WP(C) 1109/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR J CHELAMESWAR HON’BLE MR JUSTICE IA ANSARI Heard Dr AK Saraf, learned senior counsel for the petitioner and Mr KN Choudhury , learned Addl Advocate General, Assam appearing for the respondents. The writ petition is filed challenging the provisions of Assam Entry Tax Act, 2008 and the Rules thereunder and also the Assam Entry Tax (Amendment) Act , 2009. These very provisions which are challenged in the present writ petition were the subject matter of challenge in a batch of writ petitions [WP(C) No.2452 /08 etc]. By a judgment dated 9-1-09 a Division Bench of this court repelled the challenge made by the various writ petitions and dismissed the writ petitions. Therefore the present writ petition is also required to be dismissed for the sam e reasons assigned in the judgment dated 9-1-09. However, the learned counsel for the petitioner submitted that the provi sions of the Assam Entry Tax Act, 2008 were challenged in this court earlier and a Division Bench of this court in a judgment reported in [2008] 15 VST 70 (Gauh ati) (State of Assam & Ors vs. Chhotabhai Jethabhai Patel Tobacco Products Co Lt d) upheld the challenge declaring certain provisions of the Assam Entry Tax Act , as it stood on the date of the challenge, to be unconstitutional and violative of the provisions of Art 301 of the Constitution of India. It is argued by the learned counsel that while coming to such a conclusion the Division Bench which decided the matter expressed a view regarding the nature of the impost and came to the conclusion that laying of the roads and their maintenance is the sovereig n function of the Govt which the State is bound to perform irrespective of the f act whether entry tax is levied or not and, therefore, no special benefit confer red upon the payers of the entry tax. While the latter Division Bench dealing with the question of special ben efit held in this regard as follows :- 59. The concept of a welfare State encompasses such a wide range of duties and responsibilities for the welfare of the citizens that it is practically impossib le to catalogue the same. A developing economy like India is plagued by a persis tent constraint of funds making it impossible for the State to provide what is i ntended. Consequently, in many parts of the country infrastructure is at the min imum. Such minimum provisions are all that the general revenue of the State can provide for the time being. If in such a situation, extra facilities, though the same may pertain to the general duties of the State, is provided for by levy of an additional impost such a levy can still be regarded as a compensatory measur e provided the requisite tests are satisfied. [in WP(C) No2452/08 and batch] The learned counsel, therefore, submitted that there was a divergence of opinion between both the Division benches regarding the character of the impost which was in challenge, while the latter Division Bench was of the opinion that the impost was compensatory in nature the earlier Division Bench held otherwise . Such a divergence of opinion in the matter of interpretation of the provisions of the same enactment would not be consistent with the requirement of judicial decorum and legal propriety as was pointed out by the Supreme Court in (2001) 2 SCC 247 (Dr Vijay Laxmi Sadho vs. Jagdish). The Supreme Court in the above judgm ent at para 33 observed as follows :- As the learned Single Judge was not in agreement with the view expressed in Dev ilal case it would have been proper, to maintain judicial discipline, to refer t he matter to a larger Bench rather than to take a different view. We note it wit h regret and distress that the said course was not followed. It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coord inate jurisdiction whether on the basis of different arguments or otherwise, o n a question of law, it is appropriate that the matter be referred to a larger b ench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial proce dure and it must be respected at all costs. The learned counsel, therefore argued, in view of the divergence in the views of the two Division Benches the matter is required to be examined by a Lar gen Bench of appropriate strength. On the other hand, Mr KN Choudhury, learned Addl Advocate General, Assam appearing for the State submitted that though the provisions, which were under challenge before the two Division Benches of this court, of the Assam Entry Tax Act the exact provision that was under challenge before the above mentioned two Division Benches is slightly different as the issue that fell for consideration of the latter Division Bench is the constitutional validity of the Assam Entry T ax Act, as it stood amended subsequent to the decision of the earlier Division B ench and, therefore, the latter Division Bench cannot be said to have departed f rom the requirements of judicial propriety. We do not propose to examine the question whether there was any divergen ce of opinion on the nature of the impost which was under challenge before the a bove mentioned two Division Benches of this court nor do we propose to examine t he question whether the provisions impugned in the instant writ petition, which are same as the ones in challenge in second of the above Division Benches are pr ovisions creating a levy which is compensatory in nature or otherwise as such an examination would virtually have the effect of our sitting on the correctness o f the decision of the second of the two above mentioned Division Benches. Assumi ng for the sake of argument that the submission of the learned counsel for the p etitioner is right and the second of the above mentioned Division Benches fell i nto an error of departing from the established principles of judicial propriety, we would not certainly like to perpetuate such a judicial impropriety by once a gain reopening the issue in this court. The decision of this court dated 9-1-09, if it is to be faulted on any count, is required to be corrected by the appropr iate forum not by us. In the circumstances, following the decision of the Division Bench dated 9-1-09 the present writ petition is dismissed at the admission stage.