BHARGAVA, J. - (1.) ACCORDING to the averments made in writ petition, the petitioner is a registered co-operative society carrying on the business of manufacture and sale of bricks and lime. The petitioner is also registered under the Rajasthan Sales Tax Act, 1954, and the Central Sales Tax Act, 1956. The manufacturing industry of bricks and lime is covered under the village industry as defined in the Khadi and Village Industries Commission Act, 1956 (hereinafter referred to as "the Act of 1956" ). The petitioner-society is financed by the Rajasthan Khadi and Village Industries Board, Jaipur, since its inception. The Government of Rajasthan, vide its notification dated March 6, 1978 in exercise of powers conferred by sub-section (2) of section 4 of the Rajasthan Sales Tax Act came to the opinion that it is expedient in the interest of justice to cancel several notifications and exempt from payment of tax the sale or purchase of the cottage pottery industry and lime manufacturing and therefore, the petitioner was not assessed to tax under the Rajasthan Sales Tax Act as well as the Central Sales Tax Act. The aforesaid notification was superseded by notification dated August 16, 1983 and the exemption granted to the manufacturing industries of bricks and lime was withdrawn and the petitioner and others were subjected to the Rajasthan Sales Tax Act. Later on, the State Government again issued a notification dated March 8, 1988 (annexure 2) whereby the State Government came to the opinion that it is expedient in the public interest so to do and exempted payment of tax on the sale of the products listed in the Schedule, including the brick kiln and lime kiln manufactured in the State of Rajasthan and sold by the following (list detailed in the notification) khadi and village industries institutions which are financed by the Rajasthan Khadi and Village Industries Board and Khadi and Village Industries Commission. This list does not include the name of the petitioner-society and therefore, the petitioner has filed the present writ petition challenging the said notification being violative of article 14 of the Constitution of India and being discriminatory.
(2.) NOTICES were issued to the non-petitioners and a reply has been filed on behalf of the State of Rajasthan, wherein it has been asserted in para 3 that the petitioner has not impleaded the Rajasthan Khadi and Village Industries Board to ascertain whether any loan has been advanced to the petitioner or not. It has further been stated that the Secretary of the Rajasthan Khadi and Village Industries Board, Jaipur, vide his letter dated March 1, 1988 has forwarded the list of the institutions which were financed by the Board, vide annexure R-1 but in the said list, the name of the petitioner was not there. Thereupon, the petitioner impleaded the Rajasthan Khadi and Village Industries Commission which has also filed its reply wherein it has been asserted that the "brick and lime industry" is covered under the "village industries" as defined in the Khadi and Village Industries Commission Act, 1956 and that the petitioner-society has been financed by the Rajasthan Khadi and Village Industries Board, and since the Deputy Commissioner, Commercial Taxes Department, had asked them to give the names of those institutions registered under the Societies Registration Act, which are carrying on the business of manufacture and sale of bricks and lime, they had furnished the list, annexure R-1. It has further been submitted that since the petitioner was not a society registered under the Societies Registration Act but a society registered under the Co-operative Societies Act, 1965, the name of the petitioner was not included in the said list. Arguments have been heard and record has been perused. Learned counsel for the petitioner has very vehemently submitted that the action of the State in not giving exemption to the petitioner-society amounts to discrimination and it is a case of inadvertent omission that its name has not been included in the notification. He has placed reliance on (1989) 2 UJ SC 142 (India Cements Ltd. v. Collector of Central Excise) wherein it has been observed that the authorities ought to have extended the view taken by the Central Government in the case of Birla Cement Works to all similar cases. On the other hand, learned counsel for the State, Mr. Bafna, has also very vehemently submitted that section 4 (2) of the Rajasthan Sales Tax Act empowers the State Government to exempt any goods or class of goods or any person or class of persons from payment of tax. Therefore, the State Government has power to exempt any named persons. He has further submitted that the intention of the Government was only to give exemption to the societies registered under the Societies Registration Act and not to all the persons which are carrying on manufacture of brick and lime and since the petitioner is not a society registered under the Societies Registration Act but under the Co-operative Societies Act, its name was not included. He has further submitted that this classification is reasonable and just. He has further submitted that under section 14 of the Societies Registration Act, there is no profit-making and hence, this distinction has been made. He has further submitted that this Court cannot re-write the notification nor enlarge the scope of notification and has placed reliance on (1982) RLR 1 (Shankar Birmiwal v. Union of India ). A Full Bench of this Court in the aforesaid case held that merely because the advocates were not amongst the special category in the Telephone Allotment Rules it would not amount to discrimination, even though the Telephone Allotment Rules were merely administrative instructions but since they are legislative in character inasmuch as by the said Rules, certain principles of general application have been enunciated for the guidance of the telephone authorities in the matter of allotment of telephones. To give a direction to include the members of legal profession amongst the classes of applicants who are entitled to be registered in special category, would involve re-writing of the said rules by this Court which, in our opinion, would be impermissible. He has also placed reliance on Weston Electroniks v. State of Gujarat [1988] 70 STC 52 (SC); (1988) 2 SCC 586 wherein their Lordships quashed the notification as the same was found to be discriminatory. I have given my thoughtful consideration to the submissions made at the Bar and have also gone through the record and the authorities cited before me.
(3.) KEEPING in mind the history of exemptions given to manufacturers of brick and lime the State Government had granted exemption from tax on sale or purchase vide notification dated March 6, 1978 which was later on withdrawn by the State Government vide notification dated August 16, 1983 and thereafter again vide notification dated March 8, 1988 the Government granted exemption from payment of tax on sale of products in the Schedule, manufactured in the State of Rajasthan and sold by the various khadi and village industries institutions which are financed by the Rajasthan Khadi and Village Industries Board and Khadi and Village Industries Commission. In view of the reply filed on behalf of Khadi and Village Industries Board, it is not disputed before me that the petitioner-society is also financed by the Khadi and Village Industries Board. The only argument on behalf of the State is that they have exempted only societies which were registered under section 14 of the Societies Registration Act because they work on no-profit basis. This case has not been pleaded in the reply given by the State. In the reply to the writ petition, the only point emphasised was that there was no evidence to show that the petitioner is receiving financial aid or loan from the Khadi and Village Industries Board but otherwise also, the State Government being of the opinion that it is expedient in the public interest, exempted the tax on sale of products mentioned in the Schedule. The purpose seems to be that the Government thought it proper to encourage the industries mentioned in the Schedule which were financed by the Khadi and Village Industries Board or Khadi and Village Industries Commission. Therefore, in my opinion, the petitioner was also entitled to the exemption granted vide notification dated March 8, 1988 (annexure 2 ). In the result, the writ petition is allowed. The petitioner is also entitled to the exemption granted vide notification dated March 8, 1988 (annexure 2 ). It will be open for the petitioner to apply to the department concerned for refund if it has paid the tax. No order as to costs. Petition allowed. .;