ABDUSSAMAD Vs. STATE OF KERALA

JUDGEMENT

(1.) Inclusion of tapioca in the 1st schedule to the Kerala General Sales Tax Act, 1963 by the Kerala General Sales Tax (Third Amendment) Act, 1974 was upheld by me as constitutional and competent in another batch of petitions O. P. Nos. 237 of 1975 and connected cases. The learned counsel for the petitioners in these petitions contend that the amendment bringing in tapioca in the 1st schedule aforesaid is hit by Art.301 of the Constitution. It is also submitted that entry No. 72 in the 1st schedule relating to tapioca is discriminatory and violative of Art.14 of the Constitution. On that basis it is argued that these petitions which were filed prior to Presidential Order dated 27-6-1975 will have to remain suspended without being decided.

(2.) In Makhan Singh v. State of Punjab ( AIR 1964 SC 381 ) the Supreme Court pointed out:--

(3.) The proceedings which will have to remain suspended are those proceedings which are pending in courts at the time of the Presidential Order, 'for the enforcement of the rights so mentioned' (mentioned in the Order). It was also stated in that decision that what matters is not so much the form which the proceeding has taken, or the words in which the relief is claimed as the substance of the matter. As stated by the Supreme Court 'the action must seek to obtain a relief on the ground', that is to say, for the reason, 'that the claimants' fundamental rights have been contravened'. Where, therefore there is no contravention of the fundamental rights mentioned in the Order and therefore no question of 'enforcement' of that right by the court arises, in short where the court is not 'in substance' called upon to extend its assistance for the 'enforcement' of a fundamental right mentioned in the Order and 'contravened' by the respondents, I do not think that the proceedings require to be suspended, so as to be capable of being revived after the Presidential Order ceases to be operative. Petitioners will have therefore to show, at least prima facie, that their right under Art.14 has been contravened and that they are in substance seeking to enforce that right, before I suspend the proceedings.