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Sri Durga Rice and Baba Oil Mills Co. Nidubrole Represented by Its Partner G. Ankineedu Vs. State of Andhra Pradesh Represented by Its Secy. Revenue Dept., Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Sales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. Nos. 820 to 824, 929 and 1006 of 1959
Judge
Reported inAIR1964AP266; [1964]15STC676(AP)
ActsAndhra Pradesh General Sales Tax (Amendment) Act, 1959; Constitution of India - Articles 246, 254(2) and 304; Central Sales Tax Act, 1956
AppellantSri Durga Rice and Baba Oil Mills Co. Nidubrole Represented by Its Partner G. Ankineedu
RespondentState of Andhra Pradesh Represented by Its Secy. Revenue Dept., Hyderabad and ors.
Appellant AdvocateT. Lakshmaiah and ;T. Dhanurbhanudu, Advs. and ;B. Krishna Reddy, Adv. for ;K. Srinivasa Murthy, Adv.
Respondent AdvocateD.V. Sastry, Adv. for ;3rd Govt. Pleader
DispositionPetitions dismissed
Excerpt:
(i) sales tax - freedom of trade and commerce - andhra pradesh general sales tax act (second amendment) act, 1959 and proviso to clause (b) of article 304 of constitution of india - clause (b) of article 304 and proviso attached to it attracted by taxes directly hampering freedom of trade and commerce - taxes levied for collecting revenues for state augments trade and commerce - amended act does not restrict freedom of trade and commerce. (ii) constitution - assent by president - article 254 (2) of constitution of india - assent by president needs to be taken for every amendment as a general rule - assent of president is needed as a precautionary measure to avoid repugnancy between provisions of state act and central legislation - parent act was reserved for assent by president because it.....chandra reddy, c.j.1. the constitutionality of the andhra pradesh general sales tax (second amendment) act, (ii of 1959) is put in issue in these writ petitions.2. the impugned act amended items 5 and 6 of schedule iii (paddy rice) to the andhra pradesh general sales tax act, 1957, which enumerates the goods in respect of which a single point purchase tax only is leviable under section 5(3)(b) of that act, by enhancing the sales tax payable thereon from 3 naya paise to four naya paise in the rupee. the notices on the petitioners demanding the tax as permitted by the amending act have occasioned the resort to article 226 of the constitution by them for the issue of directions to the respondents to forbear from giving effect to the notices.3. the validity of the act is questioned on three.....
Judgment:

Chandra Reddy, C.J.

1. The constitutionality of the Andhra Pradesh General Sales Tax (Second Amendment) Act, (II of 1959) is put in issue in these writ petitions.

2. The impugned Act amended items 5 and 6 of Schedule III (Paddy rice) to the Andhra Pradesh General Sales Tax Act, 1957, which enumerates the goods in respect of which a single point purchase tax only is leviable under Section 5(3)(b) of that Act, by enhancing the sales tax payable thereon from 3 naya paise to four naya paise in the rupee. The notices on the petitioners demanding the tax as permitted by the amending Act have occasioned the resort to Article 226 of the Constitution by them for the issue of directions to the respondents to forbear from giving effect to the notices.

3. The validity of the Act is questioned on three grounds, namely (i) that it operates as a restriction on the freedom of trade contemplated by part XIII of the Constitution, especially. Article 304(b) and, consequently, it falls within the protection of the proviso and that since the requirement as to the assent of the President was not satisfied, the legislation is void; (ii) that the present Act having been assented to by the President, the amending Act could not become law unless and until the President had accorded his assent to it; and (in) that the impugned Act was a colourable piece of legislation as in pith and substance this enactment has modified the Central Sales Tax Act, 1956.

4. We will proceed to deal with these contentions seriatim. Dealing first with the argument based upon Part XIII of the Constitution, needless to say that it is devoid of substance. It is convenient to read Article 304 here in so far as it is immediately relevant. It reads:

'Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law-

XX XX XX (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest.

Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of 'a State without the previous sanction of the President'

5. It is clear from the language of Clause (b) and the proviso that it is only taxes that hamper the freedom of trade or commerce that are attracted by the proviso. In our considered opinion, a tax on the sale or purchase of goods does not interfere with the flow of trade, commerce or intercourse. Its impact on trade or commerce is not to restrict the trading or commercial activity. Taxes which are levied for augmenting the revenues of the State cannot come within the ambit of Clause (b), unless it is shown that they directly affect the trade or commerce. If they impinge indirectly or remotely, it is difficult to bring them within the mischief of Clause (b). Consequences which are indirect and remote cannot be governed by this clause.

6. It is unnecessary for us to pause here any longer, having regard to the principles stated by the Supreme Court in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, 0065/1962 : [1963]1SCR491 . The following passage, which occurs in the judgment of Das J., who delivered the leading opinion of the Court, is instructive.

'For the tax to become a prohibited tax it has to be a direct tax the effect of which is to hinder the movement part of trade. So long as a tax remains compensatory or regulatory, it cannot operate as a hindrance.'

His Lordship added:

'The Constitution-makers must have intended that under those items the States will be entitled to raise revenues for their own purposes. If the widest view is accepted, then there would be for all practical purposes, an end of State autonomy even within the fields allotted to them under the distribution of powers envisaged by our Constitution. An examination of the entries in the lists of the Seventh Schedule to the Constitution would show that there are a large number of entries in the State list (list II) and the Concurrent list (list III) under which a State Legislature has power to make laws. Under some of these entries, the State Legislature may impose different kinds of taxes and duties, such as property tax, profession tax, sales tax, excise duly etc., and legislation in respect of any one of these items may have an indirect effect on trade and commerce. Even laws other than taxation laws, made under different entries in the lists referred to above, may indirectly or remotely affect trade and commerce. If it be held that every law made by the Legislature of a State which has a repercussion on tariffs, licensing, marketing regulations, price control etc., must have the previous sanction of the President, then the Constitution, in so far as it gives plenary power to the States and State Legislatures in the fields allocated to them, would be meaningless. In our view, the concept of freedom of trade, commerce and intercourse postulated by Articles 301 must be understood in the context of an orderly society and as part of a Constitution which envisages a distribution of powers between the States and the Union, if so understood, the concept must recognise the need and the legitimacy of some decree of regulatory control whether by the Union or the States: this is irrespective of the restrictions imposed by the other articles in Part XIII of the Constitution. We are, therefore, unable to accept the widest view as the correct interpretation of the relevant articles in Part XIII of the Constitution'.

To a like effect are the observations of Subba Rao J., in the same case. The learned Judge observed that property tax, profession tax, sales tax, excise duty and other taxes may all have an indirect effect on the free flow of trade but a law which has such a repercussion does not need the previous consent of the President. It is only a law that directly and immediately imposes a tax for general revenue purposes on the movement of trade that would be violating the freedom. If on the other hand the impact is indirect and remote, it would be unobjectionable. In the light of these rules, it is futile to contend that an enactment, like the one in question, is hit by the proviso to Article 304(b) of the Constitution.

7. The following sentence in the judgment of the Supreme Court in Firm A. T. B. Mehtab Majid and Co. v. State of Madras, : AIR1963SC928 is called in aid by Sri Lakshrnayya, learned counsel for the petitioners, in support of his contention that sales tax also comes within the sweep and range of Article 304(b), namely

'sales tax, of the kind under consideration here, cannot be said to be a measure regulating any trade or a compensatory tax levied for the use of trading facilities.'

8. This sentence cannot be torn out of its context and relied upon for supporting a proposition. The sentence following it reads thus:

'Sales tax, which has the effect of discriminating between goods of one State and goods of another, may affect the free flow of trade and it will then offend against Article 301 and will be valid only if it comes within the terms of Article 304(a).'

9. We are not here dealing with a case of discriminatory legislation made by a State and falling within the scope of Article 304(a). A legislation which comes within the purview of Article 304(a) cannot be rendered valid by reserving the Bill for the assent of the President. It will be invalid if the discriminatory nature of the taw affects the free flow of trade and thus offends against Article 301. It will be valid only if it comes within the terms of Article 304(a).

10. It is manifest that their Lordships were dealing with Article 304(a) and not with Article 304(b). Hence the sentence relied upon by the learned counsel is of no avail to the petitioners. It follows that this contention has to be rejected.

11. We will then take up the second controversy. The argument presented by Sri Lakshmayya in this behalf is this. By reason of the Andhra Pradesh General Sales Tax Act, 1957 having been assented to by the President, the President has become an integral part of the State Legislature and, consequently, a legislation amending the parent Act made only by the two houses of the State Legislature and assented to by the Governor does not acquire any validity in that the President, who has become a part of the law-making body, has not been approached for his assent. According to Sri Lakshmayya, with regard to the Andhra Pradesh General Sales Tax Act, 1957, the legislature must be deemed to consist of three parties, the President, the legislative Assembly and the legislative Council and if any one of the three limbs of the legislature is ignored in regard to any amendments thereto, such a law is not valid. The amending law must be made in the same manner and subjected to the same conditions and sanctions as the parent Act, proceeds the argument of Sri Lakshrnayya.

12. As substantiating this proposition, he draws our attention to Section 21 of the General Clauses Act (X of 1897). Section 21 postulates:

'Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.'

13. In support of the first limb of his argument, Sri Lakshmayya placed before us the judgment of the Supreme Court in Article 143 Constitution of India and Delhi Laws Act (1912), In re. (1951) SCJ 527 at p. 603: (AIR 1951 SC 332 at p. 371). The passage relied on by the learned counsel and occurring at page 603 of the report (SCJ): (at p. 371 of AIR) is in these words:

'The Parliament being supreme and its power being unlimited, it did what it thought was right The doctrine of ultra vires has no roots whatever in a country where the doctrine of supremacy of Parliament holds the field. The sovereignty of Parliament is an idea fundamentally inconsistent with the notions which govern inflexible and rigid constitutions existing in countries which have adopted any scheme of representative Government. In England supremacy of law only means the right of Judges to control the executive and it has not greater constitutional value than that.'

Another passage relied on by the learned counsel runs thus:

'The Parliament being a legal omnipotent despot, apart from being Legislature simpliciter, it can in exercise of its soverign power delegate its legislative functions or even create new bodies conferring on them power to make laws. The power of delegation is not necessarily implicit in its power to make laws but it may well be implicit in its omnipotence as an absolute sovereign. Whether it exercises its power of delegation of legislative power in its capacity as A mere Legislature or in its capacity as an omnipotent despot, it is not possible to test it on the touchstone of judicial precedent or judicial scrutiny as Court of justice in England cannot inquire into it'

Another passage called in aid by the learned counsel in the same case is contained at page 667 (of SCJ): (at p. 408 of AIR) it reads:

'To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the Legislature itself.'

14. We do not know what bearing these passages have on the enquiry we have to make in this case. We are not concerned here with the delegation of legislative functions. The only question we are called upon to answer is whether the amending Act also must have been reserved for the assent of the President, since the parent Act was assented to by him. These passages, in our view, do not throw any light on that aspect of the matter.

15. We will now turn to State of Bihar v. Kameshwar Singh, : [1952]1SCR889 cited by the learned counsel for the petitioners. One of the questions that posed itself before their Lordships of the Supreme Court was whether a Bill, which had not received the assent of the Governor, could be reserved for the consideration of the President. It was argued for the respondent that the Act challenged there was not valid for the reason that it was submitted to the President for his assent without its having been assented to by the Governor. This contention was rejected by Their Lordships of the Supreme Court on a consideration of Section 75 of the Government of India Act, 1935 which corresponds to Article 200 of the Constitution. The argument advanced on behalf of the respondent was opposed to the provisions of Section 75 of the Government of India Act, 1935, the predecessor to Article 200 of the Constitution. Their Lordships have pointed out that a Bill does not require the assent of the Governor as also the President and since only a Bill has to be reserved for the opinion of the President it is only a Bill which had not received assent of the Governor that could be reserved for the assent of the President and that if a Bill has received the assent of the Governor it is no longer in the stage of a Bill but has become an Act. It is for this reason that their Lordships rejected the contention urged on behalf of the respondent in the case cited above. We are unable to see how the learned counsel for the petitioners could derive any assistance from this pronouncement.

16. Sri Lakshmayya then cited to us the judgment of the Patna High Court in Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91 in which it stated that it was the duty of the advisors of the Governor-General to scrutinise the terms of a Bill before it was actually sent for his assent and that the giving of assent by the Governor-General was not a mere form of procedure and, consequently, the legislation had to be examined by the law-officers of the Union very carefully. Here again, we fail to appreciate the relevancy of these remarks in the context of the petitions.

17. The same learned Judges have stated in Kameshwar Singh v. Province of Bihar, : AIR1951Pat246 in the same report at page 246 at 251 that the fact that the Governor-General had given his assent to a Bill passed by a Provincial Legislature did not mean that he had become a limb of that Legislature. It was pointed out by the learned Judges:

'Under Sub-sections (2) and (3) of Section 100, the Provincial Legislature has power to make laws with respect to any of the matters enumerated in List III and List II. Then there is Section 107, which, as I have already said, deals with inconsistency or repugnancy of a particular character. It would, I think, be wrong to assume from the provisions of Section 107 that the Governor-General as representing His Majesty is part of the legislative machinery of a Province.'

They added:

'A Provincial law even with regard to a matter enumerated in the Concurrent List does not become bad merely because the assent of the Governor General has not been taken.'

18. It is thus plain that the President does not become a limb of the State Legislature merely because he gives his assent to certain Bills reserved for his consideration.

19. We will now refer to certain passages in some of the text-books referred to by Sri Lakshmayya. In Cooley's Constitutional Limitations, Volume I it is stated inter alia at page 266:

'But when the legislative power of a State is to be exercised by a department composed of two branches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of the mere intent of the law-makers, and sometimes forms become of the last importance. For in such case not only is it important that the will of the law-makers be clearly expressed, but it is also essential that it be expressed in due form of law.'

The learned author says at Page 359 of the book thus:

'So the forms prescribed for legislative action are in the nature of limitations upon its authority. The constitutional provisions which establish them are equivalent to a declaration that the legislative power shall be exercised under these forms, and shall not be exercised under any other. A statute which docs not observe them will plainly be ineffectual.'

20. The principles enunciated in these passages would have been relevant if the amending Act has to be reserved for the assent of the President and yet this has not been done by the legislative department. Therefore, these passages are not of much avail to the petitioners.

21. The passages dealing with the veto power occurring at pages 57, 206 and 208 in the Cooley's Constitutional Law are not quite relevant for the purpose of these petitions. It is true that it is stated there that the power to veto legislation and not executive (sic) and the reasons that induced the Constitution makers to vest in the President the power to veto a bill are also given. Such a controversy does not arise here, because we are unconcerned with the power of veto. Hence, it is needless to extract those passages here or discuss them any further.

22. Sri Lakshmayya has next drawn our attention to a passages at page 256 in the 'Legislative Methods and Forms' by Ilbert and argues on the basis of that passage that an amending Act throws the whole law into a crucible and, therefore, it should be regarded as not having an independent existence and that, consequently, it should be reserved for the Presidential assent. This argument is the result of misunderstanding the passage, relied upon. What is stated these is that when amendments of minor importance are sought to be made in a statute, it is not advisable to repeal the old law and re-enact it with the necessary modifications.

Says the author:

'Even where there is only one Act that need be amended, a proposal to repeal the whole Act for the purpose of making a single amendment, or two or three amendments of minor importance, is open to many objections. It gives the proposed legislation an appearance of being more important and more extensive in its scope than it really is, and the prudent legislator will usually prefer to minimise rather than magnify his proposals. It obscures, and distracts the attention of the legislature from the immediate point or points in issue. It throws the whole law in the crucible, exposes to amendment, not merely the particular provisions which the introducer of the Bill desires to alter, but all other provisions of the law which appeal to be in any way open to criticism, and consequently multiplies the points of attack and the obstacles to progress in Committee. The proposal to repeal and re-enact, not the whole of an Act, but merely a particular section of an Act is often open to similar objections from a parliamentary point of view. For the Section may embody a principle, or may contain provisions, which the introducer of the Bill does not desire to question, but which cannot escape criticism if the whole section is proposed for repeal.'

23. The author merely pointed out the difficulties attendant on repealing the whole law and re-enacting it merely for the purpose of introducing minor amendments. This does not warrant the conclusion that an amendment of the parent Act would bring the whole law into a crucible or that the whole law is being re-enacted and that, consequently it requires the assent of the President.

24. If we now examine the relevant provisions of the Constitution carefully it becomes clear that it is not every amendment that should be submitted for the assent of the President irrespective of whether the amendment involves anything which calls for the assent of the President, merely because the main Act was referred to for his assent.

25. We wilt first notice the proviso to Article 304. It reads:

'Provided that no Bill or amendment for the the purpose of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.'

26. It is seen that this proviso mentions specifically the 'amendment' independent of the Bill. The implication of this is that it is an amendment which imposes reasonable restrictions on the freedom of trade, commerce or intercourse that requires the previous sanction of the President. If, as urged by Sri Lakshmayya, learned counsel for the petitioners, it is an universal principle that, whenever an Act is assented to by the President all the amending Acts require a similar consent, then there was no necessity for the Constitution to mention 'amendment' specifically in the proviso. If it is a general rule that the amendments should always be submitted for the assent of the President when the parent Act was given assent to by him, the word 'amendment' in the proviso is otiose.

27. A scrutiny of some of the Articles of the Constitution will also show that there are some provisions in relation to the assent of the President. Article 31, Clauses (3) and (6), which deal with laws that affect the right to property, require that such laws should be assented to by the President. Article 31A which relates to the saving of laws provided for acquisition of estates etc., postulates that the assent of the President should be obtained to save such legislations from being challenged on the ground that they contravene any existing law or that they infringe the fundamental rights guaranteed to the citizen.

Similarly, Article 254 requires that when there is repugnancy between a law made by the State Legislature and an earlier one made by the Parliament with respect to any of the matters enumerated in the concurrent list or an existing law with regard to that matter, the assent of the President should be obtained to save it from repugnancy. Again, as we have already stated, under Article 304, with regard to a bill or amendment coming within the purview of Clause (b), the provision as to assent of the President has to be complied with. As already pointed out, the use of the two expressions 'Bill' and 'Amendment' in the proviso is significant in that an independent existence is given to the amendment. It would be redundant to mention 'amendment' specifically, if as a rule the amending Act also requires the assent of the President irrespective of whether it impedes the free flow of trade or commerce merely because the parent Act was reserved for the consent of the President.

28. Often, the parent Act by a State Legislature may contain some provisions which deal with a matter coming either (Sic) under list III and it is only to save a law made by such a Legislature from challenge on the plea of repugnancy between it and an existing law or a Parliamentary law that the device of obtaining the President's assent is resorted to.

29. In this case, the Andhra Pradesh General Sales Tax Act was reserved for the assent of the President because there are certain provisions in it which deal with subjects coming under the concurrent list. For instance, section 36 recites.

'Save as otherwise expressly provided in this Act, no court shall entertain any suit, or other proceeding to set aside or modify, or question the validity of any assessment, order or decision made or passed by any officer or authority under this Act or any rules made thereunder, or in respect of any other matter falling within its or his scope.'

30. It is plain that this section cuts down the ambit of Section 9 C.P.C., an enactment made by the Parliament in respect of entry 13 of List III. This entry deals with 'Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.' As the Civil Procedure Code was enacted by the Parliament and since the civil procedure is included in the concurrent list (list III), the State legislature must have thought it advisable to obtain the assent of the President in regard to the Andhra Pradesh General Sales Tax Act.

31. Likewise Explanation II to Section 2(n), which defines 'sale' which is in these words:

'Notwithstanding anything contained in the Indian Sale of Goods Act, 1930 (Central Act III of 1930), a sale or purchase of goods shall be deemed, for the purposes of this Act, to have taken place in the State, wherever the Contract of sale or purchase might have been made, if the goods are within the State ........'

was open to the criticism that the legislature was not competent to abrogate the provisions of the Sale of Goods Act passed by the Central legislature. As the Andhra Pradesh General Sales Tax Act, 1957 contains provisions like these, dealing with topics enumerated in list III, the State legislature thought it necessary to obtain the assent of the President to obviate all controversies. That does not follow that a minor amendment like the one contemplated by the impugned Act should be reserved for the assent of the President though it does not in any way affect the free flow of trade or commerce. For these reasons, we cannot give any effect to the second contention either.

32. THE third branch of challenge, namely, that the Act in question is a colourable piece of legislation, is utterly untenable. What is urged in this behalf by Sri Lakshmayya is that since there was an evasion of payment of taxes on paddy and rice under the Central Sales Tax Act, the State Legislature, thought of enhancing the tax payable on rice and paddy and giving exemptions so that it may not cause hardship to those who have been paying the taxes regularly.

To bring home to us the reasons and the motives for amending items 5 and 6, the learned counsel has taken us through the Statement of Objects & Reasons to show that it was 'with a view to preventing the considerable loss of revenue that is likely to result if exported paddy and rice were to escape the tax of 1 naya paisa in the rupee under the Central Sales Tax Act, the Government have now decided to increase the rate of tax on paddy and rice under the Andhra Pradesh General Sales Tax Act, 1957, to 4 naya paisa per rupee of the turnover which is the total of the tax 1957, and the Central Sales Tax Act, 1956'. It is true that while the Statement of Objects and Reasons should not be relied upon in construing the provisions of an Act it could be looked into for the purpose of ascertaining the conditions that prevailed at the time when the impugned law was made, as laid down by the Supreme Court in State of West Bengal v. Subodh Gopal, : [1954]1SCR587 . It was held in that case that the statement of objects and reasons could be referred to for the limited purpose of acertaining the conditions prevailing at the time which actuated the sponsor of the bill to introduce the same and the extent and urgency of the evil which he sought to remedy.

33. But the reasons and the motives that prompted the legislature to make a law are not justiciable. That is entirely a matter of legislative policy with which the Courts are unconcerned. The doctrine of colourable legislation revolves round the legislative competence and it has nothing to do with the reasons or the objects behind the legislation.

34. It could not be posited that it was beyond the legislative competence of the Andhra Pradesh legislature to legislate upon taxes on sales and purchases. The mere fact that the Parliament is also invested with power to make laws on taxes on sales or purchases of goods other than newspapers what such sales or purchases take place in the course of inter-State trade or commerce (vide entry 92-A in list I) does not take away the right of the State Legislature to make laws in regard to taxes on the sale or purchase of goods. The authority to legislate on this topic is conferred on the State by entry 54 of list II. Of course, this is subject to the provisions of entry 92-A of list I. It is not pretended that the impugned legislation relates to inter-State trade or commerce. As we have already stated, the Act now under challenge has merely increased the rate of tax payable on certain commodities at the point of first purchase. Surely, if it any way affects the inter-State trade or commerce, such legislation falls outside the purview, be it the amending Act or the parent Act. It is needless to pursue this topic any further or to cite any authority, for the purpose of showing that the impugned Act cannot be regarded as a colourable piece of legislation. It was directly within the competence of the State legislature and it is too much to contend that the legislature had resorted to the device of clothing the legislation in a form which would make it appear that it was within its legislative power. If really it was beyond its competence, the form in which it was clothed will not save the Act from condemnation because a legislature cannot violate the constitutional prohibitions. As already mentioned, it was within the power of the State legislature to make sales-tax laws.

35. For these reasons, the third contention isalso rejected. It follows that the impugned legislationis quite valid and its constitutionality cannot bequestioned.

36. In the result, W. P. Nos. 820 to 824 of 1959 and W. P. No. 1006 of 1959 are dismissed with costs. Advocate's fee in each Rs. 50/-(fifty). W. p. No. 929 of 1959 is dismissed without costs as it has not been admitted.


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