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2004 DIGILAW 632 (MP)

MAHESH NIRANJAN JUTE PVT. LTD. v. STATE OF M. P.

2004-08-06

A.M.SAPRE

body2004
ORDER A. M. SAPRE, J. - By filing this writ under article 226/227 of the Constitution of India, the petitioner seeks to challenge the order, dated February 28, 2004 (annexure P11), passed by State under section 62(7) of the Madhya Pradesh Commercial Tax Act, 1994 (for short called "the Act"). Facts of the case are these. At the outset, I may take note of the impugned order and also what it contains while rejecting the application of petitioner (dealer) made under section 62(7) of the Act : Matter in Hindi Section 62(7) of the Act under which the aforesaid order came to be passed read as under : "Section 62(7). Notwithstanding anything contained in sub-section (1), but subject to such restrictions and conditions as may be prescribed, where on an application made by a dealer the State Government is of the opinion that hardship is being caused to such dealer due to any order passed under any of the provisions of this Act other than an order under section 32 or an order passed in pursuance or in consequence of an order by the Tribunal or the civil court, High Court, or Supreme Court, the State Government may direct the Commissioner to initiate proceedings under sub-section (1) in respect of such order and on such direction the Commissioner shall dispose of such proceeding according to law as if the proceedings had been initiated by him under clause (b) of sub-section (1) : Provided that no such direction shall be given unless : (a) the dealer has exhausted the remedies available to him under section 61, sub-section (1) of this section, section 71 or section 72 as the case may be, or the period within which any remedy under the aforesaid provisions can be sought has expired and; or (b) his application for revision under sub-section (1) has been rejected on merits : Provided further that such an application shall be entertained by the State Government only once." Mere perusal of the provision and the scheme underlying in its enactment and in particular sub-section (7) would indicate the enormous power given to State authorities for issuance of appropriate directions at the instance of dealer who has taken recourse to invocation of powers of the State Government contained in sub-section (7). Indeed, the very words "notwithstanding anything contained in sub-section (1)" used in beginning of sub-section (7) indicate the overriding powers conferred upon the State authorities in deciding the application made by any dealer. Similarly, the use of the words "State Government may direct the Commissioner" in sub-section (7) ibid, also suggest the element of discretion conferred upon the State authorities while deciding the application. In other words, it is for the State authorities to decide as to whether any case for issuing any direction is made out and if so, what directions are called for in the facts of the case. It is for the State authorities to decide in every case depending upon the nature of relief claimed, directions sought by a dealer in their application as to whether it would be a fit case where directions as prayed for are called for can be granted and if so, what should be its basis, extent and nature. This process involves application of mind and assigning of reasons in support of issuance of directions or even for its refusal to grant. In other words, what is mandatory and one may say sine qua non for deciding the application is "assigning of reasons in the order by the State". Time and again, their Lordships of the Supreme Court has been emphasising the need and importance of assigning of the reasons by judicial/quasi-judicial authorities who are invested with the power to decide the rights of parties under any law. It is, inter alia, ruled that if the order granting or refusing to grant the benefit is not supported by any reasoning then such order is not sustainable in law. It according to their Lordships of the Supreme Court, simply exhibits arbitrariness and non-application of mind. However, if the order contains the reasons for its conclusion then the higher courts in hierarchy is entitled to examine the correctness of reasoning assigned by an authority in support of its conclusion. The higher courts then are in a better position to know and judge whether reasoning assigned by the court concerned is germane, relevant and is capable of being upheld in its appellate or superior powers. In sum and substance, any order which is not based on any reasoning is liable to be set aside on that short ground. The higher courts then are in a better position to know and judge whether reasoning assigned by the court concerned is germane, relevant and is capable of being upheld in its appellate or superior powers. In sum and substance, any order which is not based on any reasoning is liable to be set aside on that short ground. As a necessary corollary, it is obligatory upon the State authorities to give reasons in support of the order passed under section 62(7) ibid. Coming to the facts of the case, it is clear from the impugned order quoted supra that the State has failed to assign any reasons what to say cogent reasons while rejecting the application made by the petitioner in their capacity as dealer under section 62(7) ibid. Such an order is not liable to be sustained in the eye of law and hence, deserves to be set aside. As a necessary consequence of the foregoing discussion, the petition succeeds and is hereby allowed. As observed supra, impugned order, dated February 28, 2004 (annexure P11), passed by the State is set aside by issuance of writ of certiorari. The case is remanded to State authorities to again decide the application made by the petitioner under section 62(7) of the Act after granting them an opportunity to have their say in support of their application. Needless to observe the State will assign cogent reasons in support of their conclusion keeping in view all the requirements of section 62(7) and other relevant sections and will then decide the application one way or other on merits. It is further made clear that State will decide the application on its merits uninfluenced by any of the observations made by this Court on merits because this Court has not applied its mind to the facts of the case and the controversy raised by the petitioner in their application made under section 62(7) ibid. Let the case be decided by the State within six months as an outer-limit from the date of receipt of this order. Petitioner to produce the copy of order before concerning authority of State empowered to decide the application within two weeks. C.C. within a week. Matter remanded.