STATE OF KERALA v. A PAREED PILLAI. — 1990 DIGILAW 230 (KER)

JUDGMENT K. SUKUMARAN, J. - This appeal of the State is a classic illustration of the unlimited disabilities of that institution. It is a standing monument of bureaucratic indifference in its prime responsibility of tax collection. The story is weary, sprawling as it does over an extensive period of time. The actual contentions had added complications due to the criminal neglect of the officers and servants of the State. It is better to slice the preface and state the facts straightway. 2. Alwaye had hectic commercial activity even when it was a small town of the princely State of Travancore. The perennial Periyar, meandering through the town, its bathing ghats and market place, used to fertilise with its floods, the lower planes, where lush green coconut palms provided prosperity for the cultivating community. Oil trade could be a profitable venture of an enthusiastic entrepreneur. A Pareed Pillai and Bros., a firm, was one among the many which had extensive trade in oil. The extensive activities of the firm, reaching even the upper regions of the Indian Union are gatherable from a criminal judgment of this Court reported two decades back. [Vide Pareed Pillai v. State, (1969) KLT 155]. 3. The dealings in oil, of that firm, naturally attracted tax liability, Central and State. The firm had been registered under the Partnership Act as evidenced by exhibit A1. That it was treated as a registered firm by the assessing authorities under the sales tax laws is a fact averred in the plaint and not disputed by the defendant and as such could be treated as established. 4. The arrears of tax for the periods 1958-59 to 1962-63 remained unpaid. For reasons not easily discernible, recovery of the tax due was indeed slow. Sales tax (not payable by a dealer, but capable of being passed on to the purchaser and as such much different from income-tax) is levied as soon as the taxable event - the sale - takes place. Its assessment quantifies the liability. The demand notice which accompanies the assessment order stipulates the time for payment. If the demand is not honoured, recovery is permissible. The State is armed with weapons, sufficient, and even drastic in their character, for the realisation of its dues. Special modes of recovery have been conceded to the State in addition to the usual ones. The demand notice which accompanies the assessment order stipulates the time for payment. If the demand is not honoured, recovery is permissible. The State is armed with weapons, sufficient, and even drastic in their character, for the realisation of its dues. Special modes of recovery have been conceded to the State in addition to the usual ones. The Revenue Recovery Act, effective and exhaustive in its provisions, could be pressed into service for the realisation of arrears of revenue. Sales tax remaining unpaid by a dealer, is an arrear of revenue which is recoverable by employing the machinery of the Revenue Recovery Act. Neither the tax officers nor the revenue officials had evinced any anxiety to finalise the assessment and realise the revenue in time. Things drifted merrily for all but the State. 5. The dealers have now no dispute about the tax liability or its quantum. The assessments have become final. The liability of the firm is established beyond challenge. 6. There were some attempts at keeping away the properties of the partners from the coercive process for the realisation of the tax dues. Many collusive suits were filed to block the recovery of the tax. A suit filed by the mother of the partners for declaration of her title was not successful enough to shield the personal property of the partners. The suit was filed for an injunction, blocking the recovery steps pursued by the State. 7. Revenue recovery appears to have been vigorously pursued some time by the year 1978. The partners had extensive properties held by them jointly with others. Exhibit A20 is a sale notice dated June 29, 1978, proclaiming for sale the interest in a property of plaintiff who was one of the partners of the firm. The sale was scheduled to be held on August 3, 1978. Then came the suit for an injunction restraining the State from proceeding with the steps under the Revenue Recovery Act against the plaintiff. He was only a partner of that firm, and consequently no recovery of tax could be initiated or continued against him under the Revenue Recovery Act - was the gist of the contention. 8. The cause of action was stated as the issue of notice of sale dated June 29, 1978. Though an order of injunction was sought for to stop the recovery proceedings, that was not granted by the trial court. 8. The cause of action was stated as the issue of notice of sale dated June 29, 1978. Though an order of injunction was sought for to stop the recovery proceedings, that was not granted by the trial court. The appellate court affirmed that order. When the matter reached the High Court in revision, it was disposed of with a direction to expedite the suit and defer the recovery in the meanwhile. All issues were left open. The plaintiff got what he wanted. 9. There was no written statement on behalf of the State. None of its officers bothered themselves about this litigation wherein the Government had a stake of about Rs. 13 lakhs. 10. The trial court nonsuited the plaintiff, the multiplicity of contentions notwithstanding. 11. The appellate court took a different view. It emphasised the default of the State in filing a proper written statement. In the absence of a proper written statement, the allegations in the plaint could be treated as correct and acted upon as such. Pleas such as the non-maintainability of the suit either due to the existence of internal remedies in which the relief could be sought for and worked up, or the non-maintainability of the suit in the absence of a grant of leave under section 80(2), were turned down by the appellate court. It held that the tax due from the firm could not be recovered from the plaintiff or by proceedings against his personal properties. The appeal was thus allowed and the suit decreed. 12. The second appeal by the State Government challenges the appellate judgment. The questions formulated contain almost exhaustively all aspects which could be discussed, debated upon and decided. 13. In the light of the findings of the courts below, the following questions which will arise for active consideration by this Court : (a) Is the suit maintainable as against the State, in view of the bar under section 49 of the Kerala General Sales Tax Act, 1963. (b) Whether suit, to the extent it seeks an invalidation of the proceedings under the Revenue Recovery Act, 1968, is maintainable at all, when that statute furnishes a hierarchy of authorities for the redressal of the grievances arising in proceedings under the Revenue Recovery Act. (b) Whether suit, to the extent it seeks an invalidation of the proceedings under the Revenue Recovery Act, 1968, is maintainable at all, when that statute furnishes a hierarchy of authorities for the redressal of the grievances arising in proceedings under the Revenue Recovery Act. (c) Whether a suit is maintainable at all as against the State, when no notice under section 80(1), Code of Civil Procedure, 1908, had been issued to the State and when no leave as visualised in section 80(2) had been granted. (d) Whether recovery is permissible at all as against a partner of the firm in relation to the sales tax liability of the firm. In other words, even though the firm may be proceeded against for recovery of sales tax due from it, can such recovery be directed against the partner of the firm and his/her properties ? 14. As noted earlier, the trial court had dismissed the suit, entering findings adverse to the plaintiff as regards the second and fourth contentions. The trial court felt that having regard to the distance of time from the date of the institution of the suit and the disposal thereof, there was no necessity to consider the contention about notice, "at present". 15. Counsel for the respondent contended that the bar against a suit under the Kerala General Sales Tax Act as contained in section 49 operates against only a registered dealer, which, in the present case, is the firm itself which is treated as a legal entity. The bar is not applicable as against the partner of the dealer-firm. 16. The Government Pleader emphasised the admitted attachment in 1963, of the properties of the plaintiff in the course of the revenue recovery process for realisation of sales tax dues from the firm. A revision is maintainable against such a step in revenue recovery proceedings before the Board of Revenue. That is an indicated internal remedy. The plaintiff did not avail of it. The Revenue Recovery Act is a self-contained code, according to the State. If a revenue liability is found to be existent, its recoverability under the Act is a logical follow-up action. When the Act contains exhaustive provisions both as regards the recovery steps and about the correctional avenues for getting rid of the erroneous orders of the subordinate authorities, a party cannot bypass that statutory hierarchy - according to the State. If a revenue liability is found to be existent, its recoverability under the Act is a logical follow-up action. When the Act contains exhaustive provisions both as regards the recovery steps and about the correctional avenues for getting rid of the erroneous orders of the subordinate authorities, a party cannot bypass that statutory hierarchy - according to the State. Counsel for the plaintiff relied particularly on section 80(1) of the Revenue Recovery Act, which specifically keeps alive a remedy by way of suit for an aggrieved defaulter to proceed against under the Recovery Act. 17. It is unnecessary to pronounce finally on these questions about the bar under the sales tax law and the Recovery Act in the light of the conclusion on other points. 18. The question which involves the interpretation of section 80(2), Code of Civil Procedure, has to be considered more carefully. 19. The relevant facts notable on this issue had been already indicated earlier. The evidence available establishes that recovery steps had been already initiated under the Revenue Recovery Act, and that an attachment of the property had been made by the competent authorities even in 1963. That is what has been referred to in the judgment of the trial court. The relevant portion reads : "The plaint schedule properties were attached in 1963. Till July 20, 1978, the plaintiff has not taken any steps to question the attachment proceedings." That there had been such attachment is admitted in the appeal-memorandum filed by the plaintiff in the lower appellate court. In paragraph 3 of the statement of facts in the appeal, it is stated : "...... plaintiff's share is attached along with the shares of two other sons ...." It is, therefore, too late in the day to contend that the very first step taken by the recovering authorities is the issue of notice on June 29, 1978. There had been anterior recovery activities including the attachment. An attachment was an incursion into and an impairment of the plaintiff's rights. Looked from that angle, a cause of action had arisen as far as the plaintiff is concerned, at least, as on the date of the attachment. If that be so, and if a suit be permissible, a suit could have been instituted within a reasonable period thereafter. That was not done. 20. Looked from that angle, a cause of action had arisen as far as the plaintiff is concerned, at least, as on the date of the attachment. If that be so, and if a suit be permissible, a suit could have been instituted within a reasonable period thereafter. That was not done. 20. Could it be said that such a suit to avoid the unpalatable consequences of the recovery process has necessarily to be instituted when exhibit A20 was served on June 29, 1978 ? That will depend upon the provision made by the Parliament, as expressed in section 80 of the Code of Civil Procedure. It is convenient to remind oneself of that statutory provision before dealing with the discussion of the rival submissions. That reads : "80. Notice. - (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of - (a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf. (c) in the case of a suit against any other State Government a Secretary to that Government or the Collector of the District; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. (2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required, by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit : Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1)." 21. The background judicial discussions on section 80 of the Code of Civil Procedure prior to its amendment could also be profitably borne in mind. The Privy Council and the Supreme Court have referred to the salient aspects of its contents and purposes. The legal position is well-settled. The section is mandatory. Its terms are imperative and admit of no exceptions of implications. (See Bhagchand Dagdusa Gujarati v. Secretary of State for India AIR 1927 PC 176 and State of Madras v. C.P. Agencies AIR 1960 SC 1309 .) It is protective provision for the State. The protective provision has been found necessary in the light of the special features in the functioning of the State. Its activities are widespread. The State works through human agencies. It acts through its agents and officers. The State is answerable for their actions and omissions, if in law, they attract the liability. Such was the position even with a police State. A welfare State has added activities. It touches every facet of human activity, from the cradle to the grave, and even beyond : Greater insulation from avoidable legal proceedings is therefore desirable and necessary. Otherwise, it will have to allot a battalion of men and officers for fits in the legal courts. That is counter productive as far as the country is concerned. An undue vulnerability for the State will generate deleterious consequences in developmental spheres and in its programme promoting prosperity. Otherwise, it will have to allot a battalion of men and officers for fits in the legal courts. That is counter productive as far as the country is concerned. An undue vulnerability for the State will generate deleterious consequences in developmental spheres and in its programme promoting prosperity. This larger perspective should be always held in view, while interpretation of the section is attempted. The court cannot take a cavalier view or a casual approach of such a salutary provision. Lip service to the provision will be disservice to the Nation. One who rushes to the court can be certainly helped if he has a just cause. Such a person who seeks the aid of the court, cannot, at the same time, disown his own responsibility to comply with a simplistic step like the issue of a notice under section 80, Code of Civil Procedure for the vindication of his rights. One who has necessarily to prepare a plaint, cannot complain that he could not draft and despatch a notice to the State. Even with inflated postal cost, transmission of such a communication cannot ordinarily cast undue burden a litigant. Viewed either from the point of view of the necessity of the State, or from the duty of the litigant, meaningful compliance with the section should be insisted upon by courts of law. 22. Section 80(2) sought to relieve the rigour of these obligations in limited contingencies. 23. There was, initially a proposal for the omission of section 80 from the Code of Civil Procedure. The Committee deliberated over it. Its ultimate decision and recommendation have been expressed thus : "The Committee feels that the omission of section 80 of the Code, as proposed in the Bill, will not be in the public interest. It might prompt people to file suits against the Government to prevent it from undertaking any measure for the benefit of the society and this might also hinder the pace of developmental activities. The Committee is, therefore, of the view that provisions contained in section 80 should be retained subject to modifications indicated hereafter. It might prompt people to file suits against the Government to prevent it from undertaking any measure for the benefit of the society and this might also hinder the pace of developmental activities. The Committee is, therefore, of the view that provisions contained in section 80 should be retained subject to modifications indicated hereafter. The Committee, however, feels that relaxation of the provisions of section 80 of the Code is necessary so that a person may not be deprived of the opportunity of obtaining an urgent or immediate relief, where such relief is essential." Section 80(2) has to be understood in that background : No doubt, in limited contingencies, a suit can be filed without a notice under section 80. But the contingencies therefor have to be established before relief from the rigour could be availed of. Court should not render the section itself nugatory by a casual approach to an application under section 80(2) seeking leave of the court. Any order of the court should have an impress of an order passed with responsibility, rationality and reasonableness. An application for leave, for instituting a suit without complying with section 80(1) notice, should also satisfy the court about the urgency of the relief. It is not mere urgency. The "urgency" is of such a nature as would not permit waiting for a reply from the State to which a notice has been sent. Instances are easily imaginable where such urgency could be posited : a pulling down of a building; eviction from a homestead; termination of one's services and the like. It cannot be said that there is such an urgency when a wait for two months would not in truth and substances, affect adversely the rights of the litigant. An attitude on the part of the court, of readily accepting any relief as an urgent relief, would defeat Parliamentary will. It will deflect the course of justice. Urgent relief if absent, the litigant should take to the normal path of sending a suit notice of the required duration of two months. A soft attitude, would only be advantageous to the reckless litigant. It is unduly harmful to a State, which is properly functioning. It will crowd the courts unnecessarily and prematurely. These are the consequences which courts will strive their best to obviate. 24. A soft attitude, would only be advantageous to the reckless litigant. It is unduly harmful to a State, which is properly functioning. It will crowd the courts unnecessarily and prematurely. These are the consequences which courts will strive their best to obviate. 24. Counsel for the plaintiff cited on the decision in Panangodan v. District Collector (1989) 2 KLT 184 . That decision cannot be understood as compelling and overlooking of all these aspects. The conclusion there can be understood as geared to the facts of the case. It should be so understood. This is not an area where a judge need have self-induced enthusiasm. As has been pointed out by Lord Donaldson MR. recently, there are real dangers of such self-induced enthusiasm. He observed : "........ nothing appeals to judges quite as much as something which they have thought of themselves." (Vide R v. Secretary of State, ex p Brind [1990] 1 All ER 469) 25. The facts can now be analysed and the principles applied. The application for leave of the court was filed along with the plaint. The applications I.A. No. 1388 of 1978 only mentioned two relevant facts in support of the permission sought for to institute the suit under section 80(2) of the Code of Civil Procedure. That is a reference to the sale proposed on August 3, 1978, and the absence of "time to issue a notice". The State opposed the application. According to it, the properties had been placed under attachment even in the year 1963. Recovery process was then sought to be stalled by the plaintiff's mother filing a suit O.S. 103 of 1972 claiming the properties as her individual assets on the basis of a gift from the husband, set up by her. That suit had been dismissed and the appeal therefrom had been rejected. According to the State, the plaintiff was aware of the recovery steps even earlier through the demand notice and the attachment of the properties. The notice dated June 29, 1978 in form No. 16 was the only further step contemplated under section 49(2) of the Revenue Recovery Act. 26. The contention of the State is forceful. The sale of a property of a defaulter is not fixed all on a sudden. The scheme of the Revenue Recovery Act is elaborate regarding the steps starting from the service of notice under that Act. 26. The contention of the State is forceful. The sale of a property of a defaulter is not fixed all on a sudden. The scheme of the Revenue Recovery Act is elaborate regarding the steps starting from the service of notice under that Act. The issue of the first notice under rule 3, read with section 7, is the earliest indication of an invasion of a person's right, if it is assumed that the recovery step is illegal or unjustified. An acquiescence on the part of the person so served with a notice, has its own implications. If default continues in payment even after the service of notice under the Revenue Recovery Act, the further steps could be pursued. Attachment of the immovable property is one such step. That is provided under section 34. The attachment is effected by notifying the factum of attachment in various public offices, and an intimation to the defaulter himself. The fact is published even in the immovable property itself. Requirements of publicity and intimation to the affected party, as prescribed by the Act, are thus fully satisfied by such procedural compliance. The attachment so effected, casts disabilities on the owner of the property in the exercise of his normal rights in relation to the property. That again is an occasion for alerting to action, even an otherwise inert owner of the property. A proclamation of sale of the property is only the next step in the face of continuing default. 27. From one point of view therefore, the plaintiff had ample opportunities to assail the legality of the recovery proceedings much earlier than in 1978. 28. Another view possible is that he could wait and remain in the property till he is actually attempted to be evicted. If it is assumed that on anterior occasions he was under no compulsion to go to the court and seek relief, then the intimation of the date of sale will not, by itself, create a situation of urgency. That was the view of the trial court while disposing of the application for injunction. The learned Munsiff (K. Ramachandran as he then was), expressed the views with commendable lucidity. The scheme of the Act was briefly referred to. A sale by itself does not import imminent injury. Under the Act, the sale has to be confirmed. Confirmation can be had only after 30 days. The learned Munsiff (K. Ramachandran as he then was), expressed the views with commendable lucidity. The scheme of the Act was briefly referred to. A sale by itself does not import imminent injury. Under the Act, the sale has to be confirmed. Confirmation can be had only after 30 days. The sale could be attacked by proceeding visualised under the Act itself. Relief is obtainable, even from the statutory authorities empowered to deal with such matters. Even assuming that the recourse to such steps would be of doubtful efficacy, the minimum period of 30 days from the confirmation of the sale is always there. That court further pointed out that even a confirmation will not visit the defaulter with instantaneous suffering. Even when the sale is confirmed and a person becomes the successful purchaser, he cannot, in the present case, straightway reduce the property to his possession; for, the interest sold is only a share of the partner in the property. A further, and necessarily tedious step also has to be undergone before actual possession could be got at as regards a portion of the property. A suit for partition has to be instituted; it should be decreed; and a final decree will have to be obtained. And ultimately the delivery of the property as provided under the final decree will have to be effected. Needless to reiterate, all these proceedings entail considerable time. From that view also, it cannot be said that the case is one where any institution of a suit immediately on the intimation of the sale proclamation was necessary to obtain urgent relief. There was no urgency - such as will not brook a delay of 2 months contemplated under section 80(1) of the Code of Civil Procedure, in the matter, for the plaintiff to obtain a relief without compliance with section 80(1). 29. The plaintiff, though alerted by that order, did nothing in relation to his further obligation as regards the suit. It would have been perfectly open to him to withdraw the suit, to issue a proper and due notice to the State and then to institute the suit. That was not done. The mere fact that the order declining injunction was appealed against (but without success before the appellate court) will not in any way detract from the effectiveness of those observations of the trial court. That was not done. The mere fact that the order declining injunction was appealed against (but without success before the appellate court) will not in any way detract from the effectiveness of those observations of the trial court. Though this Court in revision petition directed a disposal of the suit within a specified time-limit and deferred the sale in the meanwhile, that also did not in any way upset the observations on this aspect as contained in the order of the trail court. Having regard to these circumstances, the plaintiff will have necessarily to face the consequences of his omission in issuing a notice under section 80(1), Code of Civil Procedure. 30. When it came to the final disposal stage, the trial court, after nothing all these facts held that such a question need not be considered having regard to the distance of time after the filing of the suit and the judgment rendered therein. That is not a correct approach. If section 80(2) required leave for the institution of the suit, and if in truth no leave had been obtained, the necessary consequences should follow. The court cannot condone the lapse on the sole ground of a delay in the disposal of the application or of the suit. It was the plaintiff's duty to press for the necessary leave. If he had slipped up in the matter, he has necessarily to face the consequences. Sympathy is totally out of place in relation to a party whose conduct throughout had been not so commendable as is evident from the tell-tale facts. I hold that the plaintiff has not made out any case for invoking section 80(2). Consequently, the suit has a fatal defect and is liable to be rejected on the ground of non-compliance with the mandatory requirement of section 80(1) of the Code of Civil Procedure. 31. The next question which has substantial impact on the rights of the parties relates to recoverability of the tax arrears of the firm from the assets of the plaintiff-partner. 32. At the outset, we can recapitulate the facts relevant for the consideration of this issue. The firm "Pareed Pillay & Bros.", had been assessed under the General Sales Tax Act, 1125 for the years 1958-59 to 1962-63. The liability under the assessment has become final and binding on the firm. 32. At the outset, we can recapitulate the facts relevant for the consideration of this issue. The firm "Pareed Pillay & Bros.", had been assessed under the General Sales Tax Act, 1125 for the years 1958-59 to 1962-63. The liability under the assessment has become final and binding on the firm. As against the plaintiff, a partner of the firm, there was a distinct step in the year 1963 in the form of an attachment of his properties. Are his individual properties liable for the dues from the firm of which he is a partner ? 33. The General Sales Tax Act, 1125, had been replaced by the Kerala General Sales Tax Act, 1963, effective from April 1, 1963. Broadly speaking, all tax proceedings initiated under the Act of 1125 could be continued under the 1963 enactment. Section 61 of the 1963 Act contains specific provisions about the repeal of the old Act, the consequences thereof and also about the recovery of outstanding dues. 34. The plaintiff contended that recovery proceedings were impermissible as against the assets of the individual partner, when the assessment was on the firm and the quantified liability also was that of the firm. Under the General Sales Tax Act, 1125, the firm is an assessable entity being enumerated as one under section 2(d) of the Act. The tax is demanded under the Act from the firm. If payment is not forthcoming, it is the firm, that is the defaulter. Recovery proceedings are permissible but only against defaulter. No assessment order or demand notice had been served on the individual partner; he could not, therefore, be deemed to be a defaulter in payment of tax. In that view of the matter, no recovery is permissible as against him and his assets. The decisions of this Court (vide Savankutty v. State of Kerala [1978] 42 STC 204 (Ker); ILR (1978) 2 Ker 164 would support this proposition. So proceeded the arguments. 35. There could be some reservation on the various steps in the reasoning of those decisions. A discussion on that aspect can be relegated to a later stage. I will assume that under the General Sales Tax Act, 1125, the assets of an individual partner cannot be proceeded against under the Revenue Recovery Act for amounts payable by way of sales tax by a firm of which he is a partner. A discussion on that aspect can be relegated to a later stage. I will assume that under the General Sales Tax Act, 1125, the assets of an individual partner cannot be proceeded against under the Revenue Recovery Act for amounts payable by way of sales tax by a firm of which he is a partner. There has been a significant change in the position, when the Kerala General Sales Tax Act, 1963, came into force, repealing the 1125 Act. 36. Section 21 of the 1963 Act provides : "21. Liability of firms. - (1) Where any firm is liable to pay any tax, fee or other amount under this Act, the firm and each of the partners of the firm shall be jointly and severally liable for such payment." Such a provision was absent in the 1125 Act. This section expressly makes a partner liable for the tax of the firm, without in any manner disturbing the primary liability of the firm itself. When an assessment is made under the 1963 Act on a registered firm, that assessment could be the base and support for the initiation of recovery proceedings as against the firm as also the partners of the firm. Even though the firm is a registered entity and even though the assessment is served and a demand made only on the registered firm, recovery is permissible as against the individual partner also under the new enactment. According to the plaintiff, that effect, a substantially changed effect, can affect the partner of a firm only when an assessment made is under the new enactment of 1963. The State had a different approach and version. According to it, there is a positive provision under the proviso to section 61, which was created a legal fiction in relation to the tax outstanding under the 1125 Act. The amount outstanding by way of sales tax thus becomes a liability under the 1963 Act. That, according to the State, is the effect of section 61 thereof. That proviso can be usefully extracted for understanding the contentions focussed on that question. The amount outstanding by way of sales tax thus becomes a liability under the 1963 Act. That, according to the State, is the effect of section 61 thereof. That proviso can be usefully extracted for understanding the contentions focussed on that question. It reads : "Provided that such repeal shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken, including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit, in the exercise of any power conferred by or under the said Act, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act." 37. The first sub-section brings about the repeal of the old Act. There is a general declaration seen in all such repealing statutes or provisions by which pre-existing rights and liabilities are preserved an protected. Even without any further provision, the rights of the State and of the plaintiff would appear to be preserved thereunder. The State had a right under the repealed enactment to get at the tax already assessed. That right is preserved. In a variety of ways, attempts could be made for realising the tax so due from the firm. The modes of recovery have a range of plurality. The latter portion of the proviso conveys a distinct idea. It reads : "..... and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act." Such a provision will not be ordinarily seen in the generality of repealing provisions. That provision can have ordinarily no relevance in statutes wherein monetary liability is not visualised. Even in the generality of repealing provisions of taxing enactments, such a specific and express provision is not ordinarily seen. An analysis of this portion of the statute will bring home the fact that an amount outstanding under the repealed enactment is equated to a liability under the Kerala General Sales Tax Act, 1963. Even in the generality of repealing provisions of taxing enactments, such a specific and express provision is not ordinarily seen. An analysis of this portion of the statute will bring home the fact that an amount outstanding under the repealed enactment is equated to a liability under the Kerala General Sales Tax Act, 1963. The recoverability of that liability is also provided. Is not then the position the same as when a legal fiction is created by a statute ? The liability was, in truth and substance, a liability under General Sales Tax Act, 1125. It was, however, deemed to be a liability under the Kerala General Sales Tax Act, 1963. A liability visualises a legal personality from whom the payment is due. That, in the case, is the firm. Thus, on a careful reading of the proviso to section 61, it can be easily declared that what was a liability under the General Sales Tax Act, 1125, has really become a liability under the Kerala General Sales Tax Act, 1963. The existence of an outstanding liability of the firm under the Kerala General Sales Tax Act, 1963 is, then, not in doubt. Subject to constitutional inhibitions, it is possible for the State Government to deal with the realisation of such liabilities, in any manner it likes. This legal position is clearly evident from the decision in Commissioner of Income-tax v. Shah Sadiq and Sons [1987] 66 ITR 102 (SC); AIR 1987 SC 1217 . Such a pre-existing right or liability could be dealt with by the Legislature either by way of relief to the trader or by adding to his tedium and trouble. The one sentence in the Supreme Court decision in Commissioner of Income-tax v. Shah Sadiq and Sons [1987] 166 ITR 102; AIR 1987 SC 1217 , brings out the point, with lucidity and force. It reads : ".... unless they are taken away expressly". 38. I will then follow that even if the plaintiff had a right (or if a better word could be adopted, immunity) accrued under the General Sales Tax Act, 1125, that itself could be subject-matter of a further change by the Legislature. It reads : ".... unless they are taken away expressly". 38. I will then follow that even if the plaintiff had a right (or if a better word could be adopted, immunity) accrued under the General Sales Tax Act, 1125, that itself could be subject-matter of a further change by the Legislature. The fact that some rights are already accrued under an enactment, does not preclude the Parliament or the Legislature, from making a specific and special provision for a special treatment of such an immunity obtained by citizen, or a disability incurred by the State. Does section 61 purport to impair any such right which had already accrued to the assessee ? Reliance was rightly placed by counsel for the plaintiff on the first part of the proviso and in particular, to the words "subject to". The contention is that the repeal of the 1125 Act in 1963 does not expressly disturb any of the antecedent rights or liabilities. That crucial contention requires more careful examination. 39. The proviso, as noted earlier, covers two ideal : (1) the preservation of antecedent rights and liabilities, (2) the equation of the outstanding under the 1125 Act as liability under the new Act. It is difficult to understand the proviso otherwise than having two such distinct ideas. If it were question of merely facilitating the State to continue recovery proceedings in respect of a liability under the General Sales Tax Act, 1125, without adding to or subtracting from the pre-existing rights, it would have been sufficient to have the first portion of the proviso. When, by express words and a distinct sentence, something more has been consciously incorporated in the statute, a reasonable construction which will avoid attributing a redundance in the legislative exercise, will have to be preferred. It will be then evident that the Legislature effectively declared an equation of the antecedent liability as a liability under the 1963 Act. A liability against a firm under the 1963 Act, as noted earlier, could be enforced by any one of the methods as provided under the 1963 Act. The real state of affairs was about the existence of a liability under the General Sales Tax Act, 1125. The Amendment Act converted a putative state of affairs into a real state of affairs. The real state of affairs was about the existence of a liability under the General Sales Tax Act, 1125. The Amendment Act converted a putative state of affairs into a real state of affairs. When a liability under the new Act of 1963 is thus created by the legislative process and the entity from which that liability is due, namely the firm, is also distinctly discernible, the Court should not allow its mind to be boggled. (Remember the sentence of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952] AC 109. When there is a liability, and against a firm, under the new Act, each partner and his asset would be liable under section 21. So viewed, the proceedings under the 1963 Act against the partner are competent, legal and permissible. Such a situation of fact and law, as far as could be examined, has not arisen elsewhere. The analysis of the factual and legal situation leads to the conclusion that the plaintiff-partner and his assets would be exposed to the recovery process available for the State. 40. On a proper interpretation of the effect of the General Sales Tax Act, 1125 and Kerala General Sales Tax Act, 1963, it has to be declared that a liability of a firm which had arisen under 1125 Act could be recovered after 1963 enactment by proceeding against the firm as also any one of its partners. It is so declared. That declaration would lead to the dismissal of the suit and rejection of the plaintiff's contentions. On this ground as well, the decision of the appellate court has therefore to be reversed, it being vitiated by non-advertance to, and non-application of, the well-settled principles of law. 41. It only remains now to indicate how the various decisions on which counsel for the respondent-plaintiff relied on, could be easily distinguished as inapplicable on the facts. 42. As regards the decisions under the Income-tax Act, many are the distinguishing features. It is unnecessary to discuss them in greater detail in this context. Those decisions only declare that under the scheme of the Income-tax Act, recovery is unavailable against an individual partner for the tax dues from a firm. 42. As regards the decisions under the Income-tax Act, many are the distinguishing features. It is unnecessary to discuss them in greater detail in this context. Those decisions only declare that under the scheme of the Income-tax Act, recovery is unavailable against an individual partner for the tax dues from a firm. The decision of he Full Bench in Income-tax Officer v. C. V. George [1976] 105 ITR 144 (Ker); 1976 KLT 333 which dealt with the situation under Income-tax Act, cannot, therefore, have any application to a case under Kerala General Sales Tax Act, in the light of the wide range of difference between the two enactments. As for example, the observation at (page 149 in [1976] 105 ITR 144 (Ker) [FB]; page 335 in 1976 KLT 333 [FB]) (Income-tax Officer v. C. V. George), gives the emphasis of the separate assessments that have to be made under Income-tax Act on the firm as well as on the partner of the firm. The scheme of the Sales Tax Act does not envisage any assessment on an individual partner. 43. The decision in Deputy Commissioner of Sales Tax v. Kelukutty [1978] 42 STC 108 (Ker); 1978 KLT 309 did not deal with a recovery question at all. The 1963 Act itself had been considered in the decision in Ali Koya Haji v. Assistant Commissioner of Sales Tax [1976] 37 STC 618 (Ker); 1976 KLT 762 . That is different from a situation where, as in this case, the liability had been ascertained, assessed and intimated under the General Sales Tax Act, 1125, but with a situation where recoverability is possible under the 1963 enactment. The decision in [1976] 37 STC 618 (Ker); 1976 KLT 762 (Ali Koya Haji v. Assistant Commissioner of Sales Tax) was not a case where recovery of a liability under the 1963 enactment envisaged by other provisions including the proviso to section 61 had to be considered. The decision in [1976] 37 STC 618 (Ker); 1976 KLT 762 (Ali Koya Haji v. Assistant Commissioner of Sales Tax) was not a case where recovery of a liability under the 1963 enactment envisaged by other provisions including the proviso to section 61 had to be considered. The decisions in State of Punjab v. Jullunder Vegetables Syndicate [1966] 17 STC 326 (SC); AIR 1966 SC 1295 , Kapurchand Shrimal v. Tax Recovery Officer [1969] 72 ITR 623 (SC); AIR 1969 SC 682 , Commissioner of Sales Tax v. Radhakisan [1979] 43 STC 4 (SC); AIR 1979 SC 1588 and Savankutty v. State of Kerala [1978] 42 STC 204 (Ker); ILR (1978) 2 Ker 164 laid down the principle that a partner is not liable to be proceeded against for the tax due from the firm. They were all cases where a statutory provision like section 21 of the Kerala General Sales Tax Act, 1963, was not available. 44. Cases under the Income-tax Act however, have one distinction while considering the question of liability of a partner for the tax dues by a firm. As already noted earlier, in the scheme of the enactment, the firm has an assessable entity. Not only that. An assessment had to be made on the firm and a notice of demand has to be served on it. Every partner of the firm also was an assessable person in relation to the receipt of the identical income by the firm. The scheme of the enactment, it was interpreted, militated against the general and ordinary declaration of the legal position under section 45 of the Partnership Act, whereunder, every partner could be proceeded against for the liability of the firm. Section 45 of the Partnership Act is the statutory provision in the Central enactment. Its effect cannot be ignored or curtailed without sufficient compulsion. When a firm owes money to a private person, that private person can proceed against individual partner, who, under section 45, is jointly and severally, liable along with the firm, for the dues from the firm. The State to whom tax is due, is yet another creditor. If at all, the State is in a better position, having regard to the character of the liability of the firm towards the State. Why should disadvantages and differential consequences be visited upon the State ? The State to whom tax is due, is yet another creditor. If at all, the State is in a better position, having regard to the character of the liability of the firm towards the State. Why should disadvantages and differential consequences be visited upon the State ? The Full Bench of the Kerala High Court was, therefore, at pains to analyse the scheme of the income-tax enactment and to hold that that scheme did not tolerate the enforcement of the general provisions contained in section 45 of the Partnership Act. That may be a plausible view. 45. Can such a view, however, be imported in a wholesale manner into a state enactment like the Sales Tax Act with materially different statutory scheme in relation to the assessability of the firm and partners in relation to the self-same taxable event ? No doubt, by virtue of the legal fiction, a firm, which has otherwise legal entity under the general law, becomes an assessable entity with a distinct legal personality. Merely because a legal personality is so infused on the firm, does it shed all other characteristics, rights, liabilities and advantages flowing from the Partnership Act, for that reason ? Will not the rights and liabilities between the partners and between the partners and the firm, be determined by reference to the provisions of the Partnership Act. If that is the case with the rights, why is the distinction in relation to the liabilities ? A partner of a firm, assessed under the Sales Tax Act, does not get an individual assessment; he is not called upon to pay tax on the self-same taxable event in his personal capacity. Many of these considerations do not appear to have been projected in the course of the arguments in the decisions referred to above. Judicial discipline, however, impels the acceptance of that principle and application thereof, by all the courts in India. The constitutional declaration about the binding nature of the Supreme Court under article 141 has to be observed in letter and spirit. As for the State of Kerala is concerned, there need not be any anxiety to have a review of the legal position when an explicit statutory provision to subserve its interests was made under section 21 of the Kerala General Sales Tax Act, 1963. The difficulty has been overcome as far as the State is concerned. As for the State of Kerala is concerned, there need not be any anxiety to have a review of the legal position when an explicit statutory provision to subserve its interests was made under section 21 of the Kerala General Sales Tax Act, 1963. The difficulty has been overcome as far as the State is concerned. The existing situation is such that it will not stimulate an academic discussion on this aspect. Yet, it is desirable that queries be raised so that attempted answers and auxiliary mental process could contribute to the fertility of academic discussion. The General Sales Tax Act, 1125, by its scheme confined under 27 sections, does not contain any provision which would really impinge upon and render lifeless, the provisions of section 41(5) of the Partnership Act. The adaptation of the principles of the Madhya Bharat and Madhya Pradesh Sales Tax Act could be attempted to be distinguished on that ground as well. Such academic adventures are not of any practical utility now either for the State or for others. 46. The tax, which was due to the State, was not a small sum. As in 1963, it was a fabulous one : Rs. 13 lakhs. When the suit was filed, no effective legal defence was put forward by the State. No written statement as such was filed. That officer, who had the duty to attend to it, acted deceitfully against his employer-State. Officers of the taxing and revenue department who had the duty to instruct the Government Pleader, and step into the witness box and to give evidence to safeguard the interest of the State and to assist the court in the determination of the complicated issues, grievously defaulted in their duties. The default is grave. The defaulters should not be allowed to survive in service without accountability. Even if some or more of such persons have retired from service (they must be in receipt of pension), the State should not hesitate to have a meaningful probe to fix the responsibility. 47. Another distressing experience for the court was the difficulty confronted by the Government Pleader. There was no arrangement for an effective defence of such an important case, with such huge stakes. The orders passed on June 4, 1990 and June 6, 1990 (which have been directed to be forwarded to the Government) say some portion of the sordid story; but not all. There was no arrangement for an effective defence of such an important case, with such huge stakes. The orders passed on June 4, 1990 and June 6, 1990 (which have been directed to be forwarded to the Government) say some portion of the sordid story; but not all. It is time that those who run the department spare some time to attend to these grievously malfunctioning areas of the department. The Government Pleader who had been compelled by circumstances, to argue the case, and without as much of preparation as is desirable, was not furnished with copies of the documents nor even a certified copy of the deposition of the only witness examined in the case. How a meaningful second appeal could be prepared and effective arguments advanced, without any one of these elementary tools and gadgets, is a difficult guess-work even for highly imaginative minds. If continued neglect of those who are obliged to oversee the working of the department persists, it may result in a predictable collapse of the whole system. 48. Before parting with the case, a thread of thought indicated in the prefatory opening paragraph, could be collected to be twined with some others. That is in relation to the culpable negligence on the part of the officers and servants of the Tax Department and the Revenue Department. 49. The inability of a well-equipped Government Department to recover tax including sales tax, is deplorable. This Court had, on numerous occasions, commented upon the extremely ineffective and inefficient manner in which tax cases happen to be conducted in majority of the cases. This Court, which had started exercising powers under article 227 of the Constitution, in relation to the working of the Sales Tax Appellate Tribunal, had shocking information about the arrears of cases before the Tribunal Benches, which have been functioning haltingly and about the functioning of the various sales tax offices. To say the least a systematic functioning seems to be absent in those offices. "Fewer men, harder worked and better paid" was a sensible slogan propounded by Adam Smith. Men cannot be said to be few; only some percentage would appear to be working with devotion and dedication; and they sustain the State and their drone-like colleagues. A reflection of the malfunctioning is the pendency of cases before the Tribunal even of the year 1974. Men cannot be said to be few; only some percentage would appear to be working with devotion and dedication; and they sustain the State and their drone-like colleagues. A reflection of the malfunctioning is the pendency of cases before the Tribunal even of the year 1974. Repeated indications and hints given to the Government by the High Court in the course of disposal of tax matters, does not appeal to have alerted either the tax department or the Board of Revenue to prompt and meaningful action. 50. This county is noted as an ancient propounder of a noble message : about the utility of duty, unconcerned about the fruit. A similar idea was expressed by a philosopher who not only interpreted the word but also exhorted for its transformation. Its inherent value has perhaps gained added attraction and publicity when extracted in a studies article in one of the foremost Law Reviews of the World. It occurs at page 1747 of (1987-88) Harvard Law Review and reads : "(a) Work, - Marx's most durable insight is that productive activity is 'the life of the species' - that work is natural, not something to be endured or escaped, and that the quality of a person's existence is closely related to the quality of his work. What is good work ? The adjective that best captures Marx's answer is meaningful'. Meaningful work requires skill and concentration ......." The attention of the Government could be drawn to the deficiencies of the departmental functioning and to the message which may be well appreciated by the State. A copy of the judgment will be forwarded to the Government. Writ petition allowed.