Calcutta High Court
Shree Azad Transport Co. Pvt. Ltd. vs Commercial Tax Officer, Duburdih ... on 6 December, 2000
Equivalent citations: [2001]123STC13(CAL)
Bench: Satyabrata Sinha, Pratap Kumar Ray
JUDGMENT
1. A short but an interesting question as regards interpretation of the provisions of Section 70 of the West Bengal Sales Tax Act, 1994 (hereinafter called and for the sake of brevity referred to as "the said Act") vis-a-vis Rule 212 of the said Rules for consideration of this case.
2. Before however embarking on the said question we may notice the salient facts. The petitioner is a transporter. Some goods while being transported intercepted by the Commercial Tax Officer, Duburdih Check-post.
3. Such interception took place on September 5, 2000. While the vehicle was on its way to Assansol it was taken back to the check-post and detained for thorough checking in terms of Section 69 of the said Act. Nobody had appeared till September 12, 2000. Inspection was made on each day of detention but the driver's cabin was found under lock and key. No person was present in whose presence checking could be made. Relying on or on the basis of Rule 212(10), the goods were seized on September 13, 2000. A reasoned order was passed by the competent authority on September 21, 2000. Validity of the said order as also the seizure was questioned by the petitioner herein before the learned Tribunal being RN 259 of 2000 which has been dismissed by reason of the impugned order dated September 9, 2000 by the learned Tribunal holding as under :
"On behalf of the State, learned lawyer Mr. Goswami submitted that since the goods were being transported without any way-bill there is no other alternative but to seize those goods for violation of the provisions of the Act and subsequent proceeding thereby cannot be vitiated for the illegal activities done by the petitioners. The full amount of penalty should be secured since the petitioner is a transporter and not a registered dealer.
Consider the submissions of both the sides and we are of the opinion that the proceedings adopted by the seizing authority is purely in accordance with law and the amount of penalty should be covered by a reasonable sum of money and should be in cash. The petitioner shall furnish a cash security of Rs. 1,30,000 and on furnishing such security the seizing authority shall release the goods immediately."
4. Mr. Chakraborty, learned counsel appearing on behalf of the petitioner, submitted that a bare perusal of the provisions contained in Section 70 of the said Act read with Rule 212(6) would clearly show that a seizure has to be mandatorily effected immediately on the expiry of the 48 hours from the time of detention. The learned counsel would contend that the provisions of the said Act having drastic effect must be construed strictly. It was urged that a taxation statute must be interpreted in such a manner which in the event of vagueness felt in favour of the assessee and against the Revenue.
5. Mr. Gupta, learned counsel appearing on behalf of the respondent on the other hand submitted that the word "thereafter" used in Section 70 of the said Act does not mean that such seizure has to be effected immediately after the expiry of 48 hours. The learned counsel would contend that an attempt should be and in the instant case has been made to effect the seizure as would from the reasoned order dated September 27, 2000 passed by the concerned authority. In that view of the matter the seizure is not illegal.
6. Section 69, Section 70, Rule 212(3) and Sub-rules (6), (9) and (10) of the said Act and the Rules which are material for the purpose of disposal of this application read thus :
"69. For the purpose of verifying any consignment of goods, are being or have been transported in contravention of the provisions of Section 68 or Section 73, the Commissioner, an Additional Commissioner, or any person appointed under Sub-section (1) of Section 3 to assist the Commissioner may, subject, to such restrictions as may be prescribed,--
(a) intercept, detain and search at any place referred to in Subsection (1) of Section 68 or Section 73, a road vehicle or river craft or any load carried by a person, or
(b) search at any warehouse or at any other place in which, according to his information, such goods so, transported in contravention of the provisions of Section 68 have been stored, or
(c) intercept, detain and search at any check-post or any other place referred to in Sub-section (2) of Section 73, any goods vehicle.
70 (1). Where, upon interception or search referred to in Clause (a), or Clause (c) of Section 69, the Commissioner, an Additional Commissioner, or any person appointed under Sub-section (1) of Section 3 to assist the Commissioner, has reason to believe that any goods are being transported in contravention of the provisions of Section 68, he shall first detain the vehicle carrying such goods for a period not exceeding forty-eight hours and, if the person bringing, importing or receiving such goods fails to furnish such particulars in such form as may be prescribed under Section 68, shall thereafter seize such goods together with any container or other materials for the packing of such goods.
Rule 212(3). On the request of the driver or person in-charge of the vehicle made under Sub-rule (2), the Commercial Tax Officer or Inspector of the check-post shall allow time, not exceeding forty-eight hours from the entry of such vehicle, to enable him, to present the way-bill in form 42 before the expiry of the time allowed by him, and the vehicle with such consignment of goods shall, subject to the provisions of Sub-rule (6), remain detained till the time of presentation of such way-bill or the expiry of the time allowed, whichever is earlier.
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(6) If any person, casual trader or dealer or the driver or person in-charge of the road vehicle fails to present any way-bill under Sub-rule (1) or Sub-rule (3), the Commercial Tax Officer or Inspector of such check-post shall seize the consignment of goods under Section 70.
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(9) The Commercial Tax Officer or Inspector of a check-post empowered to endorse the way-bill in form 42, or such Assistant Commissioner, or Commercial Tax Officer, as the Commissioner may authorise to proceed under Section 69 outside the check-post, may verify correctness of the description, quantity, weight or value of the goods of a consignment as mentioned in the accompanying way-bill with the description, quantity, weight or value which are actually found in such consignment.
(10) Where upon verification made under Sub-rule (9) on opening the container or packages, if necessary, the description, quantity, weight or value of the goods in any consignment is found by the authority referred to in Sub-rule (9) to be at variance with the description, quantity, weight or value of the goods disclosed in the way-bill, such authority shall prepare a report in the presence of the driver or person in-charge of the vehicle and get such report countersigned by him, or where the driver or person in-charge of the vehicle is not available for any reason, such authority shall prepare a report in the presence of one witness after explaining to him the content of the report and get the report countersigned by him and shall, thereafter, seize the consignment of goods under Section 70 for contravention of the provisions of Section 68."
7. It is now a well-settled principle of law that a harmonious construction is required to be made if there exists any inconsistency between the Acts and the Rules. In other words, the provisions of the Act as also the Rules must be read conjointly so as to give full and effective meaning to the provisions of the Act. By reason of Section 70 of the Act, interception, detention or seizure can be made provided the authorities specify therein have reasons to believe that any goods are being transported in contravention of the provisions of Section 68 of the Act. Upon interception, a detention is required to be made for a period not exceeding 48 hours. Within the aforementioned period an opportunity is granted to the person bringing import or receiving such goods to furnish such particulars in such form as may be prescribed under Section 68 of the Act and in case of his failure to do so, the goods may be seized together with any container or other materials or the packing thereof.
8. Sub-rule (3) of Rule 212 also prescribes 48 hours as the time to be allowed to the transporter to produce way-bill in form 42. It is true that Sub-rule (6) of Rule 212 provided for seizure of such goods in the event the driver or the person in-charge of the road vehicle fails to present any way-bill in Sub-rule (i) of Sub-rule (3) thereof. Sub-rules (9) and (10), however, show that goods are only seized in the presence of the vehicle or other person in-charge thereof so as to enable the authorities concerned to verify and consider the documents and to arrive at a conclusion as to whether seizure under the facts and circumstances is necessary or not.
9. In the instant case, interception had been made outside the check-post but the vehicle had been brought to the check-post for verification of the documents.
10. There are, thus, three stages for effecting seizure, namely, interception, detention and ultimate seizure.
11. Seizure of the vehicle or the goods loaded therein is not automatic. The question which has been raised, namely, as to whether in the facts and circumstances of this case the seizure became illegal only because the same had been effected after a period of 6 days.
12. Having heard the learned counsel for the parties, we are of the opinion that it is a case where by reason of the said action the petitioner herein cannot be said to be prejudiced. In Wade's Administrative Law, 5th Edn. at page 218, it is stated :
"...........................whether the condition is held to be mandatory or directory. Non-observance of a mandatory condition is fatal to the validity of the action. But if the condition is held to be merely directory, its non-observance will not matter for this purpose. In other words, it is not every omission or defect which entails the drastic penalty of invalidity."
13. The distinction is not quite so clear-cut as this suggests, since the same condition may be both mandatory and directory : mandatory as to substantial compliance, but directory as to precise compliance. Where, for example, a local authority were empowered to assess coast protection charges on land-owners within six months but did so after 23 months, the delay was so excessive that there was total non-compliance with the condition, and the assessments were void ; but had the excess been a few days only, they would probably have been valid. The court may readily find reasons for overlooking trivial or unimportant irregularities.
14. This aspect of the matter has been considered by a Full Bench of the Patna High Court in Shiveshwar Prasad Sinha v. District Magistrate of Monghyr wherein the court while interpreting the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 referred to Maxwell on Interpretation of Statutes, Sutherland Statutory Construction and Crawford on Statutory Construction in the following terms :
"Where the statute relates to the performance of a public duty and prescribes a specific time within which that duty is required to be done, the law seems to be as follows, as pointed out in Maxwell on Interpretation of Statutes, 11th Edition, page 369 :
'It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time [see Smith v. Jones (1830) 109 ER 809 and the other decisions cited in Maxwell].' In America also the law seems to be the same. Thus in Sutherland, Statutory Construction, 3rd Edition, Volume 3, at page 102, the law is stated as follows :
'A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer.' At page 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again at page 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At page 111 it is stated as follows :
'As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive.' See also Crawford on Statutory Construction, Article 269 at page 535.
Following the aforesaid authorities it appears that the undermentioned factors have to be considered in deciding whether the time-limit provided in Clause (a) of Sub-section (2) of Section 11 of the Act is directory or mandatory :
(1) The general scheme of the Act and the context of the other provisions.
(2) Whether the time-limit is insisted upon as a protection for safeguarding the right of property of a person.
(3) Whether the statute relates to the performance of a public duty by a public officer.
(4) Whether serious general inconvenience or injustice to persons who have no control over those entrusted with the duty would arise if the provision is held mandatory and not directory.
(5) Whether such a decision would not promote the main object of the Legislature.
(6) Where the statute itself expressly provides for the result of non-compliance with the statutory provision, what can reasonably be held to be the intent of the Legislature ? ..................................................."
15. Mr. Chakraborty submitted that from a reading of paragraphs 10 and 11 of the said decision, it would appear that the aforementioned provisions were held to be directory having regard to the fact that the said provisions had been enacted for the benefit of the landlord ; whereas in the instant case the statutes being a fiscal one question of any intendment does not arise and as such the provisions of the said Act must be construed giving a plain meaning.
16. The Tribunal as also this Court was concerned with the action taken by Commercial Taxation Authority in seizing the vehicle. The authorities had exercised their power under Sub-rule (10) of Rule 212. It is not necessary for the purpose of disposal of this application to consider as to whether in the facts and circumstances of this case the said provision was at all attracted.
17. It appears that before the learned Tribunal the point at issue had not been canvassed at length. Be that as it may, we, having heard the learned counsel for the parties are of the opinion that although the statute is a fiscal one there may exist certain provisions therein which would be beneficial to the assessee. The time of 48 hours granted to the transporter for production of the documents before the seizure is effected is one of such provisions. We may place on record that earlier only 24 hours time could be granted but only by reason of amendment the said period has been extended to further 24 hours.
18. The commercial taxation authorities are public functionaries. The provision of seizure is an enabling one. It is true that before effecting seizure, illegality whereof may amount to deprivation of property, condition precedents therefor are to be strictly complied with. The question which arises for consideration in this application is as to whether the petitioner can take advantage of his own wrong. He admittedly had not been carrying the way-bill. He was granted time to produce the way-bill. He did not report for a long time and probably fled away from the scene. He did not make any complaint about the illegal seizure immediately upon expiry of 48 hours from the date of detention. He suffered a speaking order passed as far back as on September 21, 2000.
19. In this situation, not only the question as to whether the petitioner has been prejudiced thereby will arise but also a question as to whether it has waived its right or not would also arise. It is now well-known that prejudice theory has taken a firm root even in the principles of natural justice. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant reported in AIR 2000 SC 2783; AIR 2000 SCW 3826, Ranjit Kumar De Chowdhury v. State of West Bengal reported in 1997 WBLR (Cal) 235 ; ILR (2000) 1 A & N 60, K.L. Tripathi v. State Bank of India , Syndicate Bank v. B.S. Narayanan reported in (1998) 1 CLJ 66, Managing Director, ECIL v. B. Karunakar , Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and in Aligarh Muslim University v. Mansoor Ali Khan wherein the apex Court, inter alia, relied upon State Bank of Patiala v. S.K. Sharma and Rajendra Singh v. State of M.P. .
20. It is thus not a case where petitioner cannot be said to be prejudiced in any manner whatsoever. Furthermore, even the provision says the mandatory one. The violation thereof may not lead the seizure thereof would not be a nullity. In any event in our considered opinion having regard to the conduct of the parties it is a case where this Court should interfere with the discretion exercised by the learned Tribunal having regard to the conduct of the petitioner as enumerated hereinbefore. Furthermore, the petitioner has already complied with the order passed by the learned Tribunal whereupon the goods have been released. Furthermore, it is stated that a penalty has also been imposed. We, therefore, are of the view that if the petitioner files a revisional application against the aforementioned order the same may be disposed of as early as possible and preferably within a period of eight weeks from the date of filing of the revisional application.
21. Mr. Chakraborty states that such revisional application will be filed within 2 weeks from date. In the event the revisional application is filed within the aforementioned period, the appellate authority shall frame questions having regard to the fact that a substantial questions of law are required to be considered within two days thereof.
The application is disposed of accordingly.
This judgment and order shall govern in W.P.T.T. No. 16 of 2000 (Sree Azad Transport Co. Pvt. Ltd. v. C.T.O., Dubirdih Check-post).
All parties are to act on a xeroxed certified copy of this judgment, to be delivered on priority basis, On the usual undertaking.