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TMI Blog1974 (2) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... r trustees, Sri Srigopal Bhattad, and Sri Raj Kumar and Sri Kant, minors. On 19-10-1971 the last mentioned two minor partners viz., Sri Raj Kumar and Sri Kant ceased to be the partners of the firm. On 20-10-1971 the firm was reconstituted with the other seven existing partners and the newly admitted partners, Smt. Kesavbai, Sri Venugopal Inani and Sri Srigopal Inani, Sri Kailashanarayan, minor by guardian Satyanarayana Bhangadia and Sri Kachrulal, minor by guardian Smt. Sarjoobai (the last two minors being admitted to the benefits of partnership). 3. The petitioner filed notice of the change in the constitution of the firm as required under Section 63 (1) of the Indian Partnership Act (hereinafter referred to as the Act) in the office of the Registrar of Firms on 4-9-1972 The required amount towards the notice fee was also paid. But the Registrar of Firms returned the said notice to the petitioner in his letter No. F 2/8052/72 dated 30-11-1972 informing that the form V notice cannot be taken on the office record since the petitioner failed to inform the change in the constitution of the firm within 15 days from the date of the said change as required under Sub-rule (2) of Rule 4 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrar has no power to return the notice on any grounds and particularly on the ground that the notice should be given within 15 days since the section itself does not impose any such limitation. He argues that no rule can be framed beyond the scope of the section itself. It is also his submission that Section 71 of the Act which empowers the State Government to make rules does not empower the Registrar to frame rules to prescribe time-limit for the notice and hence Rule 4 (2) of the Andhra Pradesh Partnership Rules, 1957, is beyond the scope of the rule-making power under Section 71 of the Act and is ultra vires of the provisions of the Act. 6. On the other hand, the learned Government Pleader supports the validity of the rule on the ground that Section 71(2) (e) and (j) of the Act empower the Government to prescribe the period of limitation for filing the statements, intimations or notices. 7. To answer the question, it is necessary to read the relevant provisions of the Act and the rules made thereunder. Section 63 (1) of the Act reads as follows:-- "When a change occurs in the constitution of a registered firm any incoming, continuing or outgoing partner, and when a registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who deals however with a firm without knowing the addition of a new partner or knows that a new partner has been introduced can either content himself with the security of the other partners or insist upon the registration of a new partner as a condition for further dealings. However, in the case of expelled or retired partner, it is necessary to have the changes noticed in the Register since he continues to be liable for the acts of the firm until notices were given of the retirement or expulsion. Therefore, it will be in his own interest to give immediate notice to the Registrar. Therefore, Section 63 (11 does not make it imperative but merely permissive to the partner incoming, continuing or outgoing when a change occurs in the constitution of a registered firm, to give notice to the Registrar of such change specifying the date thereof. But when once the change is notified, the Registrar shall make a record of the notice in the entry relating to the firm in the Register of Firms, and shall file the notice along with the statement relating to the firm filed under Section 59. The section itself does not prescribe any limitation as to the period within which notice should be filed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Andhra Pradesh Partnership Rules is beyond the rule-making power of the State Government. 10. It would be apposite at this stage to refer to some of the decided cases on the point, in Sales Tax Officer, Ponkunnam v. K. 1. Abraham, AIR 196") SC 1-823 the question that arose was whether the third proviso to Rule 6 (1) of the Central Sales Tax (Kerala) Rules, 1957. prescribing the tune-limit within which a declaration must be filed by a registered dealer was ultra vires of Section 8 (4) read with Section 13 (4) (e) of the Central Sales Tax Act. Section 13 (4) (e) did not authorise the rule-making authority to make rules prescribing the time-limit within which declarations should be made by a dealer. The Supreme Court observed at page 1825: "The decision of the question at issue therefore depends on the construction of the phrase 'in the prescribed manner' in Section 8 (4) read with Section 13 (4) (e) of the Act, In our opinion, the phrase 'in the prescribed manner' occurring in Section 8 (4) of the Act only confers power on the rule-making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and the statute itself prescribes no such limitation. 13. The above decisions are persuasive authorities for the proposition in the present case that when the statute itself does not provide for any limitation with reference to a particular matter and the delegation of power to make rules is conferred by a section of the Act which does not expressly or impliedly relate to the power to prescribe time, the authority to which the power is delegated, namely, the State in this case, cannot make -a rule prescribing a rigid time-limit with reference to that matter. It is manifest that in this case neither Section 63 (1) nor Section 71 (2) of the Act em-powers the State Government to make rules prescribing any time-limit for the submission of notice or intimation under Section 63 (1). In the circumstances, Rule 4 (2) of the Andhra Pradesh Partnership (Registration of Firms) Rules, 1957 is ultra vires of the powers of the State Government under Section 71 (2) of the Act. The said Rule is, therefore, struck down, and the proceedings of the Registrar of Firms in F 2/8052/72, dated 30-11-1972 are quashed. It cannot be said that the intimation in this case about the change in the constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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