Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 813 (ALL)

SONALI TRADING CO. v. SALES TAX TRIBUNAL

2001-08-10

I.M.QUDDUSI

body2001
I. M. QUDDUSI, J. ( 1 ) HEARD learned counsel for the applicant Sri A. R. Masoodi and the learned Standing Counsel. ( 2 ) THIS revision has been filed against the judgment and orders passed in second appeal Nos. 53 of 2000 and 60 of 2000 for the assessment year 1998-99 by two different members of the Trade tax Appellate Tribunal while sitting at Faizabad. ( 3 ) LEARNED counsel for the revisionist has submitted that in fact this order cannot be said to be an order passed by the Trade Tax Appellate Tribunal, Faizabad Bench, Faizabad, as one member has signed the judgment and put the date as 13th September, 2000, mentioning the designation below the name as Member, Trade Tax Tribunal, Peeth Pratham (Bench-1), Kanpur, while the other member has signed the same judgment putting the date as 28th August, 2000, and mentioning the designation below the name as Member, Trade Tax Tribunal, Faizabad Peeth (Faizabad Bench), Faizabad. ( 4 ) THE court has perused the impugned order passed in Second Appeal Nos. 53 of 2000 and 60 of 2000 (assessment year 1998-99) M/s. Sonali Trading Co. , Galla Mandi, Sultanpur v. Commissioner of Trade Tax, Uttar Pradesh ). ( 5 ) AFTER the operative part of the order, the designation and the dates mentioned by learned members, Appellate Tribunal are given as under : sd/- 13th September, 2000. Sd/- 28th August, 2000. (C. B. srivastava) (R. B. agarwal)Sadasya, Vyapar Kar Adhikaran, Sadasya, Vyapar Karpeeth Pratham, Kanpur Adhikaran, Faizabad Peeth, faizabad. ( 6 ) UNDER clause (d) of sub-section (10) of Section 10 of the U. P. Trade Tax Act, the President of the Tribunal has been conferred with the powers to direct an appeal to be heard and decided by a larger Bench or to transfer an appeal from one Bench to another Bench. ( 7 ) IT appears that the Bench was constituted by order of the President, Tribunal as one member was sitting at Faizabad coming from Kanpur and the other one was stationed at Faizabad. ( 7 ) IT appears that the Bench was constituted by order of the President, Tribunal as one member was sitting at Faizabad coming from Kanpur and the other one was stationed at Faizabad. Therefore, it appears that the Member, namely Sri C. B. Srivastava who was sitting at Faizabad, has mentioned below his name as Member (Bench-1), Kanpur but in the opinion of this Court when a Member of the Tribunal stationed at any place, is directed to sit at a particular place for disposal of cases then for the purpose of holding the court, the member of the Bench of the tribunal for all purposes should write his designation showing his capacity in which he is deciding the case having jurisdiction of a particular area where he is camping for the purpose under the directions of the President of the Tribunal. ( 8 ) IN the above regard, the provisions of Rule 69 of the U. P. Trade Tax Rules, 1948 which are quoted as under, are liable to be perused : "69. Constitution of the Tribunal.-- (1) The headquarters of the President of the Tribunal shall be at Lucknow, and he shall exercise concurrent jurisdiction over all circles in Uttar Pradesh and may recall any case for hearing by himself. (2) The headquarters and jurisdiction of other single member benches, referred to in clause (a) of sub-section (10), of Section 10, shall be such as the State Government may, from time to time, in consultation with the President, notify. (3) The President, may, from time to time, constitute benches of two or more members, and specify the jurisdiction and place of sitting of such benches, as he may consider necessary. (4) In every bench of two or more members, the number of members from each of the sources referred to in clauses (a) and (b) of Sub-section (1) of Section 10 shall, as far as practicable, be equal : provided that in every such bench at least one member shall be from amongst persons who have been Judges of a High Court or who are or have been members of the Uttar Pradesh Higher judicial Service. (5) An application for stay under Sub-section (6) of Section 10 may be heard and disposed of by a single member bench irrespective of the amount involved. (5) An application for stay under Sub-section (6) of Section 10 may be heard and disposed of by a single member bench irrespective of the amount involved. (6) The members of the Tribunal shall be under the administrative control and supervision of the president. " ( 9 ) THE provisions of Sub-sections (10), (11) and (12) of Section 10 of the U. P. Trade Tax Act, 1948 which are quoted as under, are also liable to be perused. " (10) (a) An appeal against the order of appellate authority under Section 9 shall be heard and disposed of- (i) by a bench of two members, where such order is passed by an Additional Commissioner (Appeals) or the amount of tax, fee or penalty in dispute exceeds fifty thousand rupees; (ii) by a single member bench, in any other case. (b) An appeal against an order passed under Section 10b or against a direction given under the proviso to Sub-section (6) of Section 13a shall be heard and disposed of by a bench of two members. (c) An appeal against an order under Sub-section (2b) or Sub-section (3) of Section 4a or a decision given under Section 35, or an order granting or refusing to grant an eligibility certificate within the meaning of clause (d) of sub-section (2) of Section 4a shall be filed A before the president and shall be heard and disposed of by a bench of three members. (d) The President may, if he so thinks fit- (i) direct an appeal to be heard and decided by a larger bench ; (ii) transfer an appeal from one bench to another bench. (e) In a case before a bench consisting of two or more members any order other than an order finally disposing of the case may be passed by any one of the members constituting the bench. . . . . . (11) The place of sitting and procedure of, and the manner of presenting appeals and other documents to the Tribunal shall, subject to the rules, be such as the Tribunal may deem fit to adopt. (12) The decision of case heard by a bench, shall be in accordance with the opinion of the majority. . . . . . (11) The place of sitting and procedure of, and the manner of presenting appeals and other documents to the Tribunal shall, subject to the rules, be such as the Tribunal may deem fit to adopt. (12) The decision of case heard by a bench, shall be in accordance with the opinion of the majority. Where the members are equally divided the President of the Tribunal may- (a) if he was not a member of such bench, give his own opinion or refer the case for the opinion of another member, whereupon the case shall be decided in accordance With such opinion ; or (b) form a larger bench. " ( 10 ) A perusal of the above quoted provisions shows that the final orders can be passed by a bench consisting of two members. In case the bench consisting of two members decides an appeal and the members divide equally, the President of the Tribunal may if he was not a member of such bench, give his opinion or refer the case for the opinion of another member but it will be an opinion and the case cannot be decided by that member or the President and the case shall be decided in accordance with such opinion, by the bench. Thus, in any case it will be decision of the bench collectively as per majority and not the decision of an individual member. ( 11 ) IN the opinion of this Court, once a division Bench had been constituted, and any individual member signs/passes or pronounces the order separately with separate identity, it cannot be said to be an order of the division Bench of the Tribunal, in the eye of law, as one of the members is not in fact, a member of the concerned Trade Tax Tribunal or has not been conferred or specified with the jurisdiction in respect of the concerned circle on the date of delivery of judgment as provided in Rule 69 of the U. P. Trade Tax Rules, 1948, and hence the order so passed is not a valid judgment. ( 12 ) IN the instant matter, there are two dates mentioned in the judgment under the signatures of each member of the Tribunal which shows that the date of pronouncement of judgment by one member is different and by another member is different. ( 12 ) IN the instant matter, there are two dates mentioned in the judgment under the signatures of each member of the Tribunal which shows that the date of pronouncement of judgment by one member is different and by another member is different. ( 13 ) IN this regard, the case of Surendra Singh v. State of U. P. reported in AIR 1954 SC 194 , in which honourable Supreme Court has relied upon the judgment of the Calcutta High Court consisting of nine Judges in the year 1867 in the case of Mahomed Akil v. Asadunnissa Bibee, 9 wr 1 (FB) (B), is liable to be perused. In that case honourable Peacock, C. J. pointed out at page 30 as under : "the mere arguments and expressions of opinion of individual Judges who compose a court, are not judgments. A judgment in the eye of the law is the final decision of the whole court. It is not because there are nine Judges that there are nine judgments. When each of the several Judges of whom a single court is composed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. If it were otherwise, and if each of the memoranda sent in on the present occasion were a judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for. " ( 14 ) IN the case of Mahomed Akil 9 WR 1 (FB) (B) the matter for consideration was that three of the seven Judges who constituted the bench handed in signed judgments to the Registrar of the court ; before the judgment could be delivered, two of them retired and one died. A Full Bench of nine Judges was convened to consider whether the draft of those three Judges could be accepted as judgment of the court. ( 15 ) THE honourable Supreme Court in Surendra Singh case AIR 1954 SC 194 has further observed that now up to the moment the judgment is delivered, Judges have the right to change their mind. There is a sort of "locus paenitentiae" and indeed last minute alterations often do occur. ( 15 ) THE honourable Supreme Court in Surendra Singh case AIR 1954 SC 194 has further observed that now up to the moment the judgment is delivered, Judges have the right to change their mind. There is a sort of "locus paenitentiae" and indeed last minute alterations often do occur. Therefore, however, such a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the court. Only then does it crystallize into a full fledged judgment and become operative. It follows that the Judge who "delivers" the judgment or causes it to be delivered by a brother Judge, must be in existence as a member of the court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. ( 16 ) THE honourable Supreme Court in the case of Surendra Singh AIR 1954 SC 194 considered the decision of nine Judges bench of Calcutta High Court and held that all nine Judges were unanimous in holding that those three opinions could not be regarded as judgments in the formal sense of the term. In the opinion of their Lordships, Jackson, J. expressed the law a right in these words : "i have however always understood that it was necessary in strict practice that judgments should be delivered and pronounced in open court. Clearly, we are met today for the first and only time to give judgment in these appeals ; and it appears to me, beyond question, that Judges who have died or have retired from the court cannot join in the judgment which is to be delivered today, and express their dissent from it. " ( 17 ) IN the result the revision succeeds and is allowed. " ( 17 ) IN the result the revision succeeds and is allowed. The order dated 13th September, 2000 passed by Sri C. B. Srivastava, member of the Trade Tax Tribunal, Pratham Peeth, Kanpur, and which has been signed by Sri R. B. Agarwal, Member, Trade Tax Tribunal, Faizabad Peeth, faizabad on 28th August, 2000, is quashed and the President, Trade Tax Tribunal is directed to pass orders in accordance with Rule 69 of the U. P. Trade Tax Rules for reconstitution of the bench comprising of the members other than Sri C. B. Srivastava and Sri R. B. Agarwal. It will be open for him to take up second appeal Nos. 53 of 2000 and 60 of 2000 (for the assessment year 1998-99) pending before Faizabad Bench of the Tribunal by transferring the same at Lucknow or pass any appropriate orders in accordance with law. Consequently, the appeals shall be deemed to have been restored before the Tribunal and the interim orders passed in the appeals shall also become effective henceforth. ( 18 ) SINCE the revision has been decided, no interim order as prayed can be passed but as the judgment and order passed by Member of Trade Tax Tribunal has been set aside, the appeals before the Tribunal shall remain pending and shall be deemed to have been pending with all interim orders which were in existence during pendency of the appeals earlier before this decision, till the same are redecided. The parties shall appear before the Trade Tax Tribunal on 3rd September, 2001. ( 19 ) A copy of this order will be supplied to the learned counsel for the parties, on payment of usual charges. ( 20 ) A copy of this order shall also be sent through Registrar of this Court to the President, Trade tax Tribunal, U. P, Lucknow, for compliance.