The State Legislature does not have the legislative competence to enact provisions directing dealers to deposit amounts collected by them which are not sales tax in the State treasury.

JUDGMENT

G. K. MISRA, C.J. - The facts are not in dispute. The petitioner was assessed to pay sales tax to the tune of Rs. 14,898-14 annas, Rs. 9,941-10 annas and Rs. 13,405-10 annas for the quarters ending 30th June, 1953, 31st March, 1954, and 30th June, 1954, respectively. He was directed by the competent sales tax authorities to pay the said sums into the Government treasury according to section 9-B(3) of the Orissa Sales Tax Act as it stood prior to its amendment on 20 July, 1968, by the Orissa Sales Tax (Amendment) Act, 1968 (Orissa Act 15 of 1968), as directed in the notice of demand.

The petitioner deposited the aforesaid sums in the treasury as directed. He then filed an application for refund of those amounts alleging that they were not collected as sales tax and the State was not entitled to retain the same. This application was rejected by the Sales Tax Officer. The petitioner took recourse to appeal and second appeal without any success as the question of constitutionality of section 9-B(3) and section 14-A of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947) (hereinafter to be referred to as the Act), cannot be determined by the authorities created under the Act. The identical facts are the subject-matter of S.J.C. Nos. 12 to 14 of 1964.

The applications have been filed under articles 226 and 227 of the Constitution for issuing a writ of mandamus directing the opposite parties to make refund of the aforesaid amounts deposited by the petitioner in pursuance of the demand notice.

2. The learned standing counsel does not dispute the legal position that if section 9-B(3) and section 14-A be declared unconstitutional, then the petitioner is entitled to refund of those amounts.

3. Section 9-B(3) and section 14-A, so far as relevant, are extracted hereunder :

"9-B. (3) The amount realised by any person by way of tax shall, notwithstanding anything contained in any other provision of this Act, be deposited by him in a Government treasury within such period as may be prescribed, if the amount so realised exceeds the amount, if any, payable by him as tax.

14-A. Refund of tax in special cases. - Notwithstanding anything contained in this Act or in any other law for the time being in force where any amount is either deposited by any person under sub-section (3) of section 9-B or paid as tax by a dealer and where such amount or any part thereof is not payable by such person or dealer, a refund of such amount or any part thereof can be claimed only by the person from whom such person or dealer has actually realised such amounts whether by way of sales tax or otherwise and the period of limitation provided in the proviso to section 14 shall apply to the aforesaid claims."

4. It would thus be seen that section 9-B(3) is the provision made in the Act directing that the amount realised by any person by way of tax shall be deposited in a Government treasury if the amount so realised exceeds the amount payable by him as tax; in other words, it prescribes that if a dealer realises any sum which is not sales tax, then he cannot retain the same, but must deposit it in the treasury.

The Legislature was well aware of the position that the State had no title in the sum so directed to be deposited. Correspondingly, a provision has been made in section 14-A that the person entitled to take refund of that sum is not the dealer who deposited it, but a constituent from whom the same was collected by the dealer even though it was not sales tax.

The question for consideration is whether the Orissa Legislature had the legislative competence to enact both these provisions.

5. The matter directly came up for consideration before the Supreme Court in the case of Abdul Quader & Co. v. Sales Tax Officer, Second Circle, Hyderabad ([1964] 15 S.T.C. 403 (S.C.)) and Ashoka Marketing Ltd. v. State of Bihar ([1970] 26 S.T.C. 254 (S.C.)).

In the first case section 11(2) of the Hyderabad General Sales Tax Act, 1950 (Act 14 of 1950) was held to be unconst