Kartick Chandra Jana v. State Of West Bengal

Debiprosad Pal, J.:-

(1) The petitioners are stated to be cloth merchants and carrying on business under the trade name of '"nandalaya". They are registered dealers under the bengal finance (sales tax) act of 1941 (hereinafter referred to as the act). It appears that the commercial tax officer, midnapore filed a certificate against the petitioners for realisation, of a sum of rs. 2287. 81 being the liability under the act for the period ending 31st chaitra, 1363 b. S. The petitioners preferred an objection under the public demands recovery act contending inter alia that no proper notice was served upon the petitioners and hence the assessment was illegal and the certificate was liable to be cancelled on that ground. The objection did not prevail over the certificate officer and on appeal, the additional collector, midnapore confirmed the decision of the certificate officer holding inter alia that it is beyond the jurisdiction of the certificate officer to pronounce a judgment as to whether there has been any procedural defect in the assessment of sales tax. The petitioners thereafter served a notice dated 18th march, 1963, under section 80 of the code of civil procedure it was alleged in the said notice that the assessment for the relevant year was illegal and void and consequently the certificate was illegal after expiry of the statutory period a suit was instituted in the court of its second munsif, midnapore, against the state of west bengal, being other suit no. 127 of 1963. In the said suit, one of the contentions raised was that the assessment was illegal as no notice was ever served upon the petitioners and the petitioners were not given any opportunity to defend their case at this time of assessment made by the commercial tax officer. The state of west bengal, being the defendant in this said suit, in spite of due service of this notice, did not file any written statement and did not contest the said suit. The learned munsif, midnapore, in these circumstances decreed the suit exports holding inter alia that the statement regarding the non - service of the notice has not been challenged and in the absence of any evidence to the contrary the assessment must be held to be without notice and illegal. The certificate issued on the basis of such assessment was also held to be illegal and was therefore cancelled. The state of west bengal thereafter made an application for setting aside the exparte decree. The said application being misc. Judicial case na, 32 of 64 was also dismissed on contest as no sufficient reasons were shown by the state of west bengal for non - filing of the written statement in the course of seven months. The state of west bengal thereafter did not go higher up against the said order.

(2) Although the said certificate was cancelled by the judgment and decree in the other suit no. 127 of 1965, another certificate dated 28th december, 1964 being certificate no. 12 - s. T. At 1964 - 65 for the like amount being the sales tax payable for the same period was again filed. The petitioners filed an objection under the public demands recovery act contending inter alia that in a suit filed under section 34 of the said act, the learned munsif had can celled the earlier certificate for the same amount and for the some period upon a finding that the assessment was illegal. The certificate officer by his order dated 31st may, 1965, set aside the demand holding inter alia that in view of the finding of the civil court a fresh certificate for the same demand does not lie. On an appeal the additional district magistrate, midnapore, restored the certificate and set aside the order of the certificate officer. According to him the civil court cancelled the certificate only and not the assessment of the sales tax which could have been annulled only by appellate authority under section 20 of the1 act. On a revision against the said order, the commissioner, burdwan division by his order dated 18. 12. 1965 set aside the appellate order of the additional district magistrate and upheld the order of the certificate officer. The state of west bengal thereafter moved in revision the board of revenue. The additional member, board of revenue, by his order dated 9. 7. 1970 upheld the order of the additional district magistrate and restored the certificate there by setting aside the order of the commissioner burdwan division. According to him the declaration made by the civil court that the assessment was illegal was to be taken only as an obiter dictum and not binding on the authority under the act or the public demands recovery act. The fact that an earlier certificate was set aside on the ground of its invalidity does not prohibit the filing of a fresh certificate on the basis of another requisition against a party legally liable for the certificated demand. Aggrieved by the said order of the additional member, board of revenue, the petitioners moved this court and obtained a rule nisi.

(3) The main question which arises for consideration is whether in a suit instituted by the petitioners in the civil court challenging the legality of the certificate, the civil court is excluded from deciding the question as to whether the assessment is illegal on the ground that no notice was served upon the petitioners. The determination of this question depends to a large extent on the relevant provisions of the act under consideration. The act has pro vided a detailed and a complete machinery for preferring an appeal and revision against an assessment made under the act. The question of law arising out of the board's order which has been made the final revisional authority under the act may be referred to the high court for its decision. Section 19 expressly precludes the civil courts from calling into question any assessment made and any order passed under the act except in the manner laid down under section 21 of the act by way of reference on questions of law arising out of the board's order. In the context of this specific provision of the act one has to consider the extent of the ouster of the jurisdiction of the civil court by the statutory tribunal constituted under the act. A comparison with the other statutory provisions may not be of much assistance in the solution of the problems except in the ascertainment of the general principles underlying such provisions.

(4) Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. Under section 9 of the code of civil procedure the courts have jurisdiction to try all suit of civil nature excepting suits for which their cognizance is either expressly or impliedly barred". Statutes often seek to exclude the jurisdiction of the civil court to review administrative action taking place under them by using various formulae for the purpose. A statute may make the orders made hinder it as final. For example, section 5 (2) of the central excies and salt act, 1944 provides that "every order passed in appeal under the section shall, subject to the power of revision confer red by section 36, be final". A variant of this provision is to b found in section 19 of the act which lays down that save as is provided in section 21 of the act, no assessment made and no order passed under the act, or the rules made thereunder shall be called into question in any civil court. The question as to the extent to which such formulae exclude the jurisdiction of the civil court has posed problems which are not always easy of solution. The law on the subject is at the formative stage off development and many of its dark corners remain to be significantly illumined. The trend of judicial decisions illustrates the attempt made to strike a balance between the ordinary right of a citizen to have recourse to courts of law for the determination of his rights and the legislative intention to exclude the jurisdiction of the civil court to entertain a challenge on the functions assigned to and the decisions reached by various statutory authorities which have grown as a result of the expansion of the activities of the state in varied spheres of social and economic life.

(5) The main principle has been stated by willes. J in (10) wolver hampton new water works co. V. Hflwkesford (1859) 6 c. B. (n. 3.) 336. The principle is where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for en forcing it, the party must adopt tine form of the remedy provided by 1che statute. This principle has been accept ed by the house of lords m (4) nevil v. London express neu - spaper ltd. , (1919) a. C. 368. In the care of (7) secretary of state v. Mask (67 indian appeal 222) it has been laid down by the judicial committee that the exclusion of the jurisdiction of the civil court is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. Lord thankerton who delivered the opinion of the board, however, proceed ed to add that

"it is also well settled that even if the jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure"

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These observations have been accepted by the supreme court in the cases of (3) firm of illur subbayyu chetty and sons v. The state of andhra pradesh (14 s. T. C. 680) (?) state of kerala v. Ramaswami iyer and sons, 18 s. T. C. 1; (2) dhulabhai v. Stale of madhya pradesh (22 s. T. C. 416). In the case of firm of illuri subbayya chetty and sons y. The stale of andhra (vide supra) the supreme court explain ed that the above observations of the judicial committee, though made in somewhat wide terms do not justify the assumption that if a decision has been made by the taxing authority under the provisions of the relevant taxing statute, its validity caw be challenged by a suit on the ground that it is in correct on the merit and as such it can be claimed that the provisions of the said statute have not been complied with. Non - compliance with the provisions of the statute to which reference has been made by the privy council must mean non - compliance with such fundamental provisions of. The statute as would make the entire proceeding before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceeding illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is only in those cases where the defect of the procedure is so fundamental that it goes to the very root of the order and makes it invalid in law and void that the civil court can exercise its jurisdiction not withstanding a provision to the contrary contained in the statute. It is well settled that where a tribunal acts with out jurisdiction, its decision is a nullity the principle is stated in (5) reg v. Governor of brixton prixon expane armah (1968 a. C. 192) that if a tribunal has jurisdiction to go right, it has jurisdiction to go wrong. The correct ness of the principle cannot be doubted so long as the expression "jurisdiction'' is used in its narrow original sense of the tribunal being entitled to enter on the enquiry in question but there may be many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made its decision which it had no power to make. It may have failed in the course of enquiry to comply with the requirements of natural justice. It may have refused to take into account some thing which it was required to take into account. It may have based its decision on some matter which under the statutory provisions, it had no right to take into account. In all these cases, the categories of which have not been exhaustively enumerated, the tribunal acts without jurisdiction if the word "jurisdiction" is used in a wide sense and its decision is a nullity (1) anisminic limited v. Foreign compensation commission (1969) 2 w. L. R. 163 (h. L.) thus, "stretching the concept of jurisdictional errors has been the principal technique by which the courts have extended their control over statutory authorities and tribunals, as for example, by holding that action which is wrongly motivated or unreasonable or inconsistent with natural justice is ultra vires and void. " (h. W. R. Wade in constitutional administrative aspe is of the anismimc's case (1960) 85 law quarterly review 198 at p. 209 to 210.

(6) In the light of the principles discussed, one has to consider the question raised in the present case regarding the competence of the civil court to declare the assessment to be illegal. In the suit filed in the present case before the civil court, the certificate was challenged on the plea that the assessment is illegal and invalid as it was made without any notice upon the petitioners. The civil court accept ed that contention in the absence of any evidence adduced on behalf of the respondents to the contrary. I am, therefore, to proceed in this case on the footing that the assessment has been made without any notice served upon the petitioners. The assessment with out a notice to the petitioners is in gross violation of the fundamental principles, of judicial procedure. An order of assessment being a quasi - judicial order, there could be no decision within the meaning of the statute if there is any thing done contrary to the essence of justice (8) spackman v. Pinmstead district board of works (1885) (10; a. C. 229 h. L. An assessment without a notice to the petitioners being in gross violation of the principle of natural justice of audi alteram parim lenders such an order void. Since the decision in (11) wood v. Wood (1874; l. R. 9 exch. 190, this principle has never been doubted and has received a lucid and forceful exposition in the case of (6) ridge v. Baidurin (1964 a. C. 40). If an assessment is made under the act with out a notice upon the petitioner, the irregularity or the illegality committed in observing the fundamental principles of judicial procedure is so patent and loudly obtrusive that it leaves on the decision an indelible stamp of infirmity which ex facie renders the assessment void and illegal. In my view, the civil court's jurisdiction to decide whether the assessment in question was illegal because of non - compliance with the fundamental principles of judicial procedure, is not excluded by section 19 of the act and the finding arrived at by the civil court that the assessment was illegal because of the infirmity referred to above was not without jurisdiction. The view of the additional member, board of revenue, that in view of section 21 of the act no assessment can be called into question in any civil court or that the declaration by the civil court that the assessment was illegal was an obiter is patently erronqous in law.

(7) If the finding of the civil court on the legality of the assessment is not without jurisdiction, it is not open for the respondents to file another certificate for the same demand for the same year. In such a proceeding challenging the certificate it is open to the petitioner to contend that the finding of the civil court on the legality of the assessment, cannot be varied or affected. It is well settled that in the absence of fraud or irregularity, a decree obtained exparte; is binding for all purposes as a contested decree. Before the civil court the; question as to whether the assessment is illegal because of non - service of the notice was directly and specifically in issue. Before the certificate officer, in the second certificate for the same demand such question is also a material one to be decided. The principle of resjudicata will apply particularly when a certificate officer under section 57 of the public demands recovery act is deemed to be a court.

(8) For the reasons stated above, in view of the finding of the civil court that the assessment is illegal, the amount of the present certificate under the public demands act is illegal and invalid. The order made by the additional member, board of revenue dated 9 - 7 - 70 being annexure "l" is quashed as also the certificate being no. 12 - s. T. Of 1964 - 65 dated 28th december, 1264 are quashed by a writ of certiorari. There will be a writ in the nature of mandamus commanding the respondents to forbear from giving any effect to the said order of the additional member, board of revenue and the said certificate. The rule is made absolute to the extent in dated above. There will be no order as to costs.