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IN THE HIGH COURT OF ALLAHABAD
H. N. Seth and R. M. Sahai, JJ.
JAIN SHUDH VANASPATI LTD. - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Connected With Writ Petition 709 Of 1982
Decided On : 01/13/1983
The Court held that the provisions of Section 28-A of the U.P. Sales Tax Act, 1948, as substituted by U.P. Act No. 33 of 1979, are constitutionally valid and do not travel beyond the legislative field contemplated by Entry 54 of List II of the Seventh Schedule or contravene the provisions of Articles 14, 19, and 301 of the Constitution.
Fact of the Case:
In the instant case, the petitioners challenged the validity of the action of the respondents in detaining their goods in the purported exercise of the power under Section 28-A(6) of the U.P. Sales Tax Act, 1948, on the grounds that the provisions of Section 28-A were unconstitutional and that there was no valid notification specifying the quantity, measure, or value of goods as contemplated by Section 28-A(1).
Finding of the Court:
The Court found that the provisions of Section 28-A of the U.P. Sales Tax Act, 1948, as substituted by U.P. Act No. 33 of 1979, are constitutionally valid and do not travel beyond the legislative field contemplated by Entry 54 of List II of the Seventh Schedule or contravene the provisions of Articles 14, 19, and 301 of the Constitution. The Court also found that there was no valid notification specifying the quantity, measure, or value of goods as contemplated by Section 28-A(1) in existence at the time when the goods belonging to the petitioners were seized and detained in the purported exercise of the power under Section 28-A(6) of the Act.
Issues: 1. Whether the provisions of Section 28-A of the U.P. Sales Tax Act, 1948, as substituted by U.P. Act No. 33 of 1979, are constitutionally valid? 2. Whether there was a valid notification specifying the quantity, measure, or value of goods as contemplated by Section 28-A(1) in existence at the time when the goods belonging to the petitioners were seized and detained in the purported exercise of the power under Section 28-A(6) of the Act?
Ratio Decidendi: The Court held that the provisions of Section 28-A of the U.P. Sales Tax Act, 1948, as substituted by U.P. Act No. 33 of 1979, are constitutionally valid and do not travel beyond the legislative field contemplated by Entry 54 of List II of the Seventh Schedule or contravene the provisions of Articles 14, 19, and 301 of the Constitution. The Court also held that there was no valid notification specifying the quantity, measure, or value of goods as contemplated by Section 28-A(1) in existence at the time when the goods belonging to the petitioners were seized and detained in the purported exercise of the power under Section 28-A(6) of the Act.
Final Decision: The Court allowed all the petitions with costs and directed the respondents to return the petitioners' goods that had been seized by them forthwith. In cases where the goods had already been released on the petitioners furnishing security under the orders of the Court, the security furnished for the purpose was discharged.
( 1 ) PETITIONERS in all these petitions under Article 226 of the Constitution are aggrieved by the action of the respondents in detaining their goods in the purported exercise of powers under section 28-A of the U. P. Sales Tax Act as substituted by the U. P. Sales Tax (Amendment) Act, 1979 (U. P. Act 33 of 1979) (hereinafter referred to as the new Section 28-A ). They question the validity of the action of the respondents inter alia on following grounds:
1. Section 28-A of the U. P. Sales Tax Act as substituted by U. P. Act No. 33 of 1979 is constitutionally invalid and as such it cannot be relied upon for sustaining the action of the respondents; and 2. There being no valid notification by the State Government specifying the quantity, measure or value of goods as contemplated by Section 28-A (1), in existence, the respondents could not, in exercise of powers under Section 28-A (6) of the Act detain the goods of the petitioners.
( 2 ) BEFORE these petitions could be taken for hearing, the Governor of Uttar Pradesh, presumably with a view to set at rest the controversy with regard to validity of the new Section 28-A as also that of the action of the respondents in detaining the goods belong to the petitioners, promulgated an Ordinance entitled as "the. U. P. Sales Tax (Amendment and Validation) Ordinance, 1982 (U. P. Ordinance No. 35 of 1982) on 6th October, 1982, making certain amendments in the new section 28-A and providing that reference in the U. P. Sales Tax Rules, 1948, to Section 28-A of the Act would be deemed to be reference to Section 28-A as substituted by the 1979 Act and that notification dated 29th March, 1974, as amended by notification dated 19th November, 1974 (specifying the quantity, measure and value of goods for purposes of Section 28-A (1) of the Act as it then stood) shall continue to be in force and deemed to have remained in force as if the same had been issued under Sub-section (1) of Section 28-A of the Act as substituted by U. P. Act 33 of 1979.
( 3 ) THE learned counsel for the petitioners then questioned the validity of the U. P. Ordinance No. 35 of 1982 as well. They contended that the said Ordinance also was constitutionally invalid and that in any case it did not succeed in achieving its objective.
( 4 ) THE learned counsel appearing for the petitioners as also the learned Solicitor- General who appeared for the respondents requested that this Court should, before it proceeds to express its opinion on the question whether in each individual petition, the respondents have proceeded to detain the goods belonging to the various petitioners in consonance with the provisions contained in the new Section 28-A, pronounce upon the validity of the said section and also determine as to whether any valid notification by the State Government specifying the quantity, measure or value of the goods, contemplated by the new Section 28-A (1) of the Act enabling the respondents to exercise powers to detain the petitioners goods under Section 28-A (6) of the Act is in existence. We have accordingly heard the learned counsel for the petitioners and the learned solicitor-General on the aforementioned aspects of the case in detail and are proceeding to express our opinion thereon.
( 5 ) IN our opinion, it would, before dealing with the submissions in regard to the constitutionality of the new Section 28-A and effectiveness of the notification contemplated by that section, be convenient to trace the changes brought about by the State Legislature in regard to Sections 28 and 28-A to 28-D of the U. P. Sales Tax Act.
( 6 ) WITH a view to prevent evasion of tax or other dues payable under the Act, the State legislature introduced Section 28 in the U. P. Sales Tax Act in the year 1956 and made provisions for the establishment of check posts and other incidental matters. This section was substituted in a modified form in the year 1972.
( 7 ) ONCE again the legislature stepped in the year 1973 and sought to
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