K. Sukumaran, J.
1. Dealers in diverse goods have come to the Constitutional Court seeking the striking down of Section 59A in the Kerala General Sales Tax Act, 1963. The goods in which they deal range from bread, bun and horlicks to volatile oil, cosmetics and shampoos and imitation jewellery. Even odd goods like tarpaulin, power line carriers, communication equipments, nylon fish nets, copper sulphate, microscope, battery plates and the like are arrayed in the list. Many cases have been disposed of without a pronouncement on the crucial question of constitutional validity, they could be so disposed of : for, the court, on an examination of relevant facts and factors, found that the governmental declaration under the impugned section was in tune with the correct legal position. Such decisions cover Importex International (P) Ltd. v. State of Kerala [1991] 81 STC 351 infra ; (1990) 2 KLT 487 and Rajan v. State of Kerala [1991] 81 STC 330 infra ; (1990) 2 KLT 511 ; in some others, the declaration was found to be totally unsustainable, and accordingly invalidated.
2. A residue of cases in a grey area, in a twilight zone as it were, still remains. The question has to be discussed and decided upon. Judicial atrophy is counter-productive.
3. A challenge to the very section was raised before a Bench consisting of Paripoornan and Jagannadha Raju, JJ., which examined threadbare the section in its analytical highlight and operational potency. The Division Bench could not, however, pronounce on its constitutional validity. The cases had come under Section 41 providing for a limited jurisdiction of tax revision. The revision is provided against the final fact finding Tribunal. The Tribunal is an authority created under the statute. That authority could not question the validity of the statute under which it was so created. That limitation pursues the proceedings even in the revisional jurisdiction. What the Tribunal could not do, the High Court functioning under the very same statute, could not attempt. You need not bark when you cannot bite. The Division Bench, therefore, did the next best thing. It read down the statute. A severe reading down was found necessary and called for. We are in respectful agreement with that legal exposition. The decision gets its reflection in Dadha Pharma Pvt. Ltd. v. State of Kerala [1991] 81 STC 254 (Ker) ; (1990) 2 KLT 307.
4. As for us, fetters are absent. The question has been posed pointedly. The wide jurisdiction of Article 226 of the Constitution, gives us the necessary poise, to subject the statutory provision to all the tests, some of them rigorous tests, for ascertaining the constitutional purity. We shall presently perform that onerous task.
5. It is basic in any system of modern law that judicial functions are not handled by the executive. The three organs of the State should have due consideration and respect for each other. There have been problems where existence of unintended trespass had been discernible and debated upon. Such cases are, however, few and far between. There is a critical view that the executive is quite often eager to grab powers of the other limbs of the State. It gets caught, when trespass is in clear day light, and is nastily naked. It may escape unhurt if the transgression is marginal, unintended or negligible. To which category does Section 59A belong is the question. An answer thereto will dispose of the writ petitions.
6. Before examining the exact statutory provision, it is desirable to have a general background of the sales tax law. The statutory scheme is akin to others in established taxing enactments. An assessment by the officer (Section 16, etc.), an appeal to a departmental functionary--an Appellate Assistant Commissioner (Section 34), a further appeal to the Tribunal (Section 39) and limited revision to the High Court (Section 41). The Deputy Commissioner has powers of revision in the contingencies specified in Sections 35 and 36. Functionaries with higher hierarchical position, larger powers and clearer governmental affinity like the Board of Revenue also have enumerated functions in revisional jurisdiction (Sections 37 and 38). A decision rendered by the Board of Revenue is, however, amenable to judicial scrutiny whether under a tax appeal under Section 40 or under the writ jurisdiction. In other words, assessment under the Act, is done in tune with the well-established principles of law governing the functioning of a quasi-judicial authority. Procedural fairness and requirements of reasonableness and rationality, could be initially scrutinised by the hierarchy of the taxing officials and finally overviewed by the Tribunal and High Court. The final filtration is by the court. An assessment, by its very nature, does not depend upon the whim or fancy of the functionaries. A disciplined judicial mind and an acquired habit of objectivity in viewing things are the hall-marks of the essential functioning of assessment process. If the adjudicatory agencies at various levels are manned properly, (we need not enquire whether there has not been a serious dilution in the quality of the officers as revealed from disturbing experiences in the scrutiny of tax determinations), and decisions rendered by discussions across the table, (as distinguished from hand movements under it) it should give a reasonable measure of satisfaction to an ordinary citizen. Arbitrariness would not go unchecked, so long as the courts of the land do the duty as the Sentinel Qui Vive of the Constitution and the laws.
7. If this vitality of quasi-judicial and judicial functioning is seriously sapped or attacked unnecessarily or unjustifiably, the court has the power, and in a sense a duty, to step in and to repulse the trespass.
8. The sales tax laws of the country did not, in early times have a provision with that colour and content seen in Section 59A. It was only in the 1960s, that provisions somewhat resembling the impugned section surfaced in the laws. The State of Maharashtra, and following it, the State of Gujarat and the State of Madhya Pradesh have provisions enabling a dispute resolution process by the Government. The statutory provisions therein are not as wide or vague as in Section 59A of the Kerala Act. Even then, it was not a wanton attack on the quasi-judicial and judicial system in relation to the assessment procedure.
9. It has to be remembered in this connection that a tax collection is necessarily linked with a fair and proper legal procedure as mandated by Article 265 of the Constitution which reads :
'265. Taxes not to be imposed save by authority of law.--No tax shall be levied or collected except by authority of law.'
An impost unjustified under Article 265 is an unreasonable restriction of a person's right to carry on business. It has been frowned upon as such by the apex court.
10. Section 59A was introduced in the Kerala statute, when the Act was amended in 1978. A Commission which went into the working of Tax Department, now known by the name of its Chairman, J.S. Gulati, suggested drastic amendments to the frame work and fabric of the statute. It is unnecessary to go into all those proposals at this juncture. One recommendation pertinent for appreciating the background material is available in paragraph 8.29 of this report, which reads :
'8.29 : A provision has recently been made in the law conferring on the Board powers of superintendence which have been interpreted to include powers to issue clarifications about disputed questions. This provision, however, does not provide any opportunity for the assessee to present his case. To this extent, it seems to the Committee to be inequitable. The Committee recommends the introduction of a section on the lines in vogue in Maharashtra and Delhi. The relevant section of the Delhi Sales Tax Act is reproduced at annexure IX.'
The Government took a decision to restructure the rates of sales tax and implement other recommendations of the Gulati Committee. This was reflected in the budget speech made by the Minister for Finance and Law on March 14, 1978. An ordinance was initially issued on March 31, 1978 to translate into action, the decision of the Government. The Ordinance was replaced by the amendment Bill. Paragraph 18 of the Notes on Clauses dealt with Clause 21 of the Bill, which was to be enacted as Section 59A of the Act. It reads :
'Clause 21.--This clause seeks to insert a new section as Section 59A in the Act empowering the Government to determine the rate of tax, if a question arises as to the rate of tax leviable under the Act on the date of purchase of any goods.'
To carry out the suggestions of the Report, a Bill was introduced. The Objects and Reasons stated :
'The Committee on Commodity Taxation headed by Prof. J.S. Gulati appointed by the Government has in its report made various recommendations for restructuring the rates of sales tax on goods, for modifying exemption from sales tax, for plugging the loopholes for evasion of sales tax and also for streamlining the administration of the sales tax law. The Minister (Finance and Law) in his statement made in the Legislative Assembly on the 4th July, 1977, indicated, among other things, that a restructuring of the rates of sales tax in the light of the Gulati Committee recommendations would be attempted during the year 1977-78. The need for implementing the Gulati Committee's recommendations was stressed by the Minister (Finance and Law) in his budget speech dated the 14th March, 1978 also. Accordingly it was proposed to implement certain recommendations of the Gulati Committee, which were calculated to enhance the revenue, by suitably amending the Kerala General Sales Tax Act, 1963. It was also considered necessary to amend certain procedural provisions in the Kerala General Sales Tax Act, 1963, for making the administration of the law more efficient. As the Legislative Assembly was not in session and as the proposals had to be given effect to immediately, the Kerala General Sales Tax (Amendment) Ordinance, 1978 (10 of 1978), was promulgated by the Governor on the 31st March, 1978.'
11. The draft provision of the Bill has been subjected to discussions on the floor of the Assembly.
12. The deliberations in the Legislative Assembly are now available from the Kerala Legislative Assembly Proceedings, 1978, pages 2062 to 2202.
They cover the narration of various events starting with the introduction of the Amendment Bill on July 18, 1978 by the Finance Minister and ending with the recording of the poll when the Speaker counted 55 ayes, 36 noes with no neutrals, and accordingly, declared the Bill as passed. Prominent among those who dealt with Section 59A are Messrs. N.I. Devassykutty, T.M. Jacob, P.K. Sankarankutty, M.P. Gangadharan, Xavier Arakkal and naturally the Finance Minister himself.
13. It is useful to note the emerging trends of the deliberations in the Assembly. Shri Devassykutty was pointed in his assertion that Section 59A was deliberately introduced to confer uncontrolled power on the Government. According to him, a vicious vision was behind that seemingly innocent provision. It was to serve not a public purpose but to enable the Government to intervene and grant tax concessions with a view to help the vested interests, the tax dodgers, the servile elements of the Government and those attached to the Ministers. Is there not a scheme for the determination of the correct tax rate for a commodity, in the Act itself Is there not a Tribunal Is it not sufficient that the determination is done by the Tribunal or by the High Court Such is the approximate summary of that portion of his speech on Section 59A. T.M. Jacob presented the opposite view. He did not see any mala fide intention in that provision. He gave an illustration from his own personal experience : 'A pipe is brought for electrification of the house. Pipe is useful alike for electrification and for agricultural purposes. There could be dispute about the payment of tax for them. If there is a dispute, among the traders or for the consumer, the Government must be empowered to settle it.' He admitted that there was a provision in the Act for adjudication of the issue in case a higher rate is imposed. That was in answer to the query he faced from Mr. Devassykutty and Dr. K.G. Adiyodi. The defence Mr. Jacob attempted was an absence, according to him, of a malicious motive in the enactment of that section. Shri P.K. Sankarankutty emphasised the quasi-judicial aspect of the taxation administration. In particular, he referred to the machinery for resolving the dispute up to the Tribunal and thereafter by the High Court. He reminded Shri Jacob about his earlier views about the impropriety of the executive dabbling with the judicial power. Shri. T.M. Jacob intervened to say that a Governmental decision is easier and more expeditious. He found a greater ease in the determination of the issue by the Government ; and said : 'Both of us know the delay when one goes to the court. I said that this was an approach for a greater simplification and earlier determination of matters.' Shri Sankarankutty reiterated his view that the section was fraught with the potentialities of the abuse of power. Shri M.P. Gangadharan spoke next. A legal mind was discernible in his speech. He implored, in the name of God, for the deletion of the provision. He referred to the scheme of the enactment, about the assessment and the adjudication by the appellate authorities, and the provision under Section 37 empowering the Board to exercise powers of revision in the manner dealt with therein. Xavier Arakkal cautioned that the Minister may examine the views expressed on Section 59A. He pointed out that the conferment of such a power on the Government will lead to excessive corruption and give rise to many allegations. The deletion, or in the alternative a restriction of the scope of the section was advocated by him. In his defence the Finance Minister relied heavily on what was contained at page 23 in para 29 of Chapter 8 of the Gulati Report. Apart from that reference, there was no elaboration of the idea.
14. In the present case, there was an attempted defence of the provision by the Finance Minister leaning on the Gulati Committee report. That report does not, in any way, give any helpful material for the State Government to sustain the validity of the statutory provision.
15. The legal position in relation to the deliberations in the Legislative Assembly on an enactment is now well-established. It is, however, advantageous to have the view points of the representatives of the people, when pointedly an issue is deliberated upon, discussed and debated. The anxiety and apprehension expressed by the Honourable Members about the potentiality of a patent abuse of the power conferred on the Government under the new provision, have their significance.
16. The Division Bench consisting of Paripoornan and Jagannadha Raju, JJ. examined the scheme of the Kerala General Sales Tax Act and the controversial content of the impugned section in Dadha Pharma Pvt. Ltd. v. State of Kerala [1991] 81 STC 254 (Ker) ; (1990) 2 KLT 307. Jagannadha Raju, J. speaking for the court, pointedly stressed the aspect in paragraph 7 of the judgment :
'It is interesting to see that the sub-title to the section reads as 'Power of Government to determine rate of tax'. The section nowhere states that the Government is entitled, or authorised, to issue clarifications.'
Another feature focussed by the court is the decision of the Government being final. The conspicuous absence of an indication as to the person who shall refer the question to the Government or about the procedure the Government should follow before it arrives at a decision, or again of an indication about the persons bound by the decision, were also stressed in the judgment. That the section may give a prima facie impression that the decision of the Government may even bind the Tribunal, was also indicated therein. The judgment summed up the position :
'It cannot be doubted that the language used in Section 59A is of very wide import.' and proceeded to observe :
'If literal meaning is given to the words used therein, then such a literal interpretation would render the section vulnerable to attack as vague and uncertain, and as one taking away guaranteed rights.'
The Division Bench stressed the areas of uncertainty, indefiniteness and vagueness of the section, in paragraph 11 and observed in paragraph 12 :
'............the statute is not clear or definite on these vital aspects.'
17. The following prepositions emerge from the judgment. (1) The word 'decision' under Section 59A implies that the Government discharges a judicial or quasi-judicial function. That feature has other integrally connected attributes like (a) an obligation on the part of the Government to hear the parties to the dispute (b) affording an opportunity to the parties to put forward their case and lead the evidence and (c) a duty to render the decision on the basis of material and evidence placed before it, and after hearing both parties. (2) The decision will only bind parties and their privies, and cannot bind others unless they are already heard and/or made parties to the proceedings. (3) The decision of the Government is final notwithstanding any other provision in the Act. It has a disturbing potency of having a binding effect even on the Tribunal or the High Court while functioning as a revisional court under Section 41 of the Act.
18. The Bench, as noted earlier, read down the section and read it down in a drastic manner. Some of the slicings and chisellings are the following :
(i) The decision of the Government is binding and conclusive only for the particular assessment year. (ii) The decision can normally be final only between the parties to the proceedings. (iii) This power is being used by the State Government to issue some sort of 'firmans', notwithstanding the law operating in the State. In a democratic society, the State Government is not entitled to issue circulars or clarifications which will have effect notwithstanding the provisions of the Act. (iv) Construed as having the effect of amending the provisions or Schedules of the Act, Section 59A would easily be classified as unbridled and arbitrary. The State Government cannot have such unbridled and uncontrolled power to take decisions on the administrative side.
19. The following safeguards as indicated in paragraphs 21 to 23 were provided to the section as so read down :
(1) The assessee and assessing authority can refer the question for the decision of the Government.
(2) The decision will have to be arrived at following the principles of quasi-judicial adjudication such as hearing both parties and giving an opportunity to each of them to represent their respective cases.
(3) The decision already rendered under Section 59A can be altered by invoking Sections 57 and 58, if the Government feels that any decision taken by it while exercising powers under Section 59A requires a change in the Rules or an amendment of the Act or Schedule thereto, subject to the limitations indicated. The Government can amend the law, if so advised.
(4) The Government cannot take unilateral decisions which are to be deemed as applicable universally or operative notwithstanding the provisions to the contrary in the Act.
(5) The decision under Section 59A is confined as to the rate of tax leviable and cannot be utilised for circulars or clarifications.
(6) The decision rendered under Section 59A will not bind the Sales Tax Appellate Tribunal ; and a fortiori, it will not bind the High Court.
(7) A decision will not have retrospective operation so as to adversely affect the rights of the assessees.
20. One of the earliest notifications issued under this newly got power was one dated March 8, 1986. This was immediately challenged by the aggrieved assessee by O.P. No. 540 of 1987. The challenge had been upheld by this Court in Tharangini Records v. State of Kerala [1990] 81 STC 284 ; (1990) 2 KLT 400.
21. The Government Pleader conceded the fact that the pendency of this writ petition had not been specifically brought to the notice of the Division Bench. That appears to be the case in relation to the other cases, which are not altogether insignificant in number.
22. Noting these disconcerting features of the mischievous potentialities of the section, which, in its mad rush, knocks down every fence and guide-post provided under the Constitution, the judgment proceeded to observe :
'It is quite open to the parties to challenge the validity of Section 59A as ultra vires the Constitution.'
The Bench further found :
'From 1978 till this day, the validity of the section does not appear to have been challenged. There is no authoritative pronouncement by this Court on this aspect. Whether Section 59A is vulnerable in a writ proceeding under Article 226 of the Constitution of India is left open.'
23. We have been now confronted with the constitutional challenges directed against Section 59A and in proceedings under Article 226 of the Constitution.
24. The challenges cannot be dismissed summarily on the ground of delay. Grievance arising out of what was felt to be the obnoxious statutory provision, arose in individual cases only at a later stage, with the exercise of the power injuriously affecting the legitimate and constitutional rights of the citizen. A challenge under Article 226 of the Constitution was raised before this Court in O.P. No. 3689 of 1983. It was disposed of by a judgment dated June 29, 1984 with a direction to the Government to dispose of a representation pending before it where the identical contention had been raised. The traders have approached the court soon after the cause of action so arose. We are, therefore, bound to consider the validity of the section and pronounce on the contentions of the parties.
25. The courts have, understandably, expressed intolerance in the investiture of essential judicial functions in the executive. More so when they tend to erode the rights of a citizen conferred under the Constitution or the laws. There is a precious passage in the judgment of Patanjali Sastri, C.J., speaking for the Superme Court in Ram Prasad v. State of Bihar AIR 1953 SC 215. A political party's desire cannot override the working of the legal system--it was held. Other decisions where statutory provisions invading areas of quasi-judicial and judicial process had been struck down are : P. Sambamurthy v. State of A.P. AIR 1987 SC 663 and B.B. Rajwanshi v. State of U.P. AIR 1988 SC 1089.
26. This Court too had to consider an analogous provision contained in a State enactment. The court declared that the responsibility for resolution of difficulty of that nature rests with the court and not with the executive. That decision was rendered in the context of the General Sales Tax Act but in relation to the exercise of the power referable to Section 60 therein. Purporting to remove the difficulties in the working of the provisions in the enactment, the Government issued an order which virtually set at naught the decision of this Court in relation to the interpretation of two entries. The crucial observation of the court is :
'Even in cases where there is any difficulty in the matter of intepretation of an entry, such difficulty will have to be resolved by the court and any notification issued by the State Government concerning the matter will not bind the Tribunal or the court in the matter of determining the true meaning and scope of the entry contained in the Schedule to the statute.' (See Deputy Commissioner of Sales Tax v. Haji V.K. Hameed & Co. [1981] 47 STC 238 (Ker) ; 1981 KLT 107).
27. A citizen of this country has his fundamental right to carry on a trade or a business. Theoreticians may debate upon shifting emphasis on massive or heavy industry, and the desirability or purposefulness in having it in the public sector. The place of the small trader and a small industrialist cannot, however, be forgotten. While evaluating the precious right of the freedom of trade, we cannot dissociate ourselves with a pragmatism and practicality connected with the real life. Divorced from life, law degenerates into a scarecrow.
28. A trader naturally takes certain business risks. It is, however, unreasonable and unjustifiable for a State to drown him in a sea of rolling risks. Such vicious powers, which have such deleterious results have to be checkmated. A trader may take a risk while dealing in the sale of commodities, (passing on to the consumer the tax liability) with a self-preserving interest of reckoning the worst in relation to his fiscal liability by way of sales tax. A manufacturer may so price his goods taking into consideration the possibility of an unfavourable interpretation ultimately placed by a taxing authority. The hierarchy of Tribunals and an adjudication by the High Court and the apex Court should give him reasonable solace. However, if a section colthes the executive arm of the State with a hard weapon of striking him from a hidden corner, the situation would be different. The fairness integrally involved in an adversary system or quasi-adversary system in the earlier stages (before the officer and the Commissioner) with an all powerful overviewing by the High Court and the Supreme Court, is totally absent in an adventitious adjudication attempted by the State Government, ill-equipped and ill-disciplined to have the necessary judicial approach and untrained in an impartial impassionate and objective determination of issues. This is a vice of unusual magnitude contained in Section 59A.
29. Time was when the Supreme Court had all the confidence in assuming that a discretion given to the highest functionaries would not be easily abused. The experience over the years after the advent of the Constitution, however, did not establish an earnestness on the part of the Government to preserve that trust and confidence. There had been many cases in which alien considerations and unjustified aberrations had resulted in strange decisions even by the peak of the executive power, the Government itself. It is unnecessary to chronicle the very many cases noticed by the courts in this country and the very many others, which remain unexposed and unnoticed. The same Supreme Court which rested its trust in the proper utilisation of a discretionary power, cautioned later that no such assumption could be drawn in the light of the past experience. Chandrachud, J. speaking for the court, expressed it in clear enough terms.
30. The Division Bench in Dadha Pharma Pvt. Ltd. v. State of Kerala [1991] 81 STC 254 (Ker) ; (1990) 2 KLT 307, posed that problem pointedly. We have occasion to peruse the files produced before us in relation to the actual exercise of powers under Section 59A. The manner in which the power had been exercised, does not measure up to the required level of a fair, reasonable and rational decision making process. The court had expressed itself fairly emphatically in one of the cases (vide Tharangini case [1990] 81 STC 284 ; (1990) 2 KLT 400). In many others, courts have just set at naught the Governmental decision which was out of tune with an objective adjudication even as visualised under Section 59A. Having had occasion to scrutinise the files in relation to a variety of matters, during a fairly long period of the working of the section, we are clearly satisfied that the institutional equipments for giving a rational and reasonable decision under Section 59A are totally lacking. When the statute under which an adjudicatory power is so exercised by an untrained agency like the executive wing and when experience has shown a reckless way of handling such adjudicatory process, and when it is demonstrated that such adjudications have adverse impact of an enormous proportion, of the honest citizens carrying on a legitimate trade, the court has necessarily to declare its arbitrariness and invalidity.
31. We do not overlook the fact that a statute carries with it, a presumption of constitutionality. Taxing statutes in particular, are viewed with greater understanding and consideration by the courts of law. Flexibility at the joints is conceded liberally in relation to the tax statutes. These favourable considerations, projecting a view of the court as leaning in favour of the State, should not carry matters to the extreme of claiming a total immunity for any taxing provision. The presumption dries up when the ferocity and fearful potency of the section are visible even to the naked eye. The sweep of mischief integrally and intensely involved in the decision has been exposed by the Bench decision which employed infra-red-rays and a powerful microscope simultaneously. The statutory provision in question has strayed much beyond the permissible limits. The power is let loose without any control or guide and without any check or watch. The position of the provision then is in a narrow precipice unsupported by strong enough side support. The trial runs have shown the shaky way. We have necessarily to declare its dangerous pose and bar its unauthorised use.
32. Quite often, even the law department is not consulted. Instances are not rare when the administrative department itself makes no effective application of mind to the problem posed. In these circumstances, vagueness, lack of guidance, and exposure to uncertainties are not merely theoretical apprehensions but live and lethal blocks obstructing the exercise of trade. That being the position, it is the court's duty to remove the obstacles, when it is called upon to do so. In certain situations, an attempt to squeeze through may be suggested. That will not effectively serve the removal of stumbling-blocks of massive montrosity. If the blocks are grossly objectionable and the passage sought for is for legitimate purposes, the court need not have a halting stand or a doubting mind. All features of deleterious vagueness of the obnoxious type are present in the section. We have, therefore, no hesitation in declaring it as unconstitutional and violative of Article 14 of the Constitution. Some samples of the working of Section 59A will make matters clear.
33. The file relating to shampoo, dealt with in G.O. (P) 59/86/TD dated April 19, 1986, which is subject-matter of O.P. Nos. 4896 of 1986, 1334, 1505 and 2414 of 1987, clearly demonstrates the casualness with which the matter is dealt with invoking Section 59A. The Board of Revenue in its communication noted the decision of the Supreme Court of India in State of Gujarat v. Prakash Trading Co. [1972] 30 STC 348, holding that shampoo is liquid soap. Strange to say, it felt that a clarification would be justified for the reason that the High Court of Madras had a different view and that the State of Gujarat had amended the Schedule to the Sales Tax Act. The sentence reading 'but the decision subsequently pronounced by the High Court of Madras (State of Tamil Nadu v. Gopal Nair and Sons [1982] 51 STC 257) defers from that of the Supreme Court' (emphasis*supplied), evidences not only a disregard of the language (defers must be an intolerable erroneous substitute for 'differs', in that context) and of a profound ignorance of a constitutional provision like Article 141 therein. A decision rendered by the Supreme Court is the law of the country. The State can, no doubt, seek to amend the law. A subsequent ruling of a High Court, taking a different view will not be sufficient justification for issuing what is termed as a clarificatory order invoking Section 59A. In the Law Department, someone has signed for Joint Secretary, with a cryptic note :
'This department agrees to the position stated by the administrative department.......'
34. If only the decision in State of Tamil Nadu v. Gopal Nair and Sons [1982] 51 STC 257 had been read--it is a short decision--it would have been noticed that the Madras High Court considered only shaving cream and not shampoo. The court specifically referred to that difference in the concluding paragraph of the judgment by observing : 'Shampoo is different from a shaving cream and we do not consider that a shaving cream can be considered to be either liquid or any category of soap.' It is unfortunate that even those expected to give a sensible and serious advice on point of law, have not bestowed elementary care in understanding the problem before a general approval for the proposal of the administrative department had been given from the legal angle.
35. The file relating to imitation jewellery, G.O. No. 170/88/TD dated November 29, 1988, also does not indicate a due or careful consideration of the various aspects, by the various authorities including the law department.
36. The forwarding letter of the Board contains a mistaken reference to entry 191 as pertaining to jewellery.....The correct entry is 101. The application under Section 59A also does not give a correct reference to the entry. The law department does not give a reasoned or considered view on the question. An opinion couched in a language reading : 'It may not be proper to include imitation jewellery in item 119..........,' without any analysis of that entry or any helpful judicial precedents, would not be a proper discharge of the onerous functions of the law department.
37. Yet another file scrutinised by us relates to the rate of tax on microscope. By the clarification, it was brought under entry 150 reading 'binoculars, telescopes and opera glasses'. It does not require a microscopic examination of the entry or the legal precedents to be convinced that a microscope is not a binocular, telescope or opera glass. The Board by its letter dated August 4, 1983, proposed for amending the entry 150 so as to rope in the microscope also. It also requested that till such amendment is made, a clarification under Section 59A may also be issued. The former was sensible and legal. The latter was impermissible and illegal. Yet the law department gave a blanket approval to the proposal of the Board. G.O. Rt. 241/84/TD dated April 2, 1984, declaring a shocking clarification about the microscope coming within the binoculars, telescopes and opera glasses was accordingly made. The arbitrariness actually involved in the issue of various clarificatory orders is demonstrated in this instance as well. Similar appears to be the position in relation to the clarificatory orders issued under G.O. Rt. 408/82/TD dated July 5, 1982. The details of this case are separately dealt with in the writ petitions specifically concerning them.
38. The file furnished to us regarding G.O. (P) 51/86/TD dated April 8, 1986, does not contain any papers whatever other than a Gazette notification. We have dealt with that question specifically in the judgment dealing with that commodity. It is sufficient to note in this context that the court is not furnished with any materials indicating the processing of the file or the thought process connected therewith, in the law department.
39. The cases are only illustrative and not exhaustive of the manner in which the power under Section 59A has been exercised arbitrarily and without application of mind.
40. The preceding discussion would clearly demonstrate that the section is not merely arbitrary and unguided in its wording and content but also had been in actual reality, invoked with patent arbitrariness. In such a situation, the court has to do its duty. We declare that Section 59A contains arbitrary and unguided power on the executive subverting the scheme of a quasi-judicial and judicial resolution of a Us between the State and the assessees, and consequently it is violative of Article 14 of the Constitution, and ultra vires the provisions of the Constitution. In a sense, subsequent to the decision in Dadha Pharma Pvt. Ltd. v. State of Kerala [1991] 81 STC 254 (Ker) ; (1990) 2 KLT 307, it is virtually a dead section. It cannot survive the test of constitutionality. The court then need not hestitate to make the declaration about its constitutional invalidity. All the orders passed in exercise of such invalid and unconstitutional provision shall stand quashed. We allow the writ petitions in the manner indicated above. There will be no order as to costs.
41. There is an illuminating article by M. Sunkin in (1987) Modern Law Review, 432. The caption is 'what is happening to applications for judicial review ?' The article concludes thus :
'During the past five or six years, judicial review has provided a facility primarily used by applicants in a very limited range of subject areas against a correspondingly narrow band of public agencies. In quantitative terms, at least, judicial review has.........indeed been 'peripheral and sporadic'. It appears to have played a minima! role in the redress of grievance and has provided the community with a very partial and limited check against governmental illegality.'
Phil Harris, in the third edition of the book, 'An Introduction to Law', published in the series 'Law in context', comments after noting the above view of Sunkin, thus :
'Sunkin's study suggests that the courts are not particularly effective in imposing limits on administrative action through the procedure of judicial review..............'
42. Perhaps, Griffith was more caustic in his comment on judicial forces at work behind the scenes. Adverting to an attitude that 'everything was at the discretion of the administrator', he made what is described as 'acerbic remarks' :
'This nonsense, screaming its absurdities to heaven, was received with respectful, even smug, acceptance by His Majesty's judges. Respectful because they agreed with it. Smug because they were largely responsible for it..............'
The criticism and caution should not go unnoticed by a constitutional court. When arbitrariness is writ large, there is a clear enough duly for the court to act. We have endeavoured to do so.