IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:30.04.2009
CORAM
THE HONOURABLE MR. JUSTICE M.JAICHANDREN
WRIT PETITION No.13164 OF 2004
P.A.Mathiazhagan .. Petitioner
Vs.
1. State of Tamil Nadu
reptd by its Commissioner and
Secretary
Excise Department
Fort St.George,
Chennai-9
2. The Divisional Excise Officer
Vellore Division
Vellore .. Respondents
Writ petition filed under Article 226 of Constitution of India praying for issue of a Writ of Certiorari as stated therein.
For Petitioner : Mr.G.Rajagopalan (Senior Counsel)
for Mr.S.Chandrasekharan
For Respondents : Mr.S.Sivashanmugam
Government Advocate
O R D E R
This writ petition has been filed by the petitioner praying for a writ of certiorari, calling for the records relating to the notice of the second respondent in Na.Ka.H2.13778/81, dated 30.3.2004, and to quash the same.
2. It has been stated that the petitioner was a successful bidder for Arrack shop Nos.26,27,28,33 and 34 in Gudiyatham Taluk. He had deposited = month’s kist amount. Later, he was asked to deposit 2 = month’s kist in respect of the shops alloted to him, within a period of seven days. Since the amount had not been deposited, the said shops had been re-auctioned, on 31.7.1981 and an intimation had been given to the petitioner, on 29.7.1981. Thereafter, the second respondent has passed orders stating that there was a notional loss which the petitioner was liable to pay. Since the order had been passed, without an opportunity being given to the petitioner, he had filed writ petitions before this Court in W.P.Nos. 3150 to 3154 of 1982, challenging the orders of the District Collector, North Arcot District, as well as the Rules applicable to the matter. By an order, dated 1.11.1988, this Court had set aside the order, without going into the merits of the case and had directed the respondents to give an opportunity to the petitioner to put forth his case. The said order had become final.
3. The petitioner had further stated that the Divisional Excise Officer, the second respondent herein, had issued a notice, dated 24.1.1992, stating that since the writ petition had been dismissed, the petitioner was liable to deposit a sum of Rs.14,33,523/-. In such circumstances, the petitioner had filed a writ petition, in W.P.No.1320 of 1992, challenging the said notice. This Court by a detailed order, dated 6.9.1999, had allowed the writ petition and had directed the respondents to issue a fresh show cause notice to the petitioner, within a month, in accordance with the directions issued by this Court. However, the respondents had not issued a notice, as directed by this Court. After nearly two years, a notice had been issued, contrary to the directions issued by this Court. Thereafter, the respondents had approached this Court, in W.M.P.No.25194 of 2000, seeking extension of time by two months for complying with the order passed by this Court, in W.P.No.1320 of 1992. By an order, dated 27.6.2001 , this Court had extended time by two months for the respondent to issue the show cause notice to the petitioner. The said order had been confirmed by a Division Bench of this Court in a Writ appeal filed by the petitioner. The petitioner had been given liberty to submit detailed objections to the said notice. Thereafter, a show cause notice had been issued by the second respondent, on 10.8.2001 and the petitioner had submitted a detailed reply through his counsel, on 29.9.2001. Thereafter, there was no communication of the order passed by the second respondent. While so, by the impugned notice, dated 30.3.2004, served on the petitioner, on 28.4.2004, the petitioner was asked to remit a sum of Rs.14,33,523/-, on the ground that the writ petition had been dismissed. The said notice had been issued by the second respondent, without considering the scope of the order passed by this Court earlier. While this Court had directed the respondents to decide the matter, afresh, by giving an opportunity to the petitioner and by extending the time for submission of explanation by the petitioner, it is erroneous on the part of the second respondent to issue the impugned notice, dated 30.3.2004, without complying with the directions issued by this Court. The impugned notice, dated 30.3.2004, is arbitrary,illegal and void as it is in violation of the orders passed by this Court, in W.P.No.1320 of 1992 . Further, the said notice had been issued by the second respondent, without applying his mind. Even though the petitioner had sent a representation, as early as on 29.1.2001, the second respondent had not passed any orders on the said representation. However, the impugned notice had been sent, without considering the representation made by the petitioner. Further, it is in contravention of the principles of natural justice and therefore, it is liable to be set aside, being devoid of merits.
4. In the counter affidavit filed on behalf of the first respondent, the allegations made by the petitioner have been denied. It has been stated that the petitioner had filed the present writ petition challenging the proceedings of the second respondent directing the petitioner to pay Rs.14,33,523/-, being the notional loss caused to the Government due to re-auction of the arrack shop Nos.26,27,28,33 and 34 in Gudiyatham Taluk,Vellore District,on his failure to deposit the kist amount, in respect of the shops, within the statutory period. The petitioner was the original successful bidder in the public auction, held on 29.5.1981, for the arrack shops for the year 1981-82. The confirmation had been issued by the District Collector by his proceedings, dated 8.6.1981, which was received by the petitioner, on 15.6.1981. Since the petitioner had failed to remit the kist, a notice, dated 29.5.1981, issued to the petitioner to deposit 2 = month’s kist amount, within seven days. Having received the said notice, on 5.6.1981, the petitioner had failed to comply with the request. Therefore, a public advertisement, dated 27.7.1981, had been issued for bringing the shops for re-auction, on 31.7.1981. The petitioner had received the said notice, on 29.7.1981. The said shops were brought for resale in public auction, on 31.7.1981 and as a consequence of which the Government had suffered a notional loss of Rs.14,33,523/-. The then District Collector, North Arcot District, in his proceedings, dated 22.12.1981, had ordered that a sum of Rs.14,33,523/- was the notional loss suffered by the Government for the five arrack shops which were brought for re-auction and therefore, the said amount had to be recovered from the licensee, under the Revenue Recovery Act, 1890. On receipt of the notice, dated 22.12.1981, on 1.3.1982, the licensee had filed writ petitions before this Court, in W.P.Nos.3150 to 3154 of 1982. By an order, dated 1.11.1988, this Court had allowed the writ petitions directing the respondents therein to give an opportunity to the petitioner to put forth his case and to proceed with the matter, in accordance with law. Based on the said directions issued by this a Court, fresh show cause notice, dated 29.10.1991, had been issued by the second respondent. The petitioner had received the said notice, on 25.11.1991 and he had sent his explanation, dated 4.12.1991. However, before the said explanation was considered by the second respondent, the petitioner had moved this Court in W.P.No.1320 of 1992. This Court, by its order, dated 6.9.1999, had held that the show cause notice, dated 29.10.1991, was not in conformity with the order passed by the Court, in W.P.Nos.3150 to 3154 of 1982, dated 1.11.1988 and therefore, the said show cause notice had been set aside and the respondents were directed to issue a fresh notice, within one month, in accordance with the directions already issued by this Court in W.P.Nos.3150 to 3154 of 1982 and to determine the loss, in accordance with law. The said order had been received by the second respondent, on 22.10.1999. Thereafter, a show cause notice, dated 9.12.1999, had been issued to the petitioner and it was served by him, on 10.12.1999. Since the petitioner had refused to receive the same in person, the other copy of the said notice, dated 9.12.1999, had been sent to the petitioner by a registered post, on 12.6.2000, which was received by him, on 13.6.2000. Thereafter, the petitioner’s counsel had sent a notice, dated 14.6.2000, stating that the time limit of one month prescribed by this Court had not been adhered to and therefore, the petitioner would be constrained to initiate contempt proceedings against the respondents. Since there was a delay of one month and 8 days in serving the notice to the petitioner, a petition to condone the delay had been filed before this Court, in W.M.P.No.25194/2000, in W.P.No.1320 of 1992. By an order, dated 27.6.2001, this Court was pleased to allow the petition by directing the respondents to issue a fresh show cause notice, dated 10.8.2001, to the petitioner. Accordingly, a fresh show cause notice, dated 10.8.2001, had been issued to the petitioner and it was received by the petitioner, on 25.8.2001. Against the order of this Court, dated 27.6.2001, the petitioner had preferred an appeal in W.A.No.1551 of 2001. By an order dated 6.9.2001, the said writ appeal had been dismissed by a Division Bench of this Court. Another notice, dated 26.3.2004, signed on 30.3.2004, had been issued to the petitioner and it was received by the petitioner, on 28.4.2004. Thereafter, the petitioner had filed the present writ petition before this Court and had obtained an order of interim stay, on 5.5.2004.
5. In the counter affidavit filed by the second respondent, it has been stated that the impugned notice, dated 30.3.2004, had been issued only in conformity with the orders issued by this Court, in order to offset the notional loss suffered by the Government due to the re-auctioning of the arrack shops in question. The notice had been issued to the petitioner asking him to show cause as to why the notional loss suffered by the Government should not be recovered from the petitioner as arrears of land revenue. After having received the said notice, he had filed writ petitions before this Court, in W.P.Nos.3150 to 3154 of 1982. This Court had directed the respondents to give an opportunity to the petitioner to put forth his case and to proceed with the matter, in accordance with law. Pursuant to the directions issued by this Court, a fresh show cause notice had been issued to the petitioner, on 29.10.1991. After receiving the said notice, the petitioner had again moved this Court by filing a writ petition in W.P.No.1320 of 1992, in order to stall the proceedings of the respondents to recover the notional loss caused to the Government . It has been further stated that the petitioner had deliberately refused to receive the show cause notice and therefore, the respondent had approached this Court requesting for extension of time to issue a fresh show cause notice to the petitioner. After this Court had passed an order extending time to issue a show cause notice, the respondents had issued a fresh show cause notice to the petitioner, on 10.8.2001. However, he had failed to send his objections within the time prescribed in the said notice. Thereafter, he had filed a writ appeal in W.A.No.1551 of 2001, wherein he was granted one month’s time for filing his objections and the Division Bench had passed the order, on 6.9.2001. After his objections had been considered, the petitioner was called upon to remit a sum of Rs.14,33,523/-, vide notice, dated 30.3.2004. Since, the show cause notice issued by the second respondent, dated 30.3.2004, is in accordance with law, this writ petition is liable to be dismissed.
6. In the reply affidavit filed by the petitioner, he had stated that there is no notional loss of Rs.14,33,523/-, as claimed by the respondents. There is no basis or explanation to show as to how the amount had been arrived at. Even though this Court had directed the respondents, on two occasions, to afford an opportunity to the petitioner, before deciding the issue, the respondents had failed to comply with the said directions. No hearing had taken place and the impugned notice, dated 30.3.2004, had been issued without considering the objections raised by the petitioner. Since the said notice, dated 30.3.2004, issued by the second respondent, is in contravention of the orders passed by this Court and as it is in violation of principles of natural justice it is liable to be set aside.
7. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the original records placed before this Court by the respondents, it is clear that in spite of a number of notices having been issued to the petitioner he had not discharged the alleged liability by paying the amount of Rs.14,33,523/-, said to be the notional loss caused to the Government of Tamil nadu, as a result of the re-auction conducted for the arrack shop Nos.26,27, 28, 33 and 34 in Gudiyatham Taluk, Vellore District.
8. It is not in dispute that this Court, while quashing the impugned notices issued to the petitioner, with regard to the alleged notional loss of Rs.14,33,523/- liable to be paid by the petitioner, had directed the respondents to issue the show cause notice to the petitioner, within a specified time to afford a reasonable opportunity to the petitioner to put forth his case. Such directions had not been complied with in letter and spirit. If the directions issued by this Court had not been complied with it was open to the petitioner to have moved this Court by way of contempt proceedings. However, the petitioner has not chosen to do so. Instead, the petitioner had been approaching this Court, repeatedly, to quash the notices that had been issued to him for the recovery of the amount said to be due to the Government from the petitioner.
9. From the records available before this Court, it is seen that notices had been issued to the petitioner by the respondents and they have also been received by him. While so, the petitioner has not shown sufficient cause or reason for his non-appearance before the respondents and to submit his explanation to show as to how he is not liable to pay the amount said to be due from him. Though the petitioner has raised certain technical objections against the impugned notice, dated 30.3.2004, issued by the second respondent, he had not given sufficient explanation on the merits of the matter. While this Court is conscious of the fact that the petitioner cannot be subjected to prolonged harassment by the respondents by issuing notices, repeatedly, it is equally important for this Court to note that there is no loss caused to the public exchequer due to the default of the petitioner. Hence, this Court is of the considered view that a fine balance has to be struck in finding a solution to the issues arising for consideration. Accordingly, the impugned notice of the second respondent, dated 30.3.2004, is quashed and the respondents are directed to issue a fresh notice to the petitioner, with regard to the alleged dues, within a period of four weeks from the date of receipt of a copy of this order and to pass appropriate orders thereon, after giving an opportunity of personal hearing to the petitioner to put forth his case, on merits and in accordance with law, within a period of eight weeks thereafter. With the above directions, the writ petition stands allowed. No costs.
sg
To
1. The Commissioner and Secretary
Excise Department
Fort St.George,
Chennai-9
2 The Divisional Excise Officer
Vellore Division
Vellore
