IN THE HON’LE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeals Nos. 260, 261, 262, and 263 of 1967.

IN THE MATTER OF:

DHULA BHAI AND OTHERS …APPELLANTS

Versus

THE STATE OF MADHYA PRADESH AND ANOTHER …RESPONDENTS

MEMORANDUM OF APPEAL UNDER ARTICLE 133 OF THE CONSTITUTIONODINDIA, 1949.

WRITTEN PLEADING FOR THE APPELLANT

Counsel for the Appellant: Counsel for the Respondent:

 TABLE OF CONTENTS

SR. NO. PARTICULARS PAGE NO.

1. List of Abbreviations 2
2. Index of Authorities 3
3. Statement of Jurisdiction 4
4. Statement of Facts 5
5. Issues Raised 6
6. Summary of Arguments 7
7. Pleading 8
8. Prayer 9

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APPELLANT | Written Pleadings
 LIST OF ABBREVIATIONS

SR. NO. ABBREVIATION FULL FORM

1. Para Paragraph
2. C.P.C. Civil Procedure Code, 1908
3. S.C. Supreme Court

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APPELLANT | Written Pleadings
 INDEX OF AUTHORITIES

Statutes

• Civil Procedure Code, 1908

• The Constitution of India, 1949.

Cases

• Pabbojan Tea Co. Ltd. v. Dy. Commissioner, Lakhimpur(1), 1968 AIR 271.
• Pyx Granite Co. Ltd. v. Ministry of Housing and Local Govt. (1960 A.C. 260)
• Venkataraman and Co. v. State of Madras, (60 I.T.R. 112).

Books

• MULLA, THE CODE OF CIVIL PROCEDURE (15th Edn., 2012).

• S.C. SARKAR, THE LAW OF CIVIL PROCEDURE (11th Edn., 2006).

Dynamic Links

• www.manupatra.com
• www.scconline.com
• www.heinonline.org
• www.westlawindia.com
• www.lexisnexis.com
• www.ebscohost.com

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APPELLANT | Written Pleadings
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the inherent jurisdiction to entertain and dispose of the
present Appeal by virtue of Article 133 of the Constitution of India.

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APPELLANT | Written Pleadings
 STATEMENT OF FACTS

1. The Appellants are dealers in tobacco, and operate out of Ujjain. They deal in tobacco, both
locally and nationally.
2. The Respondent, between 1950 and 1954, issued a series of notifications vide which, it
imposed tax at different rates on tobacco that was imported into the state. No such tax was
levied on locally procured tobacco.
3. The Appellants served the requisite notice under Section 80 of the Code of Civil Procedure,
and filed the present suits for refund of the tax on the ground that it was illegally collected
from them. The suits were opposed by the State on the main ground that such a suit was
barred, but were decreed by the District Court.
4. Upon appeal by the State, the High Court reversed the decision of the District Court, and
held that the suit was barred for lack of jurisdiction.
5. The Appellants herein, appealed against the High Court ruling, before a Division Bench of
this Court which referred the question to the present Constitution Bench.

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APPELLANT | Written Pleadings
 ISSUES RAISED

1. Whether the suit is barred by law?

A. Whether Section 17 of the Madhya Bharat Sales Tax Act, expressly or by
necessary implication, bars the suit?
B. Whether the taxing provision is unconstitutional?

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APPELLANT | Written Pleadings
 SUMMARY OF ARGUMENTS

1. The taxing provision is unconstitutional.

It is humbly submitted that Section 5 of the Madhya Bharat Sales Tax Act, is ultra vires the
Constitution of India, as far as it allows the State to impose a tax which has the effect of
depriving someone of his constitutional right to freedom of trade. Thus, at least to this extent,
Section 5 of the Act, is unconstitutional and void.

2. The jurisdiction of the Civil Court to decide the validity of the taxing provision, is not
excluded by Section 17 of the Act.
It is humbly submitted that since the question of validity of a legal provision is in issue, the
jurisdiction of the Civil Court to decide it, is not affected by any provision conferring the
jurisdiction to decide disputes arising under the legal provision in issue, to any other authority.

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APPELLANT | Written Pleadings
 PLEADING

I. Appellant’s Position: It is submitted that the question of the constitutional validity of a

statutory provision is in issue (A), and thus, the jurisdiction over the issue would be with
the civil court unless expressly barred (B).
A. The taxing provision is unconstitutional.
• The provision contained in Section 5 of the Madhya Bharat Sales Tax Act, is ultra-vires
the Constitution of India.

It is humbly submitted that the tax impugned tax imposed by the Respondent disregards
the constitutional mandate to ensure freedom of trade throughout the territory of India. 1
Moreover, the Respondent themselves, have admitted that the impugned tax cannot be
imposed in view of this bar. 2 Thus, in so far as Section 5 provides for the levy of taxes
such as the one impugned herein, it is unconstitutional and void.

B. The jurisdiction of the Civil Court to decide the validity of the taxing provision, is not
excluded by Section 17 of the Act.
• It is humbly submitted that the taxing authority does not have jurisdiction to decide the
constitutionality of taxing legal provisions. 3 Moreover, nothing in the provision contained
in Section 17 of the Act, expressly or by implication, confers such jurisdiction on it. 4
• It is humbly submitted that a person’s recourse to the civil court for determination of his
right cannot be excluded except explicitly. 5 Thus, since the taxing authority has not been
conferred with the jurisdiction to decide the issue at hand, there is no explicit bar on the
jurisdiction of the civil court over the matter. Hence, the civil court has retained its
jurisdiction over the issue at hand.

1
Article 301, Constitution of India.
2
Facts of the case.
3
(60 I.T.R. 112)
4
Section 17, Madhya Bharat Act.
5
Pyx Granite Co. Ltd. v. Ministry of Housing and Local Govt. (1960 A.C. 260), as quoted in Pabbojan Tea Co. Ltd. v.
Dy. Commissioner, Lakhimpur(1) 1968 AIR 271.
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APPELLANT | Written Pleadings
 PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED, THE

RESPONDENT HUMBLY PLEADS BEFORE THE HON’BLE COURT TO PASS AN
ORDER:

1. Allowing the appeal and decree the suit filed by the Appellant.

2. Directing the Respondent to refund the amount illegally imposed as sales tax on

the Appellant and collected, and imposing such costs as the Hon’ble Court deems fit.

3. And any such order as the Court deems fit, in the interests of Equity and Justice.

FOR THIS ACT OF KINDNESS, THE RESPONDENT FACTION SHALL BE DUTY

BOUND FOREVER.

SD/- (COUNSEL FOR THE APPELLANT)

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APPELLANT | Written Pleadings