L. Amir Chand Sadhu Ram Vs. Excise and Taxation Commissioner and ors. - Court Judgment

D.D. Thakur, J.

1. This is a writ petition under Section 103 of the Constitution of Jammu and Kashmir read with Article 226 of the Constitution of India.

2. The only question which falls for determination in this petition is whether the amendment in Rule 4 of the Rules framed under the General Sales Tax Act, 1962, would apply retrospectively so as to include within its ambit the licences issued before the date of the amendment. The circumstances in which the question has arisen may be narrated thus :

3. The petitioner-firm, it is stated, was entitled to exemption from payment of sales tax in whole under Section 5 of the General Sales Tax Act, 1962, as the firm dealt in locally purchased goods. That the firm was entitled to an exemption licence under Section 5 of the Act is not disputed. An exemption licence in fact was issued in favour of the petitioner for the accounting year 1972-73.

4. Section 5 of the Act provides that exemption licence can be issued subject to such restrictions and conditions as may be prescribed, including conditions as to licence and licence fees. Rule 4 of the Rules framed under the General Sales Tax Act, 1962, as in force on the date of the issuance of the exemption licence in favour of the petitioner, provided that the licence could be issued on payment of Rs. 30 as licence fee, That the petitioner paid Rs. 30 at the time the licence was issued in his favour is also not disputed. The licence issued in favour of the petitioner on 10th April, 1972, was to remain valid and effective up to 31st March, 1973.

5. The Government amended Rule 4 by a Notification, S. R. O. 772 dated 1st November, 1972, whereby the annual fee of the licence under Section 5 of the Act was raised from Rs, 15 to Rs. 30. After this amendment in Rule 4, respondent No. 1 issued a circular bearing No. 100-ST-20/29-42 dated 9th April, 1973. The relevant portion of the circular reads as under :

Fee for renewal of registration certificates and exemption licences has been revised upward from Rs. 5 to Rs. 15 and Rs. 15 to Rs. 30 respectively from 1st November, 1972, under Government Notification No. S. R. O. 772 dated 1st November, 1972. The effect would be that for the year 1972-73 the following fee will be recoverable from the persons holding registration certificates or exemption licences, as the case may be ;

(a) For registration certificates-Rs. 5 plus Rs. 6.25 = Rs. 11.25 ;

(b) For exemption licences-Rs. 15 plus Rs. 12.50 = Rs. 27.50. Recoveries may please be made accordingly for the current year, viz., 1973-74, full fee at the revised rates, viz., Rs. 15 and Rs. 30 shall however be recovered.

6. Pursuant to this circular respondent No. 2 refused to renew the licence of the petitioner for the accounting year 1973-74 so long as the petitioner did not pay Rs. 6.25 in addition to a fee of Rs. 30 payable for the accounting year 1973-74. It is the refusal on the part of respondent No. 2 to renew the licence for the accounting year 1973-74 without payment of the additional sum of Rs. 6.25 being the amount calculated at the rate of Rs. 30 per year for the period commencing from 1st November, 1972, to 31st March, 1973, which has given rise to the present petition.

7. Mr. Subhash Dutt, the counsel for the petitioner, submitted that the amendment in Rule 4 by means of Notification No. S. R. O. 772 dated 1st November, 1972, applies prospectively and not retrospectively and that the petitioner could not be forced to pay the additional sum at the rate of Rs. 30 per year for the period from 1st November, 1972, to 31st March, 1973. The directions contained in the circular of respondent No. 1 to recover proportionate sum for the period from 1st November, 1972, to 31st March, 1973, it is contended by Mr. Dutt, is not warranted by Rule 4 even in the shape in which it stands after amendment.

8. Mr. Anil Dev, appearing on behalf of the respondents however contended that a rule prescribing the amount of licence fee was in the nature of a procedural law and, therefore, the amendment in the rule raising licence fee from Rs. 15 to Rs. 30 per year would govern the licences already issued and which were effective on the date of the amendment. Rule 4 as amended reads as under :

4. Licence to dealers.-(a) Every dealer other than an importer, who deals in imported goods which are already assessed to tax shall, if he desires to avail himself of the exemption, obtain in accordance with these rules, a licence in form S. T. I-A in respect of his place or places of business on payment of an annual fee of Rs. 30.

9. A plain reading of this rule would show that the rule was only prospective and not retrospective in character. It simply provided that a licence could be obtained on payment of an annual fee of Rs. 30. The words 'shall...obtain...on payment of an annual fee of Rs. 30' clearly suggest that it would apply only to those licences which were obtained after the amendment in the rule. Licences which were obtained before the date of amendment in the rule would not at all fall within the purview of this rule. On 10th April, 1972, when the exemption licence under Section 5 of the Act was issued in favour of the petitioner the requisite licence fee was only Rs. 15 and it was on payment of this amount that a licence could be obtained. The licence, therefore, held by the petitioner was obtained on payment of Rs. 15 as licence fee consistently with the rule as it stood before the amendment. At any time after 1st November, 1972, and before 31st March, 1973, the petitioner was not required to obtain afresh licence for the whole or any part of the accounting year ending with 31st March, 1973. In my opinion, therefore, the construction placed by Mr. Anil Dev Singh on the amended rule is not at all warranted as the same is not inferable from the words used in the rule.

10. It is a settled principle of law that the power to make a rule to be applied retrospectively cannot be assumed by the rule-making authority unless the legislature has expressly granted that power to the rule-making authority. Section 26 of the Act which gives power to the Government to make rules does not give either expressly or impliedly the power to the Government to make or apply a rule retrospectively. The power to make a legislation retrospectively applicable is vested exclusively in the legislature and in no other authority subordinate to it. There being therefore no authority vested in the Government to make or apply the amended rule retrospectively, the Government rightly did not make the rule retrospective in application so as to apply to the licences issued before the amendment. The circular issued by respondent No. 1, therefore, was based on a patently erroneous interpretation on the amended Rule 4. The directions contained in the circular, therefore, must give way and must, in my opinion, be declared as bereft of any legal authority. The action of respondent No. 2 pursuant to the direction contained in the circular is wholly without legal effect and cannot, therefore, be countenanced. Mr. Anil Dev Singh further argued that even if the interpretation placed by respondent No. 1 on the amended Rule 4 is erroneous, it cannot be said that the error is apparent on the face of the record. According to him, the other opinion, which in fact was held by respondent No. 1 in regard to the scope of Rule 4 of the Rules, cannot be said to be wholly baseless. Mr. Singh argued that the powers of this court under Section 226 of the Indian Constitution are exercisable only in cases in which a subordinate authority has been guilty of an error apparent on the face of the record. This argument also, in my opinion, should not carry any weight. The wording of the rule reproduced hereinabove does not admit of any interpretation other than the one I have placed on it. The interpretation on the amended Rule 4 placed by respondent No. 1 appears to be clearly and unmistakably erroneous. There was no room at all for respondent No. 1 to form or maintain an opinion in regard to the interpretation of the rule which is not warranted by the plain words of the rule. It is true that this court must be reluctant to interfere in cases in which the error is not easily discernible and in which the possibility of a contrary opinion being correct cannot be ruled out, but, in the present case, as I have held that the other opinion was not possible, I consider that the action taken by respondent No. 1 in directing recoveries of additional sums for the period from 1st November, 1972, to 31st March, 1973, was patently bereft of any legal authority and, therefore, must fall within the scope of the powers of this court. This court therefore has jurisdiction in exercise of its extraordinary powers to set aside that action and give relief to the petitioner. Mr. Anil Dev Singh has cited a number of authorities on the principle aforesaid, but as I have said earlier there is no quarrel with the principle. What is material is to decide whether the error is apparent or not and that essentially is a question which must depend on the merits of each case.

11. For these reasons, therefore, I find that the direction of respondent No. 1 contained in the circular dated 1st November, 1972, and the implementation thereof by respondent No. 2 was wholly without jurisdiction and irregular. In consequence the petition succeeds and is, accordingly, allowed. The circular dated 9th April, 1973, issued by respondent No. 1 is quashed, and respondent No. 2 is restrained to recover any amount from the petitioner as additional fee for the period from 1st November, 1972, to 31st March, 1973. In view of the peculiar circumstances of the case, however, I leave the parties to bear their own costs.