Jugsalai Electric Supply Co. v. State Of Bihar — 1973 DIGILAW 80 (PAT)

Judgment S.N.P.Singh, J. 1. This writ application raises the question of vires of Rule 14 (6) of the Bihar Electricity Duty Rules, 1949 (hereinafter to be call ed "the Rules"). 2. The petitioner is a licensee under the Electricity Act, 1910, and is a supplier of electric energy. The petitioner is also a licensee within the meaning of Sec.2 (d) of the Bihar Electricity Duty Act, 1948 (hereinafter to be called "the Act") and is liable for payment of duties under the Act. For the year 1966-67 the petitioner was assessed to a duty of Rs. 92,418.40 paise under the Act as against the admitted duty of Rs. 83.258.13 paise by the Additional Superintendent of Commercial Taxes at Jamshedpur. Against the order of assessment, the petitioner filed an appeal under Section 9-A (1) of the Act before the Assistant Commissioner of Commercial Taxes. Chotanagpur Division, and the same was dismissed on merit. The petitioner then filed a revision before the Deputy Commissioner (Appeals). Chotanagpur Division, under Section 9-A (3) of the Act read with Rule 14 (2), of the Rules. The revisional application was dismissed on the 20th of January. 1970. The petitioner after obtaining the certified copy of the order of the Deputy Commissioner (Appeals), Chotanagpur Division, filed a second revision before the Commercial Taxes Tribunal. Bihar, Patna under Section 9-A (3) of the Act read with Rule 14 (3) of the Rules which was numbered as Election Revision Case No. 1 of 1970. The revisional application was, however, dismissed in limine by the order of the Tribunal dated the 6th of November, 1970, on the ground that the application was not filed within the prescribed period, namely, within 30 days of the passing of the order of the Deputy Commissioner (Appeals) and no cause was shown for not filing the application in revision within the prescribed period. The petitioner then filed an application under Section 9-D (i) of the Act before the Tribunal for making a reference to the High Court certain questions of law arising out of the order of the Tribunal dated the 6th of November. 1970. That application was rejected by the Tribunal by its order dated the 19th of April, 1971. The petitioner then filed this writ application in this Court challenging the vires of Rule 14 (6) of the Rules. 3. 1970. That application was rejected by the Tribunal by its order dated the 19th of April, 1971. The petitioner then filed this writ application in this Court challenging the vires of Rule 14 (6) of the Rules. 3. Section 9-A (1) provides for filing of an appeal and it reads as under:- - "Any licensee or other person objecting to an order of assessment with or without penalty passed under this Act. or the rules made thereunder may, within the prescribed period and in the prescribed manner, appeal to the prescribed authority against such order of assessment or penalty or both: Provided that no appeal shall be entertained by such authority unless it is satisfied that twenty per centum of the duty assessed or such amount of duty as the appellant may admit to be due from him, whichever is greater, has been paid". Section 9-A (3) makes provision for revision and it reads as follows:-- "Subject to such rules as may be prescribed and for reasons to be recorded in writing the prescribed authority may upon application or of its own motion, revise any order passed under this Act or the Rules made thereunder : Provided that no order of assessment shall be revised upon application by the assessee, unless an order under Sub-section (2) has been previously passed in respect of such order: Provided further that where the prescribed authority revises any order of its own motion, no proceeding for such revision shall be initiated at any time before the expiry of two years from the date of the said order". Rule 14 (6) of the Rules runs thus: "An appeal or application for revision shall be filed within thirty days of the passing of the order which is sought to be revised; but the authority to whom the appeal or application lies may admit it after the expiration of the said period, if the said authority is satisfied that the appellant or applicant had sufficient cause for not presenting the appeal or application within the said period". 4. Mr. Jain appearing for the petitioner submitted that Rule 14 (6) of the Rules is valid in so far as it prescribes limitation for appeals but it is invalid in so far as it prescribes limitation for revision. 4. Mr. Jain appearing for the petitioner submitted that Rule 14 (6) of the Rules is valid in so far as it prescribes limitation for appeals but it is invalid in so far as it prescribes limitation for revision. The above contention, is founded upon the difference in the language which has been used in the two sub-sections of Section 9-A. According to learned counsel, the Legislature by using the expression "within the prescribed period" in Sub-section (1) of Section 9-A left it to the rule-making authority to prescribe limitation for filing an appeal. In Sub-section (3) of Section 9-A no such expression has been used and as such the Legislature has not left it to the rule-making authority to prescribe any limitation for revision. So Rule 14 (6) of the Rules in so far as it prescribes limitation for revision is ultra vires Section 9-A (3) of the Act. 5. On a proper construction of Section 9-A (3) of the Act I find it difficult to accept the above contention. The expression "subject to such rules as may be prescribed" used in Sub-section (3) of Section 9-A is of wide amplitude. "Subject to" in the context means "conditional upon". The power of the prescribed authority to revise en order pass- ed under the Act or the Rules made thereunder, therefore, is conditional upon such rules as may be prescribed. On a plain reading of Sub-section (3) of Section 9-A of the Act, I am of the view that the Legislature by using the expression "subject to such rules as may be prescribed" in Sub-section (3) of Section 9-A has left it to the rule-making authority to make rules in respect of all matters pertaining to revision for which no specific provisions has been made in the Act. Neither Sub-section (3) of Section 9-A nor any other section of the Act prescribes limitation for filing a revision before the prescribed authority. Sec.10 (21 (f) of the Act empowers the State" Government to make rules for "any other matter for which there is no provision or insufficient provision in this Act for which provision is in the opinion of the State Government, necessary for giving effect to the purposes of this Act". Sec.10 (21 (f) of the Act empowers the State" Government to make rules for "any other matter for which there is no provision or insufficient provision in this Act for which provision is in the opinion of the State Government, necessary for giving effect to the purposes of this Act". This State Government was, therefore, quite competent to make rules prescribing limitation for filing a revisional application by virtue of the powers conferred upon it by Sec.10 (2) (f) read with Section 9-A (3) of the Act. 6. In course of Ms argument, Mr. Jain referred to three cases, namely, the case of the Regional Director, Govt. of India V/s. N. G. Iyer, 1971 Pat LJR 619 = (1972 Lab 1C 784) the case of Haji J. A. Kareem Sait V/s. Dy. Commercial Tax Officer. Mettupalayam, 18 STC 370 = ( AIR 1967 Mad 171 ) and the case of P. Thirumurthi Chettiar V/s. State, 21 STC 489 = ( AIR 1969 Mad 91 ). In the case of the Regional Director, Government of India. Rule 17 of the Bihar Employees Insurance Courts Rules. 1952 was held and declared to be ultra vires. The rule had been made by the State Government in exercise of the power conferred upon it by Clause (b) of Subsection (1) of Section 96 of the Employees State Insurance Act, 1948. Clause (b) of Section 96 (1) conferred power on the State Government to make rules with regard to "the procedure to be followed in proceedings before such Courts, and the execution of orders made by such Courts". A Bench of this Court agreeing with the views of Madras. Punjab and Bombay High Courts held that the expression procedure to be followed in Section 96 (1) (b) of the Act was of narrower import and could not be construed to mean to confer a power on the rule-making authority to prescribe limitation for institution of proceedings. It was observed in that case that "where an Act itself does not provide for limitation with reference to a particular matter and the delegation of power to make miles is conferred by a section of the Act which does not expressly or impliedly relate to the power to prescribe time, the authority to which the power is delegated, namely, the State, cannot make a rule prescribing limitation". In my opinion, the decision in the case, referred to above, does not in any way support the contention which has been raised by learned counsel appearing for the petitioner. On the contrary, certain observation made in that case supports the view which I have taken on the question of interpretation of the expression "subject to such rules as may be prescribed". In that case it was observed as follows :- - "The provisions of Section 75 have not been made subject to any rule made by the State Government. This also shows that it was not the intention of the legislature to vest the rule-making authority with power to make rules prescribing limitation for applications under Section 75 of the Act". 7. In the case of Hail J. A. Kareem Sait a Bench of the Madras High Court held that Sub-rule (7) of Rule 5 of the Central Sales Tax (Madras) Rules. 1957, in so far as it provided for limitation and determination of escaped turnover by best judgment, was invalid. Reliance was placed on subsection (3) of Sec.13 of the Central Sales Tax Act, 1956, on behalf of the revenue to sustain Sub-rule (7). That was, however, not accepted and the following observation was made; "But Sec.13 (3) is in general terms and confers power to make rules only to carry out the purposes of the Act. Nowhere in the Central Act is there any indication that one of its purposes is to provide for limitation for the exercise of the power to assess escaped turnover and to determine such turnover by best judgment. We hold that Sub-rule (7) at least in so far as it provided for limitation and determination of escaped turnover by best judgment is in excess of the rule-making power and the sub-rule, as a whole should be struck down as invalid". The Madras case, in my opinion, is also not of any help to the petitioner inasmuch as the question involved in that case was altogether of a different nature. 8 In P. Thirumurthi Chettiars case Rule 23 (3) (i) of the Madras General Sales Tax Rules. 1959, which prescribed a period of limitation for refund, was held to be invalid and ultra vires the powers of the State Government. 8 In P. Thirumurthi Chettiars case Rule 23 (3) (i) of the Madras General Sales Tax Rules. 1959, which prescribed a period of limitation for refund, was held to be invalid and ultra vires the powers of the State Government. In that case the learned single Judge of the Madras High Court on construing the words "the tax so levied shall be refunded to such person in such manner and subject to such condition as may be prescribed" used in the proviso to Sec. 4 of the Madras General Sales Tax Act, took the view that the proviso neither expressly nor Impliedly related to the power of prescribing time and as such the State could not make a rule prescribing limitation. As the words used in the proviso to Section 4 of the Madras General Sales Tax Act are not similar to the words used in Section 9-A (3) of Bihar Act, the view taken by the learned Judge of the Madras High Court cannot be said to be contrary to the view which I have taken on the interpretation of the expression "subject to such rules as may be prescribed" used in Sub-section (3) of Section 9-A of the Act. Under Section 9-A (3) of the Act though the power to make rule prescribing limitation for revision has not been expressly conferred as under Section 9-A (1) of the Act to make rule prescribing limitation for appeal, the Legislature by using the expression "subject to such rules as may be prescribed" in Sub-section (3) of Section 9-A has impliedly conferred power on the rule-making authority to make rules prescribing limitation for revision. 9. For the foregoing reasons I hold that Rule 14 (6) of the Rules is valid and is not ultra vires Section 9-A (3) of the Act. 10. Mr. Jain also raised a contention to the effect that the Tribunal was not legally justified in rejecting the prayer of the petitioner for condonation of the delay in filing the application in revision. In the application it has been stated that it is an established practice of the appellate and revisional authorities under the Act to communicate their orders and judgments passed to the persons concerned but no such communication of the order dated the 20th of January, 1970, passed by the Deputy Commissioner (Appeals), Chotanagpur Division, was made to the petitioner. In the application it has been stated that it is an established practice of the appellate and revisional authorities under the Act to communicate their orders and judgments passed to the persons concerned but no such communication of the order dated the 20th of January, 1970, passed by the Deputy Commissioner (Appeals), Chotanagpur Division, was made to the petitioner. It has also been stated that the petitioner came to know on the 17th of March, 1970, for the first time that the impugned order had been passed and so an application for obtaining certified copy of the same was made on the 18th of March. 1970, and it was received on the 27th of April, 1970. Thereafter on the 29th of April, 1970, the petitioner filed a second revisional application before the Commercial Taxes Tribunal. From the order of the Tribunal (Anex. 4) it appears that the application in revision was heard on the 12th of Jan., 1970, in presence of the Advocates for both the parties and 20th of January. 1.970 was fixed as the date for orders. The order was passed on the 20th of January, 1970, and was communicated to all concerned under Memo No. 241 dated the 20th of January. 1970 From the above facts. It is clear that the advocate appearing for the petitioner had knowledge on the 12th of January, 1970, that the order would be passed on the 20th of January, 1970. Even if no communication of the order dated the 20th of January, 1970, was sent to the petitioner as alleged in paragraph 6 of the writ application, the lawyer of the petitioner had the knowledge that the order would be passed on the 20th of January, 1970, and it was his duty to inform the petitioner about the order. The Tribunal has taken the view on the facts and in the circumstances stated above that the petitioner had not shown sufficient cause for not filing the application in revision within the prescribed time. It is difficult for this Court to hold, on the facts and in the circumstances of the instant case, that the Tribunal took an erroneous view. There is, therefore, no substance even in the second contention which has been raised by Mr. Jain appearing for the petitioner. No other point was urged by learned counsel appearing for the petitioner. 11. It is difficult for this Court to hold, on the facts and in the circumstances of the instant case, that the Tribunal took an erroneous view. There is, therefore, no substance even in the second contention which has been raised by Mr. Jain appearing for the petitioner. No other point was urged by learned counsel appearing for the petitioner. 11. In the result, this application is dismissed; but, in the circumstances, there will be no order as to costs. S.N.P.Singh, J. 12 I agree.