WP(C) 944/2007 BEFORE THE HON’BLE MR JUSTICE RANJAN GOGOI JUDGMENT & ORDER (oral) 1. The petitioner, a proprietorship firm, is engaged in the business of sal e of coal which is mined in Meghalaya. As the petitioner is engaged in the busin ess of sale of such coal in the several States of Northern India including Bihar the coal has to be transported in trucks through the State of Assam. In the pre sent writ petition the petitioner complains of arbitrary and aggressive actions on the part of the respondents in not permitting movement of the coal-laden truc ks through the State of Assam without payment of tax under the Assam Value Added Tax Act, 2003 (hereinafter referred to as the Act). 2. The geographical location of the North-Eastern States mandate that the t rucks loaded with coal of the petitioner has to necessarily move through the Sta te of Assam though such coal may be in transit to the other States in the course of inter-State trade and commerce. Keeping in mind the provisions of Part XIII of the Constitution and also the taxing power of the State legislature under the provisions of the Seventh Schedule to the Constitution, legislations laying dow n the norms for such movement including prescriptions of regulatory measures in order to prevent leakage of the State’s share of revenue, have held the field fr om time to time. The Assam Value Added Tax Act, 2003 which is currently in force elaborately deals with the above situation. Yet as disputes have cropped up fro m time to time the Court is of the view that the legislative norms holding the f ield should be reiterated and clarified at the earliest, to obviate, to the exte nt possible, avoidable litigations and also ensure free flow of trade and commer ce throughout the territories over which this Court exercise jurisdiction. This is why final orders in the writ petition are being passed within two days of the institution of the same. 3. The legislative provisions are clear and unambiguous and really require no reiteration or clarification. If the mutual obligations i.e. of the transport er and the enforcement agencies are performed in the spirit the enactment has vi sualized, the Court sees no room for a possible dispute. It is not the law but h uman shortcomings, on either side, that has given rise to frictions from time to time. Consequently the Courts have to step in to guide such mutual actions to e nsure a friction free social order. 4. Under Section 76 of the Act goods carried in the course of inter-State t rade and commerce, on its entry into the State of Assam can be carried further o n the basis of a transit pass to be issued at the first check post (hereinafter referred to as the Entry Check Post) on the inter-State boundary. The Act, inter alia, contemplates that the goods in transit will be accompanied by valid and c omplete documents on the basis of which an application is required to be made fo r issue of a transit pass. The authority at the check gate is required by the Ac t to satisfy itself that the documents as well as the goods actually carried in the truck are in order and thereafter a transit pass is required to be issued to facilitate further movement within the State. At the last check post within Ass am (hereinafter referred as the Exit Check Post) the goods as well as the docume nts are required to be re-verified in the light of the entries made in the trans it pass issued and if everything is in order the goods are to be permitted to le ave the territories of the State of Assam. An endorsement to the effect that eve rything is in order i.e. goods mentioned in the transit pass have been transport ed out of the State is required to be made in the transit pass by the authoritie s of the Exit Check Post. The transit pass containing such an endorsement is req uired to be filed before the authorities of the Entry Check Post so that satisfa ction can be derived that none of the goods which are carried in the course of i nter-State trade and commerce are actually unloaded within the State of Assam. T his is the scheme of the Act which enjoins upon both parties to perform mutual o bligations which if carried out in the right earnest can give rise to no possibl e misgivings. At this stage it must also be noticed that there is a power vested by the Act in the authority of the first check post i.e. Entry Check Post to re alize security. Such power, it is contemplated, will be exercised in a situation there is some doubt or ambiguity with regard to the ownership of the goods carr ied or the documents accompanying such goods or where the transporter does not h ave a local permanent address within the State of Assam. Only in such situations security can be levied which is liable to be refunded once the transit pass con taining the endorsement to the effect that the goods have moved out of the State is submitted at the Entry Check Post. It must also be noticed at this stage tha t there is no power vested in any authority by the Act, as none can be to levy a ny tax on the goods at the entry check gate. 5. The mutual obligations having been noticed, the Court can only require t he transporter to comply with the requirements spelt out by the Act as noticed a bove and the authority at the two check posts to arrive at the requisite satisfa ction on materials that are relevant. In so far as imposition of security is con cerned, the circumstances in which such security can be realized have already be en noticed. What however must be taken note of is the absence of any requirement of recording or communication of reasons prior to imposition of security. This is a possible area where frictions may develop and hence require the specific at tention of the Court. 6. In a situation where the statute has omitted to incorporate the requirem ent of recording of reasons, such omission must be understood to be deliberate, based on legislative wisdom and not to be unintended. However, it is axiomatic t hat in a system governed by the Rule of Law every governmental action or decisio n must be based on sound, good and acceptable reasons. All such decisions must s atisfy the test of reasonableness and fairness besides the legality thereof in t he event of a challenge being brought before the Court. 7. The power to insist on deposit of security is circumscribed by the Act b y prescription of certain conditions precedent. The exercise of such power is he dged by the requirement of generation of satisfaction in the check post authorit y that the conditions precedent exist in a given case. Though not specifically e xpressed, communication of the reasons to the concerned person as to why securit y is being insisted upon will ensure fairness; act as a check against arbitrarin ess; promote good administration and also further the constitutional scheme envi saged by Part-XIII of the Constitution. The following observations of Lord Denni ng in Seaford Court Estates Ltd. v. Asher, (1949) 2 ALL ER 155, approved by the Apex Court amongst others in (i) Hameedia Hardware Stores v. B. Mohan Lal Sowcar , reported in AIR 1988 SC 1060, (ii) Smt. Pushpa Devi and others v. Milkhi Ram ( Dead) by his L.Rs., reported in AIR 1990 SC 808, and (iii) N. K. Jain and others v. C. K. Shah and others, reported in AIR 1991 SC 1289, will justify the above view. The English language is not an instrument of mathematical precision. Our litera ture would be much poorer if it were. This is where the draftsmen of Acts of Par liament have often been unfairly criticized. A Judge, believing himself to be fe ttered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this and that, or have been gui lty of some or other ambiguity. It would certainly save the judges trouble if th e Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave r ise to it and of the mischief which it was passed to remedy, and then he must su pplement the written work so as to give ’force and life’ to the intention of leg islature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have strai ghtened it out? He must then do so as they would have done. A judge must not alt er the material of which the Act is woven, but he can and should iron out the cr eases. 8. The above observations, with due elasticity, the Court must add and obse rve, must apply to myriad situations in the context of the ever-increasing numbe r of legislations that are being attempted to deal with the fast changing social , political and economic order in our vast country. The Court must however haste n to add that the view it has taken in the present case must not be understood t o be requiring the check gate authority to pass a detailed and reasoned order. N o such requirement can be understood in the absence of any expressed provisions to the said effect under the Act. Also the Court must not be oblivious of the gr ound realities. Reasons for imposition of security have to be formulated on the spot i.e. at the check post on the inter-State boundary and in situations where a huge volume of traffic has to be continuously handled. Consequently, a mere fo rmulation indicating how the mind has been applied will suffice. However, how su ch a formulation can best be made should be left to the administrator to decide. 9. Having noticed the salient features of the Act regulating inter-State mo vement of goods through the State of Assam; the mutual obligations cast by the s tatute and the Court having held that the reasons for imposition of security sho uld be informed to the affected person, nothing further will survive except that the movement of the coal of the petitioner, which has been alleged to have been stopped, shall now be permitted in accordance with the present directions. As t he directions contained in the present order are capable of taking care of griev ances that may arise, from time to time in the future, it is also considered app ropriate to direct the Commissioner of Taxes to incorporate the salient features of the present directions in the form of a Circular to his subordinate official s to ensure due compliance of the same by all concerned. 10. The writ petition, consequently, shall stand answered and closed in term s of the above directions.