ivil Appeal No 2 107 of 1979
From the Judgment and order dated 229
1978 of the Allahabad High Court in CMW No 3857 of 1978
Gobinda Mukhoty Ali Ahmad Mrs Jayshree Ahmad Tanveer Ahmad S S Hussain for the appellants
RK Garg and DK Garg for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is a tenant s appeal by special leave
After perusing the judgment impugned and grounds urged we are of the opinion that there is no substance in this appeal 843 On merit though there are one or two technical breaches
This is certainly not a decision which should be interfered with in the exercise of jurisdiction under Article 136 of the Constitution by this Court
The appeal arises from the judgment and order dated 22nd September 1978 of the High Court of Allahabad The respondent No 2 herein Smt
Murtaza Begum filed an application under section 3 of the UP Temporary Control of Rent and Eviction Act 1947 being UP Act No 3 of 1947 hereinafter called the old Act against the appellants Section 3 of the said Act provides that subject to any order passed under sub section 3 of that section no suit shall without the permission of the District Magistrate be filed in any court against any tenant for his eviction from any accommodation except on the grounds mentioned therein
Sub section 2 of section 3 provided for revision to the Commissioner against the order of the District Magistrate Subsection 3 of section 3 empowered the Commissioner to hear the application and if he was not satisfied as to the correctness legality or propriety of the order passed by the District Magistrate or as to regularity of proceedings held before him alter or reverse his order or make such other order as might be just and proper
By sub section 4 of section 3 the order of the Commissioner has been made final subject to any other order passed by the State Government under section 7 of the said Act
Section 7 F of the said Act empowered the State Government to call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to and authorised him to make such order as appeared to it necessary for the ends of justice
The application for eviction was granted by the Commissioner in this case on the 17th April 1971
The appellants went in revision to the State Government
The revision was however rejected by the State Government on 7th February 1972 The permission thereafter became final
In pursuance of the aforesaid permission the respondent landlord filed a suit being suit No 464 of 1972 in the court of Judge Small Causes Meerut for eviction of the appellants Thereafter in 1973 the landlord filed an application for withdrawal of the suit on the ground that as U P Urban Buildings Regulation of Letting Rent and Eviction Act of 972 being U P Act no 3 of 972
hereinafter called the New Act had been amended he would file an application for the enforcement of the permission obtained under section 3 of the old Act
On that application the court found that as the cause of action on which the suit had been filed was rendered infructuous the suit was liable to be dismissed
After the suit was dismissed the landlord being respondent no 2 herein filed an application under 844 section 432rr of the New Act for eviction of the appellants from the premises in question
It was resisted on the ground that the permission had been dismissed and the application under section 432rr was not maintainable
The Prescribed Authority upheld the said objection of the appellants and rejected the application filed by the landlord on the ground that since permission obtained by the landlord under section 3 of the UP Act has been exhausted the application filed by the landlord was not maintainable
It appears to us that the Prescribed Authority was clearly in error in so holding because the permission granted had not been exhausted because the suit as dismissed on a technical plea and not on the merit of the contentions Reference may be made to the observations in the decision of the Allahabad High Court in the case of Pahlad Das vs Ganga Saran and Another AIR 1958 Allahabad 774 where the division bench of that court held that the obvious purpose of the permission under section 3 of the old Act was to enable the plaintiff the landlord to evict the tenant from the premises and as long as that purpose was not fulfilled the permission could not obviously exhaust itself Where it was not shown that the permission was granted to file a single suit or that it had been specified in it that a second suit could not be filed the permission could not exhaust itself simply because the first suit filed on its basis was dismissed on some technical ground and the permission obtained could be availed of for filing the second suit
In that view the High Court affirmed the previous decision of that court
It appears however that an appeal was filed against the order of the Prescribed Authority and the appeal was allowed by the order of the District Judge dated 28th April 1978
Aggrieved thereby the tenants filed a writ petition before the High Court
The controversy in the High Court was whether the application filed by the landlord under section 432rr of the New Act was not maintainable
The basis of the claim of the tenant was that as the permission had been utilised by filing the suit another proceeding on the basis of the said permission could not be initiated The High Court noted that section 432rr was added by UP Act No 37 of 1972
By the addition of the new provision the legislature conferred a right on a landlord who had obtained permission under the old Act and had filed an application under new provision to get the tenant evicted
Section 432rr of the New Act was again amended by the UP Act No 28 of 1976
By that amendment the words whether or not a suit for the eviction of the tenant has been instituted were inserted
The amending Act laid down that the amendment in the provision shall be deemed to have always been substituted
In other words the amendment caused amendment to be retrospective in operation
845 It is therefore apparent as the High Court in our opinion in the judgment under appeal rightly held that section 432rr ie in 1973 permitted the landlord to file an application for the enforcement of the permission obtained by him
After the aforesaid provision was amended the landlord was not required to file a suit to avail of the permission
The High Court in the judgment under appeal rejected the contention that once an application for permission had been filed the second application would not lie
The High Court held that where the first suit was not decided on merits subsequent action was not precluded
The High Court noted that merits of the case were not examined by the Court
The Court in this appeal on this occasion did not find that the permission obtained by the landlord was invalid or illegal
The judgment of dismissal was thus on technical ground and not on merits
The High Court held that the landlord had right to file the second application
In our opinion the High Court was right for the reasons mentioned hereinbefore
It is next contended that since the suit was dismissed on the ground that the cause of action did not survive to the landlord it should be held that the landlord had no right left to file an application under section 432rr
This was in our opinion rightly rejected by the High Court
The High Court negatived the contention of the tenant that dismissal of the first action taken by the landlord after obtaining permission under the old Act precluded the landlord from taking the second action under section 432rr of the Act
We are of the opinion that the High Court was right
It will be appropriate at this stage to refer to the provisions of section 432rr or the New Act which are as follows Where any permission referred to in Section 3 of the old Act has been obtained on any ground specified in subsection 1 or sub section 2 of Section 21 and has become final either before the commencement of this Act or in accordance with the provisions of this sub section after the commencement of this Act whether or not a suit for the eviction of the tenant has been instituted the landlord may apply to the prescribed authority for his eviction under Section 21 and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy and it shall not be necessary for the prescribed authority to satisfy itself afresh as to the existence of any ground as aforesaid and such order shall be final and shall 846 not be open to appeal under Section 22 Provided that no application under this clause
shall be maintainable on the basis of a permission granted under Section 3 of the old Act where such permission became final more than three years before the commencement of the Act Provided further that in computing the period of three years the time during which the applicant has been prosecuting with due diligence any civil proceeding whether in a court of first instance or appeal or revision shall be excluded
In view of the aforesaid we are of the opinion that the Prescribed Authority was clearly in error in upholding the objection of the tenant that as the previous suit had been filed by the tenant on the basis of permission and the same had been dismissed the application under section 432rr of the Act 13 of 1972 was not maintainable
It was clearly erroneous contention
It would frustrate the very purpose of the express provision of section 432rr
Finality of order in judicial proceeding is one of the essential principles which the scheme of the administration of justice must strive for
See in this connection the observations of DK Soni vs PK Mukherjee  Ors Civil Appeal No 662683 Judgment dated 27
10 1987
It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge
The High Court accepted this contention
The High Court finally held that though no appeal lay before the District Judge the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge
On that ground the High Court declined to interfere with the order of the learned District Judge
It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge in the appeal before the learned District Judge the order of the Prescribed Authority could not be set aside
But the High Court was exercising its jurisdiction under Article 226 of the Constitution
The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper
The High Court itself could have set it aside
Therefore in the facts and circumstances of the case justice has been done though as mentioned hereinbefore technically the appellant had a point that the order of the District Judge was illegal and improper
If we reiterate the order of 847 the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken
As mentioned hereinbefore justice has been done and as the improper order of the Prescribed Authority has been set aside on objection can be taken
In the premises there is no scope for interference under Article 136 of the Constitution
Our attention was drawn to certain observations of this Court about the power of the State Government under section 7 F of the old Act in Shri Bhagwan and Anr
vs Ram Chand and Anr
   In the view we have taken of the facts of this case it is not necessary to deal with this decision in any detail
In the aforesaid view of the matter this appeal must fail and is accordingly dismissed
In the facts and circumstances of the case we however make no order as to costs
PSS Appeal dismissed


Summary:
 Sub section 2 of section 9 of the makes the assessment procedure prescribed under the general sales tax law of the appropriate State applicable to the assessment to be made under the Central Act
Section 13 of the Andhra Pradesh General Sales Tax Act 1957 requires the dealer to submit returns in such manner within such period and to such authority as may be prescribed
Sub section 1 of section 14 permits the assessing authority to assess the amount of tax due on the returns submitted under section 13 only within a period of four years from the expiry of the year to which the assessment relates
Sub section 3 permits the assessing authority to make best judgment assessment where a dealer i fails to submit return before the date prescribed ii produces the accounts registers and other documents after inspection and iii submits a return subsequent to the date of inspection within a period of six years from the expiry of the year to which the assessment relates
In the main appeal before this Court the assessee respondent filed its return relating to the quarter ending 31st March 1969 on 7th August 1969 under the 
The last date prescribed by law was 24th May 1969
The Commercial Tax officer passed the assessment order on 3rd August 1973 beyond four years from 31st March 1969 the last day of the assessment year 1968 69
The assessee s appeals against that order were dismissed by the Assistant Commissioner and the Sales Tax Appellate Tribunal
The High Court in revision however held that the assessment made after four years from the last day of the assessment year was not a valid assessment
737 In the connected appeal the respondent who was the assessee filed the annual return in respect of the assessment year 1968 69 under the A provisions of the Central Act on 19th August 1969 after the expiry of the prescribed date
The order of assessment was passed on 2nd August 1973 beyond four years from the last day of the assessment year 196869
An appeal against that order was dismissed by the Assistant Commissioner
The Sales Tax Appellate Tribunal however allowed the appeal holding that the assessment had been passed beyond four years from the last day of the assessment year
The revision petition preferred by the State was dismissed in limine by the High Court
In the appeals by special leave filed by the State it was contended for the respondent that since the returns in the cases had been accepted even though they had filed been beyond the prescribed date the assessments made thereon could not be considered as best judgment assessments and therefore sub section 3 of section 14 of the Act under which it is permissible to make best judgment assessments would be inapplicable
Allowing the appeals
D  HELD 11 on a true construction of sub section
1 and sub section 3 of section 14 of the Andhra Pradesh General Sales Tax Act 1957 it is apparent that where a return is not filed by a dealer before the date prescribed in that behalf under the Act the assessing authority has jurisdiction to complete the assessment within a period of six years from the expiry of the year to which the assessment relates
744C 12 The two types of cases which fall under sub section
1 and sub section
3 of section 14 of the Act respectively are mutually exclusive
The return on the basis of which an assessment is to be made under section 141 is a return filed within the prescribed period and in such a case the assessment has to be completed within a period of four years from the expiry of the period to which the assessment relates
The Act confers a distinct advantage on such a dealer who is prompt in filing his return inasmuch as he acquires immunity against assessment on the expiry of the said period of four years
All cases where the return is submitted beyond the prescribed date fall under sub section
3 of section 14 of the Act
Assessment in such cases may be completed within six years from the expiry of the year to which the assessment relates
When once it is established in a case that a return has not been filed within the prescribed period such case falls outside section 141 of the Act and therefore the period of four years prescribed therein becomes automatically inapplicable
It clearly falls under cl
i of sub section
3 of section 14 of the Act and assessment can be H 738 made in such a case within the expiry of the period of six years
In the instant cases the returns were not filed within the prescribed dates
The assessments have therefore been rightly made within six years from the expiry of the year to which the assessments relate
742G H 743A B 744C 2
Whether the assessment made is the best judgment or not has no bearing at all on the period within which an assessment can be made under the Act
It depends upon the other conditions mentioned in sub section
1 and 3 of section 14
Best judgment assessment can be made even in a case falling under sub section
1 as is evident from the latter part of that sub section which reads but if the return appears to him to be incorrect or incomplete he shall after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary to assess to the best of his judgment the amount of tax due from the dealer Yet such best judgment assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates
Therefore in the instant case merely because the assessments are not best judgment assessments it cannot be said that sub section
3 of section 14 is inapplicable
Neither the High Court nor the Tribunal gave adequate attention to the words before the date prescribed in that behalf  in cl
i of sub section
3 of section 14
They laid emphasis only on the words fails to submit return  in the said sub clause to arrive at a wrong conclusion
743C H 744A B State of Andhra Pradesh vs Pyarelal Malhotra 13 STC 946 and State of Madras vs SG Jayaraj Nadar  Sons 28 STC 700 distinguished