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Sri Konathala Venkata Ramana and Budha Appa Rao Vs. State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition Nos. 2842 to 2844 of 1967 and 452 to 466, 2626 to 2628, 2644 to 2651, 2655, 2656, 2979
Judge
Reported in[1969]24STC367(AP)
AppellantSri Konathala Venkata Ramana and Budha Appa Rao
RespondentState of Andhra Pradesh and anr.
Appellant AdvocateT. Anantha Babu, ;D. Venkatappaiah Sastry, ;I. Venkatanarayana, ;P. Rama Rao, ;T. Raman, ;T. Venkatappa, ;S. Dasaratharama Reddi and ;P.A. Choudary, Advs.
Respondent AdvocateP. Ramachandra Reddi, Principal Government Pleader
DispositionPetition allowed
Excerpt:
- - in other words, the turnovers which are not taxable in the hands of the respective principals, are aggregated to fasten liability on the agent, which is clearly discriminatory and violative of article 14; it offends article 19(1)(g) because an unreasonable restriction is sought to be imposed upon the agent who, while he is made liable for the tax in respect of turnovers of less than rs. the contention that section 5, which is the charging section, remains unaffected and the legislature cannot, by a machinery or collecting provision like section 11, enlarge the liability is countered on the ground that there is no impediment to the legislature amending the act in any manner it likes within the ambit of its power. it provides that where goods are sold by a person who is not the owner.....jaganmohan reddy, c.j.1. this batch of writ petitions challenges the constitutional validity and vires of section 11 of the andhra pradesh general sales tax act, 1957, as amended by act 5 of 1968 (hereinafter called 'the act').2. taking the facts in w.p. 2842 of 1967 as typical of the batch of writ petitions, it appears that the petitioner, who is a registered dealer under the act, is a firm carrying on the business of commission agents in jaggery at anakapalle in visakhapatnam district. numerous small agriculturists in the villages near about anakapalle grow sugar-cane on small extents of land. this sugar-cane is converted into jaggery and brought to the shop of the petitioner for sale on commission. the petitioner, it is stated, arranges for the sale of the jaggery in the presence of.....
Judgment:

Jaganmohan Reddy, C.J.

1. This batch of writ petitions challenges the constitutional validity and vires of Section 11 of the Andhra Pradesh General Sales Tax Act, 1957, as amended by Act 5 of 1968 (hereinafter called 'the Act').

2. Taking the facts in W.P. 2842 of 1967 as typical of the batch of writ petitions, it appears that the petitioner, who is a registered dealer under the Act, is a firm carrying on the business of commission agents in jaggery at Anakapalle in Visakhapatnam district. Numerous small agriculturists in the villages near about Anakapalle grow sugar-cane on small extents of land. This sugar-cane is converted into jaggery and brought to the shop of the petitioner for sale on commission. The petitioner, it is stated, arranges for the sale of the jaggery in the presence of the agriculturists or their representatives, by auction in the market place and passes on the sale price to the agriculturist-principals after appropriating the agent's commission. It is averred that none of the agriculturist-principals have a turnover exceeding Rs. 10,000 and consequently, under the sales tax law, the agent would not be liable in respect of the transactions entered into on behalf of such principals. Apart from the question as to whether the petitioners would be liable under Section 5-A of the Act for additional sales tax on a turnover exceeding Rs. 3 lakhs, which question is concluded by a judgment of this court in W.P. Nos. 748 of 1967 and batch decided on 26th September, 1968 Since reported as Addepalli Surya Ramachandra Rao & Co. v. The State of Andhra Pradesh and Ors. [1969] 24 S.T.C. 133, it is contended that a Bench of this Court, consisting of one of us (the Chief Justice) and Krishna Rao, J., had held in Irri Veera Raju v. Commercial Tax Officer [1967] 20 S.T.C. 501, 509 that the reason why an agent is being assessed is that he is only a convenient representative for assessment, levy and collection of the tax whether he is the agent of a resident or a non-resident principal. That is, the agent's liability is a vicarious liability on behalf of the seller or purchaser as the case may be, because it is convenient to effect collections from him. On this hypothesis, it was held by Ramachandra Iyer, J., delivering the judgment of a Bench of that Court in T.R.C. Nos. 38 to 40 of 1955, that an agent 'is deemed to be as many dealers' as there are 'non-resident principals' for whom he is dealing. Therefore, when there is an exemption attaching to the sale or sales of goods made on behalf of the principals which is included in the turnover, it stands to reason that the exemption would be attracted to the sale of such goods by the agent, for really, it is in respect of the principal's goods that he passes title and it is the sale of these goods that occasions the tax liability. This was the basis of the decision of the Bench of this Court in Irri Veera Raju's case [1967] 20 S.T.C. 501, 509 referred to above.

3. As a result of the decision of the Bench in Irri Veera Raju's case [1967] 20 S.T.C. 501, 509 the assessments which were being made on the agents on the aggregate of the turnover of the several principals which exceed Rs. 10,000 notwithstanding the fact that the turnover of each of the principals did not exceed Rs. 10,000 were struck down. In order to get over the effect of this decision and to safeguard against any possible evasion by agent-dealers who purport to act on behalf of fictitious principals, Section 11 of the Act was amended so as to make the agent liable in respect of the transactions of several principals whose aggregate turnover exceeded Rs. 10,000 irrespective of the fact that the turnover in respect of each of the principals was less than Rs. 10,000. It is the effect and validity of this section that are now challenged before us.

4. The learned Advocates for the petitioners, Sri Anantha Babu, Sri Venkatappaiah Sastry and Sri Choudary, contend, inter alia, (i) the amendment has not in anyway altered the basis of the decision of the Bench in Irri Veera Raju's case [1967] 20 S.T.C. 501, 509 namely, that on a true construction of the section, the liability of the agent is co-extensive with the liability of the principal, that where he is dealing on behalf of several principals, he is deemed to be as many dealers as there are non-resident prinipals for whom he is dealing, that the vicarious nature of the liability of the agent remains unaffected, and that the basis of his liability, as being only a convenient representative for the assessment, levy and collection of the tax, is unaltered ; (ii) when the agriculturist who sells jaggery, which is an agricultural produce, is himself not liable to be taxed, his agent is sought to be made liable in respect of such transactions, virtually treating the goods as though the agent owns them and sells them. This is giving a go-by to the basic principle of representative character on which the agent's liability can be made to rest ; (iii) if the amended section is so construed as to bring about a change in levying a tax in respect of the turnover of the agents, inconsistent with the vicarious basis, then the levy must be held to be illegal, because (a) Section 11 of the Act by itself does not impose a tax on the turnover, and since it is only a machinery provision it cannot override the provisions of the charging section, which limits the liability for sales tax in respect of general goods on a turnover of Rs. 10,000 or more, and (b) it makes an inroad on the law of contracts, inasmuch as Section 11(2), contrary to the provisions of sections 217 to 233 of the Contract Act, denies the agent the right to reimburse himself from out of the collections or to retain the amounts in his hands towards the principal's liability to him ; (iv) the constitutionality of the amended provision is challenged on the grounds (1) that while the power of the Legislature under entry 54 of List II of the Seventh Schedule to the Constitution of India is to impose taxes on sale or purchase of goods, what is now sought to be accomplished by reason of the amendment is not to impose, levy or collect a tax on the sale or purchase of goods, but on agency contracts, and is, therefore, ultra vires the powers of the State Legislature; (2) even if the Legislature is competent to enact the amended Section 11, it offends Article 14 and Article 19(1)(g) of the Constitution. It offends Article 14 because it discriminates agent-dealers and other dealers in respect of the same transaction, that is, while the principal who is also a dealer is exempt from tax on a turnover of less than Rs. 10,000 the agent who purports to deal on his behalf in respect of the sale or purchase of the same goods is made liable on the said turnover. In other words, the turnovers which are not taxable in the hands of the respective principals, are aggregated to fasten liability on the agent, which is clearly discriminatory and violative of Article 14; it offends Article 19(1)(g) because an unreasonable restriction is sought to be imposed upon the agent who, while he is made liable for the tax in respect of turnovers of less than Rs. 10,000 is prohibited from recovering the same from his principal who is primarily responsible in respect of such transactions ; (3) this amendment contravenes the provisions of Sections 217 to 233 of the Contract Act and is also unreasonable and violative of Article 19(1)(g) in that it takes away the right of reimbursement of the agent. Lastly it is contended that Section 11 has not been validly enacted by the Legislature, because the Act has been passed in a session at which the proceedings could not be said to have commenced as the Governor due to his illness was not able to address the Assembly personally.

5. Sri Ramachandra Reddi, the learned Principal Government Pleader, on the other hand, controverts these contentions and submits that since the intention of the Legislature was to make a departure from the principles of the decision in Irri Veera Raju's case [1967] 20 S.T.C. 501, Section 11 was amended to make the agent primarily liable, because he is in a position to pass title in the goods to the purchaser. Whenever any person participates in a transaction which results in a sale, the Legislature is competent to assess, levy and collect tax from such a person. If so, the agent can be made liable if the aggregate of the respective principals is Rs. 10,000 or more, irrespective of the fact that each of the principals may not have been liable on account of the turnover being below the taxable limit; as such Section 11, which seeks to impose such a liability cannot be challenged. The contention that Section 5, which is the charging section, remains unaffected and the Legislature cannot, by a machinery or collecting provision like Section 11, enlarge the liability is countered on the ground that there is no impediment to the Legislature amending the Act in any manner it likes within the ambit of its power. The Legislature is therefore competent to enact, and has in fact enacted, Section 11 to impose a tax liability on the agent in the manner specified by it (notwithstanding the charging section) and to that extent the Legislature is deemed to have modified the charging section. To put it simply, the charging section, viz., Section 5, should be read with Section 11 in so far as the liability of the agent is concerned. It is not correct to contend that an attempt is made to tax agreements of sale or inchoate sales. It is only after the sales are completed that Section 11 comes into operation. The petitioners, it is submitted, are not contending that the department is levying tax where the sales have not taken place. In so far as the vice of Article 14 is concerned, Sri Ramachandra Reddi contends that in tax matters where all the dealers are treated alike, there can be no question of any discrimination. If at all, the discrimination which had existed prior to the amendment of Section 11, namely, that while before the amendment even where an agent-dealer had an aggregate turnover of more than Rs. 10,000 in respect of all his principals, he was not liable, because the principals would not be liable, Section 11 as it stands amended, makes all the dealers, whether agent-dealers or principals, alike liable on their turnover of Rs. 10,000 or more. The State, he submits, is allowed to pick and choose distinct objects, persons, methods and even rates of taxation, and since the same class of persons have been treated alike, there is no question of any discrimination. The argument that Section 11 offends Article 19(1)(g) is countered on the ground that since garnering of revenue is one of the essential functions of any State and it has been held that Article 19 has no application as long as the Legislature achieves that object, a taxing measure cannot be struck down unless it is construed as confiscatory or is a colourable piece of legislation. On the question whether the amending Act was validly enacted, because the Legislature had not properly met, Sri Ramachandra Reddi contends that all that Articles 174 - 176 of the Constitution require is that the Governor should summon the Legislature and that he should inform them of the cause of the summons. Both these requirements have been fulfilled, inasmuch as there is no controversy that the summons have been validly issued. The address of the Governor no doubt was read by the Speaker. There is nothing in Article 176, according to the learned Government Pleader, which requires the Governor to personally attend and deliver the address. In any case, there has been a substantial compliance with the provisions of Article 176.

6. We may also notice before we deal with the respective contentions, the Statement of Objects and Reasons with the amending Bill as originally stood and certain proceedings in the Assembly, which have been referred to by the learned Advocates for the petitioners, for a proper understanding of their submissions. The notes on Clause 3 state :

The sale of jaggery is liable to multi-point tax at 3 paise per every rupee of turnover under Section 5(1) of the Act, with effect from 1st August, 1963. Most of the sales of jaggery are effected by the grower-manufacturers (principals) through commission agents. These commission agents are being assessed to tax in lieu of their principals as provided under Section 11 of the Act. It has been held by the Andhra Pradesh High Court that the sales at the hands of the agents cannot be subjected to tax on the basis of agents' turnover and that the agents can be taxed on their transactions only where each of the principals concerned has the minimum turnover of Rs, 10,000 per year. As a result, the bulk of revenue by way of tax on the sales of jaggery is being lost. This clause read with Clause 1(2) amends Section 5 of the Act removing the turnover limit of Rs. 10,000 in respect of a dealer in jaggery with effect from 1st August, 1963, so as to validate the collections of tax on jaggery already made from the agents, irrespective of the quantum of the turnover of the principal-dealer concerned.

7. The provision in Clause 3 of the Bill was to add the following proviso to Section 5 of the Act, which is the charging section, viz.,

Provided further that a dealer in jaggery shall pay a tax at the rate of three paise on every rupee of his turnover irrespective of the quantum of turnover.

8. Thereafter, on 12th March, 1968, notice was given for the omission of Clause 3 and renumbering it as Clause 4 as follows :

4. For Section 11 of the principal Act, the following section shall be substituted, namely:-

11. Notwithstanding anything in this Act, or in any other law for the time being in force or in any judgment, decree or order of a court or other authority-

(i) the tax or penalty due under this Act, in respect of a transaction of sale or purchase effected by any agent on behalf of a principal who is a resident of the State, shall be assessed or levied and collected from the agent irrespective of the fact that such principal is not liable to pay the tax or penalty in respect of that transaction ; and

(ii) where the agent has paid the tax or penalty in respect of such transaction of sale or purchase effected by him and where the principal would be otherwise liable to pay the said tax or penalty, the agent may retain, out of the moneys payable to the principal, a sum equal to the amount of tax or penalty so paid by him :

Provided that the tax or penalty assessed or levied on, or due from, the agent, may be recovered by the assessing authority from the principal instead of from the agent only if the principal is liable to pay the said tax or penalty.

Explanation-For the purposes of this section, 'agent' shall have the meaning assigned to the expression 'dealer' in Sub-clause (iv) of Clause (e) of Sub-section (1) of Section 2.

9. In the Act as passed, however, Section 2 provides for amendment of Section 2(1) as follows:-

(i) in item (iv) of Clause (e), for the word 'principal', the words 'principal or principals' shall be substituted.

10. Section 4, namely, insertion of Section 11, was given retrospective effect by Section 1(2) from 1st August, 1963. The relevant provisions of the Act after the amendment may now be read :

Section 2(bbb): ' 'business' includes-

(i) any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on or undertaken with a motive to make gain or profit and whether or not any gain or profit accrues therefrom ; and

(ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern.

11. Section 2(e): ' 'dealer' means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, andincludes-

(i) the Central Government, a State Government, local authority, a company, a Hindu undivided family or any society (including a cooperative society), club, firm or association which carries on such business;

(ii) a society (including a co-operative society), club, firm, or association which buys goods from, or sells, supplies, or distributes goods to its members;

(iii) a casual trader, as hereinbefore defined ;

(iv) a commission agent, a broker, a del credere agent, an auctioneer or any other mercantile agent, by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal or principals.

Explanation I.-Every person, who acts as an agent of a non-resident dealer, that is, as an agent on behalf of a dealer residing outside the State, and buys, sells, supplies or distributes goods in the State or acts on behalf of such dealer as-

(i) a mercantile agent as defined in the Indian Sale of Goods Act, 1930 (Central Act III of 1930) ; or

(ii) an agent for handling goods or documents of title relating to goods ; or

(iii) an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or payment, and every local branch of firm or company situated outside the State; shall be deemed to be a dealer for the purposes of this Act.

Explanation II_Where a grower of agricultural or horticultural produce sells such produce grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, in a form different from the one in which it was produced after subjecting it to any physical, chemical or any process other than mere cleaning, grading or sorting, he shall be deemed to be a dealer for the purposes of this Act.

12. Section 2(n): ' 'sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business, for cash, or for deferred payment, or for any other valuable consideration, and includes any transfer of materials for money consideration in the execution of a works contract provided that the contract for the transfer of such materials can be separated from the contract for the services and the work done, although the two contracts are embodied in a single document, or in the supply or distribution of goods by a society (including a co-operative society) club, firm or association to its members, but does not include a mortgage, hypothecation or pledge of, or a charge on, goods.

Explanation I ....

Explanation II ....

Explanation III.-Notwithstanding anything contained in this Act or in the Indian Sale of Goods Act, 1930 (Central Act III of 1930), two independent sales or purchases shall, for the purposes of this Act, be deemed to have taken place-

(1) when the goods are transferred from a principal to his selling agent and from the selling agent to the purchaser, or

(2) when the goods are transferred from the seller to a buying agent and from the buying agent to his principal, if the agent is found in either of the cases aforesaid-

(i) to have sold the goods at one rate and to have passed on the sale proceeds to his principal at another rate ; or

(ii) to have purchased the goods at one rate and to have passed them on to his principal at another rate ; or

(iii) not to have accounted to his principal for the entire collections or deductions made by him, in the sales or purchases effected by him on behalf of his principal; or

(iv) to have acted for a fictitious or non-existent principal.

13. Section 5(1) : Every dealer other than a casual trader and an agent of a non-resident dealer, whose total turnover for a year is not less than Rs. 10,000 and every agent of a non-resident dealer, whatever be his turnover for the year, shall pay a tax for each year, at the rate of three naye paise on every rupee of his turnover. Every casual trader shall pay a tax at the rate of two naye paise on every rupee of his turnover:

Provided ....

14. Section 11 prior to the amendment and after the amendment are given in juxtaposition :

Prior to the amendment. After the amendment.Section 11 : 'The tax or penalty Section 11: Notwithstandingdue under this Act, in respect of anything in this Act or in any othera transaction of sale or purchase law for the time being in force or ineffected by any agent on behalf of a any judgment, decree or order of aprincipal who is a resident of the Court or other authority-State shall be assessed or levied (i) the tax or penalty due underand collected from the agent, in this Act, in respect of a transactionevery case where such principal of sale or purchase effected by anywould be otherwise liable to pay agent on behalf of a principal whosuch tax or penalty in respect of is a resident of the State, shall bethat transaction. Where the agent assessed or levied and collected fromhas paid the tax or penalty in respect the agent irrespective of the factof such transaction, he may, without that such principal is not liable toprejudice to his other rights to pay the tax or penalty in respect ofrecover from his principal such tax that transaction on account of theor penalty retain, out of the moneys turnover of the principal being belowpayable to the principal, a sum the minimum turnover specified inequal to the amount of tax or penalty Sub-section (1) of Section 5; andso paid by him: (ii) where the agent has paid theProvided that the tax or penalty tax or penalty in respect of suchassessed or levied on, or due from, transaction of sale or purchase effect-the agent, may be recovered by the ed by him and where the principalassessing authority from the princi- would be otherwise liable to pay thepal, instead of from the agent. said tax or penalty, the agent mayExplanation.-For the purposes of retain, out of the moneys payable tothis section 'agent' shall have the the principal, a sum equal to themeaning assigned to the expression amount of tax or penalty so paid by'dealer' in Sub-clause (iv) of clause him :(e) of Sub-section (1) of Section 2. Provided that the tax or penaltyassessed or levied on, or due from,the agent, may be recovered by theassessing authority from the princi-pal instead of from the agent onlyif the principal is liable to pay thesaid tax or penalty.Explanation.- For the purposes ofthis section 'agent' shall havethe meaning assigned to the expres-sion 'dealer' in Sub-clause (iv) ofClause (e) of Sub-section (1) of sec-tion 2.

15. The history of the amendment as can be ascertained from what took place in the Assembly before the amendment of Section 11 actually became law, shows that originally it was intended to amend only the charging Section 5, by adding a proviso making dealers in jaggery retrospectively liable to tax at the rate of 3 paise on every rupee of their turnover irrespective of the quantum of turnover. No exception could therefore have been taken to that amendment if it had been enacted, because it is always open to the Legislature to withdraw an exemption in respect of all or any of the dealers. But subsequently, however, this scheme was given up, and Section 11 in the amended form has been enacted. Now, what is it that Section 11 is intended to achieve ?

16. Sri Ratnachandra Reddi contends that inasmuch as the Bench in Irri Veera Raju's case [1967] 20 S.T.C. 501 had relied on the words in the definition of dealer in Section 2(1)(e)(iv) with particular emphasis on the words 'on behalf of any principal' for the conclusion that a commission agent who is transacting business on behalf of several principals will be considered to be a dealer for each of the principals, the Legislature, intending to achieve a different result, amended the definition by adding the words 'or principals' before the word 'principal'. The result, according to him, is that by virtue of the amended definition, an agent is a dealer not restricted to his capacity as representative of each of the principals, but he is a dealer in a cumulative form of all the principals for whom he may act. The sequel to the amendment of the definition of 'commission agent' is reflected in Section 11, and it now provides that irrespective of the fact that such principal is not liable to pay the tax or penalty in respect of that transaction on account of the turnover of the principal being below the minimum turnover specified in Sub-section (1) of Section 5 the agent will be liable to tax. In the old Section 11, the words 'in every case where such principal would be otherwise liable to pay such tax or penalty in respect of that transaction' would have the effect of making the liability of the agent co-extensive with and dependent on, the liability of the principal. The omission of this clause, according to the learned Government Pleader, altered the basis of the liability of the agent by making the agent liable independent of the liability of the principal. It is for that reason that in Sub-clause (ii) of the new Section 11, with its proviso, the right of reimbursement of the agent in respect of transactions entered into on behalf of the principal has been altered, so as to limit it to the extent of the liability of the principal, that is, only if he is liable to pay the tax or penalty.

17. It may be noticed that previously the liability of the agent extended only to the extent of the liability of each of the principals for whom he was the agent. But now the amendment in clauses (i) and (ii) read with the proviso to Section 11, in our view, seeks to effect a change in that, it makes the agent liable for the turnover of the several principals as if it is the agent's turnover irrespective of whether each of the principals is liable or not. Notwithstanding this, the liability of the principal for the turnover in respect of sales or purchases effected through an agent would still remain, even though in respect of a turnover of less than Rs. 10,000 he may not be liable and the right of the agent to withhold or reimburse himself has, to that extent, been taken away. What we intend to stress is that the liability of the agent nevertheless continues to be based on the principal of representation, because in the event of the turnover exceeding Rs. 10,000, either the principal or the agent would be liable even in respect of each of the principals; and there is, therefore, no impediment for the agent to reimburse himself or recover or withhold payments from those principals. It may be that legislation such as this might conflict with Article 14 or 19 of the Constitution. But that the Legislature has the competence to enact such a measure under entry 54 of List II is undoubted. We cannot accept the contention of the learned Advocates that there is no element of sale which the Legislature can deal with under entry 54 of List II of Schedule VII when an agent sells goods on behalf of the principal. Whether the impugned Section 11 in effect attempts to impose a liability on mere agency business or contracts of agency, which is the subject-matter of entry 7 of the Concurrent List III of Schedule VII, is a question, which if necessary, will have to be considered later.

18. Sri Anantha Babu however contends that it is not permissible for the Legislature to tax a person who has nothing to do with the sale as such. That is, that the power to tax a sale is necessarily restricted to the power to tax the seller or the buyer, and not a third party, and therefore, an agent de hors the principal cannot be made liable. This argument postulates, as is observed, that the agent has nothing to do with the sale, in the sense that he has no title to pass and, therefore, his participation in the transaction of sale can only be in a representative capacity. That an agent has a representative capacity when he sells or purchases on behalf of a principal is undoubted. But to say that the agent has no connection with the sale so as to be a participant in the sale or purchase of goods within the meaning of entry 54 of List II would be far-fetched. The test, in our view, is whether the agent's participation in the transaction of sale or purchase apart from his representative capacity would be tantamount to sale or purchase, which in turn will depend upon whether he can effect a sale or purchase.

19. In law a person who transfers goods belonging to another person must necessarily have the authority to sell and must be in a position to pass title in the goods to the buyer. Section 27 of the Sale of Goods Act deals with a sale by a person who is not the owner. It provides that where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller has unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. This embodies the principle expressed in the maximum 'nemo dat quod non habet' or in the words of Willes, J., in Whistler v. Forster (1863) 32 L.J.C.P. 161, 164 'no man can transfer a better title than he himself possesses'. The very basis of passing of title by a third party in goods not belonging to him is the authority or consent of the owner of goods. Section 27 however makes an exception in the case of mercantile agent. It says that where a mercantile agent is with the consent of the owner in possession of the goods or of a document of title to the goods, any sale made by him when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same, provided that the buyer acts in good faith and has not at the time of the contract of sale notice that the seller has not the authority to sell. This section lays down the general, principle that no man can sell goods and pass a good title to them unless he is the owner or someone having his authority or consent, namely, an agent. Notwithstanding this rule, the owner may be estopped from his conduct from setting up his title against the buyer in the circumstances set out in that section. There are five exceptions to this general rule; namely, sale by a mercantile agent under the proviso to Section 27, sale by one of the joint owners under Section 28, sale by a person in possession under a voidable contract under Section 29, sale by one who has already sold the goods but continues in possession thereof under Section 30(1) and sale by buyer obtaining possession before the property in the goods has vested in him, under Section 30(2). These exceptions are designed to protect persons who deal bona fide with mercantile agents and others mentioned in the exceptions. It may be noted that a mercantile agent can only pass a good title to the goods in his possession, provided his possession is authorised by the owner. The entire Sale of Goods Act envisages transfer of property or title in the goods by the owner of the goods or on his behalf. There can be no passing of title de hors the owner, unless he has a representative capacity or falls within the recognised exceptions contained in Sections 27 to 30. In a judgment of a Bench of this court in K. Ramulu v. State ofA.P. (1968) 1 An. W.R. 284, 291 to which one of us (the Chief Justice) was a party, while considering a judgment of a Full Bench of the Madras High Court in Kandula Radhakrishna Rao v. The Province of Madras I.L.R.1952 Mad.571 which had laid down that though a commission agent may be a dealer for the purposes of the Sales Tax Act, as he is able to transfer title and property in the goods, with the consent of his principal, none the less, he is an agent of the principal, and the sale and purchase by him is on behalf of his principal, it was observed at page 291 : 'We must hold that when the assessee purchased the goods in the State through commission agents, the purchase is by the commission agents on behalf of principals and that they cannot be treated as separate from or de hors the transactions by which the assessee obtained title to the goods.' In that case, it was argued by Sri Venkatappaiah Sastry that there were two purchases, one by the commission agent from the owner and the other by the buyer from the commission agent. This contention was however rejected, following a decision of a Bench of this court in Immidi Satyanarayana v. The State of Madras (Now Andhra) (1955) An. W.R. 83 which held that although a commission agent makes a sale on behalf of the principal and he is authorised to transfer the property in the goods so as to vest the title thereto in the purchaser, that does not create the relationship of a vendor and vendee between the principal and agent, and that up to the point of sale, the commission agent acts as the agent of the principal and subsequently the relationship between them is one of debtor and creditor.

20. Sri Ramachandra Reddi has sought to contend that agents are of different kinds, agents who are able to pass property and those who cannot. Only agents who can pass property are dealers within the meaning of Section 2(1)(e)(iv) of the Sales Tax Act and it is only to those dealers, who have the capacity to pass property in goods, that Section 11 applies. In other words, according to him, in order to make an agent liable under Section 11, he must, whatever be his designation, carry on the business of buying or selling on behalf of a principal or principals. Even this argument could not overlook the fact that the liability of the agent arises only when he acts on behalf of a principal or principals. At one time Sri Ramachandra Reddi seemed to contend that the power to pass property is different from the power to pass title ; the former alone is capable of being effected by the agent, while the latter is by the principal. But on further consideration, he did not stress this aspect. We have no doubt that an agent has both the power to pass property as well as title. In fact property in goods means general property or ownership in the goods as distinguished from special property or interest, such as that of a bailee or pledgee. When it is said, therefore, that property in the goods has passed to the buyer, it means that the property ceased to be of the seller and becomes the property of the buyer. In some cases, property in the goods may pass from the seller to the buyer without delivery of the goods to the buyer ; that is, though the goods have never come into the possession of the buyer, he is none the less the owner of the goods.

21. In Tirumala Venkateswara Timber and Bamboo Firm v. Commercial Tax Officer [1968] 21 S.T.C. 312 the Supreme Court while dealing with clauses (1) and (2) of Explanation III to Section 2(1)(n) of the Andhra Pradesh General Sales Tax Act, held that tax is imposed only when there is a transfer of title in goods. Ramaswami, J., speaking for the court, said at page 316:

The essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor for the price to be paid and not as agent for the proceeds of the sale. The essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who continues to be the owner of the goods and will therefore be liable to account for the sale proceeds.

22. In Deputy Commercial Tax Officer v. Enfield India Ltd. Co-operative Canteen Ltd. [1968] 21 S.T.C. 317 ShahJ., said at page 321 :

Consequently if the element of transfer of property from one person to another is lacking in any transaction, there is no sale and the Legislature cannot by treating it as a sale by a deeming clause bring it within the ambit of the taxing statute.

23. Reference to 'transfer of property' in the observations of Shah, J., was, as we have said earlier, made the basis of a distinction that while an agent has a right to transfer property, the owner has a right to vest title -a distinction, in our view without a difference. In cases where an agent is authorised to sell goods on behalf of a principal, he has authority to pass title in the goods. The competence of the Legislature to levy a tax under entry 54 of List II of the Seventh Schedule is referable only to a completed transaction of sale. As such, it can deal with all those persons who are competent to accomplish the result of the sale. The essence of sale, as we have seen earlier, is the power to pass title either in one's own right or as an agent. A third party who has no power to effect a sale as understood in law cannot be the object of tax and Section 11 does not achieve the taxable event so as to bring the case within the ambit of the aforesaid entry. Nor, in our view, has the Legislature in amending Section 11 gone beyond its competence, because it has only sought to fix the liability on the agent who has the power to effect a sale on behalf of a principal. The principle of representation is, therefore, the corner-stone of the levy of tax on agents. We may point out that the word 'agent' though not denned in Section 2 has been defined as a dealer by referring toSection 2(1)(e)(iv).

24.The result of this discussion, in our view, is that the basis of the liability of the agent as a dealer was, and still is, his representative character ; as such, the Legislature in amending Section 11 has acted within the ambit of the powers conferred by entry 54 of List II.

25. There, however, remain the other arguments, namely (1) that without amending the charging Section 5, by amending Section 11, which is a machinery section, tax liability cannot be effectively varied, (2) that purporting to act under entry 54 of List II of Schedule VII, the Legislature has in fact imposed a tax on agency contracts, which subject falls under entry 7 of List III, and (3) that the amendment of Section 11 which limits the right of reimbursement or recovery from the principal, contrary to Sections 217 to 233 of the Indian Contract Act, is ultra vires the Legislature and therefore void to the extent of the repugnancy, by virtue of Article 254 of the Constitution.

26. With respect to the first question, we are unable to accept the contention of Mr. Venkatappaiah Sastry, because while the manner of legislation may be inartistic the Legislature has power, even while amending the machinery section, to make a provision for a variance of the tax liability under the charging section applicable to particular cases, and to that extent the charging Section 5 and the amended Section 11 must be read together. The decision in Commissioners of Inland Revenue v. Longford (1927-28) 13 Tax Cas.573 cited by the learned counsel is not of much assistance. In that case, the charging section made the agent liable under the Income Tax Act to file a return, but the Super Tax Act did not expressly make the agent liable for filing the returns for super tax, though the provisions relating to the machinery for filing of returns under the Income Tax Act were made applicable to the Super Tax Act. It was sought to be contended that the incorporation by reference to the machinery provisions of the Income Tax Act relating to the filing of the returns under the Super Tax Act made the agent liable not only to file the income tax returns but also the super tax returns. Viscount Sumner observed at page 618:

In deliberately adopting this terse and compressed form of enactment the Legislature was, no doubt, fully alive to the fact that its merits and convenience are attended by some disadvantages. The risk of this had, however, to be run. By using the words 'so far as they are applicable', Parliament handed over to others what it might have prescribed itself, and those others were persons who were not legislators but Judges.

27. And again at page 620 he said :

I think that it is irrelevant to refer to the cases in which it has been said that sections merely providing a machinery for collection of a charge, which is imposed in general terms elsewhere, cannot restrict the attachment of the charge, being 'in aid and not in derogation of it'...because here the express words, 'so far as they are applicable', of themselves limit the application of the collection sections for all purposes, and direct an enquiry and a discrimination between those which apply and those which do not. The latter cannot aid the charge of super tax, since they do not apply to it.

28. This decision is no authority for the proposition that tax liability cannot be varied by means of a machinery section. The Legislature has power to make amendments of whatever sections it likes and thereby either specifically or by necessary intendment modify the other sections, whether they are charging sections or otherwise.

29. On the second question, we have already held that the exercise of legislative power has intimate connection with the taxing event, and that event is the sale by an agent in his representative capacity. The contention that Section 11 imposes a tax on contracts of agency or agency business is not sustainable. No doubt what the Legislature intends by the amendment of Section 11 is to withdraw the exemption granted under Section 5 in respect of transactions entered into by an agent in his representative capacity on behalf of a principal who is given the benefit of that exemption in respect of the same transaction. It therefore raises a question of discrimination rather than competency of the Legislature and may conveniently be dealt with when we consider the question of the vice of Article 14. In this view it is unnecessary to refer to the several cases cited by Sri Venkatappaiah Sastry in support of his contention that if it is a tax on agency agreements, it is ultra vires the powers of the State Legislature or that it is a piece of colourable legislation.

30. It is contended that since the agent and the principal are dealers in respect of the same transaction and are therefore the same class of persons similarly situated, the liability of the agent to pay tax is in respect of a turnover of less than Rs. 10,000 while the principal, on whose behalf the agent sells or buys goods, is not liable, which discriminates him from the principal without any reasonable basis. The submission of the learned Government Pleader, on the other hand, is that originally there was a discrimination, in that though an agent was a dealer and had a turnover of Rs. 10,000 or more, he was not held liable because his principal had a turnover of less than Rs. 10,000 which discrimination has now been removed by amendment of Section 11, making the agent primarily liable. This argument, in our view, has no validity, because, as we have already held, the agent's liability is only in his representative capacity and whether he is a dealer in respect of all the principals or only one principal, his liability is co-extensive with that of the principal, and Section 11, which is a machinery section, enables the State to collect tax from one or the other. But while doing so, it should not discriminate between the same class of individuals. For the learned Government Pleader to contend that an agent is a different class of person from that of the principal, is to nullify the effect of the judgments of their Lordships of the Supreme Court, the judgment of the Full Bench of the Madras High Court and the judgments of this court which are binding on us. Even Section 11 as it now stands makes no change in the basis on which the agent is made liable. It is clear that an agent who sells goods on behalf of a principal is a dealer just in the same way as a principal is a dealer in respect of the same goods. Section 11 is seeking to apply the incidence of tax differently between the same class of persons, in that where a principal employs an agent, no tax liability attaches in respect of transactions entered into by him directly if the turnover is less than Rs. 10,000, but the agent will be taxed irrespective of whether the principal is liable or not. Again if we take the case of a principal whose turnover exceeds Rs. 10,000, the turnover of the agent in respect of the goods sold or purchased on behalf of such a principal is liable and the State can assess either the principal or the agent in respect of that turnover. But when the turnover of the principal is less than Rs. 10,000 the State is authorised to aggregate the turnovers of the several principals and make the agent liable in respect of that turnover as if the agent is independently liable for, the business. This contrast itself, ex facie, shows a hostile discrimination which is not reasonable, nor has it any nexus between the classification and the object sought to be achieved. The general principles upon which a classification can be sustained under Article 14 have been authoritatively laid down by their Lordships of the Supreme Court in several cases. In K.T. Moopil Nair v. State of Kerala A.I.R. 1961 S.C. 552 where different kinds of property were subjected to different rates of taxation, it was held by the majority that as long as there was a rational basis for the classification, Article 14 will not be in the way of such a classification resulting in unequal burdens on different classes of persons. Sinha, C.J., who spoke for the majority, observed at page 557 :

But if the same class of property similarly situated is subjected to an incidence of taxation, which results in inequality, the law may be struck down as creating an inequality amongst holders of the same kind of property. It must, therefore, be held that a taxing statute is not wholly immune from attack on the ground that it infringes the equality clause in Article 14, though the courts are not concerned with the policy underlying a taxing statute or whether a particular tax could not have been imposed in a different way or in a way that the court might think more just and equitable.

31. Again in East India Tobacco Co. v. State of Andhra Pradesh [1962] 13 S.T.C. 529 it was held that taxation laws must also pass the test of Article 14 ; that in deciding whether a taxation law is discriminatory or not it is necessary to bear in mind that the State has a wide discretion in selecting the persons or objects it will tax, and that a statute is not open to attack on the ground that it taxes some persons or objects and not others, and that it is only when within the range of its selection, the law operates unequally, and that cannot be justified on the basis of any valid classification, that it would be violative of Article 14. In that case, however, the Andhra Act 14 of 1955, which taxed sales of Virginia tobacco but exempted sales of country tobacco was held not to be discriminatory or obnoxious to Article 14 of the Constitution. But there the discrimination was not in respect of the same class of goods, but of different class.

32. Applying these principles, we have no hesitation in holding that the provision which authorises the imposition of a tax independently of the liability of the principal or which takes away or limits the right of the agent to reimburse himself or withhold moneys due to the principal only where the principal is liable, is discriminatory. In other words, the provisions of Section 11 in so far as they seek to make the agent primarily liable as if the liability is independent of his representative character comes within the vice of Article 14 and is discriminatory as the levy under that provision results in inequality, and has, therefore, to be struck down. However, in so far as the agent's liability which is co-extensive with that of the principal is concerned, Section 11 is valid. In view of this, it is unnecessary to consider the further questions either under Article 19(1)(g) of the Constitution or the conflict between the provisions of Section 11(2) of the Act and the provisions of the Contract Act.

33. The question raised under Article 176 of the Constitution may still require consideration. Mr. Choudary's contention is that under Article 176, the Governor should himself personally address the Assembly and if he has not done so or has addressed the Assembly through the Speaker, he has not discharged the functions imposed upon him by the Constitution, and consequently the subsequent proceedings of the Assembly are not valid. In support of this contention, he has cited the decisions inSaradhakar v. Orissa Legislative Assembly A.I.R. 1952 Orissa 234 and Syed Abdul v. West Bengal Legislative Assembly A.I.R. 1966 cal. 363 and certain passages from Halsbury's Laws of England (Third Edition, Vol. 7, page 238), and Basu's Constitution of India (5th Edition, Vol. 2, pages 523, 524).

34. Articles 174(1) and 176(1) are as follows :

Article 174(1) : The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.

35. Article 176(1): 'At the commencement of the first session after each general election to the Legislative Assembly, and at the commencement of the first session of each year the Governor shall address the Legislative Assembly or, in the case of a State having a Legislative Council, both Houses assembled together and inform the Legislature of the causes of its summons.

36. A combined reading of these provisions shows that the Governor has to summon the House or both the Houses of Legislature to meet at such time and place as he thinks fit, and at the commencement of the first session after each general election he has to address the Assembly or where the State has a Legislative Council, both the Houses assembled together and inform them of the cause of its summons. There is, as we have stated earlier, no controversy as to the summoning of the Assembly. The controversy is only in respect of the address by the Governor. The Governor, it is stated, was taken ill on the day when he was to address the Assembly, and as he was unable to address it, he requested the Speaker to read his address. The question is whether this is valid compliance with the provisions of Article 174(1) and whether the Assembly has been informed of the cause of its summons.

37. Sri Ramachandra Reddi contends that there is no obligation on the part of the Governor to address the Assembly personally and that he could send a written message instead.

38. No doubt in England, proceedings of the Parliament may be commenoed by an address by the King or the Queen or in their absence, by a Commissioner authorised by the King or the Queen. In Halsbury's Laws of England, 3rd Edn., Vol. 7, page 238, it is stated :

On the assembling of a new Parliament in pursuance of the royal writs, or at the commencement of a new session of an already existing Parliament after prorogation, the Sovereign must meet the two Houses either in person or by representatives ; otherwise there can be no legal beginning of a new Parliament, or session of an existing Parliament, except in the case of the demise of the Crown.

39. But it is contended that under Article 176(1) of the Constitution of India, the Governor is not permitted to address the Assembly through a representative, as in England. This is sought to be supported by a passage in Basu's Commentary on the Constitution of India (5th Edn., Vol.2) on Article 87 relating to the duty of the President to address both the Houses of Parliament, which is in identical terms with Article 176(1) relating to the duty of the Governor to address the Houses of the Legislature. The author poses this question at page 524 (Vol. 2, 5th Edition) :

Since in England it is not obligatory for the Sovereign to read the opening speech in person, a question has been raised in India as to whether the President or a Governor can authorise another person to read his opening speech. The answer should be in the negative.

40. After stating that though the opening speech may embody the policy of the Government the functions conferred by Article 87(1) or 176(1) of our Constitution appear to vest the functions in the President or the Governor (as the case may be) personally and that Article 87(1) is mandatory as contrasted with Article 86(1) which is enabling, he further stated at page 525 :

The opening speech must, therefore, be delivered by the President personally. If he is temporarily indisposed the date for the opening of the session should be fixed according to his convenience. If illness is prolonged the difficulty may be overcome only by allowing Article 65(2) to operate, in which case the Vice-President will discharge all the functions of the President during the period of illness, including the function in question of the Governor in the States; there is no provision corresponding to Article 65(2); but there is Article 160 to provide that it is for the President to provide for the discharge of the functions of the Governor of a State in any contingency not provided for in this chapter. It follows, therefore, that if the Governor is unable to attend the State Legislature owing to absence, illness, or otherwise, a proper order is to be issued by the President. But it is not possible for the Governor himself to delegate his function under Article 175 or the like,

41. It is claimed that this view of his finds support from Jayantilal v. Rana A.I.R. 1964 S.C. 648.

42. Jayantilal v. Rana A.I.R. 1964 S.C. 648 however, was a case under Article 258(1) of the Constitution, and in dealing with the question whether the President can entrust the functions to anyone else, Shah, J., observed at page 656 :.it does not authorise the President to entrust to any other person or body the powers and functions with which he is by the express provisions of the Constitution as President invested. The power to promulgate Ordinances under Article 123 ; to suspend the provisions of Articles 268 - 279 during an emergency; to declare failure of the Constitutional machinery in States under Article 356; to declare a financial emergency under Article 360; to make rules regulating the recruitment and conditions of service of persons appointed to posts and services in connection with the affairs of the Union under Article 309-to enumerate a few out of the various powers-are not powers of the Union Government ; these are powers vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Article 258(1). The plea that the very nature of these powers is such that they could not be intended to be entrusted under Article 258(1) to the State or officer of the State, and therefore that clause must have a limited content, proceeds upon an obvious fallacy. These powers cannot be delegated under Article 258(1) because they are not the powers of the Union, and not because of their special character.

43. This case however does not deal with the question whether the President should address the House personally or that the word 'address' has the meaning given to it by the Oxford English Dictionary as 'to send any written message to the Assembly', i.e., to write the address, expressly that it may reach and be read by someone.

44. Syed Abdul v. West Bengal Legislative Assembly A.I.R. 1966 Cal. 363 is no doubt a case in which the Governor was personally present to deliver the speech informing the Legislature of the cause of its summons. But as there was a disturbance created by some members of the Legislature and the Governor was unable to obtain the desired silence, she (the Governor) left the House without completing her address and the same was laid on the table of the House. It may be mentioned that Rule 16 of the Rules of Procedure and Conduct of Business (W. B. Legislative Assembly) requires that the Governor should deliver the address personally; consequently, it was held that Article 176 read with Rule 16 made it incumbent on the Governor to deliver the speech personally, may be by reading out from a prepared text. Banerjee, J., after stating that the address by the Governor shall be by delivery of a speech, may be by reading out from a prepared text, informing the members of the Legislature of the cause of the summoning of the first session of the year, stated at page 368 :

While I express the above view, I am not unmindful of the difficulties that such an interpretation may entail. The first session of the Legislature in each year, is an important session, being usually the budget session. If such a session does not start well ahead of the beginning of the next financial year, great administrative difficulties may follow. Now, a Governor, after all a human being, may become ill or may be incapacitated by other causes from delivering the address verbally under the provisions of Article 176.

45. In such circumstances, it was pointed out that in order to safeguard against such contingencies, in so far as the President of India is concerned (who also is to address the first session of the Parliament each year, under Article 57) Article 65(2) of the Constitution makes a provision to the effect that the Vice-President shall discharge his functions ; but there being no Deputy Governor to discharge the functions of the Governor, if the Governor becomes unable to do so owing to absence, illness or other causes, the deadlock has to be resolved by recourse to Article 160, under which the President is empowered to make such provisions as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in the Constitution. All the same, it was held in that case that laying on the table of the House, the address by the Governor was sufficient and substantial compliance. At page 370 the learned Judge said:

By laying a copy of the Governor's address on the table, the object of the address was substantially served and the members could become aware of the contents of the address. But can laying on the table be a substitute for delivery of the address by the Governor? The answer should ordinarily be in the negative. But the negative answer admits of an exception. Where the Constitution casts a duty upon the Governor and where the Governor makes attempt to perform that duty but fails to do so, in the prescribed manner, although does so in substance (in the instant case the written text of address being laid on the table of the Assembly) the procedural failure should not be over-emphasised and the duty should not be treated as wholly unperformed with consequences of non-performance followingit. The consequence of non-delivery of the whole of the address, by word of the mouth, was not such as rendered the subsequent proceedings inside the Legislative Chamber illegal but merely resulted in procedural irregularity. Such an irregularity cannot be called in question under Clause (2) of Article212....

46. None the less, it was held that Article 176 is mandatory, and unless the provisions are complied with, that is to say, unless the Governor delivers a speech informing the Legislature of the causes of the summons, the Legislature cannot meet to transact legislative business. It was further stated that if the Legislature meets and transacts legislative business, without the preliminary of an address by the Governor, when required under Article 176, its proceedings are illegal and invalid and may be questioned in a court of law.

47. The case of Saradhakar v. Orissa Legislative Assembly A.I.R. 1952 Orissa 234 is one where the expression 'commencement of every session' occurring in Article 176 was considered. It was sought to be contended that the first date on which oath was administered to the members of the Legislative Assembly was the date of the commencement of the session, as provided under Article 176(1), and that the Governor's address fixed for the 7th March, 1952, was not given 'at the commencement of the session' of the Assembly, as one provided in that article. This contention was rejected. This judgment however does not throw much light on the immediate question before us as to whether the Governor should personally address the Assembly or can send a written address informing the Assembly of the cause of its summons.

48. There is one other case to which we may refer, namely, Yogendra Nath v. State A.I.R. 1967Raj. 123. There the Governor had a recalcitrant member removed when he disturbed his address, and had similarly ordered the removal of others forcibly. In this way, 12 members of the Assembly were removed from the Assembly Hall under the orders of the Governor. Thereafter on a motion of the Leader of the Opposition group, a resolution was passed by the House that the address of the Governor may be taken to have been read. The Governor then left the Assembly Hall. When subsequently an objection was raised that as the Governor did not deliver the address and the causes for summoning the Assembly not declared, there was no occasion for conveying thanks to the Governor, the Speaker gave his ruling to the effect that as the Governor had read some portions of his address occurring in the beginning and some at the end and as it had already been taken as read by the House, the objection raised had no force. At page 126, the Bench said :

As we have observed above, what was of the essence of the matter in the address was the Governor coming into direct and immediate communication with the representatives of the people. The speech was certainly directed to the members of the Legislative Assembly and the Governor came face to face with the representatives of the people and if, in the circumstances that arose as a result of the action of some of the members, the whole of the address was not read, then it was certainly open to the House to say that the address may be taken to have been delivered.

49. In this case as well as in the Calcutta case cited above there was an attempt by the Governor to deliver the address personally, but he was prevented. In those circumstances, it was held that nothing more could have been done, and that at any rate, Article 212(1) of the Constitution came in the way and the proceedings could not be challenged.

50. In State of Punjab v. Satya Pal Dang and Ors. Civil Appeal No. 1427 of 1968 dated 30-7-1968, since reported at A.I.R. 1969 S.C. 903 their Lordships of the Supreme Court had recourse to Article 212(1). Hidayatullah, C.J., observed:

This clause [i.e. Clause (1) of Article 212] was invoked in respect of a Money Bill in Patna Zilla Truck Owners Association and Ors. v. State of Bihar and Ors. A.I.R. 1963 Pat. 16 following a case of this Court in Mangalore Ganesh Beedi Works v. The State of Mysore and Anr. [1963] Supp.(1) S.C.R. 275. We are entitled to rely upon this provision. Our conclusion gets strength from another fact. There is no suggestion even that the Appropriation Bills were not Money Bills or included any matter other than that provided in Article 199 or were not passed by the Assembly.

51. Mr. Choudary contends that Article 212 cannot be invoked as violation of the mandatory provisions of the Constitution cuts at the root of the power of the Legislature to function at all under the circumstances so that an irregularity owing to such violation is not an irregularity of mere procedure; it makes the act of the Legislature a nullity. It appears to us unnecessary to determine or decide this issue, because not only do we not anticipate its recurrence, and even if such a contingency does arise-we hope steps indicated in Article 160 would be taken-but also even if Sri Choudary's contention is for a moment upheld, and we do not say that we are doing so, the very amendment being invalid, the repeal of the old section cannot be effective. Our conclusion, without the necessity of having to decide this question, achieves the same result, namely, that if the offending sections have been struck down as indicated earlier, the position is the same as that which existed under the old Section 11, in that the agent's liability is co-extensive with that of the principal, and he is entitled to the same exemption which each of his principals is entitled to.

52. The writ petitions are allowed with costs, and there will be a direction as indicated above, namely, in cases where assessments have been made based on the amended Section 11 of the Act they will be set aside and fresh assessments will have to be made in accordance with this judgment. The petitioners will have their costs. Advocate's fee Rs. 50.

*Since reported as Addepalli Surya Ramachandra Rao & Co. v. The State of Andhra Pradesh and Ors. [1969] 24 S.T.C. 133


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