Judgment:
A. Pasayat, J.
1. Petitioner calls in question legality of order passed by Division Bench of Orissa Sales Tax Tribunal (in short, the 'Tribunal') holding that it has no power to restore an appeal decided ex parte on merits. The appeal in question is S. A. No. 1120/88-89.
2. The undisputed factual position is as follows :
The appeal was posted to 30-6-1994 for hearing and was disposed of ex parte in the absence of the present petitioner who was respondent in the appeal filed by the State. Petitioner filed an application for restoration of appeal on 17--11-1994, stating that on account of unavoidable difficulties, there was non-appearance. The Tribunal as indicated rejected the application on the ground that there is no provision fn the Orissa Sales Tax Act, 1947 in short, the 'Act') and Orissa Sales Tax Rules, 1947 (in short, the 'Rules') permitting restoration of a Second Appeal disposed of in the absence of respondent, on merits. It was observed that no decision either of this Court or apex Court was cited to substantiate the plea that Tribunal had power to do so, though reference was made to two appeals which were disposed of ex parte and were restored by Full Bench of the Tribunal. It was further observed that learned counsel appearing for applicant for restoration could not submit under which provision of the Act and Rules those cases were restored by Tribunal. Observing that it was unable to find out any provision empowering restoration, and in the absence of any such provision, the prayer for restoration was rejected.
3. Learned counsel for petitioner submitted that impugned order shows complete non-application of mind. Reference in S. A. Nos. 1849 of 1985-86 and 1893 of 1885-86 in which large number of decisions including one of this Court id M/s. Jagadamba Sabai Rope Co. v. Members, Sales Tax Tribunal, were referred to. It was submitted that though Division Bench referred to the two orders of Full Bench by which restoration was directed, for reasons known to it, did not take note of decision of this Court in Jagadamba Sabai Rope Co. (supra) and held that it has no power for restoration. Learned counsel for the Revenue submitted that petitioner should have made direct reference to decision of this Court and not decisions of the Tribunal, and therefore Tribunal's conclusions are correct.
4. Pursuant to our direction, records of the Tribunal were produced before us. We find that in the list of documents filed on 22-8-1995 (as appearing at page 25 of the records of the Tribunal) reference has been made to the order for restoration petition dated 1-2-1994 in two Second Appeals passed by the Full Bench hearing the application in the present case, has made a queer observation that it could not be shown as to under what provision Full Bench directed restoration. The least it could have done was to read the order and find out the rationale behind order. Had the Division Bench taken a little pain it could have noticed that reference was made to a decision of this Court in Jagadamba Sabai Rope (supra) amongst other decisions. The order impugned shows complete non-application of mind and borders on judicial indiscipline and impropriety. Tribunal has all the powers conferred expressly by the Statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary not because they are inherent in the Tribunal, nor because its jurisdiction is plenary. but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The implied grant is of course limited by the express grant and therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. (See Maxwell on Interpretation of Statute, Eleventh Edition). A Division Bench of this Court in Smt. Aruna Kar v. Dr. Sarat Dash alias Nachhi : 75 (1973) CLT 24 also dealt with these aspects. The matter can be looked at from another angle. A Bench of two members should not lightly disregard the decision of another Bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger Bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. (See Union of India and Anr. v. Paras Laminates (P) Ltd.: (1991) 80 STC 263).
5. It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use ail reasonable means to make such grant effective. (Sutherland's Statutory Construction, Third Edition, Articles 5401 and 5402). In Domat's Civil Law (Cushihg's Edition) Volume-I at page 58 it has been stated as follows :
'It is the duty of the Judges to apply the laws, not only to what appears to be regulated their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.'
In Kandula Pravakar Rao v. Tumda Lakshmanamurty and Anr. 1987 (II) OLR 498, a case under Orissa House Rent Control Act, 1967, it was held that notwithstanding absence of inherent powers, restoration can be directed by exercise of implied powers even though there is no specific provision in that Statute. It stands to reason that in exercise of ancillary and incidental power Tribunal can direct restoration even though there is no specific provision in the Statute. Apex Court in Income Tax Officer, Cannanora v. M. K. Mohananad Kunhi : AIR 1969 SC 430 observed that an express grant of statutory power carries with it by necessary implication to use all reasonable means to make such grant effective. It was considering a case of grant of stay by Income-tax Appellate Tribunal during pendency of appeal though not specifically provided for. It was observed that powers whice have been conferred by Section 254 of the Income-tax Act. 1961 are of widest possible amplitude and must carry with it by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective.
6. The fact that an appeal has been decided on merits is of no consequence as has been held in Jagadamba Sabai Rope's case (supra); otherwise principles of Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short, 'Code') become meaningless. In view of the accepted position that Jagadamba Sabai Rope's case (supra) is an authority for the view that Tribunal has power to restore an appeal which was decided ex parte in the absence of the respondent on merits, impugned order passed by the Tribunal is indefensible and is vacated. The matter shall now be considered afresh by the Tribunal on the premises that it has power to direct restoration. It shall consider whether facts situation presented by petititoner makes out a case for restoration. Send back the records of Tribunal forthwith.
7. A copy of our order shall be sent by the Chairman of the Tribunal to the appropriate authorities, conveying our displeasure over the manner in which two Members of the Tribunal have acted. It; goes without saying that competent and efficient adjudicators are to be posted in Tribunals, because upon their proper adjudication depends and hangs fate of the litigants.
The writ application is allowed to the extent indicated. No costs.
P.K. Mohanty, J.
I agree.