Allahabad High Court
Vimal Oraganics Ltd. Through Its ... vs State Of U.P. Through Secretary, ... on 13 February, 2008
Equivalent citations: 2008(2)AWC1164
Author: Sudhir Agarwal
Bench: Sushil Harkauli, Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. The petitioner filed 12 appeals against assessment orders passed by the Cess Officer, U.P. Pollution Control Board, Lucknow relating to period 1994 to 2007. The said appeals were preferred on the same day, namely, 15.10.2007 under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (hereinafter referred to as "the Act") read with Rule 9 of the Water (Prevention and Control of Pollution) Cess Rules, 1978 (hereinafter referred to as "the Rules"). The limitation for filing appeal was only thirty days from the date of communication of order of assessment. The power to condone delay in filing appeal is also limited upto 45 days. Thus all the said appeals, being filed beyond limitation, have been rejected by the appellate authority vide order dated 15.11.2007. Aggrieved, the petitioner has come up in this writ petition under Article 226 of the Constitution of India, invoking extraordinary and equitable jurisdiction of this Court seeking a writ of certiorari for quashing the appellate order dated 15.11.2007 (Anenxure 1 to the writ petition). Since in the meantime recovery proceedings had also been initiated, it has also sought a writ of certiorari for quashing various assessment orders passed by respondent No. 4 between 1994 to 2007 whereagainst his appeals have been dismissed vide order dated 15.11.2007 and also recovery citation dated 6.10.2007. He has also sought a writ of mandamus commanding respondent No. 4 to decide his objections against the assessment orders and refrain from making any recovery from the petitioner pursuant to the impugned assessment orders as well as recovery certificate.
2. The facts in brief, giving rise to the present writ petition, are that the petitioner is an industrial unit engaged in manufacture of bleaching earth which is used in refining edible oils. It consumes water for boiler feed, domestic purposes and processing. It is not disputed that the petitioner's industrial unit is liable to pay cess under the Act. It appears that he did not pay cess regularly between 1994 to 2006 and, therefore, assessment orders were passed by respondent No. 4, the first being dated 1.3.1994 and thereafter on various dates, till 26.2.2007, making demand of cess from the petitioner. The details of various assessment orders, period and amount of assessment of cess is as under:
__________________________________________________________________________ S.N. Date of Period of assessment Amount Assessment assessed order (in Rupees)
1. 1.3.1994 1.1.1993 to 28.2.1994 20,249.08
2. 16.5.2000 1.3.1994 to 31.12.1999 1,77,292.50
3. 20.2.2001 1.1.2000 to 31.12.2000 33,640.50
4. 11.10.2001 1.1.2001 to 31.3.2001 8,410.13
5. 7.3.2002 1.4.2001 to 30.9.2001 16,820.25
6. 17.8.2002 1.0.2001 to 31.3.2002 19,706.16
7. 24.2.2003 1.4.2002 to 30.9.2002 16,820.25
8. 21.4.2004 1.10.2002 to 5.5.2003 20,090.88
9. 8.11.2004 6.5.2003 to 31.3.2004 96,409.00
10. 20.7.2005 1.4.2004 to 31.3.2005 1,06,464.00
11. 19.12.2005 1.4.2005 to 30.9.2005 53,232.00
12. 26.2.2007 1.10.2005 to 1,33,080.00 31.12.2006
3. The aforesaid assessment orders were communicated to the petitioner within reasonable time after passing thereof. It is not disputed that the petitioner, if felt aggrieved by the said assessment orders, had statutory remedy of filing appeal under Section 13 of the Act read with Rule 9 of the Rules but no such appeals were preferred by the petitioner within the period prescribed under Rules. It is, however, said that after receiving the assessment orders, the petitioners filed certain objections requesting assessing authority to modify or recall assessment orders but no order has been passed by the assessing authority thereon. In the meantime, the amount of assessment was also not paid by the petitioner as required under the aforesaid assessment orders and on the contrary, he made certain lump sum payments:
______________________________________________________________ Period Amount paid (in Rupees) ______________________________________________________________ 1.3.1994 to 31.12.1999 Rs. 45,000 1.1.2001 to 31.3.2001 Rs. 50,000 1.4.2000 to 30.9.2001 Rs. 40,000 1.10.2001 to 15.5.2003 Rs. 1,90,000 6.5.2003 to 31.3.2005 Rs. 1,00,000
4. For the unpaid amount, respondents initiated recovery proceedings by issuing recovery certificate pursuant whereto respondents No. 5 and 6 pressed recovery by taking coercive measures. A citation was issued to the petitioner for a sum of Rs. 11,39,297.12 P plus 10% recovery charges and for appearing before respondent No. 6 on 12.10.2007. It is only thereafter the petitioner filed appeals vide memo of appeals dated 15.10.2007 before the appellate authority, i.e., respondent No. 2 on 18.10.2007 along with application seeking condonation of delay in filing the appeals. In the meantime, he also paid a sum of Rs. 1, 10,000/- to respondent No. 6 on 26.10.2007 and Rs. 1,65,000/- on 3.11.2007. He also preferred a writ petition before Lucknow Bench of this Court being Writ Petition No. 8118 of 2007(MB) which was disposed of on 30.10.2007 by a Division Bench directing the appellate authority to decide appeals preferred by the petitioner expeditiously and in case the petitioner files an application for interim relief within one week, the same was required to be considered within a period of ten days thereafter. The appellate authority thereafter heard the matter on 15.11.2007 and noticing that all the appeals are barred by limitation and it was not competent to condone delay of more than 45 days, therefore, relying on a Division Bench decision of this Court in U.P. State Sugar Corporation Limited v. U.P. Pollution Control Board, Lucknow and Ors. 1992(10)LCD 497, rejected all the appeals as barred by limitation.
5. The petitioner has raised a pure question of law as to whether despite express provision of Rule 9 prescribing period of limitation and the extent to which delay in filing appeals could have been condoned by the appellate authority, can the appeals filed by the appellant beyond such time be entertained and directed to be decided on merits or not. The learned Counsel for the parties addressed this Court on merits and have agreed that the writ petition may be decided finally at the admission stage itself under the Rules of the Court.
6. Sri Manish Goel learned Counsel for the petitioner, learned Standing Counsel for respondents No. 1, 5 and 6 and Sri K.P. Shukla for respondents No. 2, 3 and 4 have been heard at length.
7. Learned Counsel for the petitioner submitted that (a) the period of limitation and the extent to which the delay could be condoned by the appellate authority under Rule 9 is procedural only and, therefore, even if there is much more delay in filing the appeals, this Court under Article 226 of the Constitution of India can direct the appellate authority to hear and decide appeal on merits irrespective of the delay in filing and this Court, at least can condone the said delay; (b) Relying on Apex Court's decision in Topline Shoes Ltd. v. Corporation Bank , he contended that the provision pertaining to limitation are procedural in nature and, therefore, substantive right of appeal cannot be denied to the petitioner or nullified by taking recourse to the period of limitation as well as the extent of the period of delay which could be condoned by the authority concerned, else, it would result in denial of right of review by the higher authority, and being arbitrary and discriminatory, would be violative of Article 14 of the Constitution; (c) He also placed reliance on the Apex Court's decision in Kailash v. Nanhku and Ors. and also contended that in order to meet the ends of justice and not to deprive the petitioner from availing his right of participation in the process of justice dispensation, this Court should read limitation under Rule 9(3) to be directory and require the appellate authority to decide his appeals on merits. To buttress his submission, he placed reliance on the observations made by Sir William Wade in his book "Administrative Law" 8th Edition, page 408 and American Jurisprudence, 2nd Edition, Volume 51, page Item-143 and 145; (d) That assessments were made without giving any notice or show cause to the petitioner and in utter violation of principles of natural justice and as such, the assessment orders were nullity in the eyes of law. Therefore, the appeal of the petitioner against such nonest order could not have been rejected on the ground of limitation as it is a day to day continuous cause of action applicable in such case. To fortify the submission, he placing reliance on a recent judgment in Rajesh Kumar and Ors. v. Dy. CIT and Ors. ; (e) Lastly, that in any case, it is evident that the assessment orders were passed long back and they attained finality after the period of limitation expired and no appeal could be filed by the petitioner, as such, it was open to the respondents to initiate recovery proceedings thereafter within a period of three years, but, since no recovery proceedings were initiated within the aforesaid period, the impugned recovery having been initiated in 2007, after several years, is barred by limitation and supported his submission by placing reliance on Apex Court's decision in State of Kerala and Ors. v. V.R. Kalliyanikutty and Anr. (199) 3 SCC 657 and a Division Bench decision of this Court in Narendra Kumar and Anr. v. Collector, Bulandshahar and Ors. 2004(2) Bank CLR 93(All).
8. Learned counsel appearing for the respondents disputing the contentions of Sri Goel, sought to defend the order of the appellate authority, reiterating the reasons contained therein and the judgment relied upon by the appellate authority.
9. Section 13 of the Act provides substantive right of appeal as well as the procedure to be followed therefor and reads as under:
13. Appeals.-(1) Any person or local authority aggrieved by an order of assessment made under Section 6 or by an order imposing penalty made under Section 11 may, within such time as may be prescribed, appeal to such authority in such form and in such manner as may be prescribed.
(2) Every appeal preferred under Sub-section (1) shall be accompanied by such fees as may be prescribed.
(3) After the receipt of an appeal under Sub-section (1), the appellate authority shall, after giving the appellant an opportunity of being heard in the matter, dispose of the appeal as expeditiously as possible.
(4) Every order passed in appeal under this section shall be final and shall not be called in question in any Court of Law.
10. Rule 9 of the Rules which also deals with the filing of appeal reads as under:
9. Appeal-(1) Any consumer aggrieved by an order of assessment made under Section 6 or by an order imposing penalty made under Section 11 may appeal in Form II annexed hereto, to a Committee (hereinafter referred to as the appellate committee) consisting of-
(a) Where the assessing authority is the Member-Secretary of the Central Board, the Chairman of that Board, who shall be the Chairman of the Committee and two members of that Board to be nominated by the Chairman thereof and in those Union Territories where Pollution Control Committees have been constituted by the Administrator/Ltd. Governor, the Chairman of such committee and two members to be nominated by the Chairman thereof.
(b) Where the assessing authority is the Member-Secretary of the State Board, the Chairman of that Board, who shall be the Chairman of the Committee and two members of that Board, to be nominated by the Chairman thereof.
(2) Such appeal shall state the facts of the case and the grounds relied upon by the appellant for preferring the appeal and shall be accompanied by a copy of the order of assessment made under Section 6 or a copy of the order imposing penalty made under Section 11, as the case may be.
(3) Such appeal shall be preferred within a period of thirty days from the date of communication of the order of assessment or the order imposing penalty on the appellant:
Provided that if the Chairman of the appellate committee is satisfied that there was good and sufficient reason for the delay in preferring the appeal, he may, for reasons to be recorded in writing, allow the appeal, to be preferred after the expiry of the aforesaid period of thirty days and before the expiry of forty-five days from the date of communication of the order of assessment, or the order imposing penalty, on the appellant.
(4) Every appeal shall be accompanied by a fees of rupees fifty.
11. Right of appeal is not an inherent right but a substantive one provided in the statute and in absence thereof no appeal can be preferred. Section 13(1) while conferring a right of appeal upon a person or local authority who is aggrieved by an order of assessment made under Section 6 or by an order imposing penalty made under Section 11, states that he may, within such time as may be prescribed, appeal to the appellate authority which can be filed within such time as may be prescribed and in the form and manner as prescribed. Rule 9 provides the period within which an appeal can be filed. Rule 9(3) provides a period of 30 days from the date of communication of order of assessment or order imposing penalty within which period the appeal ought to be filed by the aggrieved person. The proviso thereof empowers the appellate authority to condone delay in preferring appeal if there existed good and sufficient reasons and it is satisfied thereof, but the said power is limited and it cannot condone delay beyond 45 days from the date of communication of the order appealed.
12. Therefore, the period of limitation has been prescribed under the statute. The power of condonation of delay is narrowed down to the extent that the appellate authority cannot condone a delay in filing the appeal beyond 45 days from the date of communication of the order appealed against. It is not in dispute that all the appeals in the present matter were filed by the petitioner after much longer time after expiry of 45 days from the date of communication of the assessment orders.
13. it is no doubt true that in the matter of procedure, the purpose is to facilitate dispensation of justice. The procedure is to further its end and is not a penal enactment for punishment and penalty. Whenever permissible, statutory procedure should not be construed in a technical sense which may leave no room for reasonable elasticity of interpretation, which may be found necessary in a given case for dispensation of justice. The laws of procedure are grounded on the principles of natural justice which require that no one should be condemned unheard and decision should not be reached behind their back. By and large, in the matter of procedure, the Courts, time and again, have taken a lenient and elastic view in order to mould the situation to meet the ends justice. To this extent, legal proposition is quite sound and we also do not admit any doubt. The law in this regard is well settled. As long back as in Sangram Singh v. Election Tribunal Kotah the Apex Court, in respect to procedural law observed:
Now a code of procedure must be regarded as such. It is 'procedure, something, designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. (para 16)
14. Rules of procedure, therefore, can be termed as handmaid of justice and the objective thereof is to advance the cause of justice. It should not be applied as a tyrant but a servant, not an obstruction but an aid to justice. In Sushil Kumar Sen v. State of Bihar , the pertinent observations of the Court are:
The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.... Justice is the goal of jurisprudence-processual, as much as substantive.
15. Similar observations were reiterated in State of Punjab and Anr. v. Shamlal Murari and Anr. ; Ghanshyam Dass and Ors. v. Dominion of India and Ors. and Kailash v. Nanhku (supra). However, these are all the cases which were dealing with situation arising out of the cases where procedure was to be observed in accordance with the Code of Civil Procedure. The Code of Civil Procedure at several places provide period within which some steps have to be taken or some orders are to be passed and the purpose thereof is to expedite the disposal of the matter so as to avoid undue delay in trial. In respect to period of limitation provided under C.P.C., the position is quite different, as is evident from what has been said by the Court in Kailash v. Nanhku (supra):
The purpose of providing the time schedule for filing the written statement under Order VIII, Rule 1 of CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the Court to extend the time. Though, the language of the proviso to Rule 1 of Order VIII of the CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the Procedural Law, it has to be held directory and not mandatory. The power of the Court to extend time for filing the written statement beyond the time schedule provided by Order VIII, Rule 1 of the CPC is not completely taken away.
16. However, with respect to the period of limitation governed by the Limitation Act or the special enactments, we do not find that the matter can be dealt with treating it to be pan materia with the procedure of C.P.C. As long back as in 1918, a Full Bench of this Court in Narsingh Sahai v. Sheo Prasad AIR 1918, Allahabad, 389, considered the question as to whether an appeal which was barred by limitation prescribed under the Limitation Act could be treated to be within time by giving benefit of the period under Rule 2, Chapter III of the Rules of the Court. This Court held that once limitation prescribed under the Limitation Act is over, the same cannot be alerted or extended by applying the provisions of C.P.C. or the Rules framed thereunder, inasmuch as the High Court has been conferred power under Section 122 C.P.C. to frame Rules regulating their own procedure under C.P.C. but no such power has been given to High Court and it cannot touch Limitation Act. The Full Bench took unanimously the following view:
...We are unanimous in holding that this Court has no power by any rule that it may make to alter the period of limitation prescribed by the Limitation Act. We would further say that the rule as it stands was never intended to an can in no way be construed as altering in any way the Limitation Act. This Court has power to alter amend and add to rules of procedure laid down by the Code of Civil Procedure, vide Section 122, but nowhere has any power been given to it to touch the Limitation Act....
17. The aforesaid law has continued till date and we have not been shown any other view. Even in Kailash v. Nanhku (supra) the Court observed that "unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice."
(emphasis supplied)
18. The period of limitation, as contended by learned Counsel for the petitioner, cannot be said to be a part of procedure only, as an universal proposition. Rather it would depend upon relevant provisions of the statute and the consequences flowing thereof, i.e., as a result of expiry of the period of limitation. In many cases, it may result in accrual of substantive rights to the other side and in those cases, provisions pertaining to limitation cannot be said to be directory but have to be held mandatory. For example, under Section 6 of Land Acquisition Act, 1894, a declaration has to be made within one year from the date of notification under Section 4. The period of one year limitation gets extended by the period for which some interim order of any nature has been passed by a Court of Law. If such a declaration is not made under Section 6 within the aforesaid period, the proceedings will lapse. This view was taken by the Apex Court in State of Haryana v. Sukhdev and General Manager, Department of Telecommunications, Thiruvananthapuram v. Jacob .
19. A Division Bench of this Court in Mahavir Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 2007 (2) AWC 1162, considering the aforesaid provisions in para 54, sub para (iii) held that "the Court does not have the power to extend the period of limitation provided under the Statute." Similarly, in various taxing statutes where the period of limitation expires, thereafter the authorities cannot proceed to pass orders against the assessee treating it to be procedural only. In those cases expiry of period of limitation provided in the statute result in vested right to the assessee like not to be assessed or face any assessment proceedings etc. before the authority concerned under the relevant Act. The illustrations may be multiplied but we do not wish to do so and feel satisfied by observing that it is not always correct to say that whenever the limitation is prescribed, it is in the nature of procedural law and, therefore, has to be read leniently and must be treated to be directory instead of mandatory. In respect to special enactments which contain substantive provisions as well as procedure to give effect to carrying out the purpose of such Act, if period of limitation is provided the same has been held to be mandatory and once such period has expired, the Court is not competent to extend limitation and thereby nullify the otherwise provision(s) under the statute.
20. In Mohd. Ashfaq v. State Transport Appellate Tribunal UP and Ors. the Apex Court considered a similar provision which required filing of renewal application within fifteen days which could be extended but not beyond 15 days more. The Apex Court held that Section 5 of the Limitation Act is not applicable since the matter was covered by Section 58(2) and (3) of Motor Vehicles Act 1939. It further held that if the application for renewal is beyond time by more than fifteen days, the authority shall not be entitled to entertain it or in other words, it shall have no power to condone the delay. It further held that there being express provision for making application for renewal condonable only if it is not more than 15 days, the provision expressly excludes not only the power of condonation of delay under Section 5 but being special enactments, the said period even otherwise cannot be extended. The Court held that the provision may look harsh but in the scheme of the Statute the legislature has provided the same and it should not be disturbed by the Court.
21. Following the said decisions a Division Bench of this Court in U.P. Sugar Corporation (supra), dealing with Section 13 of the Act and Rule 9(3) of the Rules, held that the period for filing appeal once expired cannot be condoned. We do not find any reason to take a different view and are in respectful agreement with the aforesaid decision of the Division Bench.
22. The legal authorities cited by learned Counsel for the petitioner quoting Wade's Administrative Law and American Jurisprudence, in our view, have no application in the present where the matter is governed by specific provision of the statute.
23. Having said so, we try to test the impugned appellate order even by construing Rule 9(3) of the Rules liberally and are of the opinion that even otherwise and on facts of this case, it does not call for any interference. The period of limitation under Rule 9 is 30 days from the date of communication of the order of assessment which is condonable not beyond 45 days from the date of communication of the aforesaid order. If we accept the argument of the petitioner and try to take a view that the aforesaid limitation may be held to be directory, and, in exceptional cases appeals may be entertained and decided even if filed beyond the aforesaid period, whether such indulgence would be justified in the present case. From a bare perusal of the facts as noted above the first assessment order is dated 01.03.1994. Rest of the ten orders have been made between 16.05.2000 and 19.12.2005. The latest assessment order is dated 26.02.2007. It not the case of the petitioner that the said assessment orders were not communicated to him immediately after passing or within a reasonable time. On the contrary, in para 11 of memo of appeal, placed on record as Annexure-10 to the writ petition (page 105 of the paper book), he has clearly averred that since 01.04.1994 till date, at regular intervals, appellant has received assessment orders dated 21.02.1994, 10.05.2000, 20.02.2001, 11.10.2001, 07.03.2002, 17.08.2002, 24.02.2003, 21.04.2004, 05.11.2004, 20.07.2005 and 19.12.2005. Further in the application seeking condonation of delay the petitioner has not given any reason whatsoever as to why it could not file appeal under Rule 9 within the time prescribed and the only thing mentioned in para 2 is that the appellant is layman in legal field. This averment to us appears, prima facie, false, inasmuch as, the appellant, i.e. the petitioner before this Court is a company namely, Vimal Organics Ltd. Which is managed by a Board of Directors. The writ petition has been filed through its Director Sri Arun Kumar Agarwal. So far as company is concerned, the question of its being uneducated cannot arise at all. So far as the Directors are concerned, there is nothing on record to show that they are all laymen and illiterate persons. Moreover, annexure-9 of the writ petition is the letter dated 16.01.1995 said to have been issued by the petitioner through its Director wherein it has referred to the assessment notice and has requested that their category may be changed and opportunity of hearing be afforded to them. Further at page 95 of the paper book there is a letter of the petitioner which is written in English and signed by Director, Sri A.K. Agarwal who is deponent of the affidavit filed in this writ petition. Therefore, there does not appear to be any reason to infer that the petitioner was not aware of its right to file appeal(s) or is a layman or was not able to get appropriate legal advise in the matter after receiving the assessment orders.
24. Even if we take a lenient view in the matter, we find it beyond any comprehension to have any justification for condoning the delay of several months to several years, particularly when no justification whatsoever of any kind has been provided either before the appellate authority or even before this Court. Entire writ petition is completely silent in respect to any justification whatsoever for not filing appeal within time. In Kailash v. Nanhku (supra), it was contended that in case period prescribed by Order VIII Rule 1 C.P.C. is not required to be adhered to strictly, it may result in frustrating the very purpose of providing such period and the people may be able to delay proceedings. Appreciating this apprehension, the Court while giving a reasonable construction to the language of Order VIII Rule 1 C.P.C. held it to be directory being in the domain of the procedural law, yet said that the delay in filing reply cannot be extended as a matter of course and to any extent. It held in para 41 of the judgment that extension can only be by way of exception and for the reasons to be recorded in writing by the court. The party seeking extension beyond the period prescribed in Order VIII Rule 1 C.P.C. should satisfy the Court that there were circumstances, exceptional and occasioned by reasons beyond its control, warranting, extension in the interest of justice otherwise grave injustice would be occasioned. It would be useful to refer para 44 of the judgment as under:
The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, the defendant shall be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.
25. Similarly, in Topline (supra) the Apex Court observed that if the circumstances justify, the reply filed by other side after the period for filing reply prescribed under Section 13(2) of Consumer Protection Act, 1986 has expired, shall not necessarily be rejected only for the reason that it has been filed after time and in case the forum decide the matter after taking in account such reply, the proceedings would not be illegal or vitiated. None of the judgments relied upon by the learned Counsel for the petitioner gives licence or free hand to a party, guilty of inordinate delay, and still claim right of condonation without even giving any reason whatsoever justifying such delay. To accept such contention of the petitioner in a case like the present one, it would amount giving it premium for his negligence, laches and deliberate defiance of the statutory provisions. In view thereof we have no manner of doubt that the appellate authority has not erred in law in any manner by rejecting appeals of the petitioner being barred by limitation under Rule 9(3) of the Rules.
26. Now comes the last question as to whether the proceedings of recovery initiated in 2007 with respect to the assessments made in 1994 and 2000 and onwards are barred by limitation having not been commenced within three years from the date the proceedings attained finality since no appeal was preferred under the Rules within the prescribed period.
27. Learned Counsel for the petitioner could not show that for purpose of initiating recovery proceedings any period of limitation has been prescribed in Limitation Act or any other statute. Recovery proceedings in the present case are in respect to water cess which is in the nature of tax, though compensatory in nature. We find that the argument has been advanced solely based on the Apex Court's decision in State of Kerala v. V.R. Kalliyanikutty (supra). However, the aforesaid judgment in our view would have no application at all. The reason is quite obvious from a bare reading of the said judgment. The Court considered the provisions of Kerala Revenue Recovery Act, 1968 which provides for recovery of arrears of bank loan or debt in State of Kerala as arrears of land revenue. The various sums, i.e., public revenue which was to be recovered as arrears of land revenue under the Kerala Revenue Recovery Act were in the nature of Bank debt, loan amount etc. It was not a case of recovery of any amount of tax or fee under a fiscal statute. The Court held that the validity of similar enactments, i.e., U.P. Public Moneys (Recovery of Dues) Act, 1965 was upheld on the ground that instead of requiring the public authorities, for recovery of public revenue, to go for filing a suit in civil courts and cause delay in recovery of such amount due to procedural reason(s), if an alternative remedy is provided, the same is valid. That being so, the procedure of recovery of debt and other public revenue as arrears of land revenue was held to be justified as an alternative mode to civil suit and it was in these circumstances, that the Court held that whatever defence is available to a person in contesting a civil suit must be available when recovery proceedings are initiated after a long time. If the defence of bar of limitation of debt is available in a civil suit, the same is also available when the recovery proceedings is initiated after a period when a civil suit could not have been filed having become barred by limitation. Paragraphs No. 10 and 11 of the judgment make it very clear and are quoted as under:
The Kerala Revenue Recovery Act does not create any new right. It merely provides a process for speedy recovery of moneys due.... Since this Act does not create any new right, the person claiming recovery cannot claim recovery of amounts which are not legally recoverable nor can a defence of limitation available to a debtor in a suit or other legal proceeding be taken away under the provisions of the Kerala Revenue Recovery Act." (para 10) ...When the right to file a suit under Section 70(3) is expressly preserved, there is a necessary implication that the shield of limitation available to a debtor in a suit is also preserved. He cannot, therefore, be deprived of this right simply by making a recovery under the said Act unless there is anything in the Act which expressly brings about such a result. Provisions of the said Act, however, indicate to the contrary. Moreover, such a wide interpretation of "amount due" which destroys an important defence available to a debtor in a suit against him by the creditor, may attract Article 14 against the Act. It would be ironic if an Act for speedy recovery is held as enabling a creditor who has delayed recovery beyond the period of limitation to recover such delayed claims.
28. In taking the aforesaid view, the Court relied upon an earlier decision of the Apex Court in New Delhi Municipal Committee v. Kalu Ram wherein also a similar view was taken with respect to arrears of rent. It is not the case of the petitioner that for the purpose of recovering tax dues the respondents have to file a civil suit and the recovery of the amount in question as arrears of land revenue is an effective and alternative method of quick recovery instead of relegating the authority to file civil suit. An inbuilt process for assessment of tax is provided in the special enactment and once the assessment is made thereunder, the same can be recovered as arrears of land revenue as per the provisions of the same statute. For the purpose of recovery of tax dues, unless special enactment provides any limitation, no period of limitation provided under the Limitation Act has any application. Therefore, it cannot be said that the recovery in question which has been initiated by the respondents after a long time is barred by limitation. Learned Counsel for the petitioner also could not place any provision under Limitation Act or anywhere else under which the impugned recovery could have been said to be barred by limitation.
29. For the same reason, the Division Bench judgment of this Court in Narendra Kumar (supra) is also inapplicable as the same pertains to recovery of loan amount of U.P. Financial Corporation from the debtor.
30. Though on legal principle we have not agreed with the learned Counsel for the petitioner that the recovery in question is barred by limitation but noticing the fact that the respondents have initiated recovery proceedings in respect to some of the assessment orders which were passed several years back, this Court is constrained to observe that such inordinate delay in recovering cess under the Act, by the respondents, is neither appreciable nor can be condoned or ignored. The enactment of Cess Act is to augment resources of the Pollution Control Board for undertaking various activities for preventing water pollution in the State. Once an assessment is made and no appeal is filed by the concerned person within the time prescribed, we fail to understand as to why no steps were taken by the authority concerned for recovery of the amount within a reasonable time and what prompted it to wait and keep recovery proceedings in hibernation for years together. One of the assessment orders is of more than 13 years back. Such inordinate delay would frustrate the very objective and purpose of the Act. It is also a glaring example of laxity and unpardonable laches on the part of the authority concerned who was responsible for taking steps for recovery of the assessed cess in time but failed to do so. Whether the aforesaid laches were deliberate and prompted for reasons other than bona fide or whether there were some justification for said inaction is a matter of inquiry. Therefore, we direct respondent No. 1 to hold an inquiry into the matter as to who are the responsible person(s) for such inordinate delay and inaction in not initiating recovery proceedings despite assessment orders having been passed several years back and further to take disciplinary action and pass appropriate punishment order if the concerned person(s) are found responsible of deliberate and conscious inaction constituting dereliction of duty. The aforesaid inquiry shall be completed within three months from the date of communication of a certified copy of this order. It is open to respondent No. 1 to appoint any competent authority to make such inquiry in accordance with rules. We also provide that in case it is found that appropriate order with respect to such inquiry or punishment is to be passed by some other authority than respondent No. 1, he shall inform such authority about this order so that such authority may take appropriate action as directed above.
31. I Since we do not find any merit in the writ petition, therefore, the same is liable to be dismissed. At this stage, learned Counsel for the petitioner submits that substantial amount under the impugned recovery has already been deposited and he is ready to pay the entire balance amount provided some indulgence is granted to him by giving some time for the reason that the petitioner's unit is not doing well due to recession in business and, therefore, some time be allowed to clear the entire dues. Sri Manish Goel, after receiving instructions stated that the petitioner undertakes to pay the entire balance amount in question in four almost equal quarterly instalments and the first instalment shall be paid by 31st March, 2008. Learned Counsel for the respondents have no objection to this request. In view thereof, we direct that the impugned recovery against the petitioner pursuant to the recovery citation dated 6.10.2007 shall remainsuspended and the petitioner is permitted to pay the entire balance amount pursuant to the impugned recovery citation in four almost equal quarterly instalments. The first instalment shall be paid on or before 31.3.2008. In case the entire amount is paid as per the aforesaid directions, the petitioner shall not be liable to pay any recovery charges and the citation dated 6.10. 2007 shall not be pressed against the petitioner at all. However, in case of any default on the part of the petitioner in making payment of any instalment as agreed upon between the parties, and as directed above, the respondents shall be at liberty to proceed further for recovery of the entire balance amount from the petitioner along with all other usual charges payable under law.
32. Subject to the above direction, the writ petition is dismissed. No order as to costs. Respondent No. 1 is directed to communicate the consequential action taken by it pursuant to the direction as given above and submit compliance report to this Court and only for this purpose, this matter shall be listed before this Court on 22.5.2008. The Registrar General is directed to communicate forthwith this order to respondent No. 1 for information and compliance.