R.K. Vijayvargiya, J.
1. The material facts giving rise to this petition under Articles 226 and 227 of the Constitution are as follows :
2. The assessee is a registered partnership firm and carries on business in grain, flour, etc., at Jaora. The. assessee was assessed to sales tax for the assessment years 1966-67 to 1969-70 and 1970-71. The assessments were reopened under Section 19(1) of the M. P. General Sales Tax Act, 1958 (for short 'the Act'). As the assessee did not appear at the hearing, the assessing authority passed ex parte assessment orders on 26th June, 1972 (annexurcs D1 to D5). The petitioner assailed the said assessment orders by filing a petition under Article 226 of the Constitution before this Court which was registered as Misc. Petition No. 737 of 1972 at the main seat at Jabalpur. The said petition was transferred for hearing to this Bench when it was renumbered as Misc. Petition No. 301 of 1976. This petition was dismissed by this Court as having abated under Section 58 of the Constitution (42nd Amendment) Act, 1976, by order dated 24th September, 1979. After the dismissal of the said petition the petitioner approached the Government by submitting an application on 12th February, 1980, for redress under Section 39(6) of the Act. Subsequently on 2nd August, 1980, the petitioner submitted separate applications in form XXVIII-A under Rule 61-A of the Rules for grant of relief under Sub-section (6) of Section 39 of the Act. Respondent No. 1 informed the petitioner by letter dated 8th April, 1982 (annexure J), that the revision petition filed by the petitioner has been dismissed. Aggrieved by the said order (annexure j) passed by respondent No. 1, the petitioner has submitted this petition.
3. The learned counsel for the petitioner contended that the order passed b}' respondent No. I dismissing the application submitted by the petitioner under Section 39(6) of the Act is vitiated having been passed in violation of the principles of natural justice because before passing the impugned order, no opportunity of hearing was given to the petitioner. The learned counsel for the petitioner also assailed the original orders of assessment passed by the assessing authority in reassessment proceedings.
4. Having heard the learned counsel for the parties, we have come to the conclusion that this petition deserves to be dismissed. It is true that before dismissing the application filed by the petitioner under Section 39(6) of the Act, the State Government should have given an opportunity of hearing to the petitioner and the said order passed by the State Government suffers from the vice of violation of the principles of natural justice.
5. We would have ordinarily set aside the impugned order on the said ground. However, we find that the application submitted by the petitioner to the State Government under Section 39(6) of the Act was not maintainable because the conditions for making such an application did not exist. Section 39(6) of the Act reads as follows :
Notwithstanding anything contained in Sub-section (1), but subject to such restrictions and conditions as may be prescribed, where on an application made by a dealer the State Government is of the opinion that hardship is being caused to such dealer due to any order passed under any of the provisions of the Act other than an order under Section 22 or an order passed in pursuance or in consequence of an order by the Tribunal or the Civil Court, High Court or Supreme Court, the State Government may direct the Commissioner to initiate proceedings under Sub-section (1) in respect of such order and on such direction the Commissioner shall dispose of such proceeding according to law as if the proceedings had been initiated by him under Clause (b) of Sub-section (1).
6. Now the proviso to Section 39(6) of the Act prohibits the Government from giving any direction under Section 39(6) of the Act unless-
(a) the dealer has exhausted the remedies available to him under Section 45 or Section 45-A, as the case may be, or the period within which any remedy under the aforesaid provisions can be sought has expired and/or
(b) his application for revision under Sub-section (1) has been rejected on merits.
7. The learned counsel for the petitioner frankly conceded before us that no application for revision under Sub-section (1) of Section 39 of the Act was made by the petitioner in the matter. In the circumstances, the application submitted by the petitioner under Section 39(6) of the Act was not maintainable.
8. There is no merit in the contention of the learned counsel for the petitioner that if an opportunity of hearing was given to the petitioner by the. State Government, it would have satisfied the Government of the reasons why a revision under Section 39(1) of the Act was not filed by the petitioner and that that should not be a ground for refusing relief to the petitioner. The proviso to Section 39(6) of the Act does not empower the Government to relax the said conditions. In the circumstances, we are of the opinion that it is not a fit case in which we should exercise the extraordinary powers of this Court under Article 226 of the Constitution because no purpose would be served by setting-aside the impugned order passed by the Government.
9. The learned counsel for the petitioner also contended that as the earlier petition filed by the petitioner was dismissed as having abated by reason of the provisions of Section 58 of the Constitution (42nd Amendment) Act, 1976, and that as that provision has since been repealed this Court should set aside the orders passed by the assessing authority in reassessment proceedings because the said orders were passed without giving the petitioner an effective opportunity of hearing.
10. The contention of the learned counsel for the petitioner has no merit. The learned counsel was unable to satisfy us that because of the repeal of Section 58 of the Constitution (42nd Amendment) Act, 1976, the petition which was dismissed as abated can be revived and the orders assailed in the earlier petition may again be considered in this petition. On the contrary in the order passed by this Court dismissing the earlier petition filed by the petitioner as having abated the following observations of a Division Bench of this Court in Gangaram v. Shri R. N. Shukla (Misc. Petition No. 536 of 1973 decided on 9th July, 1979) were cited with approval :
The next question is whether such abatement can be taken to have been wiped out by repeal of Section 58 by the Constitution (44th Amendment) Act, 1978. A reading of Section 45 of the Constitution (44th Amendment) Act, 1978, would show that the repeal by Section 45 is prospective and not retrospective. The previous operation of Section 58 of the Constitution (42nd Amendment) Act, 1976, is not wiped out. The abatement thus stands.
11. We are therefore of the opinion that after the dismissal of the earlier petition on the ground of it having been abated, it is not open to the petitioner to reagitate the same matter in this petition. Moreover, the petitioner has not satisfactorily explained why the normal remedy of appeal available to the petitioner against the orders parsed in reassessment proceedings was not availed of by it. We are therefore of the opinion that there is no merit in this petition which deserves to be dismissed.
12. The petitioner has also submitted an application (LA. No. 6390 of 1982) on 17th December, 1982, under Section 151, C.P.C., complaining that in violation of the stay order passed by this Court, the respondents have recovered the amount of tax from the petitioner and that the respondents be ordered to refund the amount so recovered by them to the petitioner. This application is opposed by the respondents. They have denied that they recovered the amount in violation of the stay order passed by this Court.
13. Since questions of fact are involved, we do not consider it fit to enquire into the disputed questions of fact in this petition. As the case of the petitioner is that by recovering the amount of tax from the petitioner, the respondents have wilfully violated the order passed by this Court and thus committed contempt of this Court, the petitioner would be free, if so advised, to initiate appropriate proceedings against the officers concerned.
14. As a result of the discussion aforesaid, this petition fails and is dismissed. In the circumstances, the parties shall bear their own costs of this petition. The outstanding amount of security deposit be refunded to the petitioner after verification.