The implied power of the Tribunal to grant stay during the pendency of the second appeal is excluded by the express power conferred on the Commissioner under section 13(5), proviso, of the Orissa Sales Tax Act, 1947.

JUDGMENT

MISRA, C.J. - Opposite party No. 2 was assessed to sales tax. It preferred appeals against the orders of assessment before the Commissioner of Sales Tax. The appeals were dismissed. Second appeals were preferred before the Sales Tax Tribunal. During the pendency of the second appeals the Tribunal granted an interim stay on 30th March, 1970. The writ application was filed on 2nd April, 1970, challenging the jurisdiction of the Tribunal to grant stay during the pendency of the second appeal.

2. The only point for consideration is whether the Tribunal has the power to grant stay.

3. By the Orissa Sales Tax (Amendment) Act, 1954 (Orissa Act 1 of 1955) (hereinafter to be referred to as the 1955 Act), a Sales Tax Tribunal was constituted. Section 3-B dealt with the constitution of the Tribunal and its powers and functions. By section 9 of that Act, section 23(3) of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947) (hereinafter to be referred to as the 1947 Act) was substituted. In section 23(3)(b) the following provision was made :

"23. (3)(b) Notwithstanding that an appeal has been preferred under clause (a) the tax or the penalty due shall be paid in accordance with the assessment made in the case :

Provided that the Tribunal may, in its discretion, permit the appellant to pay such tax or penalty in such number of instalments, or give such other direction in regard to the payment thereof as it thinks fit and shall communicate such order to the appellant and the authority against whose order such appeal has been preferred and a copy of such order shall also be sent to the Commissioner."

Though the 1955 Act was enacted making provision for constitution of a Tribunal with the power to grant stay, sections 3-B and 9 were not brought into force at all. Section 1(2) of that Act laid down that sections 1, 2, 4, 5, 6, 7 and 11 shall come into force at once and the rest of the sections shall come into force on such date as the State Government may, by notification, appoint. The relevant sections 3-B and 9 not having been brought into force there was no constitution of any Tribunal as envisaged in that Act.

4. The Orissa Sales Tax (Amendment) Act, 1957 (Orissa Act 20 of 1957) (hereinafter to be referred to as the 1957 Act) brought an amendment regarding the constitution and powers of the Tribunal. For section 3 of the 1947 Act, a new section 3 was substituted. Section 3(2) after substitution runs thus :

"3. (2) A person who is or has been a member of the superior judicial service or is eligible for appointment to such service shall be appointed by the State Government to be the Sales Tax Tribunal for the purpose of exercising such judicial powers as are or may be conferred by or under the provisions of this Act :

Provided that the State Government may at any time as the occasion may require appoint an Additional Sales Tax Tribunal of the same qualification for disposing of such matters as may be entrusted to him by rules made by the State Government under this Act."

By section 9, section 23 of the 1947 Act was also substituted. Section 23(3) after substitution stood thus :

"23. (3)(a) Any dealer or as the case may be, the State Government, dissatisfied with an appellate order made under sub-section (2) may within thirty days from the date of receipt of such order prefer an appeal in the prescribed manner to the Tribunal or Additional Tribunal, as the case may be, against such order.

(b) The dealer or the State Government, as the case may be, on receipt of notice that an appeal has been preferred under clause (a) may, notwithstanding that the said dealer or the State Government may not have appealed against such order or any part thereof, within thirty days of the service of the notice file a memorandum of cross objections and such memorandum shall be disposed of by the Tribunal or Additional Tribunal, as the case may be, as if it were an appeal presented within time under clause (a)."

Thus, the power to grant stay which was co