Surendra Narain Dwivedi, J. - (1.) In all these petitions, the petitioners are brick producers. In Writ Petition No. 2080 of 1970 the petitioners pray for the issue of a writ in the nature of prohibition restraining the sales tax authorities from assessing sales tax on its turnover of the sale of bricks in accordance with a notification issued under Sec. 3 -A of the U.P. Sales Tax Act, as it stood before the passing of the U.P. Sales Tax (Amendment and Validation) Act, 1971. In Writ Petition No. 2360 of 1970 the petitioner has been assessed to sales tax on its turnover of the sale of bricks from the assessment year 1959 -60 to the assessment year 1964 -65. Assessment proceedings for the assessment years 1968 -69 to 1970 -71 are still pending. It prays that the assessing authority should not assess tax for the said years. There is a further prayer that the Judge (Revisions), Sales Tax should not confirm the assessments for the years 1965 -66 to 1967 -68. There is a third prayer that the assessing authority should modify the assessment orders from 1959 -60 to 1964 -65 and reduce the rate of tax to the rate mentioned in Sec. 3 of the U.P. Sales Tax Act. In Writ Petition No. 3848 of 1970 the petitioner has been assessed to sales tax on its turnover of the sale of bricks for the assessment years 1965 -66 to 1969 -70. Its appeals are still pending. In Writ Petition No. 5875 of 1971 the petitioner has been assessed to sales tax on its turnover of the sale of bricks for the assessment years 1961 -62 to 1968 -69. The assessments in all these petitions are challenged.
(2.) It is now necessary to give the history of the present litigation. It is a history of long drawn battle between the State and the brick producers. As the Sales Tax Act emerged from the legislative anvil in 1948, it had only one charging section. It was Sec. 3. Sec. 3 imposed sales tax on the sale of goods which were being sold at more than one point as well as goods which were sold only at one point. Sec. 3 -A was inserted in the Sales Tax Act sometime later in 1948. Sub -section (1) of Sec. 3 -A provided for the levy of sales tax on the sale of any goods "at such single point in the series of sales by successive dealers" as might be prescribed by the State Government. Sub -section (2) of Sec. 3 -A provided that where the State Government had acted under Sub -section (1), it might further declare that the turnover of a dealer in respect of the sale of such goods be taxed at such rate as might be specified, not exceeding one anna per rupee on the sale of goods enumerated therein. All the goods enumerated in Sub -section (2) were being sold at more than one point. Notification No. ST -906/X dated 31st March, 1956, was issued by the State Government under Sec. 3 -A. The Notification imposed sales tax on the turnover of the sale bricks at the point of sale by the manufacturer. This notification was superseded by the Notification No. ST -1362/X -105 dated 5th April, 1961. The 1961 notification, in turn, was superseded by the Notification No. ST -6438/X -1012 dated 1st December, 1962. The validity of these notifications was challenged in Gurna Mal, Brick Kiln Dealer v/s. State of U.P., 1970 A.L.J. 584 A Division Bench of this court held that the notifications did not fall within the purview of Sec. 3 -A as in this State bricks were sold directly to the consumers by the manufacturer. As there were no intervening transactions of sale, Sec. 3 -A, which applied to such goods as were being sold at more than one point, would not cover the case of bricks. While the case was pending, the U.P. Legislature passed the U.P. Sales Tax (Amendment and Validation) Ordinance, 1970. This Ordinance amended Sec. 3 -A(1) with retrospective effect and validated the notifications already issued, assessments already made and taxes already recovered under the said notifications. The Ordinance sought to substitute the words "at such single point in the series of sales by successive dealers as the State Government may specify" by the words "at such single point of sate as the State Government may specify". It was held in Gurna Mai's case1 that this amendment was ineffective to save the notifications. Then the U.P. Legislature intervened. It passed the U.P. Sales Tax (Amendment and Validation) Act, 1970. The Amending Act substituted Sub -section (1) of Sec. 3 -A. The substituted Sec. read : Notwithstanding anything contained in Sec. 3, the State Government may, by notification in the Official Gazette, declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point of sale as the State Government may specify and such declaration may be made notwithstanding that the goods or class of goods are not capable of being sold or according to the prevalent commercial practice are not ordinarily sold at more than one point." (emphasis added). The Legislature also validated the assessment orders made and the tax collected under the previous notifications.
(3.) The validity of the 1970 Amendment Act was also challenged in this court in Krishna Brick Field v/s. State of U.P., 1971 A.L.J. 919 A Full Bench of this court held that part of Sec. 3 -A(1) which has been underlined by me is unconstitutional inasmuch as it delegates essential legislative power to the State Government and is violative of the provisions of Article 14 of the Constitution.;