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TMI Blog2022 (2) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... of the writ Court also overlooks the fact that the view/stand taken by the petitioner, insofar as the leviability of entry tax on imported vehicles is the view taken by the Division Bench of Kerala High Court and also the Judgment of the Madras High Court and the matter was finally resolved by a Division Bench of the Hon'ble Supreme Court, after the Constitutional Bench of Nine Judges pronounced on the scope of Part XIII of the Constitution. The above sequence of litigation will clearly demonstrate that the appellant cannot be imputed with motive whatsoever and therefore, the disparaging remarks are clearly unwarranted. Appeal allowed - decided in favor of appellant. - W.A.No.1810 of 2021 and C.M.P.No.11316 of 2021 - - - Dated:- 25-1-2022 - HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA AND HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ For Appellant : Mr. Vijay Narayan, Senior Counsel for Mr. S. Kumaresan For Respondent : Mr. V. Nanmaran JUDGEMENT The charm and dignity of a judge get enhanced by sobriety restrain grace and concern for the cause of justice - EGO (Edging God Out). Real strength of the judiciary lies in public faith and not in its contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017) 12 SCC 1 , it may be very relevant to set out the history of the litigation leading to the Constitutional Bench decision in the aforesaid case. 7.1. A Writ petition was filed before the High Court of Punjab and Haryana assailing the constitutional validity of the Haryana Local Area Development Tax Act. A Division Bench, after relying upon the decision of the Supreme Court in Atiabari Tea Co. Ltd., Vs. State of Assam and Others, AIR 1961 SC 232, has held that the levy was compensatory in character hence, outside the purivew of Article 301. 7.2. The correctness of the said order was assailed before the Supreme Court, wherein, a two-Judge Bench noticed an apparent conflict between the constitutional bench Judgments reported in Atiabari case and Automobile Transport (Rajasthan) Ltd., V. State of Rajasthan, AIR 1962 SC 1406 , on the one hand and Bhagatram Rajeevkumar V. CST, 1995 Supp (1) SCC 673 and State of Bihar Vs Bihar Chamber of Commerce, (1996) 9 SCC 136 on the other. The 2-Judge Bench of the Supreme Court referred the matter to a Constitutional Bench stating that the interpretation of Article 301 vis-a-vis compensatory tax should be authoritatively laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Atiabari, Automobile Transport cases and Keshav mills Co. Ltd., the same was referred to a Larger Bench for re-consideration of the Judgment of the Supreme Court in Atiabari and Automobile Transport cases. 7.8. Finally, the matters were listed before the Constitutional Bench of Nine Judges. The scope of Part-XIII vis-a-vis the power/competence to tax was finally resolved and inter alia, the Nine-Judge Bench held as follows : 1159. By majority the Court answers the reference in the following terms: 1159.1. Taxes simpliciter are not within the contemplation of part XVIII of the constitution of India. The word free used in Article 301 does not mean free from taxation 1159.2 Only such taxes as are discriminatory in nature are prohibited by Article 304(1). It follows that levy of an non-discriminatory tax would not constitute an infraction of Article 301. 1159.3 Clauses (a) and (b) of Article 304 have to be read disjunctively. 1159.4. A levy that violates Article 304(a cannot be saved even if the procedure Article 304(b) of the proviso thereunder is satisfied. 1159.5 The Compensatory tax theory evolved in Automobile Transport case and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of validity of levy of Entry Tax, but also the question whether Entry Tax can be levied on imported goods stood resolved only by the decision of the Supreme Court in State of Kerala and Others Vs. Fr.William Fernandez Etc. reported in 2017 SCC OnLine SC 1791, which was delivered on 09.10.2017. Thereafter, following the decision of the Supreme Court in Fr. William Fernandez case, a Divison Bench of this Court devliered a judgment on 29.01.2019 in a batch of writ petitions in the case of V.Krishnamurthy Vs. State of Tamil Nadu reported in (2019) 69 GSTR 326. 9. The order of the learned single Judge, wherein, certain disparaging remarks were made, appears to be wholly unwarranted, as there was uncertainty as to the state of law relating to Entry Tax and divergent views were expressed not only by the High Courts, but by the Supreme Court as well. Thus, to impute motives to a litigant or castigating him for taking a particular legal position or exercising his constitutional right under Article 226 is unwarranted. 10. Now the question that arises for consideration is with regard to inherent power and jurisdiction of this Court to expunge the alleged adverse remarks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explaining or defending himself; (b) Whether there is evidence on record bearing on that conduct justifying the remarks ; and (c) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The above tests have been quoted with approval and applied by this Court in its subsequent judgments in Jage Ram Vs. Hans Raj Midha, (1972) 1 SCC 181, R.K. Lakshmanan Vs. A.K.Srinivasan (1975) 2 SCC 466 and Niranjan Patnaik Vs. Sashibhusan Kar, (1986) 2 SCC 569. 7. We are surprised to find that in spite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition, to defend themselves. It cannot be gainsaid that the nature of remarks the learned Judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also. Condemnation of the appellants without giving them an opportunity of being heard was a complete negation of the fundamental principle of natural justice. ........... 11. Now that we have fou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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