Baidya Nath Roy vs Commissioner of Taxes and Another

Sarjoo Prosad, C.J.—This is an application under Article 227 of the Constitution. The petitioner is a dealer within the meaning of the Assam Sales Tax Act. He applied for certified copies of his application dated 25-1-48 and the order passed thereon. He paid requisite authentication fee for that purpose as provided by Article 6 of Schedule I, Court-fees Act and Article 24 of Schedule I, Indian Stamp Act.

The respondent who is the Superintendent of Taxes, Gauhati, by his order dated 29-5-54 refused to grant the certified copies unless the petitioner furnished folios for the same., He observed that fees and folios were, required according to the Press-note No. 222 dated 11-7-52 and so long as the terms of the Press-note were not complied with no certified copy could be granted.

The petitioner contends that the order of the Superintendent of Taxes is without jurisdiction and the authority of the Press-note is without any basis in law. The Press-note on which reliance has been placed by the respondents appears to have been issued in the name of one N.F. Rahman for Director of Information and Publicity, Assam.

There is nothing to indicate on the face of the Press-note itself under what authority it has been issued. The plaintiff calms that he is entitled as a matter of right to get the certified copies in question when he had in other respects satisfied the requirements of the Court-fees Act and the Stamp Act. Tine opposite party represented by the Assistant Commissioner of Taxes, Assam, has filed a counter affidavit in which he supports the order for demand of fees and folios as required by the Press-note in question.

According to the statement of the opposite the order was justified by virtue of Rules 11 and 15 framed in the Assam Record Hand-Book, and the opposite party also claims justification for it on order basis of an order of this Court dated 12-2-54 passed in--''Banwarilal v. The State'' AIR 1955 Gau 195 (A).

It may be at once observed that the decision of this Court aforesaid has no bearing on this point, because the question as to whether fees and folios were payable in respect of such an application and whether the press-note in question was justified were never decided by this Court. So far as the Assam Record Hand Book is concerned, it is quite obvious that the rules framed in that Hand Book cannot be of any avail to the opposite party. They are in the nature of executive instructions and unless those instructions are justified by existing rules and laws governing them, they have no application to a case of this kind.

There is therefore ample justification for the contention that the provisions on which the Assistant Commissioner of Taxes appears to have relied do not authorise refusal of the petitioner''s application for want of fees and folios as contemplated by him. Section 52, Assam Sales Tax Act does empower the State Government to make rules for the purpose of giving effect to the provisions of the Sales Tax Act, and under Clause 2, Sub-clause (i) it is open to the State Government to provide for rules for levy of fees on petitions and other matters.

Rules were framed by the State Government under the aforesaid provision of the law, but it is conceded that there is no rule framed for this purpose which could justify the order passed by the Superintendent of Taxes. Rule 74 does not apply to this case because it makes no mention of fees or folios in respect of applications for grant of certified copies.

In the circumstances, we are unable to find any justification for the order passed by the officer against which the petitioner has moved us in the present application; and we think it is a fit case in which in exercise of the power of superintendence we should direct that until an appropriate rule is framed for that purpose the officer has no jurisdiction to insist upon the demand of fees and folios in respect of grant of certified copies as claimed by the petitioner.

In the circumstances, the order complained against has to be set aside and the officer concerned is directed to issue the copies claimed if the other requirements have been fulfilled. The rule is accordingly made absolute.

Civil Rule No. 90 of 1954 is also governed by the above order and this application is also allowed and the rule is made absolute. The petitioner in Civil Rule No. 90 of 1954 is entitled to costs. Hearing fee is assessed at Rs. 100/-. The petitioner in Civil Rule No. 89 of 1954 does not press for costs.

Ram Labhaya, J.

I agree.