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Madhya Pradesh High Court · body

2001 DIGILAW 101 (MP)

Kabra Drugs Limited v. State of M. P.

2001-01-31

A.M.SAPRE

body2001
Judgment ( 1. ) BY this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has claimed following reliefs :- " (i) a writ of mandamus restraining the respondents from enforcing the provisions of M. P. Excise Act and/or rules seeking to levy permit fee and/or transport fee under the provisions which have already been declared by the Supreme Court as beyond the legislative competent of the State. (ii) a writ of prohibition forebearing the respondents from giving effect to the provisions of the Act and the rules seeking to levy permit fee/transport fee. (iii) a writ, direction or order restraining the respondents from levying or collecting the excise duty in future in the garb of permit fee or transport fee. (iv) a writ, direction or order in the nature of mandamus directing the respondents to refund a sum of Rs. 2,55,000/- and/or any other fees levied and collected as permit fee or transport fee from the petitioners which is without the authority of law. (v) a writ, direction or order declaring that the levy and collection of permit fee and transport fee is without the authority of law and, therefore, refundable in favour of the petitioner. (vi) a writ, direction or order in the nature of mandamus directing the respondent No. 4 to refund the entire amount collected by them as sales-tax from the petitioners which is without the authority of law. " ( 2. ) HEARD Shri P. M. Choudhary, learned counsel for the petitioners, Shri D. D. Vyas, Addl. Advocate General with Shri S. Mukali, learned Government Advocate for respondent Nos. 1 to 3 and Shri Kochatta, learned counsel for respondent No. 4. ( 3. ) AT the outset, the learned Additional Advocate General raised an objection contending inter alia that in substance, what the petitioner has challenged in this petition is the constitutional validity of Rule VIII (2) and its proviso and Rule IX proviso of Denatured Spirit Rules Framed under Section 62 of M. P. Excise Act which authorises the State to impose/recover permit fees of Rs. 2. 54 per bulk litre on denatured spirit or special denatured spirit as also permit fee of Rs. 1. 25 for every bulk liter on special denatures spirit. 2. 54 per bulk litre on denatured spirit or special denatured spirit as also permit fee of Rs. 1. 25 for every bulk liter on special denatures spirit. According to learned Additional Advocate General, the relief claimed by the petitioner i. e. , not giving effect to the impugned rules and direct refund of fees collected by State under these two Rules can not be granted unless these two Rules can not be granted unless these two Rules are declared ultravires. Learned Additional Advocate General placing reliance on the Full Bench decision of this Court rendered in the case of Abdul Taiyab Malik Vs. Union of India ( 1976 MPLJ 767 ) urged that this petition be sent for its disposal on merit at Jabalpur (Main Seat of M. P. High Court) because it is only the main seat that alone can hear and decide the petitions involving vires matters. ( 4. ) IN reply, the submission of learned counsel for the petitioner on this objection was that the law on the question whether the State has any legislative competence to impose any tax or/and fees on denatured spirit was already decided in favour of petitioner by their Lordships of Supreme Court in the leading case of Synthetics and Chemicals Ltd. Vs. State of U. P. , (1990) 1 SCC 109 , wherein their Lordships in categorical terms ruled that State is denuded of its legislative power to impose any tax or fees on denatured spirit (Industrial Alcohol ). Learned counsel urged that when the issue has already been decided and it is much more so when the State of M. P. was also party to the Supreme Court decision as an intervener then the impugned Rules in the present case stands already declared ultravires to the provisions of Constitution by the decision of Supreme Court in the case of Synthetics India (supra ). It is on this basis, learned counsel urged that this Court (sitting as Single Bench) can hear and decide the petition on merits and if possible can equally grant the relief prayed in the petition. ( 5. ) HAVING heard the learned counsel for the parties on this preliminary objection, I am inclined to uphold the preliminary objection raised by the respondent (State ). ( 5. ) HAVING heard the learned counsel for the parties on this preliminary objection, I am inclined to uphold the preliminary objection raised by the respondent (State ). In my considered view, if one read the petition and the relief claimed therein, then it would clear appear that in effect the relief is for a declaration that the impugned Rules i. e. , Rule VIII (2) and IX of denatured spirit Rules framed under Section 62 of M. P. Excise Act be declared ultravires to the provisions of Constitution of India in the light of law laid down by the Supreme Court in the case of Synthetics Chemicals case (supra ). In other words, while granting the relief to the petitioner, this Court will have to examine the effect of the law laid down by their Lordships of Supreme Court in Synthetics Chemicals case as to whether State can still consider the impugned rules to hold the field on Statute Book or it has lost its enforcibility. It being a settled principle of legal jurisprudence that merely because the petitioner has not claimed this relief in so many words or one may say in specific term makes no difference because one has to see the substance of the relief claimed and what could be the effect of the relief if granted to the petitioner on merits. ( 6. ) AS observed supra, in order to consider the case of the petitioner of merits, whether a writ of mandamus for the refund of the fees collected by the State under the impugned Rules, this Court will have to examine its enforcibility as also whether impugned rule still holds the field or not in the light of Synthetics Chemicals case (supra ). It is in this context, in my considered view, I sitting in Indore Bench (Single Bench) of this High Court may not be able to decide these issue. Indeed judicial proprietary demands that this matter be sent to main seat (Jabalpur) for its disposal on merits in the light of law laid down in ATA Maliks case (supra ). ( 7. ) ACCORDINGLY and in view of aforesaid discussion, I refrain myself from deciding this petition on merits and direct the Registry (Indore Bench) to send the record of this case to main seat (Jabalpur) for its disposal on merits by the appropriate Bench hearing vires matters.