Gujarat High Court Case Information System
Print
SCAO/110682/0094 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11068 of 2009
=========================================================
D
D GANDHI, PLYWOOD TRADING CORPORATION
Versus
UNION
OF INDIA & OTHERS
=========================================================
Appearance
:
MR
RAJENDRA KUMAR with MR. RITURAJ M MEENA for Petitioner.
DELETED
for Respondent(s) : 1,
NOTICE SERVED for Respondent(s) : 2 - 4.
MR
YN RAVANI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 01/12/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE H.B. ANTANI)
By
filing this petition under Article 226 and 227 of the Constitution of
India, the petitioner has prayed for the following reliefs in
paragraphs 16 (a) and (b):
(a). That
this Hon’ble Court be pleased to issue a writ of Certiorari or a Writ
in the nature of Certiorari or any other appropriate writ, order or
direction calling for the papers leading to the passing of the
impugned decision dated 17.11.2008 (Exhibit “j” hereto)
under and after examining the validity, legality and propriety
thereof, be pleased to quash and set aside the same.
(b). That
the Hon’ble Court be pleased to issue a Writ of Mandamus, or a Writ
in the nature of Mandamus, or any other appropriate Writ, Order of
Direction, directing the Respondents
i. To
forthwith withdraw and/or cancel the impugned decision dated
17.11.2008 (Exhibit ‘J’ hereto) and
ii. To
forthwith grant the balance reward of Rs.14,81,832/- admissible in
the present case.
Facts
of the case, concisely stated, are as under:
The
petitioner gave secret information about evasion of Central Excise
Duty by M/s. Viral Laminates Pvt. Ltd., Ahmedabad and Visnagar and
Visnagar Taluka Sahakari Mandali Limited, Visnagar, who were engaged
in the manufacturing of decorative laminated sheets. According to the
information, the evasion was done in an organized manner by under
invoicing their products to the tune of 40 to 50% approximately of
the turnover and collecting the difference in cash from Distributors
and their branches. The said secret information was lodged with Shri
M.D. Singh, the then Deputy Commissioner (Preventive) through Shri
Y.N. Thakkar, the then Inspector along with Shri C.R. Desai, the then
Superintendent (Preventive). On the basis of the said information,
offence was registered against M/s. Viral Laminates Pvt. Ltd by the
preventive staff of the then Central Excise Commissionerate,
Ahmedabad on 11.05.1993. Various proceedings were initiated by the
Central Excise Department as well as M/s. Viral Laminates, [which
being not very relevant to decide the present petition are not
discussed in detail] which ultimately culminated in net recovery of
Rs.84,09,162/-.
Advance
reward of Rs.2,00,000/- was given to the petitioner on identification
made by Shri Y.N. Thakkar, the then Inspector who has been throughout
involved in the case. However, in spite of writing as many as 16
letters/reminders to the respondent, final reward was not granted. It
is the case of the petitioner that since recovery of Rs.84,09,162/-
have been made on the basis of information filed by the petitioner,
reward should have been processed and paid to him in terms of policy,
procedures and guidelines issued by Government of India, Ministry of
Finance (Department of Revenue), Central Board of Excise and Customs,
New Delhi issued vide Circular No. F. No. R-13011/6/2001-Cus(AS)
dated 20.06.2001, Annexure ‘C’, within a reasonable time. According
to the petitioner, maximum reward of Rs.16,81,832/- can be sanctioned
in the present case. However, vide letter No. F. No. II/39 (CON)/ 31/
CCO/2005 dated 17.11.2008, the petitioner has been informed that the
Reward Committee, after careful consideration and perusal of evidence
on record and parameters of Reward Policy, in force, has decided not
to sanction any reward to the informer”. The said decision is
challenged in the present petition.
Mr.
Rajendra Kumar, learned counsel appearing for the petitioner has
argued the matter at length. He submitted that the secret information
given by the petitioner has led to recovery of huge amount from the
defaulting Company, M/s. Viral Laminates. Since advance reward has
been given to him on proper identification, he should have been paid
the remaining amount of the award. The order refusing the award is
not a speaking order and the same has been passed in violation of the
Rules, Policy, Procedures and Guidelines issued by the Government of
India. The reward committee has not considered all the material facts
and documents on records and the decision has been taken in violation
of the principles of natural justice. The decision to reject the
final award is perverse and suffers from obvious and patent error on
the face of record. Apart from quoting full text of few judgments in
the memo of petition itself, learned advocate for the petitioner has
also relied on the following judgments while arguing the matter
before us:
1. Commissioner
of Central Excise, Bangalore vs. Sri Kumar Agencies reported in 2008
(232) ELT 577 (SC).
2. Sambhaji
vs. Gangabhai reported in 2009 (240) ELT 161 (SC).
3. Union
of India vs. C. Krishna Reddy reported in 2000 (123) ELR 499 (Mad).
4. Union
of India vs. C. Krishna Reddy reported in 2004 (163) ELT 4 (SC).
5. Union
of India vs. C. Krishna Reddy reported in 2004 (167) ELT A65 (SC)
6. Amritlal
Mehta vs. D.G. Revenue Intelligence & Investigation reported in
2004 (178) ELT 99 (Del).
7. D.G.
Revenue Intelligence & Investigation vs. Amrit Lal Mehta reported
in 2007 (220) ELT 9 (SC).
8. Union
of India v/s R.K. Raghunathan reported in 2009 (242) ELT A.85 (SC).
9. Asst.
Commissioner Tax Department Vs. Shukla & Brothers reported in
2010 (254) ELT 6 (SC).
10. Joint
Commissioner of Income Tax, Surat vs. Saheli Leasing & Industries
Ltd., reported in 2010 (253) ELT 705 (SC).
11. Dwarka
Nath vs. Income Tax Officer reported in AIR 1996 SC 81.
12. Essen
Deinki vs. Rajiv Kumar reported in (2002) 8 SCC 400.
Mr.
Y.N. Ravani, learned advocate for the respondents submitted at the
outset that though this petition is styled as one under Article 226
and 227, in effect it is a petition under Article 227 of the
Constitution of India. He submitted that neither is there any
violation of fundamental or statutory right of the petitioner nor was
the respondents performing any statutory duty in the present case,
and, therefore, petition under Article 227 is not maintainable. He
submitted that so far as reward scheme is concerned, there is no
vested right in any person to claim reward, and at the most, the
reward can be said to be an ex-gratia payment. On facts he submitted
that at the relevant time, information was recorded by one C.R.
Desai, Superintendent who has expired. The original file is not
available. M.D. Singh, who was posted as Deputy Commissioner
[Preventive] at the relevant time is unable to identify the
informant. Mr. Y.N. Thakkar, who earlier identified the petitioner,
was not posted at preventive section of Ahmedabad Commissionerate at
the relevant time and his name has also not figured in AE-II report
dated 21.05.1993. In these circumstances, the committee consisting of
high ranking officers, based on valuation of the committee and after
considering various aspects, decided that it is not possible to
disburse any more amount to the petitioner. He further submitted that
the respondents are not under any obligation to grant/sanction the
maximum admissible reward upto 20% of the net sale proceeds of the
seized/confiscated goods and/or the amount of additional duty /
penalty / redemption fine recovered. In the circumstances, Mr.
Ravani submitted that there is no merit in the petition and the
petition requires to be dismissed.
We
have heard learned counsel Mr. Rajendra Kumar for the petitioner and
Mr. Y.N. Ravani, learned advocate for the respondent at length and in
great detail. We have also perused the entire set of documents
annexed with the petition. We have also considered the judgments
cited by the learned advocates.
Though
learned advocates have argued the matter at length, we propose to
decide this petition on certain relevant issues such as, (i). whether
there is any failure on the part of the officer to discharge any
statutory obligation, and (ii). Whether grant of reward is ex-gratia,
(iii). whether there is any vested right on the informant to claim
reward, and (iv). Whether a writ petition would lie in the facts and
circumstances of the case.
The
Apex Court in the case of D.G, REVENUE INTELLIGENCE & INVEST.
Versus AMRIT LAL MEHTA reported in 2007 (220) ELT 9 (SC) has held as
under in paragraph 7 of the judgment:
“7. However,
considering the fact that it has been held by this Court in the cases
of Union of India & Ors. v. C. Krishna Redy reported in [(2003)
10 SCALE 1050] as well as in Union of India v. R. Padmanabham
reported in [(2003) 7 SCC 270] and in the Reward Scheme that there is
no vested right in the person to claim a reward and that the payment
can, at the highest, be an ex gratia payment, there is
absolutely no justification to grant interest on such ex gratia
payment.”
That
apart, the issue involved in the present petition is squarely covered
in the decision of the Apex Court in the case of UNION OF INDIA v. C.
KRISHNA REDDY reported in 2004 (163) ELT 4 (SC). In paragraphs 13
and 14 of the judgment, the Apex Court held as under:
“13. It
is well settled by a catena of decisions of this Court that a Writ of
Mandamus can be granted only in case where there is a statutory duty
imposed upon the officer concerned and there is failure on the part
of the officer to discharge the statutory obligation. The chief
function of the writ is to compel performance of public duties
prescribed by statute and to keep subordinate tribunals and officers
exercising public functions within the limit of their jurisdiction.
Therefore, in order that a mandamus may issue to compel the
authorities to do something, it must be shown that there is a statute
which imposed a legal duty and the aggrieved party has a legal right
under the statute to enforce its performance. (See Bihar Eastern
Gangetic Fisherman Co-Operative Society Ltd. v. Sipahi Singh –
AIR 977 SC 2149 para 15, Lekhraj Satram Dass Lalvani v. Deputy
Custodian-cum-Managing Officer, AIR 1966 SC 334 and Dr. Umakant Saran
v. State of Bihar – AIR 1973 SC 964).
14. By
the very nature of things, no one has a legal right to claim a
reward. The scheme itself shows that it is purely an ex-gratia
payment subject to guidelines and may be granted on the absolute
discretion of the competent authority and cannot be claimed by anyone
as a matter of right. xxx xxx ”
In
the facts of the present case, the respondents were not performing
any statutory duty imposed upon them and therefore it cannot be said
that there is failure on the part of the officer to discharge the
statutory obligation. A writ of mandamus, therefore, cannot be issued
in the matter.
In
view of the aforesaid settled position of law, we do not intend to
undertake the futile exercise of dealing with each and every judgment
cited before us by learned advocate for the petitioner.
In
view of a catena of decisions of the Apex Court and well settled
position of law, grant of reward is an an ex gratia payment
and there is no vested right in any person to claim a reward as a
matter of right. The respondents in the instant case were not
performing any statutory duty imposed upon them and, therefore, it
cannot be said that there is failure on their part to discharge any
statutory obligation warranting exercise of writ jurisdiction to
compel performance of such duties prescribed by any statute. The
policy of reward is only a ‘scheme’ and not a ‘statute’.
Before
parting with this order, we may also record that in the secret
information filed by the petitioner, he has categorically stated as
under:
“If
deem fit, I may be rewarded suitably, but I shall not claim as a
matter of right and shall not enter into correspondence to assert my
claim of reward.”
In
the circumstances, even otherwise than the aforesaid legal position,
the petitioner is estopped from raising the claim as a matter or
right, much less a petition under the writ jurisdiction compelling
the respondents to satisfy the claim.
In
light of the aforesaid discussion, this petition deserves to be
dismissed, and is hereby dismissed. Notice is discharged. No order
as to costs.
[HARSHA
DEVANI, J]
[H.B.
ANTANI, J.]
mathew
Top