LexTHUNGABHADRA INDUSTRIES LTD. versus THE GOVERNMENT OF ANDHRA PRADESH
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174 SUPREME COURT REPORTS [1964J 1963 Rs. 70 per month. ·We direct, having regard to the circumstances, that there shall be no order as to Vora Abbasbhai costs in this appeal. Alimahomed v. Appeal allowed. Haji Gu/amnabi Haji Sajibhai ShahJ. 1963 October 22 THUNGABHADRA INDUSTRIES LTD. v. THE GOVERNMENT OF ANDHRA PRADESH (A.K. SARKAR, K.C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR JJ.) Civil Procedure Code, 1908 (5of1908), 0. 47, r. 1-Petitionfor certificate of fitness under Constitution Act, 13I(l)(c)-Order that the cost does not involve any substantial question of /aw-Whether an "error apparent on the/ace of the record". Practice and Procedure-Notice to respondent before granting special /eave-Whether objection to the maintainability of appeal permitted after grant of special leave-Supreme Court Rules, 1950, 0. XIX,r. 4. In respect of the assessment year I 949-50, the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under r. I 8 of the Turnover and Assess- ment Rules in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase. The sales tax authori- ties rejected the claim on the ground that hydrogenated groundnut oil was not groundnut oil within that rule. This view was upheld by the High Court on February II, 1955,. in the Tax Revision Case No. 120 of 1953 filed by the appellant, but, on application, the High Court granted a certificate of fitness under Art. 133(1) of the Constitution oflndia on the ground that substantial questions oflaw arose for decision in the case. For the assessment years 1950.. 51, 1951-52 and 1952-53, the same question as to whether hydro- genated groundnut oil was raised and decided against the appe- llant by the sales tax authorities and the High Court. The appellant then applied. for a certificate of fitness . un.der Art. 133(1) of the Constitution, but the High Court d1sm1ssed the petition on September 4, 1959, stating: "The judgment sought to I \ I 5 S.C.R. SUPREME COURT REPORTS 175 be appealed against is one of affirmance. We do not think that 1963 it involves any substantial question of law .................. nor do we regard this as a fit case for appeal to the Supreme Court." On Thungabhadra November 23, 1959, applications for review were filed under L dust ies Ltd 0. 47, r. l, of the Code of Civil Procedure but they were dismissed. n ' · The appellant then applied for special leave under Art. 136 of the v. Constitution against the orders dismissing the applications for The Government review and leave was granted after notice to the respondent. When of Andhra Pra- the appeal came on for hearing in the Supreme Court, the respon- desh dent raised a preliminary objection that the special leave granted to the appellant should be revoked. The grounds for revoking the special leave were not urged by the respondent at the time of the hearing of the applications under Art. 136, nor were they set out in the statement of case filed by the respondent under O.XVIII of the Supreme Court Rules, 1950. Held: (i) that where notice is given to the respondent be- fore the hearing of the application for grant of special leave, no objection to the maintainability of the appeal or to the granting of special leave would be permitted to be urged at any stage after the grant of it, except possibly where the ground urged happens to arise subsequent to the grant of leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care. (ii) that the statement in the order dated September 4, 19S9, that the case did not involve any substantial question of law,was an "error apparent on the face of the record" within the meaning of 0. 47, r. l, of the Code of Civil Procedure inasmuch as this was a case where without any elaborate argument one could point to the error and say that here was a substantial point of law which stared in the face. CIVIL APPELLATE JuRISDIClION: Civil Appeals Nos. 781-783 of 1962. Appeals by special leave from the judgment and order January 6, 1961, of the Andhra Pradesh High Court in Civil Miscellaneous Petition Nos. 4672 to 4674 of 1960. A. V. Viswanatha Sastri, M.S.K. Sastri and M.S. Narasimhan, for the appellant (in all the appeals). A
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