Kartar Singh Lamba and Sons vs The State of Himachal Pradesh and Another

R.S. Pathak, C.J.—By this writ petition, the Petitioner prays for relief against the action taken by the Respondents under Sections 22(6) and 22(8) of the Himachal Pradesh General Sales Tax Act, 1968.

The Petitioner is a Government contractor and carries on the business of supplying stone material to the National Highway Department, Himachal Pradesh. A check-post has been established by the Respondents at Baroti in the district of Solan on the Kalka-Simla Road. The Petitioner''s vehicles employed for the purpose of transporting the stone material pass along the road at this point and the Excise and Taxation Officer incharge of the check-post has been stopping the vehicles of the Petitioner and detaining them. The vehicles are released only on the Petitioner paying a penalty imposed by the Respondents. It appears from the terms of the receipt of one such payment that the penalty has been imposed for contravention of Sub-sections (6) and (8) of Section 22 of the Himachal Pradesh General Sales Tax Act, 1968. The Petitioner contends that his vehicles cannot be detained and he is not liable to pay the penalty imposed, and he challenges the validity of Sub-sections (6) and (8) of Section 22, of the Act.

I have heard Shri S.S Ahuja, learned Counsel for the Petitioner, and the learned Advocate-General for the Respondents. The only point of contention between learned Counsel is whether Sub-sections (6) and (8) of Section 22 are ultra vires.

Section 22 empowers the Government of Himachal Pradesh to establish check-posts or erect barriers at places notified by it. The owner or person incharge of a goods vehicle is required to carry a number of documents. They include a goods vehicle record, and a bill of sale or a delivery note in respect of the goods carried in the goods vehicle. He is obliged to produce those documents before the officer incharge of the check post or barrier. Sub-section (3) requires him to make a declaration before such officer containing certain prescribed particulars in respect of the goods carried in the vehicle. Sub-section (6) empowers the officer to seize any goods not covered by the documents mentioned above Sub-section (8) provides:

(8) Where the declaration made under sub-section (3) is false in respect of any particulars furnished therein, the officer incharge of the check-post or barrier or any other officer not below the rank of an Assistant Excise and Taxation Officer shall have the power to seize the goods in respect of which the declaration is false:

Provided that the officer acting under sub-section (6) or Sub-section (8) may, before or after such seizure, give to the person affected an option to pay, in lieu of seizure and in addition to the tax recoverable, a sum of money not exceeding one thousand rupees or double the amount of tax recoverable, whichever is greater.

The Himachal Pradesh General Sales Tax Act has been enacted with reference to Entry 54 of List II of the Seventh Schedule of the Constitution. The subject matter of the Act could properly be a tax on the sale or purchase of goods. The Act could deal specifically with that matter and also in respect of matters which could fairly and reasonably be said to be ancillary or incidental to that matter. Now it has been held by the Supreme Court in Check-Post Officer, Coimbatore v. K.P. Abdulla 1971 (27) S T C 1 that a similar provision empowering a Check-Post Officer to seize and confiscate goods under the Madras General Sales Tax Act, 1959, did not fall within Entry 54 of List II of the Seventh Schedule. The Supreme Court struck down the provision as being without legislative competence, Proceeding on the ratio of that case there can be little doubt that Sub-sections (6) and (8) of Section 22 of the Himachal Pradesh General Sales Tax Act are also ultra vires.

It is pointed out by the learned Advocate-General that the power to confiscate the goods has not been given u/s 22(8) of the said Act, and therefore a distinction must be drawn between the present case and K.P. Abdulla (supra). I see no ground for drawing any distinction. Whether the goods are seized and confiscated or merely seized makes no difference. The power to so interfere with such goods is not a power to be found within Entry 54 of List II of the Seventh Schedule. I am fortified in the view taken by me by the decision of the Punjab High Court in Dunlop India Limited v. The State of Punjab 1972 (30) S.T.G. 597 where the provision under consideration was in parimateria with the provision before me. Accordingly I hold that Sub-sections (6) and (8) of Section 22 of the Himachal Pradesh General Sales Tax Act, 1968, are ultra vires.

In that view of the matter the Respondents must be held not entitled to detain or seize the goods being transported by the Petitioner at the check-post Baroti nor entitled to impose any penalty in lieu of such seizure.

The writ petition is allowed. The Respondents are restrained from acting under Sub-sections (6) and (8) of Section 22 of the Himachal Pradesh General Sales Tax Act, 1968, and seiz in the goods transported by the Petitioner or imposing any penalty in liey of such seizure. The Respondents are directed to refund to the Petitioner the amount of penalty already recovered from him pursuant to the aforesaid provisions. The Petitioner is entitled to his costs, which I assess at Rs. 150.