The Commissioner of Sales Tax vs Mohammad Hussain Rahim Bux

Dixit, C.J.

This is an application under Articles 132 and 133 of the Constitution for a certificate for appeal to the Supreme Court from our order dated 30th July 1964 in Miscellaneous Civil Case No 71 of 1964 answering a reference made to this Court at the instance of the Commissioner of Sales Tax u/s 44(1) of the Madhya Pradesh General Sales Tax Act, 1958.

This application must be dismissed. It has been held by the Supreme Court in Commissioner of Income Tax, Bombay North, Kutch and Saurashtra Vs. Patel and Co., , that when under a statute certain questions of law arc referred to the High Court for decision, the decision given by the High Court on the reference is in the exercise of its advisory or consultative jurisdiction; and the provisions of the Constitution in regard to the certificate for leave to appeal to the Supreme Court do not in terms apply. In Sriram Gulabdas v. Board of Revenue (M. P.) AIR 1954 Nag 1 (FB), the majority decision of the Full Bench was no doubt that a decision given by the High Court on a reference u/s 23(5) of the Central Provinces and Berar Sales Tax Act, 1947, is a ''judgment'' in revenue proceedings and a certificate for appeal can be granted under Article 132 of the Constitution. Hidayatullah J., who did not agree with the majority opinion, held that the Explanation to Article 132 only widened the ambit of Article 132: that the advisory opinion given by the High Court was not generally an order sufficient for the final disposal of the case: and that no certificate for appeal could be granted under Article 132.

In our opinion, the observations of the Supreme Court in Commissioner of Income Tax, Bombay North, Kutch and Saurashtra Vs. Patel and Co., , that the decision of the High Court on a reference being in the exercise of its advisory or consultative jurisdiction, "the provisions of the Constitution in regard to the certificate for leave to appeal" to the Supreme Court do not in terms apply, clearly show that neither under Article 132(1) nor under Article 133 of the Constitution a certificate for appeal to the Supreme Court can be granted against a decision of the High Court answering a reference in the exercise of its advisory or consultative jurisdiction. Those observations only support the view expressed by Hidayatullah J. in the case of AIR 1954 Nag 1 (FB), (supra).

For these reasons, this application for a certificate for appeal to the Supreme Court from our decision dated 30th July 1964 in Miscellaneous Civil Case No. 71 of 1964 is rejected. There will be no order about costs.