TMI Blog1977 (3) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion of clause 2 of the tender is as follows: "The contractor is to deliver the materials on or before the dates mentioned in the tender....." Clause 6 runs as follows: "On the completion of the delivery of materials, the contractor shall be furnished with a certificate to that effect, but the delivery will not be considered complete until the contractor shall have removed all the rejected materials and shall have the approved materials stacked or placed in such position as may be pointed out to him." Clause 7 provides as follows: "The material shall be of the best description and in strict accordance with the specification, and the contractor shall receive payment for such materials only as are approved and passed by the Executive Engineer or the Sub-Divisional Officer." Clause 6 of the conditions of the contract provides as follows: "On completion of the work, the contractor shall be furnished with a certificate by the Sub-Divisional Officer/Divisional Officer (hereinafter called the Engineer-in-charge) of such completion, but no such certificate shall be given, nor shall the work be considered to be complete until the contractor shall have removed from the premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediately so that the work may be completed within the stipulated period. Necessary royalty will be paid by me." This letter was forwarded by the Assistant Engineer (Rates) to the Divisional Forest Officer, Cooch Behar Division, with the following note: "Forwarded in original for favour of his kind disposal. The applicant Sri N. C. Banerji has been entrusted with the work mentioned in the application and may kindly be allowed to collect 453 cm. of stone bazree from Basra river-bed on receipt of necessary royalty from the applicant as per rules." The Commercial Tax Officer, Jalpaiguri, by an order dated 1st June, 1968, held that the supply of the stone materials in terms of the above contract amounted to "sale" within the meaning of the Act and, as such, the petitioner was liable to pay sales tax under section 4(2) of the Act from 28th July, 1961. By an order of assessment dated 21st August, 1968, the same Commercial Tax Officer assessed the petitioner under section 11(2) of the Act to sales tax for a sum of Rs. 25,035.90 on the basis that the supplies made by the petitioner to the Public Works Department, Government of West Bengal, amounted to a sale of goods within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fours with the facts of the present case. As such, it will be necessary to set out some portions of the judgment. At page 39 of the Reports, Hegde, J., of the Supreme Court observed as follows: "The sole question that arose for decision in those references was whether the transactions referred to in those references are 'sales' within the meaning of the Madhya Pradesh General Sales Tax Act, 1958, or whether they were merely works contracts. The High Court has opined that they were works contracts and as such the turnovers relating to those transactions are not liable to be taxed under the Act. The facts material for the purpose of deciding these appeals are: The assessee entered into two contracts with the S. E. Railway for breaking stones and supplying ballast. Under the first contract he was to break stones into ballast and supply approximately 60,00,000 cubic feet of ballast at Rs. 27-6-0 per cubic foot. Under the second contract, he was to supply in small slacks of a specified size at a flat rate of Rs. 35 per 100 cubic feet. The general and special conditions of those contracts were the same. The quarry from which the stones were to be quarried belonged to the railway admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact of payment of royalty, however, did not have the effect of transferring the property to the petitioner on the basis of the principle laid down by the Supreme Court in the above case. Dr. Pal further points out that the Commercial Tax Officer in passing the impugned order of assessment has proceeded on an entirely fallacious proposition of law. Dr. Pal pointed out that the Commercial Tax Officer refers to the case of Calcutta Co. Ltd.[1964] 15 S.T.C. 554. and holds that the case is distinguishable from the facts of the present case on the ground that the river-bed from which the petitioner collected the stones were never leased out to the Public Works Department, Government of West Bengal. According to the Commercial Tax Officer, since the stones were collected and royalty was paid to the Forest Department and not to the Public Works Department of the Government of West Bengal the transaction amounted to a sale. Dr. Pal submits that whether it is the Forest Department or the Public Works Department, the ownership of the property must be held to inhere in the State of West Bengal of which these departments are merely administrative divisions. In my view, this contention of Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich belonged to the assessee himself; but, nevertheless, since the contract contains certain specific terms, it should be construed, so it was argued, that it was a contract for the supply of labour and execution of certain works." Dr. Pal submits that since it was conceded as a question of fact that the quarry in question belonged to the assessee himself, this case is of no assistance in deciding the question before me. In my view, this contention of Dr. Pal is also sound and should be accepted. In the present case, there can be no manner of doubt that the river-bed from which the stones were collected as aforesaid never belonged to the assessee. The narrow question which falls for determination is whether by virtue of the payment of royalty to the Forest Department, Government of West Bengal, the petitioner became the owner of the stones in question. In view of the proposition of law laid down by the Supreme Court in the case mentioned above, it must be held that the payment of this royalty did not change the ownership of the property in question. As such the petitioner never acquired the property in the stones in question from the State of West Bengal which at all material t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h petition before that day shall be dealt with in accordance with the provisions of article 226 as substituted by section 38." On the strength of this provision it was submitted that the present case is a case of a pending petition and, as such, it would be governed by the provisions of article 226 as substituted by section 38 of the Amendment Act. Although some argument might have been advanced as to whether the present case is a case of a "pending petition" as contemplated by section 58 of the Amendment Act, Dr. Pal, appearing for the petitioner, fairly conceded that in view of the law as it stands and since I had not actually delivered judgment, it would be a "pending petition" within the meaning of section 58 of the Amendment Act. In that view of the matter, it is to be considered whether the present petition is maintainable by virtue of the substituted article 226, which came into force and effect on 1st February, 1977. With regard to the notices which are challenged before me in this application, Mr. Dutta submits that the challenge is not maintainable in view of the provisions of new article 226(3) of the Constitution. Article 226(3) provides as follows: "No petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me right or liability affecting a party. A notice is clearly a communication to a party asking him either to show cause or to do something before an order is passed. In that view of the matter, the impugned notices cannot be said to be "orders" made within the meaning of section 20(3) or section 20(4) of the Act. As such, it cannot be said that the petitioner has any other remedy for redress of his grievances against the impugned notices within the meaning of new article 226(3) of the Constitution of India. Before I leave this aspect of the matter, I must mention that it was brought to my notice that an identical question came up before M. N. Roy, J., in the case of Surja Mohan Chakraborty v. State of West Bengal[1977] 39 S.T.C. 462.[Civil Rule No. 7935(W) of 1972]. In that case, an identical contention was advanced by Mr. Dutta with regard to a notice issued under section 7(4a)(i) of the Act demanding a certain sum as security. Dealing with the contention that such a notice amounts to an order, M. N. Roy, J., observed as follows: "The impugned notice, not being either an assessment or order, finally determining the rights of the said petitioner, is not revisable under those pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any illegality in any proceedings by or before any authority under any provision referred to in sub-clause (b), where such illegality has resulted in substantial failure of justice." Mr. Pal pointed out that the bar created by article 226(3) of the Constitution of India only applies to any injury referred to in sub-clause (b) or (c) of clause (1) of that article. To put it differently, if the petitioner is seeking to enforce any of the rights conferred by the provisions of Part III of the Constitution of India, the provisions of article 226(3) do not constitute a bar to such a petition. The question, therefore, arises whether the challenge to the order of assessment in the present case can be said to be for the enforcement of any fundamental right conferred by Part III of the Constitution. Dr. Pal submitted that the order of assessment is challenged on the ground that the transaction in question not being a "sale" within the meaning of the Act, the order of assessment is entirely without jurisdiction. Consequently, it was submitted that by the order of assessment, which is impugned in the present case, the petitioner is sought to be deprived of his property without the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave by authority of law directly comes from article 265, and is not secured by clause (1) of article 31. Article 265 not being in Chapter III of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under article 32." Thereafter Hidayatullah, C. J., goes on to observe that the above proposition was not accepted by the majority in Ujjam Bai's case[1963] 1 S.C.R. 778. In Ujjam Bai's case(3), it was observed as was noted in paragraph 11 of the report of the judgment of Hidayatullah, C.J., as follows: "If by these observations it is meant to convey that the protection under article 265 cannot be sought by a petition under article 32, I entirely agree. But if it is meant to convey that a taxing law which is opposed to fundamental rights must be tested only under article 265, 1 find it difficult to agree. Articles 31(1) and 265 speak of the same condition." Thereafter Hidayatullah, C. J., sets down the two articles and notes the similarity therein. At paragraph 13 of the report, Hidayatullah, C. J., observed as follows: "Das, J., (Sarkar, J., concurring) put the same thing differently. He observed that 'if a quasi-judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution. Consequently, the bar imposed by article 226(3) of the Constitution cannot be invoked by the respondents in the present case challenging the maintainability of the application against the order of assessment. This contention of Dr. Pal, therefore, succeeds. Dr. Pal further submitted that the remedy contemplated in article 226(3) of the Constitution must be equally efficacious, speedy and adequate. This argument was based on the expression "any other remedy for such redress" contained in article 226(3) of the Constitution. Dr. Pal stressed the fact that the expression was not "any remedy" but "any other remedy". According to this submission, some meaning has to be given to the expression "other", which can only mean, according to Dr. Pal, an equally effective and adequate remedy. He submitted that in a fiscal statute, where, before an appeal can be heard, the petitioner has to pay the tax demanded by the order under appeal, it cannot be held to be "any other remedy" as contemplated by article 226(3) of the Constitution. Having regard to my findings on the other points as to the maintainability of this application, I do not feel inclined to express any final opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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