Hariprasad Anandkumar vs The Board Of Revenue on 26 August, 1987

JUDGMENT

N.D. Ojha, C.J.

1. Aggrieved by the order of the Tribunal constituted under the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter referred to as “the Act”) passed in these second appeals, the petitioner made three applications before the Tribunal under Sub-section (1) of Section 44 of the Act for referring certain questions to this Court for its opinion. These applications were dismissed by the Tribunal on the ground that since they were not accompanied with certified copies of the order of the Tribunal passed in the second appeals, they were not maintainable. The order of the Tribunal is dated 14th May, 1982, a copy whereof is annexed as annexure C to the petition. It is this order which is sought to be quashed in the present writ petition. A further prayer has been made for issuance of a writ of mandamus directing the Tribunal to consider the reference applications on merits and pass suitable orders thereon.

2.    It has been urged by the learned counsel for the petitioner that the Tribunal committed a manifest error of law in dismissing the applications made by the petitioner  under Section 44(1) of the Act on  the aforesaid ground.    We find substance in this submission.
 

3.    In  Sangram Singh  v.  Election Tribunal, Kotah AIR 1955 SC 425 it was held by the Supreme Court that a code of procedure must be regarded as such.    It is procedure something designed to facilitate justice and further its ends not a penal enactment for punishment and penalties ; not a thing designed to trip people up.   Of course, there may be exceptions and where they were clearly defined, they must be given effect to:
 

4.    Sub-section (1) of Section 38 of the Act provides for an appeal by a dealer against the order of the   assessing   authority   to   the   Appellate Commissioner of Sales Tax and requires that appeal shall be filed "in the prescribed manner".    Sub-section (2) provides for a second appeal and this Sub-section also requires appeal to be filed "in the prescribed manner". The term "prescribed" has been defined in Section 2(32) of the M. P. General Clauses Act, 1957 and according to that definition, the term "prescribed" means prescribed by rules made under an  enactment.    The manner for preferring appeals contemplated by Sub-sections (1) and  (2) of Section 38 is prescribed in Rule 57 of the M. P. General Sales Tax Rules, 1959 framed under  the  Act.    Sub-rule (2)  of Rule 57   provides, inter   alia,   that   the memorandum of appeal shall be accompanied by an authenticated copy of the impugned order. Sub-section (1) of Section 44 of the Act, which provides for an application of reference to the  Tribunal is materially different in this behalf.    The said Sub-section does not contain the requirement of an application being filed "in the prescribed manner" as is the requirement of Sub-sections (1) and (2) of Section 38 and it appears that in this view of the matter the rules did not prescribe the filing of an authenticated copy of the judgment of the Tribunal as a necessary ingredient for making an application for reference  under Sub-section (1) of Section 44.    It is, therefore, a case where neither the Act nor the Rules made thereunder required authenticated copy of the order of the Tribunal to be filed along with an application under Sub-section (1) of Section 44 of the Act.     This fact has not been disputed even by the Tribunal in the impugned order.   What has, however, weighed with the Tribunal is that the Rules of the High Court dealing with the filing of an application  contemplated by Sub-section (2) of Section 44 of the Act make provision for filing certain certified copies along with the application.     According to the Tribunal, in the absence of any provision in the Act or Rules, the Rules of the  High Court deserve to be followed.    The Tribunal iii taking this view has committed a manifest error of law.    The Rules of the  High Court in regard to the manner in  which an application under  Sub-section (2) of Section 44 of the Act is to be filed do not apply to an application under Sub-section (1) of Section 44 which is made before the Tribunal and the Tribunal had to follow only such procedure which was provided for either in the Act or in the Rules.

 

5.    In this connection it may be pointed out that an appeal is filed before an appellate authority which does not have the benefit of having the record of the authority against whose order the appeal is filed before it and unless a certified copy of the order appealed against, attached to the memorandum of appeal, the appellate authority will not be in a position to apply its mind to the pleas raised  in  the memorandum  of appeal.    Same is the position when a revision is filed before a revising authority or an application is made under Section 44(2) of the Act in the High Court. And for this reason the Rules of the High Court require necessary certified copies to be filed along with an application under Section 44(2) of the Act. This, however, is not the position with regard to the application made under Sub-section (1) of Section 44 of the Act, Application contemplated by Sub-section (1) of Section 44 is filed before the Tribunal itself, which decided the second appeal. The Tribunal in such a case is already possessed of the record and this seems to be the reason why, even though filing of an authenticated copy of the impugned order has been made obligatory in Rule 57 with regard to appeals that may be filed under Sub-sections (1) and (2) of Section 38 of the Act, no such requirement of filing an authenticated copy of the order of the Tribunal passed in second appeal along with an application under Sub-section (1) of Section 44 of the Act is to be found either in the Act or in the Rules. It is for these reasons that we are of the opinion that the Tribunal, namely, the Board of Revenue, in the instant case committed a manifest error of law in dismissing the applications made by the petitioner under Sub-section (1) of Section 44 of the Act on the ground that certified copies of the order of the Tribunal had not been filed along with the said applications.

 

6. In the result, this writ petition succeeds and is allowed. The order of the Tribunal, namely, the Board of Revenue, Motimahal, Gwalior, dated 14th May, 1982 (annexure C) is quashed and the Tribunal is directed to decide the applications made by the petitioner under Sub-section (1) of Section 44 of the Act on merits in accordance with law. In the circumstances of the case, there shall be no order as to costs.