Hindustan
Vegetable Oils Corporation Limited Vs. Progressive Industries & Ors [1995]
INSC 470 (7 September
1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Mukherjee M.K. (J) B.P. Jeevan Reddy, J.
CITATION:
1995 SCC (6) 174 JT 1995 (6) 458 1995 SCALE (5)291
ACT:
HEAD NOTE:
Leave
granted.
These
appeals are preferred against the judgment of the Allahabad High Court allowing
the writ petitions filed by certain dealers under a common order.
The
management of the Ganesh Flour Mills was taken over by the Central Government
under Section 18AA of the Industries Development and Regulation Act, 1951 under
an Order dated November
3, 1972. In the year
1984, the Parliament enacted The Ganesh Flour Mills Company Limited
(Acquisition and Transfer of Undertakings) Act, 1984, providing for the
acquisition and transfer of the right, title and interest of certain
undertakings of the Ganesh Flour Mills Company Limited. The Act came into force
on January 28, 1984. By a notification dated April 23, 1984 issued under Section 5 of the Act,
the said undertakings were vested in the Hindustan Vegetable Oils Corporation
Limited, the appellant herein.
Section
4-B(2) of the Uttar Pradesh Sales Tax Act provides that
(a)
where a dealer requires any goods, referred to in sub-section (1), for use in
the manufacture by him, in the State of any notified goods, or in the packing
of such notified goods manufactured or processed by him and
(b) such
notified goods are intended to be sold by him in the State or in the course of
inter-State trade or commerce or in the course of export out of India,
(c) he
may apply to the assessing authority, in such form and manner and within such
period as may be prescribed for the grant of a recognition certificate in
respect thereof. The sub- section provides that if the applicant satisfies such
requirements and conditions as may be prescribed, the assessing authority shall
grant him in respect of such goods a recognition certificate in such form and
subject to such conditions as may be prescribed. The Explanation to sub-
section clarifies that "goods required for use in manufacture" shall
mean raw materials, processing materials, machinery, plant, equipment,
consumable stores, spare parts, accessories, components, sub-assemblies, fuels
or lubricants. Clause (b) of the Explanation defines the expression
"notified goods" to mean such goods as may from time to time be
notified by the State Government in that behalf.
Rule
25-B of the Uttar Pradesh Sales Tax Rules provides that "where a dealer
holding a recognition certificate purchases any goods referred to in clause (b)
of sub-section (1) of Section 4-B for use as raw material for the purpose of
manufacture of any notified goods, he shall, if he wishes to avail of the
concession referred to therein, furnish to the selling dealer a certificate in
Form III-B (hereinafter called a 'Declaration Form')". The rule provides
that any dealer holding a recognition certificate and wishing to avail of the
concession referred to in Section 4-B(1) (b) shall No. 163 558 Telex KP 354 To
M/s Tracto Auto Industries PBNo. 32.4 Kalpi Rd 12 P & T, Factory Area Kanpur - 208012. Kanpur -- 208
012. Dated : April 10, 1982 26 APR 1982 Dear Sirs, Sub : Supply of New Empty
Tins of 18 litre capacity -------------------------------------- We are pleased
to place an order on you for 12,500 (twelve and half thousand only) of 18 litre
capacity with newman bung hole and newman ticklies as per standard size @ Rs.
13.50 per tin against 3 Kha form delivered at our works.
The
rates are F.O.R. Kanpur.
2. It
has been mutually agreed that payment will be made to you within seven days of
testing of each lot and submission of bills.
3.
This order is effective from April 10, 1982....Supplies
should be completed within 4 weeks.
4...........
5...........
11.
You will submit separate bill for each challa Please mention order No. on challan
as well as bill.
12........
Please
confirm your acceptance of order including the terms and conditions written
above by signing the duplicate copy of the letter. Please return signed copy of
order for our record.
Thanking
you, Yours faithfully, sd/-MANAGER." It is agreed that even after the
undertakings of the Ganesh Flour Mills vested in the appellant-corporation,
purchase orders were issued in identical terms.
In
view of the fact that Ganesh Flour Mills as well as appellant-corporation were recognised
dealers and had purchased the raw material required by them (for storing the vanaspati
in those tins) against Declaration Forms in Form III-Kha, the selling dealers
charged the tax on such sales at the concessional rate of one percent as
against the normal rate of four percent, as contemplated by clause (b) of
Section 4-B(1). It is stated before us that according to the then obtaining
practice, the Declaration Forms (Forms III -Kha) were supplied either at the
time of supply of the raw material or at a later point of time. (According to
the rules, the selling dealer could produce these Declaration Forms before the
assessing authority "upto the date on which he is required to furnish his
accounts for final assessment in respect of the year to which the claim
pertains" vide sub-rule (5) of Rule 25-B.) Ganesh Flour Mills prior to its
vesting in the appellant-corporation and the appellant-corporation after the
said date of vesting were engaged not only in manufacturing vanaspati by
themselves but were also undertaking job works on behalf of other parties. Even
the vanaspati manufactured by them was not sold entirely within the State or in
the course of inter-State trade or commerce or in the course of export out of
India, as contemplated by sub-section (2) of Section 4-B. Part of it was sent
to other States on consignment basis without effecting sale thereof within the
State of Uttar Pradesh. According to the provisions of Section 4-B, it may be
reiterated, the facility of recognition certificate is confined only to cases
where a manufacturer purchases raw material for manufacturing notified goods
(or for packing such notified goods manufactured or processed by him) and which
are intended to be sold within the State or in the course of inter-State trade
or commerce or in the course of export out of India. In other words, the said
facility was not available for storing (packing) the vanaspati manufactured on
account of third parties (this is the common case of the parties before us) or
for storing the vanaspati which was sent to other States on consignment basis
otherwise than by effecting the sale within the State or in the course of
inter-State trade or commerce or in the course of export out of India. It
follows from the above that the recognized dealer (appellant herein) was not
entitled to rely upon his recognition certificate or to issue Declaration Forms
(Form III-Kha) to such selling dealers in respect of tins purchased it but
intended for the above purposes (purposes other than those mentioned in
sub-section (2) of Section 4- B). But what happened in this case is this: the Ganesh
Flour Mills while under Central Government management and the
appellant-corporation, after the date of vesting aforesaid, have been
purchasing tins from the respondents undertaking to supply Declaration Forms
(Form III-Kha) in that behalf and on the basis of such representation, the
selling dealers charged sales tax at the concessional rate of one parcent
instead of the normal four percent. Having so purchased the tins and having
used part thereof in connection with job works and/or for storing vanaspati
(which was not sold or exported as contemplated by sub-section (2) of Section
4-B but was sent to other States on consignment basis) Ganesh Flour Mills and
the appellant found it not possible to issue Declaration Forms (Form III-Kha)
in respect of such purchases. To be precise while they did issue Declaration
Forms in respect of the tins required for storing (packing) the vanaspati
manufactured by them which was sold within the State/sold in the course of
inter-State trade or commerce/sold in the course of export out of India, they
could not and did not issue such Declaration Forms in respect of tins which
were used for storing (packing) the remaining quantity of vanaspati. The result
was that the respondents-selling dealers could not produce Declaration Forms
(Form III-Kha) before the assessing authority in the course of their
assessments. On that account, the assessing authority levied tax at the full
rate of four percent and also levied interest under the provisions of the Uttar
Pradesh Sales Tax Act. The respondents complain that even penalty proceedings
were initiated against them for the said failure. It is then that they
approached the Allahabad High Court by way of writ petitions from which these
appeals arise. The principal relief sought in the writ petitions was for
issuance of a writ of mandamus directing the appellant- corporation to furnish
to the writ petitioners Declaration Forms (Form III-Kha) prescribed under the
Uttar Pradesh Sales Tax Rules in respect of that quantity of tin containers
which were supplied by the writ petitioners to the appellant-corporation on the
strength of recognition certificate and against the undertaking to furnish the
Declaration Forms (Form III-Kha). The claim of the writ petitioners pertained
both to the period anterior to April 23, 1984
(the date of vesting of the undertakings of Ganesh Flour Mills in the appellant-corporation)
and also for the period subsequent to the said date. The Union of India was
also impleaded as a respondent to the writ petitions.
The
appellant-corporation denied any responsibility or liability to issue the
Declaration Forms (Form III-Kha).for the period prior to April 23, 1984. They disclaimed any responsibility
for the said period relying on the provisions of the Ganesh Flour Mills Company
Limited (Acquisition and Transfer of Undertaking) Act, 1984 [hereinafter
referred to as "Acquisition Act"]. So far as the
appellant-corporation submitted that in view of the fact that the said tins
were used for purposes other than those specified in Section 4- B(2), they
could not have issued Declaration Forms (Form III-Kha) in respect of those purchases
inasmuch as issuance of such forms would have exposed them to penalties under
sub-section (6) of Section 4-B.They expressed their readiness to pay the
difference of sales tax which was levied upon and collected by the State from
the selling dealers (writ petitioners). They submitted that no writ can be
issued to them compelling them to do an act prohibited by law and which would
expose them to penalties under the provisions of the Uttar Pradesh Sales Tax
Act.
The
High Court has allowed the writ petitions on the following findings :
(i)
Where the purchasing dealer wishes to avail himself of the concession referred
to in Section 4-B(1) (b), as in the present cases, it is not competent for the
purchasing dealer to withhold the Declaration Form (Form III-Kha) from the
selling dealer. If the purchasing dealer wishes to avail of the concession
provided by Section 4-B, he has no option but to furnish to the selling dealer
the Declaration Form (Form III-Kha).
(ii)
Where the purchasing dealer represents to the selling dealer that he wishes to
avail of the concession admissible to him under Section 4-B and on the basis of
such representation avails himself of such concession by accepting the sale and
supply from the selling dealer at the concessional rate of tax, it is not open
to such purchasing dealer to turn round and refuse to issue the Declaration
Form (Form III-Kha) on the specious plea that he now does not wish to avail of
the concession and that he is willing to pay to the selling dealer tax at full
rate. The matter cannot be left to the whims and fancies of the purchasing
dealer.
(iii)
That by virtue of the provisions contained in Section 22 of the Acquisition
Act, the appellant-corporation is liable, and bound, to issue the Declaration
Forms (Form III-Kha) even with respect to the period prior to April 23,1984. Section 6(i) of the Acquisition
Act does not relieve the appellant-corporation of the said obligation and
liability.
(iv)
The writ petitioners are not seeking to enforce any contractual obligation by
means of the said writ petitions but were only seeking to enforce the statutory
obligation placed upon the appellant-corporation. Even otherwise, the
corporation being a 'State' within the meaning of Article 12 is bound to act
fairly and hence amenable to writ jurisdiction.
(v) It
appears from the record placed before the Court that the appellant-corporation
has been picking and choosing dealers in the matter of issuance of Declaration
Form (Form III-Kha). To some they have issued the forms and to others they have
refused. The plea of the corporation that such forms were issued to some
dealers under a mistake is not acceptable.
(vi)The
plea of the appellant-corporation that issuance of such Declaration Forms (Form
III-Kha) would expose it to penalties under the Utter Pradesh Sales Tax Act is
also not acceptable. (The Court, however declined to express any opinion on the
question whether in fact the corporation would become liable for penalties if
it issued the Declaration Forms (Form III-Kha) as directed by the Court).
The
correctness of the said findings is called in question in these appeals by the
appellant-corporation. Sri Rohinton F. Nariman, learned senior advocate for the
appellant-corporation submitted that inasmuch as issuance of Declaration Forms
in Form III-Kha in respect of tins which were utilised for purposes other than
those specified in Section 4-B(2) would expose the corporation to penalties
under the provisions of Uttar Pradesh Sales Tax Act, no mandamus ought to have
been issued by the High Court compelling the appellant-corporation to issue
such Declaration Forms. The proper course would have been to direct the
corporation the to pay over to the respondents- dealers (writ petitioners) the
difference oftax which they were made to pay to the State on account of the
appellant- corporation's failure to furnish the Declaration Forms to them. The
corporation should not, however, be made liable to reimburse the respondents in
respect of the interest amount, if any,levied by the State upon the selling
dealers on account of or as a result of their failure to produce the
Declaration Forms (Form III-Kha) in their assessments. The learned counsel
further contended that so far as the period prior to April 23, 1984 is concerned, the appellant- corporation
can in no event be held liable for issuing the said forms. The provisions of
the Acquisition Act are clear and emphatic, says the learned counsel. The
corporation is not responsible for any of the acts, defaults or liabilities for
the period prior to the date of acquisition. On the other hand, Sri M.C.Dhingra,
learned counsel for the respondents-writ petitioners supported the reasoning
and conclusions arrived at by the High Court. He emphasised in particular the
fact that while in case of some dealers, the appellant-corporation has been
issuing such Declaration Forms (Form III-Kha), it has declined to do so in the
case of respondents-writ petitioners alone. This, the learned counsel
complained, is discriminatory and that the appellant-corporation being a State
cannot be permitted to indulge in such discriminatory treatment.
For a
proper appreciation of the questions arising herein, it would be appropriate to
set out sub-sections (1), (2) and (6) of Section 4 of the Uttar Pradesh Sales
Tax Act along with sub-rule (1) of Rule 25-B of the Uttar Pradesh Sales Tax
Rules :
"4-B.
Special relief to certain manufacturers.-- (1) Notwithstanding anything
contained in Sections 3,3-A, 3- AAAA and 3-D :-- (a) Where any goods liable to
tax under sub-section (1) of Section 3-D are purchased by a dealer who is
liable to tax on the turnover of first purchases under that sub-section or
where any goods are purchased by any dealer in circumstances in which such
dealer is liable to purchase tax in respect thereof under Section 3-AAAA and
the dealer holds a recognition certificate issued under sub-section (2) in
respect thereof, he shall be liable in respect of those goods to tax at such concessional
rate, or be wholly or partly exempt from tax, whether unconditionally or subject
to the conditions and restrictions specified in that behalf, as may be notified
in the Gazette by the State Government in that behalf;
(a-1)
Where any declared goods liable to tax under sub-section (1) of Section 3-D are
sold or supplied by a dealer, who is the first purchaser thereof, to another dealer,holding
a valid recognition certificate issued under sub-section (2) in respect
thereof, the dealer who made the first purchase shall in respect of such
purchase and subject to such conditions and restrictions as may be specified by
notification in that behalf, be exempt from tax or be liable to tax at such concessional
rate as may be notified by the State Government :
(Provisos
omitted as unnecessary) (b) Where any goods liable to tax under any other provision
of this Act are sold by a dealer to another dealer and such other dealer
furnishes to the selling dealer in the prescribed form and manner a certificate
to the effect that he holds a recognition certificate issued under sub-section
(2) in respect thereof, the selling dealer shall be liable in respect of those
goods to tax at such concessional rate, or by wholly or partly exempt from tax,
whether unconditionally or subject to the conditions and restrictions specified
in that behalf, as may be notified in the Gazette by the State Government in
that behalf.
(2)
Where a dealer requires any goods, referred to in sub-section (1), for use in
the manufacture by him, in the State of any notified goods,or in the packing of
such notified goods manufactured or processed by him, and such notified goods
are intended to be sold by him in the State or in the course of inter- State
trade or commerce or in the course of export out of India, he may apply to the
assessing authority in such form and manner and within such period as may be
prescribed, for the grant of a recognition certificate in respect thereof; and
if the applicant satisfies such requirements and conditions as may be
prescribed, the assessing authority shall grant to him in respect of such goods
a recognition certificate in such form, and subject to such conditions, as may
be prescribed.
(6)
Where a dealer, in whose favor a recognition certificate has been granted under
sub-section (2), purchases any goods for use in the manufacture or packing of
any notified goods without payment of tax or by paying tax at a concessional
rate of less than four percent, and such notified goods are sold or disposed of
by such dealer otherwise than by way of sale in the State or in the course of
inter-state trade or commerce or in the course of export out of India, such
dealer shall be liable to pay as penalty such amount of tax that would have
been payable under the provisions of this Act, on the sale or purchase of such
goods and not more than double the amount of such tax, less any amount which he
may have actually paid as tax on the purchase of such goods.
25-B.
Authority from which Declaration Forms may be obtained: use, custody and
maintenance of records of such Forms and matters incidental thereto-- (1) Where
a dealer holding a recognition certificate purchases any goods referred to in
clause (b) of sub- section (1) of Section 4-B for use as raw material for the
purpose of manufacture of any notified goods, he shall, if he wishes to avail
of the concessional referred to therein, furnish to the selling dealer a
certificate in Form III-B (hereinafter called a 'Declaration Form')".
It
would equally be appropriate to set out at this stage the relevant provisions
of the Acquisition Act:
The
preamble to the Act recites that for sustaining and strengthening the nucleus
of public owned or controlled units required for ensuring supply of wholesome vanaspati
and refined edible oils, etc. to the public at reasonable prices and for giving
effect to the State policy specified in clauses (b) and (c) of Article 39 of
the Constitution, it has been decided to acquire the undertakings of the Ganesh
Flour Mills, the management whereof was taken over by the Central Government
under the I.D.R. Act, 1951.
Section
3 provides that "on the appointed day (January 28, 1984), the Ganesh Flour Mills and the right, title and interest
of the Company in relation to the Ganesh Flour Mills, shall,by virtue of this
Act, stand transferred to, and shall vest in,the Central Government".
Section 4 sets out the consequences of such vesting. Section 5 provides that
notwithstanding anything contained in Sections 3 and 4, if the Central
Government is satisfied that a government company is willing to comply with or
has complied with such terms and conditions as the government may think fit to
impose, the Ganesh Flour Mills and the right, title and interest of the company
in relation thereof which is vested in the Central Government can be vested in
turn in such government company under a notification issued by the Central
Government. Sub-section (2) of Section 5 says that where such further vesting
takes place "the government company shall, on or from the date of such
vesting, be deemed to have become the owner of the Ganesh Flour Mills" and
all the rights and liabilities of the Central Government in relation to the Ganesh
Flour Mills shall become the rights and liabilities of such government company
on and from the date of such vesting. It is in pursuance of Section 5 that Ganesh
Flour Mills was vested by the Central Government in the appellant-corporation
under and by virtue of the notification dated April 23, 1984.
Section
6 of the Acquisition Act is relevant for our purposes and must be extracted in toto:
"6.(1)
Every liability, other than the liability specified under sub- section (2), of
the Company in relation to the Ganesh Flour Mills in respect of any period
prior to the appointed day shall be the liability of the Company and shall be
enforceable against it and not against the Central Government or, where the Ganesh
Flour Mills vest in a Government company, against the Government company.
(2)
Any liability in respect of the amount advanced, after the date of taking over,
to the Company in relation to the Ganesh Flour Mills, together with interest
due thereon and the wages, salaries and other dues of persons employed in the Ganesh
Flour Mills in respect of any period after the date of taking over shall, on
and from the appointed day, be the liability of the Central Government and
shall be discharged by the Central Government or, for and on behalf of that
Government, by the Government company as and when repayment of such amount
becomes due and as and when such wages, salaries and other dues become due and
payable (3) For the removal of doubts, it is hereby declared that -- (a) save
as otherwise expressly provided in this section or in any other section of this
Act, no liability, other than the liability specified in sub- section (2), of
the Company in relation to the Ganesh Flour Mills, in respect of a period prior
to the appointed day shall be enforceable against the Central Government or the
Government company, as the case may be.
(b) no
award, decree or order of any court, tribunal or other authority in relation to
the Ganesh Flour Mills, passed after the appointed day, in respect of any
matter, claim or dispute in relation to any matter, not being a matter referred
to in sub-section (2), which arose before that day shall be enforceable against
the Central Government or the government company, as the case may be;
(c) no
liability incurred by the Company before the appointed day, for the
contravention, in relation to the Ganesh Flour Mills, of any provision of law
for the time being in force, shall be enforceable against the Central
Government or the Government company, as the case may be." In view of the
fact that Section 22 has been relied upon by the High Court, it would be
appropriate to set out the said section as well:
"22.
Every contract, entered into by the Company in relation to the Ganesh Flour
Mills which has vested in the Central Government under section 3, for any
service, sale or supply and in force immediately before the appointed day,
shall, on or before the expiry of a period of thirty days from the appointed
day, cease to have effect unless such contract is, before the expiry of that
period, ratified, in writing, by the Central Government or the Government
company may make such alteration or modification therein as it may think fit.
Provided
that the Central Government or the Government company shall not omit to ratify
a contract and shall not make any alteration or modification in a contract---
(a) unless it is satisfied that such contract is unduly onerous or has been
entered into in bad faith or is detrimental to the interests of the Central
government or the Government company; and (b) except after giving the parties
to the contract a reasonable opportunity of being heard and except after
recording in writing its reasons for refusal to ratify the contract or for
making any alteration or modification therein." We shall first take up the
issue relating to the period subsequent to April 23, 1984. We are of the opinion that having
placed orders for purchase of tins undertaking to supply Declaration Forms in
Form III-Kha and having received the supplies on that basis, it is not open to
the appellant- corporation to refuse to issue the said Declaration Forms on the
plea that they have used the tins for purposes other than those mentioned in
Section 4-B(2). The user for purposes other than those mentioned in Section 4-B(2)
was a voluntary act on the part of the corporation. Therefore, it alone should
take the blame for it and be responsible for consequences following there from.
The corporation ought not to have made such a representation while purchasing
that quantity of tins which it did not intend to use for purposes specified in
Section 4-B(2). The High Court cannot, therefore, be held to be in error in
issuing the direction which it did. We, however, wish to provide a modification
to the direction issued by the High Court in view of the provisions of
sub-section (6) of Section 4-B of the Uttar Pradesh Act and particularly in
view of the time-lapse since the controversy has arisen. In all likelihood, the
assessments of the respondents under the Uttar Pradesh Act must have been
completed long ago and the question of filing the Declaration Forms now, by the
respondents, appears to be an impracticable thing. The modification is this: if
the appellant is not in a position to issue the Declaration Forms, it may not
issue them but in such a case it shall reimburse the respondents-selling
dealers in full for the difference amount of tax which the respondents were
made to pay on account of the appellant's failure to furnish the said
Declaration Forms and also in respect of interest or the penalties, if any,
imposed in that behalf and paid by them. We cannot appreciate the argument of
Sri Nariman that the appellant-corporation should be made liable only for
reimbursing the difference of tax amount but not the interest. We see no
justification behind such a plea.
Indeed,
if the selling dealers have been made liable to any penalties on account of
their failure to produce in their assessments the Declaration Forms (which
ought to have been furnished by the appellant-corporation to such selling
dealers) then the appellant-corporation shall equally be liable to reimburse
the selling dealers in that behalf as well.
We may
now take up the main question urged before us, viz., the liability, if any, of
the appellant-corporation to issue Declaration Forms or to issue Declaration
Forms or to reimburse the selling dealers (as directed hereinabove) in respect
of the period prior to April 23, 1984. This calls for an examination of the
relevant provisions of the Acquisition Act, which we have set out hereinabove.
Section 5(2), the relevant portion whereof has already been extracted
hereinabove, says that with effect from the date of vesting of the Ganesh Flour
Mills in the Corporation, the Corporation shall take over the rights and
liabilities of the said government company (Ganesh Flour Mills, which had
become the government company on its statutory vesting in the Central
Government on January 28, 1984). Sub-section (1) of Section 6 clearly states
that "every liability other than the liabilities specified under
sub-section (2) of the company in relation to the Ganesh Flour Mills in respect
of any period prior to the appointed day shall be the liability of the company
and shall be enforceable against it and not against Central Government or where
the Ganesh Flour Mills vest in a government company, against the government
company". The sub-section is clear and emphatic. ["Company" in
the above provision means the Ganesh Flour Mills Company Limited prior to its
vesting in the Central Government - Section 2(c) - and the expression
"government company" means the appellant-corporation - Section (i).]
It is agreed before us that the obligation in question is not one of the
matters specified in sub-section (2) of Section 6. Sub- section (3) makes the
matter further clear and beyond any doubt. It declares, in the interest of
removal of doubts, that "(a) save as otherwise expressly provided in this
section or any other section of this Act, no liability, other than the
liability specified in sub-section (2) of the company in relation to the Ganesh
Flour Mills in respect of a period prior to the appointed day shall be
enforceable against the Central Government or the government company, as the
case may be". Clause (b) of sub-section (3) says that no award, decree or
order of any Court, Tribunal or other authority in relation to Ganesh Flour
Mills with respect to any matter, claim or dispute not being a matter referred
to in sub-section (2) and which arose before the date of vesting shall be enforceable
either against the Central Government or against the government company, as the
case may be. Similarly, clause (c) of sub-section (3) states that "no
liability incurred by the company before the appointed day, for the
contravention, in relation to the Ganesh Flour Mills of any provision of law
for the time being in force shall be enforceable against the Central Government
or the government company, as the case may be". ("Company" is
defined in clause (c) of Section 2, as stated above, to mean the Ganesh Flour
Mills Company Limited, Delhi, a company within the meaning of Companies Act,
1956 and having its registered office at Subzi Mandi, Delhi.) The provisions in
Section 6 thus make it clear beyond any doubt that any liability of Ganesh
Flour Mills prior to the date of vesting in the Central Government (January 28,
1984) shall not be enforceable against the Central Government and that
similarly no such liability shall be enforceable against the government
company/appellant-corporation. Sub-section (3) also puts the matter beyond any
doubt.
Now,
let us see whether Section 22 qualifies Section 6 in any manner or whether it
makes the appellant-corporation liable to issue Declaration Forms for purchases
made prior to April 23,
1984. The first thing
be noticed is that Section 22 and Section 6 being provisions of the same
enactment have to be construed harmoniously; the effort should be to give
effect to both. Be that as it may, let us see what does Section 22 say. It says
that a contract entered into by Ganesh Flour Mills Company Limited, with
respect to the said mills, for any service, sale or supply and which was in
force immediately before the appointed day (January 28, 1984) shall on and from
the expiry of the said period, ratified in writing by the Central Government or
the government company (appellant-corporation), as the case may be. Even where
the Central Government or the appellant- corporation ratifies such contract, it
is open to them to make such alterations or modifications therein as they may think
fit. The proviso to Section 22 says that the Central Government or the
appellant-corporation shall not omit to ratify a contract and shall not make
any alteration or modification in the contract while ratifying it, unless it is
satisfied that such contract is unduly onerous or has been entered into in bad
faith or is detrimental to the interests of the Central Government or the
government company.* The proviso further says that before refusal to ratify or
for effecting alteration or modification in the contract, the Central
Government/appellant-corporation shall give the parties to the contract
reasonable opportunity of being heard and shall record its reasons for refusal
to ratify or for effecting alteration/modification, as the case may be. The High
Court has understood Section 22 to mean that unless the existence of
circumstances mentioned in proviso (a) are made out in these proceedings, the
appellant-corporation would be bound by any contract made by Ganesh Flour Mills
for supply of any goods prior to its vesting in the Central Government. With
respect, we are unable to agree. A reading of Section 22 shows that unless
ratified in writing within thirty days of the appointed day, no
------------------------------------------------------------ *"Government
company" is defined in clause (i) of Section 2 to mean "the
government company in which the Ganesh Flour Mills are directed to vest under
sub-section (1) of Section 5" - in short, the appellant-Corporation.
contract
entered into by Ganesh Flour Mills prior to January 28, 1984 (appointed day) shall be binding upon the Central
Government/government company. The proviso, no doubt, states that the Central
Government/appellant-corporation shall not omit to ratify a contract and shall
not effect any alteration or modification therein unless it is satisfied that
such contract is unduly onerous or has been entered into in bad faith or is
detrimental to their interest which satisfaction has to be arrived at after
hearing the parties to the contract; the reasons for such action are also
required to be recorded in writing. But this only means that if a particular
contract is refused to be ratified or is altered or modified in any particular
manner, the affected party (i.e., party to such contract) shall be entitled to
question the same in accordance with law. But the writ petitions - from which
these appeals arise were not such proceedings. These were not the writ
petitions questioning the omission of the Central
Government/appellant-corporation to ratify a particular contract or contracts.
The writ petitions - all of them - were filed for a different purpose, viz.,
for a direction to the appellant-corporation to issue Declaration Forms (Form
III-Kha)pursuant to the supply orders issued by the Ganesh Flour Mills (prior
to its vesting under Section 3 of the Acquisition Act).* Whereas the vesting in
Central Government - as also in the appellant-corporation - was in the year
1984, the present writ petitions were filed in 1987 (one writ petition) and in
1990 (the rest). If the petitioners wanted to question the non-ratification of
any particular contract within thirty days of the date of vesting, they should
have come to Court soon after the expiry of the said thirty days from the date
of vesting. If they had done so,question would then have arisen whether Section
22 is attracted to such a contract, whether the contract which they were
seeking to enforce was "a contract .........for any service, sale or
supply and in force immediately before the appointed day" and so on. Such
a writ petition would also have given an opportunity to the Central Government
and the appellant-corporation to explain and put forward their reasons for not
ratifying the contract. We are of the opinion that having regard to the
pleadings in the present writ petitions and the prayers asked for therein, the
enquiry contemplated by Section 22 could not have been done or entertained in
these writ petitions. The position,
------------------------------------------------------------ * The period
subsequent to vesting in appellant-corporation was not in dispute as explained
above.
therefore,
is that on account of non-ratification, the contract - assuming that it was a
contract in force before the appointed day - ceased to have effect on expiry of
thirty days from the appointed day, i.e., even before the appellant-corporation
came into the picture. The remedy of the respondents-writ petitioners in
relation to the period prior to April 23, 1984 is not against appellant- corporation. Any claim of theirs
in respect of the period perior to the date of vesting (January 28, 1984) can
only be against the Central Government which was in management of the said
company by virtue of the notification issued under the I.D.R. Act. In this
context, there may be a distinction between Central Government which has become
the owner of the Ganesh Flour Mills by virtue of the vesting provided by
Section 3 of the Acquisition Act and the Central Government which was in
management of the said company by virtue of the notification under Section 18AA
of the I.D.R. Act. Be that as it may, we need not pursue this line of thought
inasmuch as these appeals are filed only by the appellant-corporation and not
by the Central Government. Accordingly, we confine ourselves to the liability
of the appellant-corporation alone.
The
appeals are accordingly allowed in part. It is declared that in respect of the
contracts entered into and supplies received by the appellant-corporation on or
after April 23, 1984, the appellant-corporation shall either furnish Form III-Kha
or if it cannot do so, it shall reimburse the respondents-writ petitioners in
full for the difference amount of tax which the respondents were made to pay to
the State on account of the appellant's failure to furnish Declaration Forms to
the respondents, as also for the interest and penalties, if any, imposed upon
the respondents in that behalf. But so far as the orders placed or supplies
made prior to April 23,
1984 is concerned, the
appellant-corporation is not liable either to furnish the Declaration Forms to
the respondents-writ petitioners or to reimburse them in any manner No costs.
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