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State of Rajasthan Vs. Badri Lal - Court Judgment

LegalCrystal Citation
SubjectSales Tax/VAT
CourtRajasthan High Court
Decided On
Case NumberD.B. Sales Tax Ref. Nos. 7 and 35 of 1971
Judge
Reported in1983WLN416
AppellantState of Rajasthan
RespondentBadri Lal
Cases ReferredHavatia Private Ltd. v. State of Andhra Pradesh
Excerpt:
.....insertion of sub-section (3) of section 14 of the rajasthan sales tax act (no. ix of 1965), the revision-application, which was pending on april 27, 1965, could only be disposed of by a bench of not less than two members of the board of revenue.;reference answered - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl..........heard and disposed of by a bench of not less than two members of the board of revenue.2. a single member heard the objection and by his order dated may 27, 1965, held that a single member of the board was competent to hear the revision application, which was filed prior the insertion of sub-section (3) of section 14, though it was pending when it came into force. an application under section 15(1) of the a was filed before the board on august 5, 1965, praying that reference may be made to this court. this application was not decided within 120 days ft on august 5, 1965. therefore, that led to tiling of the application under section 15(3a) of the act while the revision application was pending before the board, the sanu learned member decided the main revision application on august 6......
Judgment:

S.K. Mal Lodha, J.

1. In pursuance of the direction given in D.B. S.T. Case Nos. 81 and 69 of 1966 decided on March 17, 1967, the Board of Revenue for Rajasthan, Ajmer (for short 'the Board') has referred the following question to this Court for answer:

Whether after the insertion of Sub-section (3) of Section 14 of the Rajasthan Sales Tax Act No. 9 of 1965, the revision application pending on 27-4-1965 should be disposed of by a single Member or they should be heard or disposed of by a Bench of not less than two Members of the Board of Revenue?

We shall notice the facts which are necessary for disposing of theset wo references respondent M/s Badrilal Chaturbhuj is a partnership firm Ft was assessed under the Central Sales Tax Act in respect of the accounting period November 9,1961 to October 28, 1962 by the Commercial Taxes Officer. Pali on August 31, 1963. A penalty was also imposed upon it under Section 9 of the Central Sales Tax Act read with Section 16 A of the Rajasthan Sales Tax Act (No. XXIX of 1954) (hereinafter referred to as 'the Act'). An appeal was filed by the assessee-respondent, which was rejected on April 22, 1964. A revision application was filed before the Board. At the time of hearing of the revision application, an objection was raised that a single Member of the Board way not competent to hear and decide the revision under Section 14 of the Act as t was amended by Section 9(d) of the Rajasthan Taxation Laws (Amendment) Act (No. IX of 1965). The amendment made in Section 14 of the Act with which we are concerned is as follows:

(3) Where an application for revion has been made under Sub-section (1) or Sub-section (2) it shall be heard and disposed of by a bench of not less than two members of the Board of Revenue.

2. A single member heard the objection and by his order dated May 27, 1965, held that a single Member of the Board was competent to hear the revision application, which was filed prior the insertion of Sub-section (3) of Section 14, though it was pending when it came into force. An application under Section 15(1) of the A was filed before the Board on August 5, 1965, praying that reference may be made to this Court. This application was not decided within 120 days ft on August 5, 1965. Therefore, that led to tiling of the application under Section 15(3A) of the Act While the revision application was pending before the Board, the sanu learned Member decided the main revision application on August 6. 1965. The Board was again moved under Section 15(1) of the Act to state the case and refer to this Court the same question though it was worded in a different language. The application under Section 15(1) was rejected on July 14, 1966. An application under Section 13(2) was again filed in this Court. It was registered as DBST Case No. 69 of 1961. Both the applications which were filed under Section 15(3A) and 15(2) of the Act were to the same effect. This Court by its order dated March 17, 1967, directed the Board to state the case and refer the question mentioned hereinabove for answer. The statement of case along with the relevant papers were sent by the Board to this Court.

3. Despite service of notice, the respondent M/s. Badnlal Chaturbhuj has not appeared.

4. We have heard earned Counsel for the applicant. The appeal of the respondent was rejected on April 22, 1964. Thereafter, the revision was filed against the appellate-order dated April 22,1964.

5. Sub-section (3) of Section 14 was inserted w.e.f. April 27, 1965. On that day the revision application was pending. At the time when the revision application was filed, in view of sub Section (2) of Section 14 of the Act the revision could be heard by a single member of the Board. It was only during the pendency of the revision that Sub-section (3) of Section 14 was inserted. The learned single Member of the Board when he passed the order dated May 2, 1965 (announced on June 10, 1966) was of the view that insertion of sub Section (3) of Section 14 is not retrospective and will not apply to the revision applications which have been filed and are pending when Sub-section (3) of Section 14 as newly inserted had come into force. The contention of Mr. Blandari, learned Counsel appearing for the applicant is that Sub-section (3) of Section 14 of the Act, as inserted, will apply to the revision-applications which were pending when it had come into force. He submitted that there is no wested right in a party of being heard by a single Member as the insertion of Sub-section (3) of Section 14 of the Act governs all revision-applications which were pending on April 27, 1964, the date on which it became effective.

6. It was observed in Anant Gopal Sheorey v. State of Bombay : 1958CriLJ1429 , as follows:

No person has a vested right in any course of procedure. He has only the right of prosecution on defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an act of Parliament the mode of procedure is altered he has no other a right than to proceed according to the altered mode.

Their Lordships referred to Colonial Sugar Refining Co Ltd., v. Irving 1985 AC 369. It is well settled that a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.

7. It was held in Ittyavire Mathai v. Varkey : [1964]1SCR495 that a right of appeal however, cannot exist without the existence of a court to which the appeal is to be taken, and as litighnt has no right to contend that a inbunal before whom he should have taken an appeal when he instituted the suit, should not be. abolished' for the legislature is fully competent 'to enact a law of that kind.' It was observed as follows:

An appeal lay to the High Court and the appeal in question was in fact heard and disposed of by the High Court and, therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges. No doubt in certain classes of cases, as for instance, cases which involve an interpretation as to any provision of the Constitution provides that the Bench of the Supreme Court hearing the matter must be composed of judges who will not be less than five in number. But it does not follow from this that the legal requirements in this regard cannot be altered by a competent body. We therefore overrule the contention of the earned Counsel and hold that the appeal was rightly heard and decided by a Bench of two judges.

These observations were followed in Mohd Neera v. Thirumalaya AIR 1966 SC 438. The Supreme Court held that the right to prefer an appeal from the judgment of the Court of first instance is derived from the provisions of Section 96 of the Code of Civil Procedure and that the Tiavancore Cochia Act of H 25 ME did not purport to confer a right of appeal on the parties, but merely dealt with procedural matters, matters which are dealt with by several High Courts under the Letters Patent and, therefore, the contention of the appellant that he had a vested right to have the appeal heard by a Division Bench conferred by the Travancore Cochine High Court 4,ct which was in force not only when the suit but also when the appeals were filed and that the right was not taken away expressly by Kerala Act No. V of 1959 and could not be taken away by implication, could not be entertained.

8. While considering Section 20(2) of the Hydarabad General Sales Tax Act (No. XIV of 1950), a Division Bench of the Andhra Pradesh High Court in Havatia Private Ltd. v. State of Andhra Pradesh 1971 (2) STC 555, opined that no person has a right to say that he shall be heard only by a particular forum, so long as his vested rights are not affected or taken away by the provisions of the new Act. It was observed as under:

As to which authority should exercise revisional jurisdiction is purely procedural end, therefore, the Deputy Commissioner, not withstanding the fact that the assessment proceedings commenced even before the coming into force of the Andhra Pradesh General Sales Tax Act, is competent to act under Section 20(2) of the Act....

(Emphasie applied by us)

The assessee-respondent had no vested right that the revision application which was filed under Section 14 of the Act should be heard by a single Member, as, in our opinion, whether it should be heard by a single Member or a Bench of not loss them two members is purely a matter relating to the procedure.

9. From the aforesaid discussion it is, thus, abundantly clear that no party to a revision-application has vested right to have it heard by a single Member of the Borad and a change in law in the matter will be regarded merely as a charge in procedure and, therefore, retrospective. Under newly insetted Sub-section (3) of Section 14 of the Act, the revision applications, which were pending when it came into force should be heard by a Bench consisting not less than two members in accordance with the procedure provided for hearing of the revision applications. Sub-section (3) of Section 14 applies to the pending revision applications though they have been filed prior to the insertion of Sub-section (3) of Section 14 of the Act. In view of the aforesaid reasons, our answer to the question which has been deferred to this Court is that after the insertion of Sub-section (3) of Section 4 of the Rajasthan Sales Tax Ace (No. IX of 1965), the revision-application, which was pending on April 27, 1963, could only be disposed of by a Bench of less not less than two members of the Board of Revenue.

10. Let the answer to the question be returned to the Board.

11. Reference is answered accordingly. No costs.


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