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TMI Blog1990 (8) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... the Fort St. George Gazette dated 24th November, 1965, hereinafter referred to as "the concession notification" (the details of which we will have occasion to refer to later because there is a controversy built over the said details) applied. By the notices, impugned in the writ petitions, there is a move to reopen the assessments on the ground that the concession notification had been withdrawn by the withdrawal notification dated 20th March, 1967, published in the Fort St. George Gazette, dated 22nd March, 1967. The said notification hereinafter referred to as "the withdrawal notification". The learned single Judge, who dealt with the writ petitions, dismissed them, opining that the petitioner can take objections by filing comprehensive replies to the impugned notices and even otherwise on examining the materials on record there is no infirmity in the impugned notices. The learned single Judge dealt with the matter very briefly in the following manner: "The point that arises for determination in these petitions is whether the relief prayed for in these writ petitions can be granted. Even at the outset, it has to be stated that when there is proper remedy available for the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l notification does not set out any further particulars. Without such particulars, it would be impossible for anyone to know as to what the scope and content of the withdrawal notification are. This is made clear from the very fact that the authorities themselves did not know about the withdrawal notification. The respondents in their counter-affidavit, with regard to this grievance of the petitioner, would only say that no more particulars need be published, as contended by the petitioner. 3.. To assess the grievance of the petitioner to find out as to whether it is a tenable one or not, it becomes necessary to extract both the notifications. The concession notification runs as follows: "REVENUE DEPARTMENT Rate of tax on white printing paper under Central Sales Tax Act. (G.O.P. No. 3117, Revenue, 12th November, 1965) III No. 601 of 1965.-In exercise of the powers conferred by subsection (5) of section 8 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), the Governor of Madras hereby directs that the tax payable by any dealer in the State of Madras under clause (b) of sub-section (2) of section 8 of the said Act in respect of sales by him of white printing paper to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made in accordance with the power conferred by the statute, has statutory force and validity, and, therefore, exemption is as if contained in the Act itself. In State of Uttar Pradesh v. Babu Ram Upadhya AIR 1961 SC 751, the court relied on a passage from "Maxwell On the Interpretation of Statutes" and held that the rule framed in the absence of any specific provision in the Act, shall be deemed to be a part of the Act itself. In Jayantilal Amratlal Shodhan v. F.N. Rana AIR 1964 SC 648, the notification by the President under article 258(1) of the Constitution was held to have the force of law and there is profuse discussion with regard to the functions of Government, executive, legislative and judiciary. In Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh [1972] 29 STC 169 (SC); AIR 1971 SC 2399, it was held that the exercise of the power is legislative whether it is by the Legislature or by its delegate. In State of Tamil Nadu v. Hind Stone AIR 1981 SC 711, the Supreme Court relied on and adopted the dictum in State of Uttar Pradesh v. Babu Ram Upadhya AIR 1961 SC 751. In State of U.P. v. Renusagar Power Co. AIR 1988 SC 1737, it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative intent. One of us (Nainar Sundaram, J.) in Asia Tobacco Company Ltd. v. Union of India [1985] 155 ITR 568 (Mad.), had occasion to consider the question as to whether the bare printing of the Official Gazette containing the withdrawal notification and without the Official Gazette being made available to the public would amount to an effective notification. The case law on the subject was adverted to and the answer was given in the negative. It was observed as follows: "The intendment of the notification in the Official Gazette is that in the case of either grant or withdrawal of exemption, the public must come to know of the same. 'Notify', even according to the ordinary dictionary meaning would be 'to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform'." The pronouncement in Asia Tobacco Company Ltd. v. Union of India [1985] 155 ITR 568 has been confirmed by a Bench of this Court in Union of India v. Asia Tobacco Co. Ltd. (W.A. Nos. 1051-1053 of 1984, judgment dated 10th July, 1989). 6.. Now let us examine whether by a perusal of the withdrawal notification, the citizen could be stated to have been put on notice of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4th November, 1965. It is one among the ten items. By the withdrawal notification, the concession granted is taken away. If we are to countenance the withdrawal notification, as having been done in the like manner and method as the concession notification, certainly we will be permitting a watering down of the statutory and legal obligations with regard to exercise of the power of the withdrawal of a notification, which is legislative in character. The draftsman of the withdrawal notification could not do a cursory or a glossarist or a casual work of it; and the act of the authority approving the draft, for sending it to the publishing authority, cannot also be complemented and commended. It must be remembered that the rights of the citizen are being dealt with. By withdrawal of the concession notification, a benefit, enjoyed by the citizen is being deprived to him. While that could be done, it must be done in the like manner and method as law enjoins the conferment of it to be done. There cannot be a mutilation of the concept of "in the like manner and method". If the authority indulges in that, that act must be ignored as ineffectual and inoperative. Dr. D. Pal, the learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, (2) Shri Bakul Oil Industries v. State of Gujarat [1987] 64 STC 304 (SC); AIR 1987 SC 142, and (3) Sohanlal Shantilal and Brothers v. Union of India [1990] 46 ELT 211. Nobody need take exception to the proposition advanced by the learned counsel for the respondents. But, here the contention raised on behalf of the petitioner is that when the State exercises the power of withdrawal of a concession, the conferment of which was done by due notification, the same could be done only in the like manner and method and there cannot be abrasion of the same, which, if done, must be frowned upon by the court and must stand ignored, as totally ineffective. What has happened in the instant case is nothing short of the abrasion of "in the like manner and method" of exercising the power of withdrawal. There was lack of clarity and hence the withdrawal notification could not be stated to have been done by due notification. It should be held that there was no withdrawal notification at all on facts and in the eye of law. Our finding on the first point enables the petitioner to succeed in the writ petitions. Yet, for completion we shall proceed to deal with the second point. 9.. The secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower. The concession notification in the instant case specifically refers to public interest. The withdrawal notification does not refer to public interest at all. There were citations by both the sides as to how far this Court could go into this question. The learned counsel for the petitioner would place reliance on the following pronouncements: In M.A. Rasheed v. State of Kerala AIR 1974 SC 2249, the principles countenanced run as follows: "Where powers are conferred on public authorities to exercise the same when 'they are satisfied' or when 'it appears to them', or when 'in their opinion' a certain state of affairs exists; or when powers enable public authorities to take 'such action as they think fit' in relation to a subjectmatter, the courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. Where reasonable conduct is expected the criterion of reasonableness is not subjective, but objective. The onus of establishing unreasonableness however, rests upon the person challenging the validity of the Acts. Administrative decisions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same. This Court in one of its later decisions in Smt. Shalini Soni v. Union of India [1981] 1 SCR 962; AIR 1981 SC 431, has observed thus: 'It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.' Suffice it to say that the following passage appearing at pages 285-86 in Prof. de Smith's treatise: Judicial Review of Administrative Action (4th Edition) succinctly summarises the several principles formulated by the court in that behalf thus 'The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r statutory power without the tax-payer's consent and the payment is enforced by law vide-Lower Mainland Diary v. Crystal Dairy Ltd. [1933] AC 168. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which, when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of 'quid pro quo' between the tax-payer and the public authority................" In Bakul Cashew Company v. Sales Tax Officer [1977] 40 STC 178, a Bench of the High Court of Kerala accepted the statement that the power to tax has to be presumed to be in public interest, and as the cancellation of the exemption would result in subjecting the exempted categories to taxation, the test of public interest would stand satisfied. 12.. Whatever be the angle from which we can test the withdrawal notification, the basic element which should not be lost sight of, is the satisfaction of the "like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jan, the learned counsel for the respondents, declared before and assured us that these proceedings of the Board correctly sum up and reflect the proceedings preceding the withdrawal notification and nothing need be supplemented to it from such preceding proceedings. If this is the position, we must straightway say that the reasons set out in the proceedings dated 31st March, 1967, are alien and foreign to the question. They do not and they cannot refer to item 10 of the withdrawal notification, namely, withdrawal of the concessional rate given to sales of white printing paper to the newspaper concerns in the course of inter-State trade or commerce to a dealer in the State of Madras under clause (b) of sub-section (2) to section 8 of the Central Sales Tax Act, 1956. Apparently, item 10 has been put in the hotch-potch without any application of mind. There is no reference to section 8(2)(b) of the Act at all in the proceedings dated 31st March, 1967. It refers only to section 8(1) of the Central Sales Tax Act, 1956. As rightly contended by Dr. D. Pal, the learned counsel for the petitioner, obviously there has been non-application of mind. Having given reasons, which are not tenable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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