T.C. Raghavan, J.
1. The only question that has been argued before us in these two Tax Revision Cases is regarding the validity of Rule 17(3-A) of the Madras General Sales Tax Rules and of Rule 13(6) of the Madras General Sales Tax (Turnover and Assessment) Rules. The Department and the Sales Tax Appellate Tribunal held that the rules were good and valid and the assessee has filed these revisions questioning the correctness of the order of the Tribunal.
2. T.R.C. No. 92 of 1959 relates to the assessment year 1952-53. For that year the Deputy Commercial Tax Officer, Kozhikode-II, determined the assessable turnover of the petitioner at Rs. 6,41,162 and the assessee preferred an appeal to the Commercial Tax Officer, Kozhikode. Pending appeal the Commercial Tax Officer issued a notice to the assessee under Rule 17(3-A) of the Madras General Sales Tax Rules proposing to reopen the assessment on the ground that a turnover of Rs, 6,34,785 had escaped assessment. The assessee objected to this but the Commercial Tax Officer overruled the objection and held that a turnover of Rs. 6,19,764 had escaped assessment and therefore he finally determined the turnover of the assessee at Rs. 12,60,926. From this order there was an appeal to the Sales Tax Appellate Tribunal, Madras, which directed the Commercial Tax Officer to make further enquiries and submit a report. After the receipt of the report of the Commercial Tax Officer, the Appellate Tribunal considered the appeal and dismissed the same, from which there was a revision, which was transferred to the Kerala High Court on the re-organisation of States. The Kerala High Court set aside the order of the Appellate Tribunal and remitted the case for fresh disposal and the present revision is against the order of the Sales Tax Appellate Tribunal passed after the aforesaid remand. The question for consideration, as we have already observed, is regarding the validity of Rule 17(3-A) of the Madras General Sales Tax Rules.
3. In T.R.C. No. 93 of 1959 the same assessee was assessed for the year 1953-54 by the Deputy Commercial Tax Officer, Kozhikode-II, on a turnover of Rs. 15,60,362 as against the net turnover of Rs. 5,18,901 returned by the assessee. Against this order the assessee filed an appeal to the Commercial Tax Officer, Malabar South, Kozhikode, who confirmed the order of assessment. An appeal was preferred to the Sales Tax Appellate Tribunal, Madras, and the Tribunal called for a report of the Commercial Tax Officer and on consideration of the report, the ,Tribunal dismissed the appeal. The assessee filed a revision petition to the High Court of Madras which was transferred to this Court on the formation of the Kerala State. This Court set aside the order of the Appellate Tribunal and remanded the matter for fresh disposal. . The present appeal is against the order of the Tribunal passed after remand. The question of law raised before us in this revision is regarding the validity of Rule 13 of the Madras General Sales Tax, (Turnover and Assessment) Rules.
4. In both the cases the objection to the validity of the rule concerned is based on the ground of want of compliance with the provisions. of Section 19(4) of the Madras General Sales Tax Act. Section 19 confers power on the State Government to make rules to carry out the purposes of the Act. Sub-section (4) thereof reads :
The power to make rules conferred by this section shall be subject to the condition of the rules being made after previous publication for & period of not less than four weeks.
Both Rule 13 of the Turnover and Assessment Rules and Rule 17(3-A) of the Madras General Sales Tax Rules were issued under Section 19 Rule 17(3-A) was inserted for the first time by notification, G. O. No. 193, Revenue, dated 28th January, 1954, and Rule 13 was substituted in the place of the old rule by G. O. No. 614, Revenue, dated 16th March, 1951. Rule 13 has been amended subsequently in 1953 and 1954. The contention urged on behalf of the assessee is that the rules referred to above have not been previously published as provided under Section 19(4) and therefore the rules are void and ineffective. To appreciate the contention raised in these cases it is necessary to consider Section 19(5) of the Act also, which reads :
All rules made under this section shall be published in the Fort St. George Gazette, and upon such publication shall have effect as if enacted in this Act.
Regarding the factum of pre-publication this is what the Tribunal observes in paragraph 13 of its judgment :
It is admitted by learned State Representative that the two rules have not been previously published in the Government Gazette. According to him they were otherwise duly published. He however admitted that he is not able to prove such previous publication.
Therefore, as a matter of fact, these rules have not been previously published in the Official Gazette, nor is there any evidence as to any other mode of their previous publication.
5. The learned Government Pleader argues that Section 7(e) of the Madras General Clauses Act applies to the present case and under the provisions, of that sub-section the above rules are properly and validly made. Section 7 of the Madras General Clauses Act provides :
Where, by an Act to which this Chapter applies, a power to make rules is expressed to be given, subject to the condition of the rules being made after previous publication, the following provisions shall apply, namely:-
The sub-clauses under this section provide for the manner of such previous publication and finally sub-clause (e) provides :
The publication in the Official Gazette of a rule purporting to have been made in exercise of a power to make rules after previous publication, shall be conclusive proof that the rule has been duly made.
According to the learned Government Pleader these rules were published in the Official Gazette and such publication is conclusive proof that the rules have been duly made. To have the effect of this sub-section the publication in the Official Gazette should have been made, either in the actual exercise or at least in the purported exercise, of the power to make rules after previous publication. Section 19(4) subjects the power to make rules to the condition of the rules being made after previous publication. It follows, therefore, that previous publication of the rules is a condition precedent to the exercise of the power to make rules by the State Government. So that, until and unless that condition of pre-publication in terms of Section 19(4) is complied with, the State Government cannot exercise the power to make rules. In other words, the power to make rules does not come into existence until the condition of pre-publication is complied with and therefore there cannot be either an actual or a purported exercise of a power until the power itself comes into existence. There cannot be any question of actual exercise or purported exercise of a power before it comes into being. Therefore the mere publication of the rules in the Official Gazette without any indication that the publication is made in the exercise of a power to make rules after previous publication will not be a publication as contemplated under Section 7(e) of the General Clauses Act and the mere publication in the Official Gazette without the condition of ; previous publication being complied with will not save the 'rule under Section 19(5) of the Sales Tax Act.
6. In Batchu Sreeramulu Chetty v. The State of Andhra  9 S.T.C. 215 a Full Bench of the High Court of Andhra Pradesh, expressed the same view, that the exercise of the power by the Government to make rules under Section 19 was itself subject to the condition that those rules were made only after previous publication and it was only after complying with such pre-publication that the rules had to be published in the Gazette under Sub-section (5) and upon such publication alone the rules would have effect as if enacted under the Act. When the case came before the Division Bench after expression of opinion by the Full Bench, the learned Chief Justice observed as follows at page 229 :
Under this sub-section, the publication in the Official Gazette of the rule is conclusive proof that the rule has been duly made. But to have that effect, the said rule should have been made purporting to be in exercise of a power. The word 'purporting' doubtless indicates that the rule gets sanctity, though it is not made in actual exercise of the power but under a bona fide belief that it is made in exercise of that power. But what is necessary is that the rule should be made under a purported or actual exercise of power which is defined in the sub-section. The power is defined as one to make rules after publication. The power is a conditional one. Unless that condition, namely, pre-publication in the prescribed manner has been complied with, there cannot be an exercise of that power, whether actual or purported. Till the condition is satisfied, the power does not exist and, therefore, a rule cannot be made in exercise of that non-existent power. To state differently, the power to make rules under Section 19 of the Act can be exercised only after the condition of publication is fulfilled and if a rule is made purporting to be in exercise of that power, it is conclusive under the rule. We, therefore, hold that, if there was no publication in the manner prescribed by Section 19(4) of the Act, there was no power in the Government to make the rule and, therefore, the validity of a rule made in exercise of that non-existent power could be questioned.
We respectfully agree with the above observations of the learned Chief Justice.
7. In the above view we hold that Rule 17(3-A) of the Madras General Sales Tax Rules and the substituted Rule 13 of the Madras General Sales Tax (Turnover and Assessment) Rules are invalid since the provisions of Section 19(4) of the Sales Tax Act are not complied with-Therefore we allow T.R.C. No. 92 of 1959 in part and set aside the order of the Commercial Tax Officer, Malabar South, Kozhikode, reopening the assessment on the petitioner and assessing him on an escaped turnover of Rs. 6,19,764. To this extent the assessment order of the Commercial Tax Officer and the order confirming the same by the Appellate Tribunal are set aside. In T.R.C. No. 93 of 1959 we set aside the order of the Appellate Tribunal as well as the Department and remit the case to the assessing officer for assessing the petitioner under the old Rule 13, if the said authority so desires.
In the circumstances of these cases we direct the parties to bear their respective costs.