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Judgment
P.A. Choudary, J.—These two petitioners are registered dealers in electrical goods. They are registered under the provisions of the Andhra Pradesh General Sales Tax Act, 1957. The electrical goods are taxable at the point of first sale. On 2nd June, 1984 the authorities have inspected the electrical goods and found that electrical goods worth about Rs. 39,442 were not accounted for in the books. On 5th June, 1984 the goods were seized and later on a notice was given to them proposing to confiscate those goods. The petitioners have filed this writ petition challenging that order and also challenging the vires of section 28(6) of the Andhra Pradesh General Sales Tax Act and obtained an order of staying confiscation.
Section 28(6) of the Andhra Pradesh General Sales Tax Act says that any officer shall have power to seize and confiscate any goods which are found in any office, shop, godown, vehicle, vessel or any other place of business or any building or place of the dealer, but not accounted for by the dealer in his accounts, registers and other documents maintained in the course of his business.
It is in the purported exercise of the above power the authorities have seized the petitioners'' goods. The proviso to that section says that before taking action for the confiscation of goods as different from seizure under this sub-section, the officer shall give the person affected an opportunity of being heard and make an inquiry in the prescribed manner. Now by reason of the interim order obtained from this Court, the enquiry was stalled all these days and goods have meanwhile been released in favour of the petitioners on their furnishing security.
It is not denied that section 28(6) of the Act if applied would authorise the seizure and also confiscation of these goods. The contention of the petitioners is that section 28(6) of the Act was declared invalid by a judgment of a Division Bench of this Court in Kotha Rama Doss v. Deputy Commercial Tax Officer [1985] 60 STC 53 . The Division Bench of this Court consisting of Vaidya and Sriramulu, JJ., held that section 28(6) of the Act is ultra vires the powers of the State Legislature. Similar view has also been taken by another Division Bench in Ajay Trading Co. v. Commercial Tax Officer, Begum Bazar Circle, Hyderabad [1985] 60 STC 66 [App.II]. The petitioners'' argument is that by reason of the above-mentioned judgments and more particularly by the judgment of this Court in Kotha Rama Doss'' case [1985] 60 STC 53 [App.I], section 28(6) of the Andhra Pradesh General Sales Tax Act must be deemed to have been erased from the statute book and that, in any case, that provision should not be deemed to have been there on the statute book on 5th June, 1984 when the seizure had taken place. The argument of the learned counsel suffers from a popular fallacy about the nature and consequence of a court declaring a provision of law as ultra vires the powers of the legislature. Such a declaration would not have the effect of erasing a statute or repealing a statute which has been duly passed by the legislature. The judicial declaration will have only the effect of refusing to implement and enforce the statute which has undoubtedly been made by the legislature but found by the court to be ultra vires of its authority. In strict legal parlance as different from common parlance, a court does not strike down a statute nor does it kill it. Court cannot commit regicide. It follows that a statute which is refused enforcement for want of legislative competence would not require to be re-enacted by the legislature. When on a later day the court overrules the earlier decision all that happens is the recommencement of the enforceability of the statute. The argument of the petitioner that Kotha Rama Doss'' case [1985] 60 STC 53 (AP) [App.I] had removed section 28(6) of the Act from the statute book must, therefore, be rejected.
Subsequent decision of this Court in Transport Corporation of India Ltd. v. State of Andhra Pradesh [1985] 60 STC 14 held that section 28(6) of the Act is constitutionally valid and that the judgment in Kotha Rama Doss Vs. Deputy Commercial Tax Officer, was per incuriam for having failed to notice the relevant previous decisions on the subject. According to the Bench decision in The Transport Corporation of India Ltd. Vs. State of Andhra Pradesh and Others, , section 28(6) of the Act should be held to be valid. It follows that section 28(6) of the Act has been available for being enforced by the authorities. The argument of the learned counsel that the The Transport Corporation of India Ltd. Vs. State of Andhra Pradesh and Others, was delivered on 28th December, 1984 and that the judgment would not authorise the seizure of the goods on 5th June, 1984 suffers from a serious misapprehension about the nature of judicial process. The judicial declaration merely declares what the law is and never does it enact it. A judicial declaration is not constitutive of rights. It is merely declaratory of rights. For that reason, it must be held that section 28(6) of the Act is not recommissioned from the date of judgment of The Transport Corporation of India Ltd. Vs. State of Andhra Pradesh and Others, on 28th December, 1984. At the worst it might be held to have been recharged on that day fully. The constitution truth is that section 28(6) of the Act is always there for the officers to exercise those powers. We accordingly hold that the seizure of the goods on 5th June, 1984 is fully authorised under the law and that the goods so seized should be dealt with under the proviso to that section. But the petitioner obtained the release of goods even earlier to confiscation. In view of the fact that the goods have been released by the authorities to the petitioner, under the orders of this Court, we hold that the department would be entitled to recover from the petitioners so much of the value of the goods as has been found liable for confiscation.
It is argued by Sri Raji Reddy, learned counsel for the petitioners, that the difference of opinion on the validity of section 28(6) of the Andhra Pradesh General Sales Tax Act between the various Division Bench decisions should be resolved by a Full Bench and that, therefore, this case should be referred to a Full Bench. That is a normal though old rule which we find after being breached by the highest court. But we cannot give effect to that submission because there is no binding difference of opinion between these Benches. We have seen the judgment in The Transport Corporation of India Ltd. Vs. State of Andhra Pradesh and Others, . It explained the previous judgments and distinguished. Thus this is not a case of difference of opinion. It is a case of latter judgment interpreting, explaining and distinguishing former judgments. We are in entire agreement with the judgment in The Transport Corporation of India Ltd. Vs. State of Andhra Pradesh and Others, . We are of the opinion that for the enforcement of the Andhra Pradesh General Sales Tax Act the legislature is competent to make these regulatory measures and that they cannot be held to be ultra vires the powers of the State Legislature. It is well-settled rule of law that legislative power extends to enacting incidental and ancillary measures which are necessary for giving content and effect to a legislation made. The one who keeps a house cannot be denied the right to keep a watchman. This principle of interpretation applies to a constitutional entry like item 54 in the Second List. We find, therefore, nothing unconstitutional in section 28(6) of the Act which is merely an ancillary measure.
There is also another reason for upholding this type of legislation. The Supreme Court has observed in R. K. Garg v. Union of India AIR 1981 SC 2138 and State of M.P. and Others Vs. Nandlal Jaiswal and Others, , that the courts should not light-heartedly invalidate fiscal enactments on constitutional grounds. There are undoubted limitations in applying that doctrine universally. But in this case those considerations are inapplicable. Following those judgments of the Supreme Court, we agree with the view taken by the Division Bench in The Transport Corporation of India Ltd. Vs. State of Andhra Pradesh and Others, . In view of the fact that the Division Bench in the above case had noticed Kotha Rama Doss'' case [1985] 60 STC 63 (AP) [App.I] and held it to be per incuriam in substance, we do not see any need to refer this matter to a Full Bench.
This writ petition is accordingly dismissed with costs. Advocate''s fee Rs. 250.
W.P. No. 13479 of 1984.
In view of the judgment in W.P. No. 13360 of 1984 and for the same reasons, this writ petition is dismissed with costs. Advocate''s fee Rs. 250.
Writ petitions dismissed.