TRIPURA CHEMISTS AND DRUGISTS ASSOCIATION Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This Civil Rule petition is so preferred under Article 226 of the Constitution for issuance of writ of Certiorari/ Mandamus or any other writ in the nature thereof for the enforcement of the constitutional and legal rights of the petitioner, Tripura Chemists & Drugists Association, registered under the Societies Registration Act, Agartala, District- West Tripura being represented by Shri Kami Lal Deb, C/o, Sreema Medical Stores, Maszid Road, Agartala, West Tripura for the infringement of their rights so enshrined under Article 14, 19, 286, 301 and 304 of the Constitution,

(2.) The points so raised in short are that the levy of the Additional Sales Tax vide the Tripura Additional Sales Taxt Act 1990, a copy of which is filed marked as Annexure-1 of this writ petition with that of the Tripura Additional Sales Tax (Amendment) Act, 1994 (Copy so filed with this writ petition as Annexure -2) along with its Rules as the Tripura Additional Sales Tax Rules, 1990 (copy so filed with this writ petition as Annexure-3) are clearly unconstitutional, void and unjust and impugned enactments have thus put restrictions upon the freedom of trade and there is also infringement of the fundamental rights under Articles 14 and 19(g) of the Constitution. The further case of the petitioner is that the said Association comprising of registered dealers in medicine, have to sell medicines at the fixed price as determined by the manufactures and most of the manufacturers are of outside the State of Tripura and thus the dealers import the medicines from outside Tripura State and sell them on the fixed price detailed by the manufacturers and the margin of profit is also rather fixed by the manufacturers which can only be said to be the income of the dealers and in that light if the additional sales Tax so made equally liable to be collected from the dealers, it would be nothing but the additional tax on the income of the dealers. The further ground, challenging the validity of the Annexures 1, 2 and 3, hereinafter to be referred as Acts with a prayer to declare them as ultra vires, if it is also the case of the petitioners that the petitioners being not manufacturers whatsoever turn over is there, it will be entirely on the burden of the sellers because of the price fixed by the manufacturers and that being the position it can well be said to be confiscatory in nature and can well in such circumstance be treated either levy of additional tax on the income of the sellers and in that light under the provisions of Article 304(b) of the Constitution no Such legislation by the State was to be made without the previous sanction of the President, which in the instant case has not been done. The reasonable restrictions are so put on freedom of right of trade so imposed by the said Acts under challenge and furthermore on no account it can be said that the legislations under challenge was so enactment not for public interest as to be declared thus ultra vires.

(3.) Mr. K. N. Bhattacharjee, the learned senior counsel for the petitioner has dealt with at length on the points so taken in this Civil Rule petition as good grounds for declaring the Acts under challenge with its Rules ultra vires, i.e. Annexures-1, 2 and 3 of this writ petition and has submitted that since the additional tax can well be said to be levied upon the income of the dealers, the State had no jurisdiction as to impose such tax which was the jurisdiction of the Centre. It is also pointed out that the Tripura Sales Tax Act. 1976 is in force and under Section 2(m) of the said T.S.T. Act. "turn over" is defined and Section 3 of the said T.S.T. Act 1976 provides for the liability to tax and exemption from tax, but the present Acts under challenge, on no account be said to be an amendment of the said Tripura Sale Tax Act, 1976, thus in such circumstance for the enactment of the present Acts under challenge the consent of the President was necessary which was not so taken and it can be said to be a reasonable restriction upon the freedom of trade and that way also infringes the rights of the petitioners so conferred under Articles 14 and 19(g) of the Constitution. In support of the contention that because of the inter-State sales in the instant case the consent of the President was necessary under Article 304 (b) of the Constitution, Mr. Bhattacharjee, learned senior counsel for the petitioners has referred to a reported case AIR 1985 SC 1754, M/s. Sahney Steel and Press Works Ltd. and another Vs. Commercial Tax Officer and others. By particularly referring to its para 10 attention is drawn distinguishing that the said levy is additional tax on the income of the petitioners and that way it was not within the jurisdiction of the State as to go for such legislation. On the point with regard to reasonable restrictions so put by the Acts under challange on freedom of trade, Mr. Bhattacharjee, the learned senior counsel for the petitioner has referred to a reported case AIR 1975 SC 1443, Syed Ahmed Aga etc. Vs.. The State of Mysore and another etc. and particularly by referring to the contents of para 8 of the writ patition, it is pointed out that: the Acts under challenge can well be said to be additional restrictions imposed and as the game also on no account can be said to be the part of the original legislation so made in 197(6 i.e. the Tripura Sales Tax Act, 1976. The learned senior counsel for the petitioner on this point has also hammered much on another reported case AIR 1961 SC 232 Atiabari Tea Co. Ltd. and Khayerbari Tea Co. Ltd. Vs. The State of Assam others., The legislation under challenge, i.e. Annexures -1, 2 and 3 of this writ petition, it is also pointed out, were not so made for public interest, because nowhere the same has been shown which was so imcumbent on the part of the respondents as to show and in support of this contention on behalf of the petitioner another reported case AIR 1989 SC 2015, Buxa Dooars Tea Company Ltd., etc. Vs. State of West Bengal and others is referred. Since the levy of the additional tax was confiscatory in nature, the consent of the present was necessary and on this point Mr. Bhattacharjee has referred to para 11 of a reported! case AIR 1985 SC 12, M/s. K. M. Mohamad Abdul Khader Firm Vs. State of Tamil Nadu and others. It has also been casually referred that when the neighbouring State Government of West Bengal had put such additional levy, the same was withdrawn by the Government. In the light of the argument so advanced as also detailed in this writ petition being supported by some of the reported cases as also in short detailed above, on behalf of The petitioners Mr. K. N. Bhattacharjee, the learned senior counsel has thus submitted that this is a fit case in which the Tripura Additional Sales Tax Act 1990 Annexure -1 with that of the Tripura Additional Sales Tax Rules, 1990. marked as Annexure -3 and Ihe Tripura Additional Sales Tax (Amendment)Act. 1994, marked as Annexure -2 be declared ultra vires.