.

(b) Any per$on aggrieved by the suspension or cancellation of a licence under clause (a) may appeal to the Government within such time as may be prescribed and the. decision of the Government on such appeal shall be final and shall not be called in question in any Court of law''.

Section 7 of the Amending Act lays down :

"7. Amendment of Section 12.

In Section 12 of the Principle Act,-

( I ) in sub-section (I), for the words "one hundred rupees", the words "two hundred rupees" shall be substituted ;

(2) in sub-section (2), for the words and figures "section 6 or 7 or any other provision of this Act or any rule, D order or notification made thereunder", the words, 'figures, brackets and Jetter. "section 6 or clause (a) of sub-section ( 1) of section 7" shall be substituted;

(3) after sub-section (2), the following sub-section shall be inserted, namely :-

(2A) Any person who contravenes the provisions of clause

(b) of sub-section (1) of section 7 or sub-section

(2) of that section shall be punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees or with both" ;

( 4) for sub-section ( 3), the following sub-section shall be substituted, namely :-

"(3r Any person who contravenes the provisions of section 8 shall be punishable with fine which may extend to two hundred and fifty rupees" ;

( 5) in sub-section ( 4), for the words, brackets and figures "sub-sections (1), (2) and (3)", the words brackets figures and letter "sub-sections (I), (2), (2A) and 3 sha!1 be substituted''.

Section 8 of the Amending Act provides as :

8. Insertion of new section 12A and 12B.--After Sec- H tion 12 of the Principal Act, the following sections shall be inserted, namely :- _

12A. Abetment.-Whoever abets any offence punishable under this Act shall be punished with the punish ment provided in this Act for such offence.

12B. Certain offences to under sub-section cognizable".

be cognizable.-The (2A) of section 12 offences shall be

ft was contended that the increase in the penalties would, in any event. be additional restrictions.

Learned Counsel for the State re- B plied that penalties are merely sanctions .provided for enforcing restrictions and are not a, dditional restrictions on freedom of trade or commerce. It is true that, even without a change in the nature of violations punished, those who contravene the provisions of the Act are subjected to somewhat severer punishment. But, the increase in the penalties is such, in view of the change in the value of money, C as not to amount to an appreciable increase in restriction even from the point of view of a person who wants to break the restrictive laws.

Penalties are really part of the procedure for the enforcement of restrictions. They do not create new offences.

They only make violation of whatever restrictions on trade and commerce were there more onerous. We therefore, doubt very much whether they could re; iUy be loakcd upon as additional restrictions upon freedom of trade D and commerce.

We may now refer to the cases cited by learned Counsel.

In Atiabari Tea Co. Lid. V. the State of Assam & Ors.,(') this Court held the Assam Taxation (on goods carried by Roads and Inland Watcrwa, ys) Act, 1954, to be void for not having secured the Presidential sanction under the proviso to Art. 304(b) before it was introduced in the form of a bill in the State Legislature.

In the case before us, tl1e Principal Act had the sanction of the President and enables orders to be passed which had the force of law enabling restrictions to be imposed by rules covered by the purposes of the Act.

We have already cited Section 18 of the Principa, l Act to show the amplitude of the rule making power which had the required Presidential sanction.

And, we have found that the amendments before us only varied the form of restrictiveness without appreciably adding to its content.

This case has, therefore, no application to the situa, tion before us.

The Automobile Transport (Rajasthan) Ltd. V. the State of Rajasthan & Ors. ( 2), was relied upon by both sides for the distinction G between mere " regulation" and a restriction contemplated by Article

304 (b) of the Constitution. It was held here that taxation of Motor Vehicles was a compensatory measure incidental to transport by Motor Vehicles which die! not infringe the guarantee of freedom of trade and commerce conferred by Art. 301 of the Constitution. The effect of such taxation was held to be too remote in its effect upon freedom , of trade and commerce to be a restriction contemplated by it.

Subba H Rao., J., who agreed with the conclusions of three other learned Judges of this Court so as to form a majority said that the nature and extent of taxation would have to be carefully scrutinized to determine whether it amounted to mere regulation or restriction.

He observed (at p. 557) :

(I) [1961] l S.C.R. 809.

(2) [1963) I S.C.R. 471.

./.

"Of all the doctrines evolved, in my view, the doctrine of 'direct and immediate effect' on the freedom would be , a, reasonable solvent to the difficult situation that might arise under our Constitution. If a law, whatever may have been its source, directly and immediately affects the free movement of trade, it would be restriction on the sa, id freedom".

Subba Rao, .J., summarised the whole law by formulating the following propositions (at p. 564-565) :

"(1) Art. 301 declares a right of free movement of trade without any obstructions by way of barriers, interstate, or intra-St; i.te or other impediments operating as such barriers.

(2) The said freedom is not impeded, but, on the other hand, promoted, by regulations creating conditions for the free movement of trade, such as, police regulations, provision for services, maiiiienance of roads, provision for aerodromes, Wharfs, etc., with or without compensation

(3) Parliament may by law impose restrictions on such freedom in the public interest ; and the said law can be made by virtue of any entry with respect where-of Parliament has power to m.:i, ke a law: ( 4) The State also, in exercise of its legislative power, may iinpose similar restrictions, subject to the two conditions laid down in Art. 304(b) and subject to the proviso mentioned therein.

(5) Neither Parliament nor the State Legislature can make a law giving preference to one State over another or making discrimination between one State and another, by virtue of ariy entry in the Lists, infringing the said freedom. ( 6) This ban is lifted in the case of Parliament for the purpose of dealing with situations arising out of scarcity of goods in any part of the territory of India and also in the case of a State under Article 304(b), subject to the conditions mentioned therein. And (7) the State can impose a non-discriminatory trut on goods imported from other States or the Union territory to which sintilar goods manufactured or produced in that State are subject".

In Khyerbari Tea Co. Lid. & Anr. V. The State of Assam, (1) the Assam Taxation (on goods carried by Road or on Inland Water ways) Act (Assam Act X of 1961), was held to be valid. It was pointed out here by Gajendragadkar, J., that, whereas, the ratio of the majority decision in the Automobile Transport (Rajasthan) case (supra) was that compensatory trui:ation would be outside Article 301, and, therefore, of Article 304(b) of the Constitution, in Atiabari Tea Co's case (supra), the Court had adopted the view that the compensatory character of a tax may be taken into account in deciding whether i.t was a restriction under Article 304(b) which was reasonable and in public interest. In Khyerbari Tea Co's case (supra), the Court proceeding on the assumption that the tax was not compensatory upheld its validity, presumably because it was considered reasonable and in public interest as a restriction.

No such question of reasonableness of any restriction imposed by the Amending Act before us

(1) [1964] 5 S.C.R .. 975.

A has been raised by the petitioners. But, if the position of even taxation, from the point of view of "restrictions" contemplated by Article 304(b) of the Constitution could be doubtful and depended upon its nature and extent and purpose, we think that there could be no doubt that some additional licensing, at nominal fees cha, rged presumably to defray the expenses of carrying out the objec!l> of the Act, B could not be held to be anything more than"regulation" in the cases before us.

The question of regulatory character or otherwise of amending provisions arisen only in the course of discussion of the question whether any new provisions, possibly resulting in requiring some more persons to take out licenses, who may not have been previously c covered by provisions relating to licensing, would be a "restriction"

as contemplated by Aritcle 304 (b). The learned Additional Solicitor General has contended that such licensing is necessary even for simply maintaining a record of those who carry on various activities in con nection with the silk production industry and business so that their purely business and industrial activities may be watched and the quality and reputation of this industry D and trade of Mysore may be maintained.

Such "regulation", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some inconvenience to those who have to take out license , which, according to rules, were granted to all those found qualified.

We find consider, a, ble weight in these arguments.

In any case, we are not satisfied that there has been a -real increase E in restricticas upon commerce in silkworms and cocoons by the provisions of the Amending Act wllich mostly cover what was already laid down by the statutory rules. If the substance of statutory rllles is converted into statutory provisions there could hardly be said to be an addition even in "regulation" imposed by the amending law.

F Lea, rned Counsel for the petitioner cited Hughes and Vale Proprietary Ltd. v. State of New South Wales & Ors. ( 1), where provisions of the State Transport (Co-ordination) Act, of the State of New South Wales, requiring applications to be made for licences, which may be granted or refused by an official in the exercise of an uncontrolled discretion, and of .all provisions consequential thereto, in so far as they were sought to be applied to public Motor Vehicles operating G in the course of or for the purposes of inter-State trade, were held to be invalid for a contravention of Section 92 of the Constitution of Commonwealth of Australia.

This section, as we know, provides that "trade, commerce and inter-course, among States whether by means of internal carriage or inotor navigation shall be absolutely

free".

Here, the Privy Council discussed a large number of cases which had a bearing on the interpretation of Section 92 of the Austra- H lian Constitution, including Commonwealth of Australia v. Bank of New South Wales (2) case, where it was observed at page 311) :

"Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that

(I) [19551 A.C. 241.

(2) [19501 A.C. 235,31 l.

.( .

' •

" •

ju regard to some economic activjties .and at sQllle, stage. of. soc\3,1 development :it might be maintained 1ht prohibition . with a view to State monopoly was the only. practical and

1reasonable manner of regulation, and that inter-State trade; commerce .and intercom:se thus .prohibited: and .thus'. monoplized remained b>olutely free".

The l'rivy Council after quoting this passage said :

"As to the passage in the judgment of the Board in the Bank case upon which counsel for the respondents , particularly relied, their Lordships accept without quiilifica-. tion everything that W1a,"> said by the Board in the Bank case, but they are not aware of any circumstances ill' 'the present case giving rise to the situation contemplated in that passage".

Thus, even if we were to apply the test of regulation to distinguish it from restriction which may be deduced from Hughes' case (supra?~ it will be seen that a decision on it depends upon the circumstances to which a legislative measure is meant to apply and its consequences.

Jn the case before us, the amendments did. not, in our opinion, go D beyond a regulation which. was fully authorised by the language of the provisvns of the Principal Act.

Even any a, dditional licensing involved did not go beyond the purview of the provisions of the Principal Act and by the rules framed thereunder. The mere change in form, from statutory rules to statutory provisions, could hardly constitute even additional "regulation". lt is only an additional "restriction" from the special point of view of Article 304(b) which E requires Presidentiiil sanction.

Although, a petition under Article 32 alleging infringement of the fundamental right guaranteed under Article 19 (I) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19 ( 6) of the Con- F stitution, has been established.

Now, as we have mentioned earlier, learned Counsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us.

They rested their case solely on the want of Presidential sanction to additional "restrictions" on freedom of business, trade, and commerce

\Vhich arc not, as we have indicated ear Her, to be equated with a mere reduction of the area of freedom of choice of those who are cn1:aged G or who want to engage in a business or trade.

The passage cited in Huohes' case (supra), from the Bank of New South Wales case

(supra") makes that clear. In ot?er wors, an allegedly additional restriction on trade and commerce is to be Judged from a broader and more general angle of the freedom of .~ pa:ticular rade.

Wht 1:1~Y be a restriction 'of his choice, from the pomt of view of an md1v1dual citizen engaged in a trade, may not be a restriction on inter-State H or intra-State commerce viewed from the angle ol the trade as a whole.

Even if we could not as we did not, .find any additional restrictions on the silkworm and' silk production business and industry in the 'amendments, the petitioners could show that thy were ui:duly am

pered by the impugned aniepdments from carrymg on their busme~ .

10 SC/75-32

A or trade by some unreasonable restrictions on their fundamental rights as individuals engaged in silk production industry or business.

But, if that .was their grieva, nce, they had to demonstrate an unreasonableness of restrictions upon their activities falling outside Article 19(6) before they could succeed.

They have not even attempted to do that. It is evident that they could not do so because the licensing B fees for various activities to be licensed is quite nominal and they have not been denied any licences they wanted.

Consequently, we dismiss these petitions with costs.

C.M.P. No. 1929 of 1975 (in Writ Petition No. 137 of 1971) is also dismissed as not pressed.

Petitions dismissed

P.H.P.

SYED AHMED AGA ETC

STATE OF MYSORE & ANOTHER

H. R. KHANNA

M. H. BEG

Articles 19(1)

Article 304(b)

Article 304(b)

Art. 304(b)

Article 32

Article 304(b)

Article 304(b)

Art. 19(1)

Section 12

section 3

section 6

sections 7

section 12

section 7 and 8

section 12

section 6

section 6

section 7

section 8

section 12

section 12

Article 304

section 7(2)

section 12

Art. 304(b)

Art. 32

Article 32

Constitution of India

Art. 19(1)

Article 304(b)

Article 304

Article 301

article 303

Article 301

Article 302

Art. 304(b)

Art. 304(b)

Art. 255

Article 304(b)

Article 19(l)(g)

Article 32

Article 19( 1)

Article 32

Article 301

Article 32

Article 305

Article 304(b)

Article 304(b)

Articles 301 and 304

Article 19

Section 18

Section 2(b)

Section 10

Section 10

Section 4(1)

Section 3

Section 4(1)

Section 8

Section 6

Section 7

Section 4(1)

Section 4

Section 6

Section 5

section 7

section 7

Section 7

Section 12

Section 3

Section 6

Section 7

Section 7

Section 12

Section 12

section 6

section 6

section 7

section 7

section 8

Section 8

section 12A and 12B

section 12

Art. 304(b)

Section 18

Article

304

Art. 301

Art. 301

Art. 304(b)

Article 304(b)

Assam Act X of 1961

Article 301

Article 304(b)

Article 304(b)

Article 304(b)

Section 92

Section 92

Article 304(b)

Article 32

Article 19

Article 19

Article 19(6)


,..,:

NADIR KHAN

THE STATE (DELHI ADMINISTRATION)

June 3, 1975

(P. K. GOSWAMI, VACATION JUDGE]

Code of Criminal Procedure, (Al of 1974)-s. 401, scope of

The petitioner. was convicted under s. 61 (a) of the Punjab Excise Act' and sentenced to two months' rigorous imprisonment. Revision application to the Sessions Judge Jiaviog; failed, he moved the High Court under s. 482, Cr. P.C.

1973 (II of 1974) read with Art. 227 of the Constitution. Imokiog its revisional jurisdictiOn suo lnotu the High Court issued a rule for enhancement of the sentence and raised it to six months. In application for special leave •. the C petitioner contended that the High Court, in revision s. 401, Cr. P.C. had no jurisdiction or power to enhance the sentence in the absence of an appeal by the Stale under s. 337 Cr. P.C.

Dismissing the petition',

HELD ; The High Court, as an effective instl'u1nent for administration ot criminal justice, keeps a constant vigil and wherever it finds that justice hus Q suffered, it takes upon itself as its bounden duty to suo niotu act where there is. flagrant abuse of the law. The character of _the offence and the nature. of_ disposal of a particular case by the subordinate court prompt remedial ac.tion

on the part of the lligh Court for the ultin1ate social good of the conununity, even though the State may be slow or silent in preferring an appeal provided for under the new Code. In a given case of public importance, the High Court reacts to public concern over the problem <ind n1ay act suo nlotu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such Et offenders. This salutary power which existed in the old Code has not been denied by Parliament under the new Code.

[490CFJ

CRIMINAL APPELLATE JURISDICTION : Criminal S.L.P; No. 554 of 1975.

From the judgment and order dated the 21st April, 1975 of the Delhi High Court in Cr!. Misc. (Main) No. 79 of 1975.

K. N. Clzitkara and E. C. Aganvala, for the petitioner.

The order of the Court was passed by

GOSWAMI J.-1 am reluctant to leave this matter with the usual monomial order since the submission of the learned counsel has sought to cast an unmerited doubt on the undoubted jurisdiction of the High Court in acting suo motu in criminal revision in appropriate cases.

The attempt has to b~ nipped in the bud. ·

; Jn this' case, the petitioner was found in illegal possession of ganja weighing 7 kgs. a, nd was convicted by the Metropolitan Magistrate, Delhi, under s. 6!(a) of the Punjab Excise Act as extended to Delhi arid sentenced to two months' rigorous imprisonment.

With H no right of appeal available, there was an unsuccessful revision applica

lion before the Additional Sessions Judge, Delhi.

The petitioner then moved the Delhi High Court under s. 482 of the Code of Criminal Procedure, 1973 (Act II of 1974) read with Art. 227 of the Constition against the conviction.

This time he was worse off as the Hinh Court thought that the sentence awarded was inadequa, te and by i~-

SUPREME COURT REPORTS [1975] SUPP s.c.R.

A invoking its revisional jurisdiction issued, sou moru, a rule for enhancement of the sentence and ultimately raised the sentence to six months.

Hence this special leave petition.

The question raised by the learned counsel in this application is, that the High Court, in revision under s. 401 Cr. P.C., has no jurisdic- B tion or power to enhance the sentence in the absence of an appeal

aga, inst the inadequacy of sentence under s. 3 77 .

. It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party.

The High Court, as an effective ' instrument for administration of criminal justice, keeps a constant vigil c and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is fiagr'ant abuse of the ; law.

The character of the offence and the nu.lure of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code.

The High Court in a given case of D public importance e.g. is now too familiar cases of food adulteration reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders.

This position was true and extant in the old. Code of 1898 and this salutary power has not been denied by Parliament . under the new Code by re-arrangement of the sections.

E It is true the new Code bas expressly given a right to the State under s. 377 Cr. P.C. to appe_a, l against inadequacy of sentence which was not there under the old Code.

That however docs not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases.

What is an appropriate case has to be left to the discretion of the High Court.

This Court will F be slow to interfere with exercise of such discretion under Art. 136 of the Constitution.

S. 401 expressly preserves the power of the High Court, by itse][ ,,. to ell).! for the records without the intervention of another agency and

ha~ kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court.

The provisions under s. 401 read with s. 386(c)(iii) Cr. P.C. are clearly supplemental to G those under s. 3 77 whereby appeals are provided , for against in_a, dequacy of sentence at the instance of the State Government or Central Government, as the case may be.

There is therefore. -absolutely no merit in the contention of the learned counsel that the High Conrt acted without jurisdiction in cxcrcisin~ the power of revision, suo mot11, for enhancement of the sentence in this case.

The application stands H rejected.

P.B.R.

Petition dismissed.

NADIR KHAN

THE STATE (DELHI ADMINISTRATION

P. K. GOSWAMI

Code of Criminal Procedure

s. 401

s. 61

s. 482

Art. 227

s. 401

s. 337

s. 6

s. 482

Code of Criminal Procedure, 1973

Art. 227

s. 401

s. 3

s. 377

Art. 136

S. 401

s. 401

s. 386(c)(iii)

s. 3


DINANATII PANSARI

COLLECTOR & D. M. KEONJHAR & ANR.

April 1, 1975

[H. R. KHANNA AND M. ff.BEG, JJ.]

Maintenance of Internal Security Act, 1971, Section 3(1) (a) (iii)--Order of detention under-Two views possible on the need of detain-Court if can Interfere with subjective assessment and satisfaction.

The order of detention dated 6-7-1974 passed by the District Magistrate of Keonjhar, Orissa, recited that the District Magistrate was satisfied -that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential to the com munity, it is necessary to make the order under Section 3 read with Section 5 of the Maintenance of Internal Security Act.

The first ground related to sale by him of two tyres without authority and cash memo.

The second ground related to the disposal of the 140 out of 149 tyres in contravention of law.

Dismissing the Writ Petition, challenging the detention and also the Special Leave Petition directed against the order of the Orissa High Court,

HELD : (i) As the Manager of the United Commercial Company, the petitioner was certainly not a licensed dealer. The 149 tyres had been ob tained by the company for actual use on the trucks but most of them had, appa ·

rently, been disposed of in what is known, as the 'black market'. The pro visions relating to licensed dealers didnot warrant such sales which were struck by the provisions of clause 2 of the Orissa Automobile Tyres and Tubes Control Order, 1973. The petitioner had not been detained for any irregulaf'ity or illegality committed as a licensed d_ea1er, but as a person who seemed to have been diverting tyres from their pretended use, to sales in "black market". He was unable to repel the allegation regarding the sale of two tyres.

[55F; 56A]

F Debu Mahto v. State of West Bengal, A.I.R. 1974, S.C. 816 and Messrs

Pusparaj & Co. and Ors. v. Collector of Balasore & Ors. I.LR. [1972] Cuttack, 747, referred to.

(ii) It cannot be said that the impugned detention order is either arbitrary or not connected with the purpose for which a detention may be ordered under s. 3(l)(a)(iii) of the Act In considering the legality of such an order, this Couq cannot. function as a Court of Appeal, If there is any material to justify the passing of the detention order the necessity for it iS a matter of subjective assessment and satisfaction by the detaining authority with which no Court would be ordinarily justified in interfering.

This Court would not interfere even if two views about the existence of the need to detain for the object set out in section 3(1)(a)(iii) of the Act were possible. It is only when the order is shown to be of such a nature that it could not sibly fall within the scope of the law conferring the power to make it that this Court would intervene to quash it.

[56H; 57 AB]

H ORIGINAL JURISDICTION: Writ Petition No. 39 of 1975.

Petition under Art. 3 2 of the Constitution of India and Special Leave Petition No. 267 of 1975.

From the judgment and order dated 15-1-75, of the Orissa High Court in C.J.C. No. 1133/74.

A. K. Sen, B. P. Maheshwari, Suresh Sethi and R. K. Maheshwari, A for the petitioner (In W. P. No. 39/75).

 Bishen Narain, B. P. Maheshwari, Suresh Sethi and ·. R. K.

Maheshwari, for the petitioner, (In S. L. P. 267/75).

Gobind Das and B. Parthasarthy, for the respondents (In W. P.

B No. 39/75).

The Judgment of the Court was delivered by :

 BEG, J.-This habeas corpus petition is directed against a detention order dated 6-7-1974 passed by the District Magistrate of Keon- jhar in Orissa. The order recites that the District Magistrate was C statisfied that "with a view to preventing Shri Dinanath Pansari s/o Shri Dwarikanath Pansari of Barbil town, P. S. Barbil, District Keonjhar from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary to make" the order under Section 3 read with Section 5 of the Maintenance. of Internal Security Act, 1971 '(hereinafter referred to as 'the D Act') . On the same date, grounds of this satisfaction were communicated to the petitioner giving the following particulars ;

"1. On 15-2-1974 you received Automobile (Truck) tyres from Madras Rubber Factory through Carry Co. at Barbil as Manager of United Co=ercial Company, Barbil and these tyres were specified to be used in the fleet of trucks Ill owned by United Co=ercial Co. as a fleet owner. But instead of using the tyres in the fleet of United Commercial Co. you sold two of those tyres the same day (15-2-1974) to one Narayan Singh at Rs. 5400 without authority and cash memo. On this issue Barbil P .S. case No. 32 dated 15-2-1974 u/s. 7 E. C. Act was registered F and charge-sheeted against you.

2. You, as Manager of the United Commercial Co. received 149 truck tyres (137-through Tata Nagar Transport Corporation, Barbil and 12 through Ca, rry Co. Barbil) beteen 14-2-1974 and 27-4-1974 as a fleet owner for use m a fleet of ~O true~ maintained by you. During enquiry G by the Special MagIStrate, Barbil only six number of tyres ere found !n your company's Godown and your office mcharge Shn Shamasunder Pandit stated these six tyres to be tJ, ie only stock in hand. On verification of 8 trucks belonging to your fleet on 19-5,1974 it was found that only 3 tyres fitted to these trucks were new arid the rest of te tyfes were either too old or resoled or damaged ones.fl This reveals that you. have disposed of tyres received H as a eet owner otherwise m contravention of law

By the i1; bove acts of yours the maintenance of supplies and services of essential commodities namely Automob'l tyres have been dislocated". . i e

A The petitioner alleges that he is a Jaw-abiding citizen who, after completing his studies in 1966, started a business under the name and style. of M/s. Nancy Automobiles, Rourkela, in Orissa, to deal in auto. car parts, which he carried on until about the end of 1972; and, thereafter, he became a Director of a private Transport CompaJ1Y1.

Soon afterwards, in 1972, he started business under the name of B Vivek Automobiles in Barbi! in .the District of Keonjhar. He adnrits that he is "the Sole Proprietor of the said business" and "was engaged. in the purchase and sale of automobile spare parts, tyres 'and tubes".

He asserts that he is. a registered dealer under ihe Orissa Automobile Tyres and Tubes Control Order, 1973. He alleges that the Central Govt. has not fixed the selling prices of tyres and tubes at any ti!lle. He states that, although originally the Control order covered only 50 C per cent of the tyres and tubes received by a licensee, subsequentlya total restriction was imposed upon dealings in these goods which had been declared esseniial commodities. But, he claimed that, on 18-12-1973, the Controller of Supplies had issued an order permit7 ting free sales by licence holders to the extenL of 25 per cent of their stocks. He alleges that, roundabout January, 1974, the District Magisc I> tra, te of Keonjhar held a meeting at which he insisted that 25 per cept of tyres and tubes available for free sale by the licensed dealers 'be sold only for use on vehicles registered in Keonjhar on which tax had been paid under the Bihar and Orissa Motor Vehicles Taxation Act, . and then issued a circular letter to dealers directing that this be. done by them. The petitioner states that he vehemently protested against E the District Magistrate's instructions which were inv.alid under the law. He also asserts that he objected to the formation of an allotment committee by the District Magistra'le for . the purpose of distributing tyres and tubes in the District with the result that the District Magistrate was displeased with the petitioner.

F The petitioner also alleges that, in Barbi!, which is a mining area, there is considerable transport business and that truck owners in that District had formed an Association called "The Barbi! Mining Area Truck Owners' Association". He asserts that he has always resisted the illegal demands of truck owners. The petitioner goes on to state that his sister, Smt. Sarda Devi of Chakradharpur, Distt. Singhbum, in Bihar started a transport business at Barbi! in 1970, under the G name of ''United Commercial Company" (hereinafter referred to as 'the Company') which had a fleet of ten vehicles. According to the petitioner, this Company's competition with the truck owners deprived them of big contracts and thus he incurred their displeasure. He states that, while the Truck Owners' Association wanted to raise the rates of freight, the rates of the company were not raised and that this further displeased the truck owners' Association. He suggests H that the District Magistrate wanted to please the truck owners. ..

 The petitioner does not state his own position in or connection with the United Commercial Company, but, his assertions show, on the one hand that he was assdciated with this Company as its Manager, as stated in the grounds of th~ oder of detention, and, on te other hand, that he was anxious to 1ust1fy sales of tyres to the public A

• ~

' ' •

at any priCe which was no -part of the business of this company. Such A sales could be made by him in another capacity and only according to the provisions. of the relevant Control Order. According to the opposite parties prices were also controlled.

The petitioner has tried hard to prove the malafides of the Dis- B trict Magistrate in passing the detention order. But, he has failed to discharge the difficult burden of doing that.

It has been urged on behal! of the petitioner that even if the total quantity of 149 tyres shown to have been purchased directly from the manufacturers by the petitioner as a Manager of the United Com- C mercial Company, between 14-2-1974 and 27-4-1974, specifically for the use of the fleet of ten trucks maintained by the company had not been fully utilised for the fleet b)lt had been mostly sold clandestinely by the petitioner, as was "inferred by the District Magistrate from the failure of the petitioner to account for more than 21 out of 149 tyres, yet, this activity of the petitioner could not reasonably lead D to the inference that it was necessary to detain the petitioner for the purpose of maintaining the supplies of the essential commodity in future. Reliance was placed upon Debu Mahto v. State of West Bengal('), the factsof which have little connection with the facts of the case of the petitioner who mnst have appeared tel the detaining authorities to be using his dual capacity, one as a licensed dealer of E tyres_ and tubes and another as the Manager of the United Commercial Company, as a cover for systematic concealed illegal sales at exorbitant prices.

As the Manager of the United Commercial Company the petitioner was certainly not a licensed dealer. The 149 tyres' had been obtained by the company for actual use on the trucks but most of

fr.em had, apparently, been disposed of in what is known as the "black market". The. provisions relating to licensed dealers did not warrant such sale~ which were struck by the provisions of clause 2 of the Orissa Automobile Tyres and Tubes Control Order, 1973. This provides as follows :

"2. Licensing of de_alers.-(1) No person shall obtain, atte!!1pt to obtam, or store for sale or distribution or offer for. sle or sell autoobile tyres and tubes except under

a_nd m _accordance . with the terms and conditions of a license issued m this behalf by the Licensing Authority.

(2) Every dealer who is doing business on the commence e t off thehorder shall apply for the Licence within fifteen ayns o sue commencement".

(1) AIR 1974 SC 816

10 SC/75-5 .

The petitioner had not been detained for any irregularity or illegality committed as a licensed dealer, but as a person who seemed to have been diverting tyres from their pretended use, for which a large stt>ck of tyres had been obtained directly from manufacturers, to sales in what is known as the "black market" as a regular side occupation. He was unable to repel the allegation that such a transaction with one Narayan Singh had been detected. He put forward what did not appear to be an honest plea-that he had loaned two tyres to Narayan Singh who had deposited Rs. 5,000/- as security. However, it is not for this Court to pronounce on possible inferences from evidence for or against the petitioner. It is for the detaining authorities to satisfy themselves about these matters and about the need to order the preventive detention and its duration. The Advisory Board had also endorsed the C action of the detaining authorities.

It was submitted on behalf of the petitioner that, after a direction given on 19-8-1974 by the Collector, Keonjhar, to the tyre manufacturing Companies not to supply tyres to the company as an owner of D a fleet of trucks, the sources of supplies of tyres were dried up and there could be no necessity to detain the petitioner. We were referred to (Messrs) Pusparaj & Co. and Ors. v. Collector of Balasore & Ors.( 1) to show that such a direction was not legal. If that is so, the petitioner can obtain relief against the direction by appropriate proceedings. We cannot pronounce here upon its legality.

The question whether the petitioner had satisfactorily accounted for the 149 tyres purchased from manufacturers from 14-2-1974 to 27-4-1974 was also one of fact. If the petitioner's case was that' all the 149 tyres had been actually used in this period on the ten trucks, as he would like to make out, he was in the best position to prove this fact. He could not take shelter behind the plea that the detaining authorities did not ask the manufacturers to give the numbers of tyres sold by them to the United Commercial Company when the petitioner, called upon to explain what had happened to the 149 tyres, could not himself give their numbers or show that he had them all fitted on to his trucks, or that he had to discard so many tyres in G this period. No stock of discarded tyres was evidently shewn by the petitioner to the Magistrate who came to his premises to inquire into actual facts. However, such questions of sufficiency of evidence are not for this Court at all to determine. We mention them only as an attempt was made to raise them before us.

H We are nnable to hold that the impugned detention order against the petitioner is either arbitrary or not connected with the purposes for which a detention may be ordered l!nder Section 3(1) (a) (iii) of the Act. In considering the legality of such an order we cannot function as a Court of Appeal. If there is any material to justify the passing of the detention order the necessity for it is a matter of subjective

(1) !LR (1972] Cuttacli. 74.

assessment and satisfaction by the detaining authority with which no A Court would be ordinarily justifie<l in interfering. It is only when the order is shown to be of such a nature that it could not possibly fall within the scope of the law conferring the power to make it that this Court would interyene to quash it. A reference to ( M es.rrs) Pushparaj & Co. v. Collector of Balasore & Ors: (supra), itself shows that the 8 need to take drastic steps f()r maintaining the supplies of an essential commodity, which had become scarce, was there in Orissa. This Court would not interfere even if two views about the existence of the need to detain for theobject set out in Section 3(l)(a) (iii) of the Act were possible. It was for the detaining authorities to determine the duration of the need to detain the petitioner provided they comply with C the provisions of law whenever they do so. We are unable to find any legal flaw in the proceedings which resulted in the impugned detention order of 6-7-1974. '' ·

Consequently, we dismiss this petition.

V.M.K.

Petition dismissed.

DINANATII PANSARI

COLLECTOR & D. M. KEONJHAR & ANR

H. R. KHANNA

M. ff.BEG, JJ.

Section 3(1)

Section 3

Section 5

clause 2

s. 3(l)(a)(iii)

section 3(1)(a)(iii)

Art. 3

Constitution of India

Section 3

Section 5

Internal Security Act, 1971

s. 7

clause 2

AIR 1974 SC 816

Section 3(1)

Section 3(l)(a)


COMMISSIONER OF SALES-TAX, U.P.

MANGAL SEN SHY AM LAL April 2, 1975

[V. R. KRISHNA IYER, R. S. SARKARIA AND A.C. GUPTA, JJ.]

U.P. Sales Tox Act, 1948-Sectlon 10(3) and 10(3-B) period of limitation for filing revision by the Commissioner.

Interpretation of Statute-Whether scheme of the Act and rule can be taken into consideration in interpreting the Act-Whether provision of an Act can be construed on lhe analogy of another Act not pari materia.

The respondent, a dealer, was assessed in July, 1948. In January, 1960, the SaJes Tax Officer wrote a letter to the Sales Tax Commissioner pointing out a mistake which had crept in the order of assessment. In April 1960, the Commissioner filed a Revision Application under s. 10 of the Acl Section 10(3) ands. 10(3-B) read as under:

"(3)(i) The Revising Authority (or an Additional Revising Authority) may, for the purposes of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in its discretion, call for and examine, either on its O\VD motion or on the application of the Commissioner of Sales Tax or the persons aggrieved, the record of such order as it thinks fit :

Provided that no such application shall be entertained in any case where an appeal lay against the order, but was not preferred.

(3-B) The Application under sub-section (3) shall b' .made within one year from the date of service of the order complained of but the Revising, Authority may on proof of sufficient cause entertain an application within a further period of six months."

The assessee contended before th" Revisional Authority that the revision \\'BS timebarred inasmuch as it bad been filed much beyond the period of Jimitation specified in s. 10(3-B). The Revenue contended that the starting point for limitation was January, 1960 when the Commissioner received the intimation of the assessment order and that since the revision had been filed within one year from that intimation, it was within time.· The Revisional Authority accepted the contention of the assessee and dismissed the application

as time barred. On a reference the High Court answered the questions against the Revenue and in favour of the assessee.

On appeal by Special Leave it was contended before this Court by the Revenue:

(1) Sub-section (3-B) does not provide any starting point of .limitation in the case of a revision filed by tQ.e Commissioner.

(2) In any case, the starting point of limitation is the date of service of the order on the Commissioner or the dealer, as the case may be.

Ori the othr hand, the assessee contended that the starting point of limitation for a revision -application whether filed by the dealer or the Commissioner is the date on which the order of assessment is served on the dealer.

' -

HELD : The contention of the Revenue that there is no limitation for a A_ revision application filed by the Commisfiloner, is not correct. Sub-section (3-B) prescribes a period of limitatign for every revision-aj, plication, whether filed by the Commissioner or the dealer (all!eSSee), and the starting point of limitation is the date of the service of the order on the revisionapplicant. [64El

(2) For the purpose of sub-section (3-B) service of the order complained of means something subsequent to and distinct from the mere making of B the order. It implies fonnal communication of the order after it has been passed, on the revision application.

{64A]

(3) Sin~ the revision application in the instant case was filed: by the Ccmmi.ssioner within one year of the communication of the assessment order, it w .. within time. [66Bl •,

(4) The difficulty in construing the unhappy language of the otatute was C felt in the year 1960 and even earlier, and has given rise to this protracted litigation extending over fifteen years. It iB desirable that the Legislature should amend the statute and make its intent clear. In any event, it shouJd make a statutory provision requiring the Sales Tax Officer to send forthwith a copy of every assessment order made by him to the Commissioner for in~ formation. [66F-Gl

CIVIL APPELLATE JURISDICTION; Civil Appeal No. 1861 of 1971.. D

Appeal by Special Leave from the Judgment & Order .dated the 22nd January, 1970 of the Allahabad High Court in S.T .R. No. 361 of 1964.

S. C. Manchanda and 0. P. Rana for the appellant.

Hardayal Hardy, K. B. Rohtagi M. K. Garg and E. C. Agarwala for the respondent.

Hardayal Hardy, K. B. Rohtagi and Ram Lal for the intervener

The Judgment of the, Court was delivered by

SARKARIA, J.-This appeal by special leave is directed against the judgment of the Allahabad High Court answering against the Department, the following question referred to it under s. 11 of the U.P. Sales Tax Act, 1948 :

"Whether under the circumstances of the case, starting point of limitation for the Department to prefer a rev)SJon against the original assessment order would start from the date of assessment order or would start according to the discretion of the assessing officer or the Department from the time the assessing officer wishes to apprise the Department about the passing of the assessment as in this case."

The respondent-assessee is a dealer carrying on business at Beriyaganj, Shahjahanpur. On 26-7-1958, the Sales-tax Officer passed

an order assessing him for the year 1957-58. . Subsequently. the Sales-tax Officer felt that by oversight a mistake had crept in the order of assessment made. by him.

Consequently, in January 1960, he wrote a letter to P. A. to the Commissioner, Sales-tax seeking

A guidance as to how he should proceed in the matter to rectify the omission.

The Commissioner treated that intimation received on 27-1-1960 as service on him.

Thereafter on 11-4-1960, the Commissioner filed a revisionapplication under s. 10 of the Act before the Judge (Revisions).

When this revision came up for arguments before the revisional B authority, the assessee urged that the revision was time-barred iru\smuch as it had been filed more than 18 months after the date of the assessment order. The assessee's contention was that the starting point for limitation was the date of the assessment order.

As against this, the Department maintained tbat the terminus a quo for limitation was 27-1-1960, on which date, the Personal Assistant to the C Commissioner had received the intimation of the assessment order, and consequently the revision having been filed within orie year of that date, was fully within time.

The Judge (Revisions) accepted the contention of the assessee and dismissed the revision as barred by limitation.

At the instance of the Commissioner, the Judge (Revisions) rc- D ferred the question under s.11 of the Ad to the High Court for opinion.

The reference, in the first instance, was heard by a Division Bench consisting of Jag dish Sahai and M1 H. Beg, JJ. J agdish Sahai J. was of the view that the starting point of limitation in the case of a revision application filed by the Commissioner would be the date on which the assessment order was passed by the Sales-tax Officer E because the law creates a presumption that the Commissioner would be deemed to have been served on that date.

Beg J. struck the discordant note :

"My answer \o the first part of the question, as framed, is in the negative.

I am of opinion that the period of limitation for the Commissioner to prefer a revision application under s.10(3)(i) of the Act, will not start from the. date of ihe assessment order.

I would answer the second part of the question also in the negative by saying that the period of limitation would not commence to run from any date lying within the discretion of or depending upon the wishes of the assessing officer.

It would commence, in accordance with s. 10 (3-B), from the actual date on which the Commissioner has been duly apprised of the contents of the assessment order in a mode which may be deemed to be "service" upon him.

The mere passing of an assessment order cannot, in my opinion, be possibly deemed to be "service" automatically upon the Commissioner. In the case before us the Commissioner applied within the prescribed period after the communication of the contents .of the assessmertt order to him which was sufficient "service"."

On account of this difference of opinion, the case was referred to Verma J. who agreed with Jagdish Sahai J. and answered the question against the Department.

Hence this appeal.

) -

' Before 1954, no limitation for filing an application for revision was provided in the Act or in the rules framed thereunder. Such a provision was first made by the U. P. Act VIII of f954.

This amending Act added sub-sections (3-A) and (3-B) in s.10. of the principal Act of 1948. Section 10, after this amendment, reads as follows:

"10. Power of Revision. ( 1) The State Government shall appoint as Revisi_ng Authority a person qualified under clause (2) of Article 217 of the Constitution for appointment as Judge of a High Court.

(2) The appellate authority appointed under section 9 shall be under the superintendence and control of the Revising Authority.

(3) (i) The Revising Authority (or an Additional Revising Authority) may, for the purposes of satisfying itself as to the legality or propriety of any order made by any appel late or assessing authority under this Act, in its discretion, call for and examine, either on its own motion or on the application of the Commissioner of Sales Tax or the persons aggrieved, the record of such order as it thinks fit :

Provided that no sue~ _ipylication shall be entertained in any case where an appeal lay against the order, but was not

preferred : E

(Provided further that an application for stay of realisation of any amount of tax, fee or penalty, shall not be entertained by the Revising Authority or by any Additional Revising Authority, unless an appeal or revision from the order of the assessing authority or the appellate authority, as the case may be, is pending before proper authori- F ty:

Provided also that whenever realisation of any amount of tax, fee or penalty is stayed by the Revising Authority, or by any Additional Revising Authority. the applicant shall be required to furnish security to the satisfaction of the as- G sessing authority concerned, within such period as may be specified by it) .

(ii) The State Government may appoint (such number of Additional Revising Authorities as it m.ay deem necessary, out of persons qualified for appointment as Revising Authority). The Additional Revising Authority shall exercise such powers of the Revising Authority as H may be prescribed or assigned to him by the State Government either generally in any area or in respect of any class of cases.

t3-A) A copy of the order. passed under sub-section (3) shall be served upon the applicant.

- - =4:

A (3-B) The application under sub-section (3) shall be made within one year from the date of service of the order complained of but the Revising Authority may on proof of sufficient cause entertain an application within a further period of six months.

( 4) The Revising Authority shall not pass any order under sub-section (3) adversely affecting (\lly person unless an opportunity has been given to such person to be heard.

(5) If the amount of tax assessed, fee levied or penalty imposed is reduced by the Revising Authority under subsection (3) it shall order the excess amount of tax, fee or penalty) if already realised to be refunded."

Answer to the question referred hinges upon a correct interpretation of sub-section (3-B).

From the imprecise and unhappy language of this provision, four D different constructions can possibly be suggested, and indeed have been suggested at one stage or the other. First, that sub-section (3-B) does not at all take in a revision application by the Commissioner. Second, even if it does so, it does not provide any starting point of limitation" in the case of a revision filed by the Commissioner.

Third, that the starting point of limitation for a revision application, whether filed by the dealer or the Commissioner, is the date E on which the order of assessment is serverd on the dealer.

Fourth the starting point of limitation is the date of service of the order on the revision applicant, be he the Commissioner or the dealer.

The first is manifestly untenable. Sub-section (3-B) starts with an express reference to "the application under sub-section (3)". Sub- F section ( 3), in terms, provides that the revision-application may be made either by the dealer or by the Commissioner. The Commissioner's right under sub-section (3) to move the Revising Authority by an application is distinct and independent of the one conferred on the dealer, although the "latter has under s. 9, an additional right of appeal against the assessment order, which must be exhausted before G he can invoke the revisional jurisdiction under this section.

Thus, in the context, sub-section (3-B) comprehends both categories of revision-applicant, namely, the Commissioner as well as the dealer.

Mr" Manchanda, the learned Counsel for the appellant canvasses, in the first place, for the second construction, and, in the alternative, for the fourth, with the elucidation that the mere making of an order H of assessment by the Sales-tax Officer does not-contrary to the reasoning of the High Court-amount to automatic 'service' of that order on the Commissioner.

Mr. Hardyal Hardy, the learned Counsel for the caveators, does not support the interpretation adopted by the High Court. He maintains that the third construction is the correct one. The starting point

I '

' •

c. s. T, v. MANGAt SEN (Sarkaria, !.)

-0f limitation for a revision application, according to the Counsel, 4even if it be filed by the Commjssioner. is the date of 'service' -0f the order on the assessee. Mr. Hardy does not dispute the cor- 1ectness of the proposition propounded by Mr. Manchanda that the yery act of passing an assessment order by the Sales-tax Officer does not amount to its 'service' upon the Commissioner or his representative. Learned Counsel, however, points out that there is no provision in respect .of 'service' of an order of assessment made against a dealer hy the Sales-tax Officer, on the Commissioner, while. elaborate pro-

..-isions for service of such an order on the. dealer exist in the Act :and the rules framed thereunder. Viewed against this background, J.lrocee<!s the argument, limitation would start running from the date

-Of service of the order of assessment on the dealer, even agamst the

Commissioner, irrespective of whether the latter was or was not .aware of the order. This is so, contends the Counsel, because once

, limitation begins to run, .then, on the principle of s. 9, Limitation '.Act, unawareness of the order on the part of the Commissioner,

ill not stop it.

Once it is conceded that sub-sect10n (3-B) encompasses all re- 'Vision-applications, whether made by the assessee or by the Commissioner. then it necessarily follows that the period and the starting point of limitation provided therein, govern, withont exception, all !luch applications. Contention in favour of the second construction

ihus suffers from an inherent infirmity and self-contradiction. It must, 'therefore, be rejected:

We are now left to choose between the third and the fourth con- :; tructions.

The only starting point of limitation •mentioned in s. 10(3-B) is "the da, te of service of the order complained of". Now, what is ; meant by 'service' ?

And on whom is it contemplated ? The sub- F , section is either obscure or silent on these points. The learned Judges , of the High Court have tried to door this obscurity by referring to

the scheme of the Act and the_ Rules. They have also referred to omewhat similar provisions of the Income-tax Act, and imported them .hy analogy into the sub-section in question so as to reach the con- .clusion that in the case of a revision application by the Commissioner the starting point of limitation is the date on which the assessment G

rder is ade by the Sales-!ax Officer .. If we may say so with respect, _; n ~ceptm_g !at 7onstruct1011:, the High Court has, as it were, by

Judicial legisla!Jon mtroduced m sub-section (3-B) a different starting point of limitation in case of a revision filed by the Commissioner.

In our opittion, it is not proper to interpret s. 10 (3-B) of the Act on the analogy of ss. 263 (2) and 264(2) of the Income-tax H _Act, _1961 which are not in pari materia with the sub-section in

<JUestion.

It is safe and sufficient for our purpose to adhere to the scheme •:and language of the . Act and the Rules. 'Service' of an order of •assessment in the context of the scheme of the Act and the Rules

A . means something subsequent and di:ltinct from the mere making of the order of assesment. It implies formal communication of the ·\ Order after it has been passed on termination of the proceedings,. so that the party to whom it is communicated, may, if aggrieved, seek redress in a higher forum in the manner prescribed by Ia w.

That this should be the sense of the term 'service' in sub-section B (3-B) will be clear from a reference to Rule 70(1) which provides:

"70(1). A copy of every order of the Assistant Commissioner (Judicial) under sub-section (3) of section 9 or of the Judge (Revisions) under sub-section (3) of s. 10 shall be delivered or sent by post to the person affected by the order, and to the Commissioner."

It is true that the Ru!~ does not, in terms, apply to an original assessment order passed by the Sales-tax Officer, but that does not detract from its value as illustrative of the proposition that the mere passing of an order (in appeal or revision) does not operate as ser- D vice or communication of its contents to the Commissioner. It is to be noted that an order passed under section 9 ( 3) by the Assistant Commissioner (Judicial) in appeal, is revisable on an application filed by the Commissioner under sub-section (3) and limitation for such an application, also, is governed by sub-section (3-B) of s. 10.

The starting point of limitation for a revision-application whether filed against an appellate order or an original order of assessment, E being the same viz., service of the order sought to be revised, the connotation of the term 'service' must also remain constant.

True, that the Act and the Rules do not make any provision for service of an assessment order passed by the Sales-tax Officer against a der, on the Commissioner. At the same time there is nothing in these statutory provisions, which inhibits the service of such an order on the Commissioner. Rather, the necessity of serving such an order of assessment on the Commissioner to enable him, if necessary, to file a revision-application. is implicit in the language of s. 10 (3-B).

Indeed, regular and prompt communication of Slich orders to the Commissioner, is a must for a proper and fair working of the provision.

We are not persuaded to accept Mr. Hardy's contention that the phrase "the date of service of the order complained of' does not include service on the Commissioner.

This phrase has to be read as a whole, consistently with the scheme of the Act and the Rules [particularly Rule 70 (I)] with due emphasis on the key words H complained of". This is the only interpretation which, in our opinion, expanded as "the dat~ f service oi; i the revision-app_licam, of the ?r.der

"complained of''. This 1s the only mterpretatmn which, m our op1mon, comports best with the scheme and language of the statute and te maintenance of parity between the assessee and the Department m the matter of limitation which was intended to be secured by the amendment of 1954. >4

The alternative interpretations--0ne suggested by Mr. Hardy, and .the other devised by the High Court-appear to be repugnant to the scheme and object of the statute ; they envisage a varying and uneven construction of the scope, meaning and elfect of the word

"service", applying it differently to different applicants though similarly situated. The very nature of the right to file a revision under s. 10 imports, as a necessary condition, service or communication of the contents of the order complained of. In a sense, this remedial right cannot be said to accrue until the party concerned on being served, becomes ware of the cause of grievance and consequent necessity of redress. The interpretalion expounded by Mr. Hardy seems to be lop-sided and anomalous. It unfairly reserves the "service" exclusively for the dealer, keeping the Commissioner out in complete darkness without due chance of knowing whether an order of assessment passed by the Sales-tax Officer is injurious to public revenue or not.

The construction put by the High Court is too fictional and innovative. Nor does it keep the Commissioner and the assessee in pari passu. Drawing more by analogy from sections 263 and 264 of the Income-tax Act, 1961 and less from the statute under consideration, it is, at best, a conception of law as it ought to be, rather than of what it actually is.

We are conscious that the law contained ins. 10(3-B), as exposed

by us, is not perfect.

It is susceptible to abuse.

Indeed, it was such an apprehension that seems to have persuaded the learned Judges of the High Court, too far away from the language of the statute, into the realm of speculation and induced them, as it were, E to substitute so far as the Commissioner was concerned "the date of the order" for "the date of service of the order" provided by the Legislature. Said Verma. J. :

"If a different view were to be taken then it would be open to the Sales-tax Officer not to serve a copy of the assess- F ment order on the Commissioner for ten or twenty years. lt is prosperous to imagine that the period of limitation would remain in abeyance ul1!ti! the Sales-tax Officer chooses to serve, formally, a copy of the assessment order on the Commissioner''.

These are strong words and the apprehension expressed therein is G not altogether baseless. But the apprehension does not stem from any inherent defect in the legislature's choice of "service" as the terminus a quo for limitation. It arises out of the omission to make any provision in the Act and the Rules requiring the Sales-tax Officer to send forthwith a copy of every assessment order to the Commissioner, also. Supplying of that omission is a matter for the legislature and not for the Court.

Be !ha, t as it. f!lay, , the court cannot can the wisdom of the legisl~e . m prescnbmg the date of service' as the starting point of lumtahon. Nor can the court refuse to give effect to it or substitute for it any other terminus which it thinks to be more reasonable. merely because there is an apprehension of its abuse.

",'

In the light of the above diScussion, we are of the opinion that the date of service of the order complained of, on the revisionapplicant, is the starting point of limitation within the contemplation of s.10(3-B) of the Act. Accordingly we allow the appeal, set aside the judgment of the High Court and answer the qusetion referred in favour of the Revenue. Since the revision-application in the instant case, was filed by the Co=issioner within one year of the co=- unication of the assessment order to him, it was within time. In the circumstances of the case, there will be no order as to costs.

We part with this judgment with a note of regret bnt in the hope that something good may come out of it.

A statute is supposed to be an authentic repository of the legi- C slative will and the function of a court is to interpret it "according to the intent of them that made it". From that function the court is not to resile. It has to abide by the maxim ut res magis vallat quam pereat, lest the intention of the legislature may go in vain or be left "to evaporate into thin air. Where tl; iat intent is clearly expressed in the language of the Act, there is little difficulty in giving effect D to it. But where such intent is covert and couched in language which is imperfect, imprecise and deficient, or in ambiguous or enigmatic, a.nd external aids to interpretation are few, scanty and indeterminate, the court may despite application of all its experience, ingenuity and ratiocination, find itself in a position no better than that of a person

solving a cross-word puzzle with a few given hints and bunches. In such a situation a mere .reference to the High Court of a question for opinion may not afford an adequate solution.

Only legislative amendment may furnish an efficacious and speedy remedy.

The present is a typical illustration of such a case. The difficulty in the interpretation of the unhappy language of this statute was felt in

1960 and even earlier. We are now in 1975. For fifteen long years, the Department has been fighting this tardy, expensive and sterile litigation. Even after this long-drawn struggle culminating in judicial finale, a doubt might persist as to whether the court ha5 succeded in divining the true legislative intent. It is therefore desirable that the legislature should amend the statute and make its intent clear.

In any event, to make the law workable, it should make a statutory provision requiring the Sales-tax Officer to send forthwith a copy G of every assessment order made by him to the Commissioner for information.

Appeal allowed.

P.H.P.

COMMISSIONER OF SALES-TAX, U

MANGAL SEN SHY AM LAL

V. R. KRISHNA IYER

R. S. SARKARIA

A.C. GUPTA, JJ.

Sales Tox Act, 1948

s. 10

Section 10(3)

s. 10(3-B)

s. 11

Sales Tax Act, 1948

s. 10

s. 10

Section 10

Article 217

section 9

s. 9

s. 9

s. 10(3-B)

s. 10

ss. 263

section 9

s. 10

section 9

s. 10

s. 10

s. 10

sections 263 and 264

Income-tax Act, 1961