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The North Arcot District Pawn Brokers' Association represented by Its Secretary A.V. Ananthakrishna Chettiar and Ors. Vs. the Secretary to Government of India, Ministry of Finance (Department of Revenue and Insurance) and Ors. (21.08.1974 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1975)1MLJ290
AppellantThe North Arcot District Pawn Brokers' Association represented by Its Secretary A.V. Ananthakrishna
RespondentThe Secretary to Government of India, Ministry of Finance (Department of Revenue and Insurance) and
Cases ReferredAuthoor Vivasaya Abhivirdhi Sangam and Ors. v. State of Madras
Excerpt:
- .....to a few facts. the madras financiers and pawn-brokers association, and one k. hansraj filed two writ petitions, w.p. nos. 2611 and 2612 of 1970 on the file of this court. in these writ petitions, they prayed for the issue of writs of mandamus restraining the respondents, namely, the union of india represented by the secretary to government, ministry of finance, new delhi and the collector of central excise, madras-34 from proceeding with the enforcement of gold control trade notices 6 and 7 of i970 dated 18th june, 1970 and 27th july, 1970 respectively said to have been issued by the collector of central excise, madras. those two writ petitions were filed obviously on the basis that to the pawn-brokers the provisions contained in the gold control act, 1968 did not apply. when the two.....
Judgment:
ORDER

M.M. Ismail, J.

1. The petitioners in all these writ petitions barring W.P. Nos. 1266 to 1268 of 1972 pray for the same relief. For the purpose of understanding the nature of the relief they have prayed for and the legal consequences thereof, it is necessary to refer to a few facts. The Madras Financiers and Pawn-Brokers Association, and one K. Hansraj filed two writ petitions, W.P. Nos. 2611 and 2612 of 1970 on the file of this Court. In these writ petitions, they prayed for the issue of writs of mandamus restraining the respondents, namely, the Union of India represented by the Secretary to Government, Ministry of Finance, New Delhi and the Collector of Central Excise, Madras-34 from proceeding with the enforcement of Gold Control Trade Notices 6 and 7 of I970 dated 18th June, 1970 and 27th July, 1970 respectively said to have been issued by the Collector of Central Excise, Madras. Those two writ petitions were filed obviously on the basis that to the pawn-brokers the provisions contained in the Gold Control Act, 1968 did not apply. When the two writ petitions came up for heating before Palaniswamy, J., the learned Judge observed ;

In these two cases, the petitioners question the applicability of the Gold Control Act, 1968, to pawn brokers. This identical question is covered by the decision of the Supreme Court in Badri Prasad v. Collector, Central Excise : AIR1971SC1170 in which their Lordships of the Supreme Court have held that the Gold Control Act is applicable to pawn-brokers and that pawn-brokers are not exempt from the provisions of the Act. In this view, the petitioners are not entitled to the writ in the terms prayed for, viz., direction against the respondents restraining them from proceeding against the petitioners in enforcement of the notices issued under the Act.

Notwithstanding the fact the learned Judge dismissed the writ petitions, in view of certain representations made to the learned Judge, the learned Judge made a few observations in paragraphs 2 and 3 of the judgment. In paragraph 2, the learned Judge pointed out that the counsel representing the petitioners brought to the notice of the Court certain peculiar circumstances which required examination, that the counsel submitted that pawnbrokers, in the course of their business would receive gold as pledge, keep it for some time till it was redeemed and return it on redemption of the pledge, that in such a way the petitioners in those cases received gold, retained them and returned them to the pledgers, that on account of the operation of stay in those cases, the petitioners had not submitted their returns under the Gold Control Act, that if they were then required to submit the returns for the period covered by the stay, they would not be in a position to produce the gold that had been returned to the pledgers and that suitable directions might be given only in that regard. The learned Judge observed that that was a reasonable request.

Having made that observation, the learned Judge proceeded to state:

3. The petitioners being pawnbrokers have been maintaining registers under the Pawn Brokers Act. Though it may be possible for the petitioners to file the necessary returns in accordance with the Gold Control Act, it may not be possible for them to produce the gold for verification. It will result in practical difficulty in conforming to the requirements. The petitioners are entitled to be relieved of this obligation, having regard to the peculiar circumstances. In this view, the petitioners will be liable to file returns in terms of the Gold Control Act, 1968 from November, 1971, onwards:

4. With these observations, the petitions are dismissed.

2. After the disposal of these two writ petitions, the Collector of Central Excise issued a Gold Control Trade Notice No. 3 of 1972 dated 3rd March, 1972. In this trade notice, it was stated that those pawnbrokers who were not covered by the orders of the High Court, Madras, namely , persons other than the petitioners in those two writ petitions had to file declarations with effect from 29th June, 1968 as required under Section 16 of the Gold Control Act, 1968 and those persons might file the declarations of their then holdings as on 1st February, 1972 within 15 days and a consolidated declaration of stocks as on 29th June, 1968, and subsequent acquisition or disposal up-to 31st January, 1972 within a period of 30 days from the date of filing their first declaration. Three Associations, namely, the North Arcot District Pawnbrokers Association, the Pondicherry Pawnbrokers Association and the South Arcot District Pawnbrokers Association, which are associations registered under the Societies Registration Act, filed writ petitions, W.P. Nos. 1266, 1267 and 1268 of 1972 respectively praying for the issue of a writ of mandamus restraining the Central Government and the Collector of Central Excise, Madras, from proceeding with the enforcement of the said notice. This Court admitted those writ petitions on 23rd May, 1972 and issued an interim order of stay staying the operation of the said notice. After taking note of the said order of stay, the Deputy Collector of Central Excise acting on behalf of the Collector of Central Excise issued a new Trade Notice on 27th October, 1973 styled as Cold Control Trade Notice No. 9 of 1973. Since all the writ petitions barring the three petitions referred to above have been filed against the said Trade Notice, it is necessary to-extract the said notice in full and it is as follows:

Attention is invited to this Collectorate Gold Control Trade Notice No. 6 of 1973 dated 20th September, 1973, wherein instructions were issued regarding furnishing of declarations by pawnbrokers under Section 16 of the Gold Control Act, 1968. These instructions were issued taking into consideration the judgment of the High Court of Madras delivered on the Writ Petition No. 2611 and 2612 of 1970 filed by the Madras Financiers and Pawnbrokers Association, Madras and Sri Hansraj, against the enforcement of the instructions issued in this-Collectorate Gold Control Trade Notice No. 3 of 1972 dated 3rd March, 1972, and the difficulties of the pawnbrokers in the matter of filing the declarations. It is noticed that the Writ Petitions No. 1266 to 1268 of 1972 dated 23rd May, 1972 filed by some Pawnbrokers-Associations in the Collectorate (sic) in the High Court of Madras, are yet to be decided, and the Court have also issued interim stay of the operation of the instructions issued in this-Collectorate Gold Control Trade Notice No. 3 of 1972 dated 3rd March, 1972. These petitioners have contended that in view of the interim stay granted by the High Court on their Writ Petitions Nos. 1266 to 1268 dated 23rd May, 1972, the orders now issued in this Collectorate Gold Control Trade Notice No. 6 of 1972 is not applicable, and have requested not to insist on the pawnbrokers to file declarations as instructed therein. The representatives of the various pawnbrokers Associations at Madras called on the Deputy Collector of Central Excise, Madras on 15th October, 1973 and stated that they are not in a position to file the declarations for the reason that they do not know the form in which the declarations have to be filed, and requested to furnish them with the specimen form of stock register and the quarterly return and have assured that they would maintain the stock account from 1st November, 1973. It was however impressed on them that such declarations should however be furnished by them of their holdings as on 1st November, 1971 and that further quarterly declarations after 1st November, 1973 may be furnished by them, on the basis of the Accounts to be maintained by them from 1st November, 1973.

2. In view of the position explained by the pawnbrokers during their meeting with the Deputy Collector, it is hereby instructed that the pawnbrokers may maintain their stock accounts with effect from 1st November, 1973 in the form prescribed and enclosed herewith. The quarterly return should, however, be furnished in the form G. S. 3 prescribed under Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968, until further orders. It will also be obligatory on the part of such of those pawnbrokers who prepledge the gold ornaments, articles or both to Khattawalas to maintain an additional register prescribed in form II enclosed. The Khattawalas who receive gold ornaments or articles or both on repledge by different pawnbrokers, should maintain their accounts in form III also enclosed.

The members of the Associations may please be informed accordingly.

3. The petitioners in the writ petitions other than the three referred to above pray for the issue of a writ of mandamus restraining the respondents therein, namely, the Secretary to the Government of India, Ministry of Finance, New Delhi, the Collector of Central Excise, Madras-34 and the concerned Inspectors of Customs and Central Excise, from proceeding with the enforcement of the said notice, in so far as the petitioners are concerned. The question for consideration is, whether, the petitioners are entitled to the relief of mandamus which they have prayed for.

4. In the counter-affidavit filed in these writ petitions, the respondents have set out the earlier history with regard to the previous writ petitions and the stay orders passed by this Court and pointed out that the trade notice was issued for the benefit of the trade, drawing the attention of the pawnbrokers to the obligations they have to perform under the provisions of the Gold Control Act and that the trade notice itself did not discriminate between those persons who were covered by the judgment of this Court in W. P. Nos. 2611 and 2612 of 1970 and other pawnbrokers. In paragraph 6 of the counter-affidavit, it is averred:

It is further submitted that trade notice No. 9 of 1973 is not in the form of notification. The administrative head of the department has issued a trade notice just to bring to the notice of the pawnbrokers their obligations under Section 16 of the Gold Control Act to submit their declarations.

In paragraph 11 of the counter-affidavit, it is further averred:

The trade notice is not a statutory notification but it is only advisory in nature. It has been issued for the benefit of the trade to bring to their notice their statutory obligations under the Gold Control Act.

On the other hand, ground No. (iv) set forth in the affidavits filed in support of these writ petitions is that the Collector while issuing the trade notice has acted under Section 16 of the Gold Control Act, 1968. The said ground No. (iv) so far as is relevant is:

The Gold Control Trade Notice No. 9 of 1973 dated 27th October, 1973 had been issued under Section 16 of the Gold Control Act, 1968. The notice directs myself and other pawnbrokers of the Association to make declarations and furnish quarterly returns. The notice clearly shows that the second respondent has exercised power under Section 16 of Gold Control Act, 1968. The second respondent has no power to call upon me and other Pawnbrokers of the said Association to furnish quarterly returns under that section. Therefore the second respondent has acted without jurisdiction. Hence this trade notice is liable to be quashed on this ground also.

5. The learned Counsel for the petitioners contends that this averment in the affidavits has not been specifically controverted in the counter-affidavit. It is not the case of the learned Counsel for the petitioners that if the trade notice referred to above is not a statutory one Mid is merely advisory in nature, still the petitioners will be entitled to a writ of mandamus. On the other hand, the learned Counsel for the petitioners. Mr. S. Chellaswamy, contends that the trade notice is only a statutory one, that the second respondent had no jurisdiction to issue the trade notice and Chat therefore he must be restrained from enforcing the said trade notice.

6. As against this, the learned Counsel for the respondent contends that the trade notice was not issued by the Collector of Central Excise pursuant to any statutory power conferred upon him by the Gold Control Act or the rules made thereunder ; that it was merely by way of advice to the persons who made representations to the Deputy Collector of Central Excise and that therefore the question of the second respondent either enforcing the said trade notice or this Court restraining the second respondent does not arise. According to the learned Counsel for the respondents, the only obligations which the pawnbrokers had to discharge were those which had been imposed on them by the Act and the rules made thereunder and the trade notice did not impose any independent obligation, apart from what had been imposed by the Act and the rules made thereunder, and all that the trade notice had done was to invite the attention of the pawnbrokers to the obligations they had to perform under the Act. Hence, according to the learned Counsel for the respondent, there is no question of the second respondent enforcing the trade notice independent of the Act and the rules made thereunder or the second respondent being prevented by the issue of a writ of madamus from enforcing, the said notice.

7. I am of the opinion that the contention of the learned Counsel for the respondents is sound, having regard to the facts and circumstances of these cases. I have already extracted the trade notice in full and the language and the tenor of the trade notice will clearly support the contention of the learned Counsel for the respondents that it was not intended or purported to be issued as a notification in exercise of any statutory power. As the trade notice itself points out, the representatives of the various pawn-brokers Associations at Madras called on the Deputy Collector of Central Excise, Madras, on 15th October, 1973 and stated that they were not in a position to file the declarations for the reason that they did not know the form in which the declarations had to be filed and requested to furnish them with the specimen form of stock register and the quarterly return and they had assured that they would maintain the stock account from 1st November, 1973. The trade notice further points out that the Deputy Collector impressed on these representatives that such declarations should however be furnished by them of their holdings as on 1st November, 1971 and that further quarterly declarations after 1st November, 1973 might be furnished by them, on the basis of the accounts to be maintained by them from 1st November, 1973. The language of this trade notice is only consistent with the case of the respondents that it was merely intended to be an advice to the trade, rather than any direction or under the provisions of the Gold Control Act or the rules made thereunder. The very last sentence of the trade notice, namely, ' the members of the Associations may please be informed accordingly '', clearly shows that the trade notice was an advice given to the members of the Associations who made representations to the Deputy Collector of Central Excise.

8. Now let me refer to the provisions of the Act themselves to show that the trade notice could not have been issued under any of the provisions of the Act. As I have pointed out already, the affidavits specifically refer to Section 16 of the Act. Section 16 (1) states:

Save as otherwise provided in this Chapter, every person who owns, or is in possession, custody or control of any articles or ornaments at the commencement of this Act, or acquires the ownership, possession, custody or control of any article or ornament thereafter, shall make, within thirty days from such commencement or from such acquisition, as the case may be, or within such further period as the Administrator may, on sufficient cause being shown allow, a declaration in the prescribed form as to the quantity, description and other prescribed particulars of any article or ornament, or both, owned, possessed, held or controlled by him.

9. The other sub-sections of this section make provision for making declaration with regard to the subsequent acquisition or subsequent parting with of possession. In all these cases, the Administrator comes into the picture as being one with power to give further time for filing of declaration over and above the time prescribed by the statute. Consequently, if at all reliance can be placed on Section 16 in support of the contention of the petitioners that the impugned trade notice is one issued under that section, it must be with reference to grant of further time for the purpose of making declaration but the impugned notice does not do any such thing by way of granting further time.

10. Apart from this, the Central Government have made what are called the Gold Control (Forms, Fees and Miscellaneous Matters) Rules, 1968, which have been referred to in paragraph 2 of the impugned notice.

Rule 4(1) of these rules states that the declaration or further declaration referred to in Section 16 shall be in form No. G.S. 3. This is what is exactly referred to in paragraph 2 of the impugned trade notice. Rule 4 (2) of the Rules states:

4(2) The register referred in Sub-section (9) of Section 16 shall contain the following particulars, namely:

(1) Serial Number.

(2) Date of receipt of the declaration

(3) Name and address of the person making the declaration.

(4) Quantity of gold declared including previous declaration, if any).

Note: Any other information which may be considered by the Gold Control Officer to be useful may be noted by him, in the remarks column of the said register.

11. Section 16 (9) of the Gold Control Act deals with the register to be maintained by the Gold Control Officer and not with the register to be maintained by pawnbrokers. Consequently the form mentioned in paragraph 2 of the impugned trade notice is the one suggested by the Deputy Collector of Central Excise to help the pawn-brokers who made representations to him requesting him to furnish them with the specimen form of stock register and quarterly return. It is only on the request of the pawnbrokers that paragraph 2 of the impugned trade notice gave advice with reference to the forms prescribed in the Rules of 1968 and the specimen forms which the second respondent himself suggested. Consequently, not only the provisions of Section 16 of the Act but also the language and the tenor of the impugned trade notice itself make it absolutely clear that the said notice could not have been issued pursuant to and in exercise of any statutory power conferred on the second respondent under the provisions of the Act or the rules made thereunder. As a matter of fact, it was not shown before me that the Collector of Central Excise has power under Section 16 at all events with reference to extension of time contemplated therein. Mr. S. Chellaswamy, learned Counsel for the petitioners, contended that in view of the allegations the petitioners have made in ground No. (iv) of their affidavits, it is for the respondents to show that the Collector of Central Excise had no power under Section 16 of the Act and therefore the impugned trade notice was not issued pursuant to the power conferred by Section 16. Before me, the learned Counsel for the respondents produced a Notification dated and December, 1968 of the Administrator made in exercise of the powers conferred by Sub-section (4) of Section 4 of the Act, conferring powers on different officers and in that Notification power under Section 16 has not been delegated to the Collector of Central Excise. That will also support the case of the respondents that the impugned trade notice had not been issued pursuant to any statutory power conferred on the second respondent by the Act or the rules.

12. Mr. Chellaswamy then drew my attention to ground No. (iv) referred to already, wherein it is also mentioned;

The Gold Control Administrator is given discretionary power under Section 6 of the Act to call for a return. Before exercising this power, he must form an opinion that it is necessary in the public interest to do so. In the instant case, notifications so far published to the best of my knowledge do not show that the second respondent has been delegated the power of the Administrator to act under Section 6 of the Act.

This averment contained in the affidavits far from supporting the case of the petitioners, is really against them, because it proceeds on the basis that the second respondent did not have any authority to act under Section 6 and it is in consonance with the stand of the second respondent that he has not issued the trade notice pursuant to any statutory power. Consequently, looked at from any point of view, I am of the opinion that the impugned trade notice was not issued by the second respondent in exercise of any statutory power and that it was issued only by way of advice to the trade, when representations were made to the Deputy Collector of Central Excise with regard to some difficulties felt by the Pawnbrokers Associations, with reference to complying with the requirements of the Act and that therefore the impugned notice cannot be enforced by the second respondent independent of the provisions contained in the Act or the rules. Consequently, the question of preventing the second respondent or the other respondents from enforcing the said trade notice does not arise. In view of this, without going into any other question, these writ petitions, other than W.P. Nos. i266 to 1268 of 1972, fail and they are dismissed.

13. As far as the other three writ petitions namely, W.P. Nos. 1266 to 1268 of 1972, are concerned, they are liable to be dismissed on a narrower ground. As I have pointed out already, these writ petitions have been filed by three Pawnbrokers Associations which have been registered under the Societies Registration Act. With reference to such an association a writ petition cannot be maintained on the file of this Court. It is well established that only a person whose rights are alleged to have been threatened or transgressed or on whom obligations are imposed by any statute can approach this Court invoking the jurisdiction of this Court under Article 226 of the Constitution of India. It is not the case of any these Associations that the Association as such is carrying on business of pawnbroker and therefore the said Association as such has been called upon to discharge any obligation or perform any duty imposed by the Gold Control Act. Therefore, the said Associations cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India. That is the view taken by Ramaprasada Rao, J., in his judgment dated 3rd April, 1973 in The Polur Town Panchayat Taxpayers Association v. The Polur Town Panchayat and Ors. W.P. No. 2197 of 1972 dated 3rd April. 1973. in respect of a writ petition filed by the Polur Town Panchayat Tax Payers' Association challenging the levy of tax made by the Panchayat. The learned Judge pointed out ;

The petitioner is admittedly a society registered under the Societies Registration Act. Under Section 6 every society no doubt can sue or be sued in its name and the provisions of the Act make the society a legal entity by itself. It has a separate existence in the eye of law and can act in its own name and in the manner prescribed by the Act. It therefore, follows that the petitioner association is an independent legal person.

If such an independent legal person approaches this Court exercising extraordinary jurisdiction and demands an issue of rule in the nature of certiorari, then it should be in a position to establish beyond doubt that its legal right is affected or by the enforcement of the challenged or impugned order, the petitioner would be aggrieved.

In holding that the association as such could not file a writ petition, the learned Judge followed an earlier decision of a Bench of this Court in Authoor Vivasaya Abhivirdhi Sangam and Ors. v. State of Madras by the Secretary to Government, Revenue Department, Fort St. Ceorge, Madras-9 W.A. Nos. 49 to 52 and 58 to 60 of 1963. The Bench also was dealing with writ petitions filed by certain registered and unregistered Associations and with reference to those associations, the Bench pointed out:

The appellants in W.A. Nos. 49, 52 and 60 of 1963 are associations which have been registered under the Societies Registration Act. Those in W.A. Nos-51 and 58 and 59 of 1963 are unregistered associations which cannot be regarded as having any independent legal existence. They cannot obviously file or maintain applications under Article 226 of the Constitution. Even as regards registered societies it cannot be said that they are persons aggrieved by the order of the Government. It has not been claimed that the associations or any one of them own lands in the ayacut and that the imposition of the additional assessment directly affected them or the particular association as a society. It may be that the members of the association feel aggrieved by the enhancement of the assessment, and in that sense the society might perhaps be interested in doing all things necessary for getting them reliefs. That cannot amount to legal grievance of the society.

Having regard to this legal position established by the decisions of this Court, I hold that these writ petitions filed by the three associations are not maintainable and therefore they are dismissed.

There will be no order as to costs in any of the writ petitions.


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