1. This is a petition under Article 226 of the Constitution for a writ of certiorari calling for the record of the case and to quash the orders of the Judge (Appeals) Sales Tax dated 21st of February 1955 passed on an application made by the petitioner in the Sales Tax Appeal of M/s Virendra Kumar Ravindra Kumar Khandsari, Shahjahanpur, and one revision against the order of Sri B. R. Verma the Judge (Revisions) Sales Tax, Lucknow, dated 25th ofAugust, 1955 in Radhey Shayam Tondon, Shahjahanpur v. The Judge (Appeals) Sales Tax, Lucknow Range, Lucknow, dated 5th of November, 1955; and further a writ of mandamuscommanding the Judge (Appeals) Sales Tax, Lucknow Range, and the Judge (Revisions) U. P., Lucknow, to permit the petitioner to appear and plead in appeals and revisions pending before them in which the petitioner has filed a special power of attorney executedby the dealers in his favour authorising him to act and plead in these cases.
2. The facts set out by the petitioner in his affidavit are that since 1948 the petitioner has been working as a recognised agent of various dealers in sales tax cases in the district of Shahjahanpur and in his capacity as agent he used to represent those dealers as their special agent appointed under special power of attorney in sales tax cases before the Sales Tax Officer, Judge (Appeals)and the Judge (Revisions). Ho used to prepare drafts of appeals and present petitions, memorandum of appeals and revisions.
He was thus both acting and pleading for the dealers under the special power of attorney obtained from them. Thus he started to be regularly engaged in sales tax cases and this work was a source of livelihood to him. In 1951-52 the Judge (Appeals) Sales Tax, Lucknow Range, raised an objection to the appearance of the petitioner before him. The Sales Tax authorities prohibited him from acting and pleading in view of the provisions of Rules 68(4) and 69 of the Sales Tax Rules. Thereupon in 1951 he made an application before the Judge (Revisions) Sales Tax.
On 3rd of December 1951 a communication was sent from the Judge (Revisions) Sales Tax to the petitioner that an appeal could be signed and presented by a duly authorised agent but it could not be argued by him before the Judge (Appeals) or the Judge (Revisions). Thereupon the petitioner filed a writ petition In this Court which was numbered 41 of 1952, and which was rejected by this Court on the 11th of August, 1952.
Even after the judgment of this Court, it is stated by the petitioner, that the petitioner was permitted by the Judge (Appeals) Sales Tax, Lucknow Range, to plead and act as an authorised agent in cases where he filed special power of attorney. On the 21st of February 1955 when the petitioner intended to argue the appeals of one M/S Virendra Kumar Khandsari of Shahjahanpur the Judge (Appeals) Sales Tax informed the petitioner that he had received instructions from the Judge(Revisions) Sales Tax to prohibit the petitioner from appearing and arguing in Sales tax appeals pending before him.
Thereafter an application was made by him before the Judge (Appeals) Sales Tax stating that he was authorised, as he held a special power of attorney, to argue the appeals before him. This application was rejected on the 21st of February 1955. Thereafter the petitioner took up the matter with the Sales Tax authorities and moved an application before the Sales Tax Commissioner complaining against the above order. The Sales Tax Commissioner directed the matter to be placed before the Judge (Revisions) Sales Tax as it involved a reversal of the Order of the Judge (Appeals) Sales Tax.
Thereafter the petitioner approached the Assistant Secretary, Finance Department, who expressed his inability to do anything in the matter and suggested that in case the petitioner wanted any redress he could approach the Hon'ble Minister for Finance. Therefore the petitioner filed a petition before the Hon'ble Finance Minister on the 23rd of February 1955. The Hon'ble Minister referred the matter for disposal to Sri Bharat Narain, Deputy Secretary.
As the petitioner had, however received no reply to his application to the Finance Secretary he again moved the Hon'ble Minister on the 5th of April 1955 and again on the 18th April 1955. After that the petitioner consulted Sri B. N. Roy, an advocate of Lucknow, who suggested that the petitioner may be able to get relief by making an application under Section 11 of the U. P. Sales Tax Act before the Judge (Revisions) Sales Tax.
On the 13th of August 1955 an application was filed before the Judge (Revisions) Sales Tax, Lucknow, under the advice of Sri B. N. Roy Advocate. By his order dated the 25th of August 1955 the Judge (Revisions) Sales Tax held that the petitioner had been given no right under Rules 77-A and 77-B of the U. P. Sales Tax Rules to do anything apart from acting on behalf of a dealer and thus upheld the order passed by the Judge (Appeals).
The order was sent to the petitioner on the 30th of September 1955 and was received by him in the first week of October 1955. After that the petitioner again approached the Government of Uttar Pradesh and in this connection met Sri Bharat Narain, Deputy Secretary, Finance Department, who gave him to understand that the matter was being considered by the U. P. Government and the petitioner meanwhile again applied to the Judge (Appeals) Sales Tax Lucknow Range, that he be permitted to appear and plead in appeals before him; but the application was rejected by an order of the 5th of November 1955.
AS no decision, however, was given by the State Government the petitioner came to Allahabad in February 1956 to take legal advice and after consulting his counsel left certain papers with him. But as the petitioner could not manage to file an application earlier he received the draft petition prepared by the counsel on the 22nd March 1956 and the petitioner then filed the present petition to this Court on the llth of May 1956.
3. The petitioner has claimed two reliefs: firstly, a writ of certiorari quashing the order of the Judge (Appeals) Sales Tax rejecting his petition to appear in the appeals filed by Messrs. Virendra Kumar Ravindra Kumar Khandsari, Shahj ahanpur, and, secondly, awrit of mandamus commanding the Judge (Appeals) Sales Tax to permit the petitioner to appear and plead in all appeals and revisions pending before him in which he had filed a special power of attorney from the assessee.
4. The petitioner has claimed these two reliefs on the ground that rules 77-A and 77-B gave him a right to act and plead in all appeals before the Judge (Appeals) Sales Tax if he had obtained a special power of attorney from the assessee. He further claimed the right on the ground that under the provisions of the Sales Tax Act the assessee was bound to be heard and the right to be heard included a right to be represented and heard through a special attorney for that purpose under a special power of attorney and the refusal of the petitioner to be heard amounted to a refusal to hear the assessee.
5. In the earlier petition, Radhey Shyam v. Judge, (Appeals) Sales Tax, U. P., Lucknow, AIR 1953 All 57 (A), and disposed of by this Court it is contended that this Court has not considered the question of the general right possessed by an assessee to be represented through an attorney. That decision was based entirely on the right claimed by the petitioner under the Constitution and Rule 77-A. It is necessary to refer to certain provisions of the Sales Tax Act and Rules framed thereunder to appreciate the points raised by the petitioner.
6. Section 24 of the Sales Tax Act empowers the State Government to make rules to carry out the purpose of this Act and for certain specific matters enumerated therein. Rule 67 provides that the memorandum of appeal shall be presented by the appellant or his lawyer or duly authorised agent to the Judge (Appeals) or may be sent by registered post addressed to the Judge (Appeals). Rule 68 of the Rules framed under this Act provides as follows :--
'68, (1) The Judge (Appeals) shall give notice of the date fixed for hearing of the appeal to the appellant and the Sales Tax Officer who passed the order appealed against.
(2) Notice of the date fixed under the foregoing rule shall be affixed in the Court house and shall be served on the appellant and the Sales Tax Officer in the manner provided under Rule 77.
(3) The notice shall declare that if any party does not appear, the appeal shall be dismissed for, default, or shall be heard ex parte, as the case may be.
(4) On the date of the hearing, if the parties are present, the Judge (Appeals) shall give the appellant and the Sales Tax Officer or a lawyer or a registered accountant appointed by either of them in this behalf, a reasonable opportunity of being heard and may pass such orders as he thinks fit to dispose of the appeal.
Rule 69 then provides for the appearance of parties before Judge (Revisions). Sub-section (7) of R. 69 reads as follows :--
'Any applicant or opposite party shall be entitled to have his case argued before the Judge (Revisions) by any practising lawyer of the High Court of the Uttar Pradesh or of the District Judge's Court of any district or a registered accountant.'
Rule 77-A, as substituted by notification dated the 15th of December 1954, is as follows :--
'Unless otherwise provided in the Act or Rules thereunder, anything which is by the Act or the rules required or permitted to be done by a dealer except when he is required to attend personally for examination on oath or affirmation may be done by a lawyer, a registered accountant or a recognised agent appointed by a dealer in writing in this behalf and process served on or notice given to such lawyer, registered accountant or the recognised agent shall be as effectual as if the same had been served on or given to the dealer in per-son and all provisions of the Act or the rules relating to the service of process on or the giving of a notice to a dealer shall be applicable to the service of process on or the giving, of notice to such lawyer, registered accountant or the recognised agent:
'Provided that in case of recognised agent appearing before an assessing authority permission of the said authority will be necessary and such permission shall be subject to the control of the Commissioner of Sales Tax.'
The new R. 77-B was inserted by a notification, dated the 15th of December 1954, and is as follows :--
'If any lawyer or registered accountant is found guilty of misconduct in connection with any Sales Tax proceeding by the authority empowered to take disciplinary action against member of the profession to which he belongs or if any recognised agent is found guilty of such misconduct by the Commissioner of Sales Tax, the Commissioner, Sales Tax, may direct that he shall be thenceforward not entitled to represent a dealer under Ch. XI, or Rule 77-A of these rules :--
Provided that -
(a) No such direction shall be made in respect of any person unless he is given a reasonable opportunity of being heard;
(b) any person against whom such direction is made may within one month of the making of the direction appeal to the Government to have the direction cancelled; and
(c) no such direction shall take effect until one month from the making thereof, or, when the appeal is preferred until the disposal of the appeal.'
Rule 77-A, as it stood prior to the 15th of December 1954, is as follows :--
'Unless otherwise provided in the Act or the Rules, anything which is by the Act or the Rules required or permitted to be done by a dealer may be done by an agent of the dealer authorised by him in writing in this behalf; and process served on or notice given to such agent shall be as effectual as if the same had been served on or given to the dealer in person, and all the provisions of the Act or the Rules relating to the service of process on or the giving of notice to a dealer shall be applicable to the service of process on or the giving of notice to such agent.'
7. In the earlier decision of this Court in the petition filed by the present petitioner, reported in AIR 1953 All 57 (A), on the reading of these rules it was held that the Rules 67, 68, 69 and 77-A, made it perfectly clear that while an agent has a right to act, that is, to present an application, to receive notices, etc., the right to plead is restricted only to the party himself or a qualified pleader or a registered accountant engaged by a party.
This decision therefore was not only based on the consideration of the petitioner's fundamental right claimed by him but also on the right claimed by the petitioner under the provisions of Rules 67, 68, 69 and 77-A to plead if he had a power of attorney in his favour. The question, however, to be considered is whether the new Rule 77-A or 77-B has in any way altered the position.
8. To my mind the new Rule 77-A has not in any way altered the position so far as the right of an agent under a special power of attorney to plead is concerned. As pointed out in the earlier decision Rule 77-A is confined to acting and not to pleading. In the presence of express provisions of Rules 67 and 68 which give right to plead to the party or to a lawyer R. 77-A can only relate to acting and not to pleading.
The Rule 77-B also gives a power of control over the agents who are entitled to represent a dealer under Ch. XI or Rule 77-A of these Rules. The addition of this Rule 77-B therefore also to my mind does not affect in any manner the interpretation put by this Court on the provisions of Rules 67, 68 and 69 in the earlier decision. The petitioner therefore is not entitled to claim any right to plead under the provisions of Rules 67, 68, 69, 77-A and 77-B.
9. The main point, however, urged by the petitioner was that under the provisions of the Act and the Rules every assessee is entitled to a hearing and the right to be heard includes a right to be heard through the agent. The present petitioner having possessed the power of attorney could not be refused to be heard by the Judge (Appeals) Sales Tax. In fact on the date of hearing if the petitioner demanded a hearing as the agent of the assessee any refusal by the Judge (Appeals) to hear the present petitioner was a denial of hearing to the assessee himself.
Section 9, Sub-section (3) of the Act provides that 'the appellate authority may, after giving the appellant a reasonable opportunity of being heard' pass the orders enumerated under Sub-clauses, (a) to (c). Relying upon this section it was contended that the assessee could insist upon the hearing to be given to his agent and the refusal to do so amounted to a denial of hearing to the assessee.
10. In this connection reliance was placed on the case of The Queen v. AssessmentCommittee of Saint Mary Abbotts, Kensington, (1891) 1 QB 378 (B). In this case it was held:
'Any person aggrieved by a valuation list could give notice of objection, and by Section 19 of the Union Assessment Committee Act, the assessment committee had to hold a meeting for hearing objections and could at the same meeting hear and determine Such objections.
A householder objected to the valuation list, and, at the hearing before the assessment committee, did not appear personally, but was represented by another person, who claimed to be heard as his agent in support of the objections. The committee refused to hear such person, on the ground that the rule was not to hear any one other than the objector himself or a member of his family or household, or a member of the legal profession.
On an application for a mandamus the Court of appeal held that as the statute gives the right to appear and be heard in support of his objections, and contains no provision prohibiting him from appearing by an agent, the committee were bound to hear the agent, and a mandamus was issued.'
Reliance was also placed on another case of Jackson & Co. v. Napper, In re Schmidt's Trade Mark, (1886) 35 Ch D 162 (C). Particular reference was made to the following observations at p. 172 :--
'It is suggested that the Registrar of Trademarks could not recognise an agent on behalf of an applicant. I cannot agree with that contention. It appears to me, in the first place, to be founded on a wrong view of the law. I take it that, subject to certain well-known exceptions, every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right .....And I understand the lawto be that, in order to make, out that a right conferred by statute is to be exercised personally, and not by an agent you must find something in the Act, either by way of express enactment or necessary implication, which limits the common law right of any person who is sui juris to appoint an agent to act on his behalf.'
11. No objection can be taken to the law laid down in these two cases. But the question will still remain whether there is anything express or implied in the Rules which restrict the common law right of the assessee to appoint an agent for the purpose of representing him before the Judge (Appeals) Sales Tax. As has been held in the earlier decision the effect of the provisions of the Rules 67, 68 and 69 is that there is an express power of pleading by a person other than the assessee himself or a lawyer before the Judge (Appeals).
It was further held in that case that in Rules 77-A there was nothing which was inconsistent with the provisions of Rules 67 and 68 and enabled the assessee to appoint an agent for the purpose of pleading on his behalf before the Judge (Appeals). In view of that decision which is binding on me it is not open to me to hold that the assessee's common law right to appoint an agent for pleading on his behalf has not been cut down by the specific provisions of Rules 67 and 68. The two cases therefore relied upon by the petitioner do not help him and are distinguishable.
12. In view of my decision on the merits it is not necessary to consider other preliminary objections raised by the Standing Counsel.
13. There is therefore no force in this petition and it is rejected; taut I make no orders as to costs.