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TMI Blog2020 (2) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... us and/or any other writ, order or direction, directing to quash and set aside the Notification No.EST/1/Jurisdiction/B.2168 dated 05.07.2017 issued by the Commissioner of State Tax, Gujarat State at Annexure-A to the petition. (b) Pending admission, final hearing and disposal of this petition, to stay implementation and operation of the Notification No.EST/1/Jurisdiction/B.2168 dated 05.07.2017 issued by the Commissioner of State Tax, Gujarat State at Annexure-A to the petition. (c) Pending admission, final hearing and disposal of this petition to release the petitioner's son Paresh Nathalal Chauhan as he has been arrested under the authorization issued by Additional Commissioner of State Tax exercising powers under Section 69 of the Gujarat Goods and Services Tax Act, 2017 relying on the Notification dated 05.07.2017 at Annexure-A to this petition. (d) Pass such other and further orders as the Hon'ble Court deems just and expedient. (e) To provide for the cost of this petition to the petitioner." 4. The facts giving rise to the present writ-application may be summarised as under : 5. It is the case of the writ-applicant that his son, namely Paresh Nathalal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST without following due process of law of assessment and adjudication of alleged evasion of GST as contemplated under Section 61, Section 73 or under Section 74 of the Central Goods and Services Tax Act, 2017 and Gujarat Goods and Services Tax Act, 2017 i.e. before following provisions of Chapter XII of Central Goods and Services Tax Act, 2017 and Gujarat Goods and Services Tax Act, 2017 and Chapter VIII of Central Goods and Services Tax Rules, 2017 and Gujarat Goods and Services Tax Rules, 2017 in connection with investigation initiated by the State Tax, Unit-22, Ahmedabad on such terms and conditions which may be deemed fit and proper to this Hon'ble Court and in the interest of the petitioner. (D) Pending admission, final hearing and disposal of this petition, to direct the respondents to release the petitioner's family members from house arrest and/or to remove the officials of the respondents from the petitioner's residential premises being Flat No.104, Aryavrat Heights, Prernatirth Derasar Road, Satellite, Ahmedabad. (E) To pass any other and further orders in the interest of the petitioner and in the interest of justice on such terms and conditions as may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed input tax credit in excess of his entitlement under this Act or has indulged in contravention of any of the provisions of this Act or the rules made thereunder to evade tax under this Act; or (b) any person engaged in the business of transporting goods or an owner or operator of a warehouse or a godown or any other place is keeping goods which have escaped payment of tax or has kept his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act, he may authorise in writing any other officer of central tax to inspect any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown or any other place. (2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under sub-section (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorise in writing any other officer of central tax to search and seize or may h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng six months. (8) The Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (2), be disposed of by the proper officer in such manner as may be prescribed. (9) Where any goods, being goods specified under subsection (8), have been seized by a proper officer, or any officer authorised by him under sub-section (2), he shall prepare an inventory of such goods in such manner as may be prescribed. (10) The provisions of the Code of Criminal Procedure, 1973, relating to search and seizure, shall, so far as may be, apply to search and seizure under this section subject to the modification that sub-section (5) of section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the word "Commissioner" were substituted. (11) Where the proper officer has reasons to believe that any person has evaded or is attempting to evade the payment of any tax, he may, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the powers vested in them under the Act. The manner in which the officers have conducted themselves by overreaching the process of law and acting beyond the powers vested in them under sub-section (2) of section 67 of the CGST Act needs to be deprecated in the strictest terms. Therefore, a proper inquiry needs to be made in respect of the action of the respondent officers of staying day and night at the premises of the petitioner without any authority of law. 6. In the aforesaid premises, the first respondent Commissioner of State Tax, Ahmedabad shall carry out a proper inquiry in the matter and submit a report before this court on or before 13th November, 2019. 7. Stand over to 13th November, 2019. 8. Registry to forthwith forward a copy of this order to the Commissioner of State Tax as well as Chief Secretary of the State to look into the matter and do the needful to ensure that such incidents are not repeated. " 8. Ultimately, on 30th December 2019, the son of the writ-applicant came to be arrested by the respondent no.4 in exercise of power under Section 69 of the Central Goods and Services Tax Act, 2017 (for short, 'the Act 2017'). The arrest was on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the GGST Act, 2017, it is the Additional Commissioner of State Tax who would be exercising the power under Section 69 of the Act on the strength of the impugned Notification whereas, under the CGST Act, 2017, it is the Commissioner or the Additional Director General who would be exercising the powers. 13. Mr.Pandya, the learned counsel would vehemently submit that assuming for the moment that the Commissioner of Tax has been empowered by the statute to delegate his powers, the statute at the same time has also deemed it fit to say in so many words in Section 69 of the Act that the reasonable belief should be that of the Commissioner. The contention raised is on the footing that wherever power is to be exercised based on the reasonable belief of the authority, then such a power cannot be delegated though the statute empowers the authority to do so. In other words, Mr.Pandya drew a distinction between a particular power to be exercised and power to be exercised based on the reasonable belief of the authority. 14. Mr.Pandya further pointed out that the impugned Notification is in direct conflict with the Circular : 49 dated (Flyer No.) dated 1st January 2018 issued by the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te in the court of the Additional Chief Metropolitan Magistrate, Ahmedabad. 19. Mr.Trivedi further seeks to rely on the following averments made in the affidavit-in-reply filed on behalf of the respondents : "In this regard, before adverting to the contents of the averments as canvassed by the Petitioner before this Hon'ble Court, the Respondent authorities crave leave of this Hon'ble Court to submit on the history attached to the son of the present Petitioner. The son of the present Petitioner is involved in a multi-crore scam wherein on the premise of billing transactions, the son of the present Petitioner has operated numbers of fake entities and illegally claimed huge input tax credit running in crores of rupees and also illegally transferred Input Tax Credit to various entities, through such fake entities. In this regard, a complaint came to be registered under Section 174 of the Indian Penal Code for non-compliance of summons, with the Additional Chief Metropolitan Magistrate, Ahmedabad being Criminal Case No.104117 of 2019 by the respondent authorities. In this regard, the competent Court was pleased to issue a bailable warrant upon the son of the present Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and complexities attached with the new tax regime. Therefore, for effective and appropriate administration of the new tax regime, at relevant point of time i.e. on 05.07.2017, the concerned Commissioner in its wisdom decided to delegate powers to senior officers of the cadre so that the administration is not disturbed. Moreover, the Commissioner of State Tax is the Head of the entire department is required to look after the administration of the entire department. Therefore, considering the administrative flexibilities and practical difficulty, the notification under challenge was published by the then Commissioner of State Tax. 8. It is respectfully submitted that it could have never been the intention of the legislature/object of the Act not to empower the Commissioner to delegate his powers, inasmuch as, in absence thereof, the same would lead to a situation, where irrespective of the circumstances prevailing, it would only the Commissioner to do all the acts contemplated under the Act. In this regard, it is submitted that as far as the GGST Act is concerned, there is only one post of Chief Commissioner for the entire State of Gujarat. Thus, it is virtually impossible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of his subordinate, in relatively at a lower rank, would not become bad in law, merely because what is been delegated is likely to entail drastic consequences: (a) Section 152 of the Customs Act; (b) Section 37A of the Excise Act; (c) Other State GST Acts. 12. Now, as far as the contention of the Petitioner with regard to the arrest memorandum dated 31.12.2019 not having Document Identification Number is concerned, it is submitted that the said contention is also not tenable under law, inasmuch as, till date, the State of Gujarat has not issued any notification under the GGST Act making it mandatory for generation and quoting of Document Identification Number on any of its document. In absence of such notification, the arrest memorandum issued under the GGST Act, without having Document Identification Number, could not be said to be invalid or in contravention to any of the notifications issued under the GGST Act." 20. Mr.Trivedi, in support of his aforesaid submissions, has placed reliance on the following decisions : (1) Sidhartha Sarawgi v. Board of Trustees for the Port of Kolkata and others, reported in (2014)16 SCC 248; (2) State of Bihar and others v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything contained in this section, an Appellate Authority shall not exercise the powers and discharge the duties conferred or imposed on any other officer of State tax." 26. Section 69 is with regard to the power to arrest. Section 69 reads thus : "69. Power to arrest. (1) Where the Commissioner has reasons to believe that a person has committed any offence specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) of section 132 which is punishable under clause (i) or (ii) of sub-section (1), or sub-section (2) of the said section, he may, by order, authorise any officer of State tax to arrest such person. (2) Where a person is arrested under sub-section (1) for an offence specified under sub-section (5) of section 132, the officer authorised to arrest the person shall inform such person of the grounds of arrest and produce him before a Magistrate within twenty four hours. (3) Subject to the provisions of the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) where a person is arrested under sub-section (1) for any offence specified under sub-section (4) of section 132, he shall be admitted to bail or in default of bail, forwarded to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich may warrant exercise of these options are as follows : (i) Inspection 'Inspection' is a softer provision than search which enables officers to access any place of business or of a person engaged in transporting goods or who is an owner or an operator of a warehouse or godown. As discussed above the inspection can be carried out by an officer of CGST/SGST only upon a written authorization given by an officer of the rank of Joint Commissioner or above a Joint Commissioner or an officer higher in rank can give such authorization only if he has reasons to believe that the person concerned has done one of the following actions : (a) Suppression of any transaction relating to supply of goods or services or stock in hand; (b) Claimed excess input tax credit; (c) Contravention of any provisions of the Act or the Rules to evade tax; (d) Transporting or keeping goods which escaped payment of tax or manipulating accounts or stocks which may cause evasion of tax; Inspection can also be done of the conveyance. carrying a consignment of value exceeding specified limit. The person in charge of the conveyance has to produce documents/devices for verification and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le tax, interest and penalty; Recovery of tax (e) In case of seizure of goods, a notice has to be issued within six months, if no notice is issued within a period of six months then all such goods shall be returned. However, this period of six months can be extended by Commissioner for another six months on sufficient cause; (f) An inventory of the seized goods/documents/ records is required to be made by the officer and the person, from whom the same are seized, shall be given a copy of the same. (g) To ensure that the provisions for search and seizure are implemented in a proper and transparent manner, the Act stipulates that the searches and seizures shall be carried out in accordance with the provisions of Criminal Procedure Code, 1973. It ensures that any search or seizure should be made in the presence of two or more independent witnesses, a record of entire proceedings is made and forwarded to the Commissioner forthwith. (iv) Arrests In the administration of taxation the provisions for arrests are created to tackle the situations created by some unscrupulous tax evaders. To some these may appear very harsh but these are necessary for efficient tax administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Commissioner." 30. The delegation is the act of making or commissioning a delegate. It generally means parting of powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in the Black's Law Dictionary as "the act of entrusting another with the authority by empowering another to act as an agent or representative". In P.Ramanatha Aiyar's, The Law Lexicon, "delegation is the act of making or commissioning a delegate. Delegation generally means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself". Justice Mathew in Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The Assistant Commissioner of Sales Tax and Others [1974 (4) SCC 98], has succinctly discussed the concept of delegation. Paragraph 37 reads as follows: "37. ... Delegation is not the complete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Directors of the Corporation. The argument before the Supreme Court was that the power could have been exercised either by the Corporation or by the Director General of the said Corporation. The Supreme Court noticed that the power of the Corporation to recover the damages under Section 85B had not been questioned. The controversy was, whether such power could have been delegated under Section 94A to the Regional Directors. The Supreme Court, while dismissing the SLPs, observed as under : "5. The Courts are normally rigorous in requiring the power to be exercised by the persons or the bodies authorised by the statutes. It is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. At the same time, in the present administrative set up extreme judicial aversion to delegation cannot be carried on an extreme. A public authority is at liberty to employ agents to exercise its powers. That is why in many statutes, delegation is authorised either expressly or impliedly. Due to the enormous rise in the nature of the activities to be handled by statutory authorities, the maxim delegat us non potest delegare is not being ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of which the designated body should address its own mind. Allam and Co. v. Europa Poster Services Ltd., 1968 (1) All ER 826......." 9. In the case of Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465 at 468, while examining the scope of S.4 of the Essential Supplies (Temporary Powers) Act, 1946 it was said : "S.4 of the Act was attacked on the ground that it empowers the Central Government to delegate its own power to make orders under S.3 to any officer or authority subordinate to it or the Provincial Government or to any officer or authority subordinate to the Provincial Government as specified in the direction given by the Central Government. In other words, the delegate has been authorised to further delegate its power in respect of the exercise of the powers of S.3. Mr. Umrigar contended that it was for the legislature itself to specify the particular authorities or officers who could exercise power under S.3 and it was not open to the legislature to empower the Central Government to say what officer or authority could exercise the power. Reference in this connection was made to two decisions of the Supreme Court of the United States of America - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation to different officers or authorities, subordinate to the Corporation, and there is no scope for such delegate to sub-delegate that power, by authorising any other officer to exercise or perform the power so delegated." 33. In State of Bihar and others v. Anil Kumar and others, reported in (2017)14 SCC 304, the question that fell for the consideration of the Supreme Court was with regard to the validity of the investigative process under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Central Government has framed rules, namely, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, in exercise of its powers under Section 23. Rule 7 of the Rules mandates that the offence under the Act shall be investigated by a police officer not below the rank of the Deputy Superintendent of Police. The controversy arose because of a notification issued by the State of Bihar. The notification was issued by the State Government in exercise of its power vested under Section 9 of the SC/ST Act. The notification issued by the State of Bihar virtually diluted, or rather, did away with Rule 7 of the SC/ST Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a plain and simple interpretation of the language adopted by the legislature, in sub-section (2) of Section 9, it would emerge, that the additional conferment of authority (with reference to arrest, investigation and prosecution), could only be extended to an officer, other than a police officer. 16. In order to appreciate the contention of learned counsel for the appellant - accused, it is imperative for us to keep in mind the scheme, which was provided for by the legislature, in dealing with offences under the 'SCST Act'. In our considered view, at the time of introduction and commencement of the provisions of the 'SCST Act', Section 9 of the 'SCST Act' extended the power of arrest, investigation and prosecution, to all officers as would be entitled to carry out the aforesaid responsibilities, under the Code of Criminal Procedure. And as such, it needs to be appreciated, that when the provisions of the 'SCST Act', came to be worked out, at the outset, police personnel only, including those holding the rank(s) of Inspector, Sub-Inspector and Assistant Sub-Inspector, exercised the above powers. All these police personnel, were authorised by Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the responsibility, to vest the power of arrest, investigation and prosecution, in additional personnel. Stated differently, in case the State Government was satisfied, that the officers vested with such powers, in consonance with the provisions of the 'SCST Act', were insufficient to carry out the purposes of the 'SCST Act', the State Government could extend the power, to those not so expressly provided for. Accordingly, in case of inadequacy, to deal with the provisions of the 'SCST Act', the State Government was at liberty to further delegate the power of arrest, investigation and prosecution, to "... any officer of the State Government ...", for the fulfillment of the purposes of the 'SCST Act'. 21. Having concluded as above, we are satisfied to uphold, not only Rule 7 of the 'SCST Rules', but also the notification dated 03.06.2002, issued by the State Government, in exercise of the power vested in it under Section 9(1)(b) of the 'SCST Act'. Accordingly, we find no merit in the challenge raised on behalf of the appellant-accused, to the notification dated 03.06.2002. " 35. In Sidhartha Sarawgi (supra), the question before the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by authorized officers. The complexity of modern day administration and the expansion of functions of the State to the economic and social spheres have made it necessary that the Legislature gives wide powers to various authorities when the situation requires it. Today's governmental functions are a lot more complex and the need for delegation of powers has become more compelling. It cannot be expected that the head of the administrative body performs each and every task himself. 6. The issue was considered by this Court in Jamal Uddin Ahmad v. Abu Saleh Najmuddin and another4the context of the procedure for filing of the election petitions under Section 81 of the Representation of Peoples Act, 1951. It was held that the ministerial or administrative functions of the authority on whom the powers are conferred by the statute can be exercised by the authorized officers. It was held that: "13. The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need not necessari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of administrative or ministerial tasks by subordinate authorities in furtherance of the exercise of the delegated power by an authority. 8. It would also be useful in this context to refer to the decision of this Court in Barium Chemicals Limited and another v. The Company Law Board and another5wherein it is held at paragraph 36 as follows: ".....the maxim delegatus non potest delegare must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted." 9. The Constitution confers power and imposes duty on the Legislature to make laws and the said functions cannot be delegated by the Legislature to the executive. The Legislature is constitutionally required to keep in its own hands the essential legislative functions which consist of the determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of ejectment notice issued by a person who is not competent to do so, the same being without jurisdiction. The said ejectment notices were challenged by both the petitioners before the Calcutta High Court. In the case of Universal Autocrafts Private Limited, the learned single Judge of Calcutta High Court allowed the writ petition holding that the Land Manager was not competent to issue the ejectment notice. In the writ petition filed by Sidhartha Sarawgi, the learned single Judge of the Calcutta High Court found a conflict between two earlier decisions and referred the matter to a Division Bench. The Division Bench vide common judgment dated 28.01.2003 held in favour of the Kolkata Port Trust in the case of both the petitioners, which is challenged in these Special Leave Petitions. 12. The Major Port Trusts Act, 1963 Ss. 21, 34 (hereinafter referred to as, 'the Act') is an Act intended "to make provision for the constitution of port authorities for certain major ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith". Section 3 of the Act provides for the constitution of a Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the acquisition or sale of immovable property or for the lease of any such property for a term exceeding thirty years, and no other contract whereof the value or amount exceeds such value or amount as the Central Government may from time to time fix in this behalf, shall be made unless it has been previously approved by the Central Government. (2) Subject to the provisions of sub-section (1), the form and manner in which any contract shall be made under this Act shall be such as may be prescribed by regulations made in this behalf. (3) No contract which is not made in accordance with the provisions of this Act and the regulations made thereunder shall be binding on the Board." 15. In exercise of the power under Section 21 on delegation of powers, the Board of the Kolkata Port Trust passed Resolution No. 82 dated 26.05.1988 delegating the power to terminate any lease on the Chairman. The Chairman was also authorized by the said Resolution to issue ejectment notices. The text of the Resolution reads as follows: ".. Resolution No. 82-Resolved to sanction the proposal for delegation of powers to the Chairman by invocation of section 21(a) of the Major Port Trust Act, 1963 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner helpful to the writ-applicant in the present case. 37. In Bombay Municipal Corporation v. Dhondu Narayan Chowdhary, reported in AIR 1965 SC 1486, the Supreme Court considered the question, whether the delegation by the Commissioner, Municipal Corporation, of his functions under Sections 105-B to 105-E of the Bombay Municipal Corporation Act, 1888, to certain officers of the Corporation, was valid and proper. The Supreme Court took into notice Section 68 of the Act, 1888, and held as under : "2. The Bombay Municipal Corporation Act is an Act of 1888 and it has been amended frequently. Section 68 is one of the original sections and it provides as follows: "68. Municipal officers may be empowered to exercise certain of the powers, etc, of the Commissioner. (1) Any of the powers, duties or functions conferred or imposed upon or vested in the Commissioner by any of the sections, sub-sections or clauses mentioned in sub-section (2) may be exercised, performed or discharged, under the Commissioner's control and subject to his revision and to such conditions and limitations if any, as he shall think fit to prescribe, by any municipal officer whom the Commissioner general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judicial or quasi-judicial powers contained in Chapter VIA were expressly intended to be delegated. To the delegation as such there can be no objection. What is objected to is the provision, both in the section as well as in the order of delegation, that the exercise of the function is to be under "the Commissioner's control" and "subject to his revision." These words are really appropriate to a delegation of administrative functions where the control may be deeper then in judicial matters. In respect of judicial or quasi-judicial functions these words cannot of course bear the meaning which they bear in the delegation of administrative functions. When the Commissioner stated that his functions were delegated subject to his control and revision it did not mean that he reserved to himself the right to intervene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so on and so forth. In other words. the administrative side of the delegate's duties was to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of its institutional ability to take decisions in the area in question due to the expertise of its personnel, its integration into a wider decision-making structure, or its ability to gain access to relevant information and expert advice. Moreover, the designated agency is most likely to be an accountable decision-maker: it may well be subject to a regime of political accountability and, in any event, its role in making decisions in the relevant area will be transparent, its specification in the legislation making it readily identifiable as the responsible agency...." 39. We are of the view that the challenge to the legality and validity of the impugned notification should fail. 40. As pointed out by the Supreme Court in the case of Sahni Silk Mills (supra), the courts should normally be rigorous while requiring the power to be exercised by the persons or the bodies authorized by the statutes. As noted above, it is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. At the same time, in the present administrative setup, the extreme judicial aversion to delegation should not be carried to an extreme. There is on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the order dated 15th January 2015 passed by the Commissioner of State Tax delegating his power under Section 83 to the subordinate officers, yet, we are of the view that by virtue of such order, such impugned order of provisional attachment cannot be defended. " 44. In Valerius Industries (supra), this Court was dealing with a matter in which the subject matter of challenge was an order of provisional attachment under Section 83 of the Act. For the purpose of Section 83 of the Act, the Legislature thought fit to confer the power upon the Commissioner. However, in this regard also, the Commissioner has issued a notification dated 15th January 2018 delegating his power to three subordinate officers. While considering the challenge, this Court observed in para-35 as quoted above. 45. We are of the view that the observations made by this Court in the above referred para-35 could be termed as per incurium as such observations run contrary to the Supreme Court decisions referred to above in this judgment. 46. It is an accepted principle of administrative law that the repository of power must exercise that power personally. However, there are two exceptions to this principle : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is ultra vires ? 3. Whether the High Court has authority to frame the Rules known as 'Designation of Senior Advocate Rules, 1999'; under Sec. 34(1) of the Act or under any other provision of the Act or the Constitution, for the purposes of evolving the procedure to be allowed for designation of an Advocate as Senior Advocate. 4. Whether the procedure evolved under the impugned Rules excludes the advocates, practising in the district courts, or in the tribunals, from consideration to be designated as senior advocates. 5. To what relief, if any, in the facts and circumstances of the case petitioners are entitled in the present writ petition?" 51. The answer given by the Full Bench to the first question referred to above is relevant for our purpose. In para-30, the court observed as under : "From perusal for Sec. 16(2) of the Act it is clear that High Court has to form an opinion about the ability, standing at the Bar or special knowledge or experience in law of an advocate and when he is found deserving, he is designated as senior advocate. Process of forming opinion by Hon'ble Judges of this Court is a continuous process based on the observation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In the case on hand, Section 5(3) of the Act specifically confers power upon the Commissioner to delegate his functions. 54. We also have to our benefit, a Division Bench decision of the Madhya Pradesh High Court in the case of Raghunath v. Indore Municipal Corporation, Indore, reported in AIR 1987 (MP) 181. In the said case before the Madhya Pradesh High Court, the petitioner, being dissatisfied with the valuation of the property made for the purpose of property tax, filed his objections under Section 147 of the Madhya Pradesh Municipal Corporation Act, 1956. Those objections were heard and rejected by the Assessment Officer of the respondent Corporation in pursuance of the powers conferred upon him by the Commissioner of the Corporation. The petitioner argued before the High Court that the respondent no.2, i.e. the Commissioner of the Corporation, had no power to delegate the powers conferred upon him by Section 148 of the Act to any other officer of the Corporation, and consequently, the orders passed by the Assessment Officer overruling the objections submitted by the petitioner could be termed as without jurisdiction or null and void. On the other hand, on behalf of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not disputed before us on behalf of the respondents. The contention urged on behalf of the petitioners was that the Commissioner had no power to delegate the quasi-judicial power conferred upon him by S.148 of the Act. 6. As held by the Supreme Court in Bombay Municipal Corpn. v. Dhondu Narayan Chowdhary, AIR 1965 SC 1486, it is well settled that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication, permits it. S.69(4) of the Act, in our opinion, is a provision, which expressly permits the Commissioner to delegate any power conferred upon him by the Act. In absence of the provisions of S.69(4) of the Act, the Commissioner could not have delegated the quasi-judicial powers conferred upon him by the Act. 7. It is, however, urged on behalf of the petitioner that S.69(4) of the Act refers only to the administrative powers under the Act and not to any other power under the Act. There is no warrant for construing the provisions of S.69(4) of the Act in such a way as to confine it to delegation of administrative powers only. S.69(4) of the Act enables delegation of all powers conferred upon the Commissioner by the Act, irrespective of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the aforesaid decision of the Supreme Court, it cannot be held that the fact that the power delegated under S.69(4) of the Act by the Commissioner is to be exercised subject to the control and superintendence of the Commissioner, rules out delegation of quasi-judicial power conferred upon the Commissioner by S.148 of the Act. Such a construction would also not be reasonable because the legislature has chosen to confer power upon the Commissioner by S.69(4) of the Act, to delegate any of his functions under the Act, without any reservation, presumably because, in a city, where a Corporation is established, the Commissioner cannot possibly exercise each and every power conferred upon him by the Act. Under the circumstances, it cannot be held that the objections to the valuation preferred by the petitioners have been decided by a person, who had no jurisdiction to decide those objections." 57. Thus, the dictum as laid in the aforesaid decision is that, be it quasi-judicial or administrative power, the same can be delegated provided the law expressly or by clear implication permits it to be delegated. The Bench took the view that having regard to Section 69(4) of the Act referre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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