Indian Pan Works, Delhi vs The Chief Commissioner, Delhi And ...
1968 Latest Caselaw 76 Del

ORDER

1. This case came up before us on 1-5-1968 when we felt that it was a fit case in which we should consider the question of exercising the power of this Court under Article 222 of the Constitution for scrutinising and, if necessary, of quashing the order of the Chief Commissioner dated 2-8-1962 rejecting the application for reference to the High Court made under Section 21(1) of the Bengal Finance (Sales Tax) Act, 1941.

2. On going through the record, which we had sent for, we find that on 28-7-1962, an application was presented by the petitioner M/s. Indian Pan Works through Shri S. P. Saini, their counsel, in the office of the Chief Commissioner under Section 21 (1) of the Bengal Finance (Sales Tax) Act, 1941, praying for reference to the High Court three questions of law formulated therein. This application did nto bear any court-fee stamp, but this deficiency notwithstanding, it was actually entertained by the office of the Chief Commissioner. Along with the application, was attached a challan showing deposit of Rs. 100. It appears that without giving any notice to the petitioner, Shri Bhagwan Sahay, the then Chief Commissioner, recorded on 2-8-1962 the following order underneath the typed office note stating the facts of the case:-- "No question of law has been mentioned which needs reference to the Hon'ble High Court. The petition is unstamped and even a copy of the order referred to has nto been filed. The petition is rejected".

Now, it seems that the office of the Chief Commissioner had nto raised any objection either on the ground of absence of court fee stamp on the application or on the score of a certified copy of the order made by the Chief Commissioner on 29-5-1962 on revision having nto been attached with the application. From the record, however, it is clear that on 3-8-1962, Shri S. P. Saini, Advocate produced a certified copy of the order of Shri Bhagwan Sahay, Chief Commissioner dated 29-5-1962 in "case No. 92/ 1961 Court Appeal", with a covering letter. On that letter, we find a note dated 6-8- 1962 to the following effect:-- "The petition has since been rejected by the C. C. 2-8-62. Place this on the relevant file".

The date "2-8-1962" appears to have been added after this note was recorded.

3. The facts just noticed clearly show that the office of the learned Chief Commissioner and the learned Chief Commissioner himself had both dealt with this matter in a manner which can by no means be considered to be either satisfactory or judicial. As soon as the application was presented in the office of the Chief Commissioner, it was, in our opinion, incumbent on the officer, entrusted with the duty of receiving it, to check up and satisfy himself if the petition was complete in all respects, including affixation of proper court-fee stamp and production of certified copy of the requisite order. In case it did nto bear the court-fee and was nto accompanied with a certified copy of the order, assuming such a copy and court-tee were necessary, it should have been declined to be entertained or received. and in the event of its having been entertained by oversight, returned to the applicant to be refiled after complying with the requirements of law. To entertain such an application without noticing and disclosing to the petitioner, the detects therein and to keep it on the record, discloses lack of due sense of responsibility on the part of the officer concerned. We are assuming that he was aware of his duties and of the requirements of law for appropriately moving the learned Chief Commissioner under Section 21 (1) of the Bengal Finance Act in question.

4. And, then having entertained this application, in our view, it was again a violation of the recognised rule of natural justice, requiring notice and opportunity of hearing, to nave placed this case for disposal before the learned Chief Commissioner without giving to the petitioner prior notice of the date of hearing. It is a matter of surprise to us that an ex parte order should have been made by the learned Chief Commissioner rejecting the petitioner's application without giving him any prior notice for hearing fixed for 2-8-1962 and without granting him adequate opportunity to be heard. Merely because the Chief Commissioner was the executive head of the Union Territory of Delhi did nto absolve him of the obligation of complying with the rule of natural justice of according adequate hearing to the petitioner before finally disposing of his application under Section 21 of the Bengal Finance, Act which essentially involved a judicial, function. This fundamental rule of natural justice, that "a man has a right to be heard", expressing in final analysis, as it does, respect enforced by law for the feeling to just treatment, evolved through centuries of British and American Constitutional history and adopted and developed in our Republic through years of Indian Constitutional history, represents a profound attitude of fairness between man and man and particularly between individual and the Government. As this rule embraces the whole notion of fair procedure, it is nto confined only to the Courts strictly so-called, but takes within its sweep all quasi-judicial functions and to an extent even administrative acts, for, to give every citizen a fair hearing is just as much a canon of good administration as a good legal procedure. Nothing is, in our view, more likely to conduce to just and right decision than the habit of first giving a hearing to any affected party and this element of fair procedure, it may be remembered, has its due place even in administrative justice.

5. In the case in hand, no justification has been offered on behalf of the respondent, for making the ex parte order nor has the exercise or suo motu power by this Court under Article 227 of the Constitution been questioned or disputed. This Article confers on this court power of general superintendence to be exercised in its judicial discretion with the object of keeping all Courts and Tribunals within the bounds of their authority and seeing that they perform their legal duty in a legal manner. Where the cause of justice is seriously jeopardised, the exercise of this power may take the shape of a constitutional obligation. Such, in our view, is the position in the present case. We accordingly set aside and quash the impugned ex parte order with direction that the application under Section 21 of the Bengal Finance (Sales Tax) Act be disposed of in accordance with law in the light of the observations made above. We have no doubt that the question of permitting proper court-fee to be affixed as also the effect of producing on 3-8-1962 the certified copy of the order would also be considered in accordance with law.

6. Before finally closing, we cannto help observing that the petitioner should have moved this Court for amendment in the Memorandum of parties so as to have the Lt. Governor substituted in place of the Chief Commissioner when the constitutional change took place. Omission to do so, is indicative of want of proper care and attention which is nto easy to appreciate. In the peculiar circumstances of this case, we make no order as to costs. On the view that we have taken the Sales Tax Reference becomes infructuous and the same is declined as such. The record may be returned without avoidable delay.

NR/V.B.B.

7. Petition allowed.