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TMI Blog1996 (5) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... efs for quashing the said provisions of the old Act stating that the same has been repealed and the Rajasthan Sales Tax Act, 1994 has come into force. He also did not press the case of the petitioner regarding the sale of 38 scooters prior to September 15, 1988. He contended that the surviving question in this case is about the actual dates of the publication and of the issuance to the public of the Rajasthan Gazette in which the said notification (annexure 2) issued under section 5(1) withdrawing the concessional rate of tax on scooter has been printed. 3.. It has been contended by the learned counsel for the petitioner that the said notification (annexure 2) was admittedly issued by the Finance Department, Government of Rajasthan, Jaipur on September 15, 1988, it could not be printed in the Rajasthan Gazette on the same day particularly when 15th September, 1988 was a restricted holiday on account of Ganesh Chaturdarshi, it was in fact printed on 16th September, 1988 with back date of September 15, 1988, it was issued to the public on 17th September, 1988 and as such the petitioner could not know about it on 15th September, 1988. He further contended that the petitioner came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication dated September 15, 1988 was not in fact published by the State Government on September 15, 1988 and even if published the same was not made known to the public on September 15, 1988 itself and, therefore, the public had no means of knowing the same on September 15, 1988." 8.. Letter No. BMC/JOR/88-89 dated August 3, 1989 (annexure 1 of the Additional affidavit) was addressed by the petitioner to the Rajasthan Government Press, Jaipur. It would be best to quote it here in extenso. It runs as under: "Sub: Date & time of gazette publication dated 15th September, 1988. Dear Sir, We refer to your Gazette No. F.4(67) FD/Gr. 4/88-65, S.O. No. 138 Rajasthan Gazette, Extraordinary, Part 4(C)(II) dated 15th September, 1988. Sir, we do not have any information regarding this gazette when it was published and when it was posted in public. It is required by High Court for our pending case. This is our request to you that please let us know the date and time of publication and date of despatch in public. Your prompt action will be highly appreciable. Thanking you, Faithfully yours, for Bombay Motor Co." 9.. It may be mentioned here that the writ petition was filed on July 31, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erly failed to do so. 13.. When the gazette was published on September 15, 1988 withdrawing the previous notification regarding concessional rate of tax on scooters, the scooters sold on September 15, 1988 were exigible to tax at the original rate of 12 per cent. The facts and circumstances of the cases cited by the learned counsel for the petitioner are quite different and distinguishable. They do not go to help the petitioner in any way. The assessing authority has rightly imposed tax at the rate of 12 per cent on the scooters sold on September 15, 1988. Thus there is no force in the writ petition. It deserves to be dismissed. 14.. In the result, the writ petition is dismissed. No order as to costs. J.P. Bansal (Judicial Member).-"I can resist everything", so said Oscar Wilde, "except temptation". I have advantage of reading the judgment of the honourable Chairman, Mr. Justice M.C. Jain. In view of the circumstances of the case I find it difficult to resist the temptation to write my separate judgment. The facts are these. The petitioner-firm, is a registered partnership-firm which has been carrying on the business as an authorised dealer for the sale of Bajaj scooters at Chop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 7 per cent together with interest. The respondent No. 2 proceeded to pass the order of assessment on 30th June, 1989 under section 7B of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as "the RST Act"). A demand of Rs. 40,416 was raised against the petitionerfirm. The petitioner-firm prays that the order of assessment dated 30th June, 1989 in connection of a demand of Rs. 40,416 be quashed. It may be declared that notification dated 15th September, 1988 could not be made effective with effect from 15th September, 1988. The provisions of section 7B(2) and the second proviso to section 13 of the RST Act may be struck down as bad. 16.. In the counter filed on behalf of the respondents it has been averred that 15th September, 1988 was a restricted holiday and not a public holiday. The Government offices were functioning as usual on that day. The notification in question was published on the date which it bears on its face. The survey of the business premises of the petitioner-firm was conducted on 16th September, 1988 and the survey report prepared on the spot. The notification in question was to come into force with immediate effect on 15th September, 1988. As many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rajasthan Gazette, Extraordinary, Part IV/C(II) dated 15-9-1988.) It is not in dispute before us that the rate of tax was hiked from 5 per cent to 12 per cent by this notification. The words "with immediate effect" used at the end of this notification are very important. 20.. I have considered the problem with regard to the enforceability with immediate effect of this notification in question both in its factual and legal aspects. As regards its factual aspect, the position is that it bears the date of 15th September, 1988 as the date of its publication. It has been made enforceable with immediate effect. The scooters which are 51 in number are alleged to have been sold off on this date. If this notification in question is made enforceable with all its vigour with effect from 15th September, 1988 then the transaction concerning the sale of 51 scooters shall be covered by it and the case of the petitioner-firm be thrown out. Thus the main question is whether on the facts and in the circumstances of this particular case can it be said that this notification in question must be made applicable with effect from 15th September, 1988. The answer to this question is to be answered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Superintendent of Government Printing Press, Rajasthan, Jaipur, enquiring as to date on which the notification in question was received for publication from the Secretariat, State Government, Jaipur. It has been mentioned in paragraph 4 of the additional affidavit of Daulat Ram Jagwani filed on behalf of the petitioner-firm that the notification in question was received for publication in the Government Press in the evening of 15th September, 1988 and it was actually printed on 16th September, 1988. It was issued for sale to the public on 17th September, 1988. This is the information which was verbally passed on to the deponent. They, however, expressed their inability to put these facts in writing. 22. As regards the legal aspect of the matter, the position is not favourable to the respondents. The petitioner-firm has come out with a definite case that it came to know about the publication of the notification in question from a newsitem which appeared in the newspapers of 16th September, 1988. The news-item datelined Jaipur which appeared in the issue of the Rajasthan Patrika dated 16th September, 1988 is hereunder: The petitioner-firm took the trouble of making an enq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification in question is not under challenge before us. It is the date and timing of publication which is under challenge before us. Section 4 is also of no help to the case of respondents. The reason is that in this case we are not concerned with a matter of irrebuttable presumption. At the best we can raise a rebuttable presumption with regard to the date of publication of the notification in question. This rebuttable presumption can be displaced by the petitioner-firm. As per the discussions I have made in the preceding paragraphs, I am of the view that such a rebuttable presumption, if any, has been displaced by the petitioner-firm. Apart from this a well-established rule of evidence is that the burden of proving a fact lies upon a person who alleges the existence of such fact. Nobody can be asked to prove a negative fact. Furthermore, whenever a particular fact lies within the knowledge of a particular person it is that person who has to prove it. In the present case the fact that the notification in question was published, printed and issued for sale to the public was within the knowledge of the respondents. As such it was their duty to prove this fact but they did not care t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential." 23.. Their Lordship of the Supreme Court noted the distinction between parliamentary legislation-primary legislation-and the delegated or subordinate legislation. The former is made in full public view of the people whereas the later is made in the secret recesses of the chambers of the ministers or secretaries without any knowledge to the public at large. No prior notice is required for the enforceability with immediate effect of the primary legislation whereas such a prior notice is required in the case of delegated or subordinate legislation before it can be made enforceable. With regard to this distinction their Lordships of the Supreme Court in para 10 at page 468 of the Report observed as hereunder: "The British Parliament has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court and contended that the authorities were not entitled to give effect to the notification with effect from 1st December, 1966, and they were entitled to do so only from 25th December, 1966, when they received the Gazette. It was held that the respondents should be restrained from giving effect to the notification between 1st December, 1966 and 11th December, 1966 (both days inclusive). 25.. The decision in B.K. Srinivasan v. State of Karnataka AIR 1987 SC 1059, concerned due publication of the plan and regulation by a legal authority, namely, Director and Planning Authority, for information to the public at large as also for the inspection of the plan by general public. The distinction between primary legislation and delegated or subordinate legislation was clearly noted. Their Lordships of the Supreme Court in para 15 at pages 1067-1068 observed as hereunder: "But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be publ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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