Punjab-Haryana High Court
Sushil Kumar @ Sunil Kumar vs State Of Punjab And Ors. on 10 July, 2002
Author: S.S. Nijjar
Bench: S.S. Nijjar, Kiran Anand Lall
JUDGMENT S.S. Nijjar, J.
1. The petitioner has filed this writ petition seeking issuance of a writ of certiorari/mandamus for quashing demand notice dated 24.6.2002, on the ground that it has been issued against the provisions of Section 78 of the Punjab Municipal Act, 1911. The petitioner is stated to be proprietor of a firm M/s Pritam Pal and Sons, Satta Bazar, Kot Kapura, District Faridkot. In the course of business he had purchased 120 bags of chewable tobacco weighing 14kg. each at the rate of Rs.1850/-per bag, having total value at Rs. 2,22,000/-. This tabacco was sent by a firm situated at Pipli through transport i.e. on Tata Canter bearing No.HR-22/6671 together with necessary documents on 21.6.2002. The driver of the Canter was halted at Octroi Post, Moga Kotkapura. The petitioner firm was called upon to pay the necessary Octroi. According to the petitioner, the Inspector who was on duly had started demanding extra money than the amount due on account of octroi charges. The petitioner, therefore, refused to make the payment. It is further stated in the petition that because the petitioner did not agree, the Octroi Staff illegally and falsely took the Canter along with the goods as well as the relevant documents into illegal custody. They demanded 21 times the octroi. According to the petitioner, they manipulated a falls case of Octroi evasion. The explanation given to respondent Nos.2 and 3 have also not been accepted. This writ petition was filed on 1.7.2002. It was submitted that the impugned order is without jurisdiction as the penalty could only be imposed by a Criminal Court.
2. The learned Counsel has relied upon a judgment of this Court in case of Jatender Kumar Bag v. State of Punjab, 2000(2) R.C.R. 534 in support of the aforesaid submissions. According to the learned Counsel since no criminal complaint has been filed tilt today, no penalty could be imposed by the respondents.
3. Prima facie impressed by the aforesaid submissions, this Court had issued notice of motion on 2.7.2002. Interim relief was also granted to the petitioners restraining the respondents from selling the goods in question. Dasti summons were given to the petitioner.
4. To-day Mr. Pathela has appeared on behalf of the respondents. Due to paucity of time, a sort affidavit has been filed by the Executive Officer of the Municipal Committee. Shri Pathela has also produced in Court the relevant file pertaining to the transaction which had led to the filing of the present writ petition.
5. In the short affidavit it is stated that the writ petition filed by the petitioner deserves to be dismissed as the petitioner has tried to mis-lead this Court. According to the learned Counsel, the petitioner has wrongly stated that the octroi staff had demanded some illegal amount from the petitioner. In fact, it was only on 2.7.2002 that a cheque bearing No.923055 dated 22.6.2002 for a sum of Rs.11225/- was received in the office of Municipal Council. The aforesaid cheque has to been encashed as the same does not include the composition fee. According to the short affidavit the canter had crossed the barrier without payment of octroi on 21.6.2002 at 10.30 p.m. On being challenged the driver of the canter refused to pay the octroi, therefore, action has been taken by the respondent-Municipal Council by issuing notice Annexure P-2. The petitioner could have approached the higher authorities of the Municipal Council under the provisions of the Punjab Municipal Act, 1911. Thus, the writ petition is stated to be premature also. In fact in paragraph 3 of the affidavit, it has been stated that the petitioner is habitual of evading the payment of octroi to the Municipal Council. Earlier also the petitioner had been paying composition fee in similar circumstances. He has made the payments in accordance with the table that has been reproduced in paragraph 3 of the short affidavit. The table is as under:-
Sr.No Date Item which was Value of the octroi Composition fee Total amount paid by the petitioner
1.
6.9.2kl Biddies Rs. 73.25 Rs.1455.75 Rs.1540/-
2. 5.2.2kl "
Rs. 50.00 Rs.1000.00 Rs.1050/-
3. 14.5.2kl "
Rs. 60.00 Rs. 1200.00 Rs.1260/-
4.
"
"
Rs. 180.00 Rs.3600.00 Rs.3780/-
6. A perusal of the aforesaid table shows that the petitioner firm had on four earlier occasions made the payment of the octroi as well as composition fee in similar circum stances. Apart from this, the petitioner has not come to the Court with clean hands.
7. Shri Pathela has placed on the record a copy of the application made by the petitioner on 28.6.2002 in the court of Chief Judicial Magistrate/Duty Magistrate, Faridkot seeking release of the Canter on superdari. In this application a specific plea is taken that the applicant therein is not at all concerned with the dispute of octroi. It has further been stated that the goods loaded in the vehicle and the vehicle had been wrongly seized alongwith the documents. The factum of filing of this application by the alleged owner of the canter has not been disclosed in the writ petition. A perusal of the file produced by Shri Pathela also shows that a reply was filed by the Municipal Council on 1.7.2002.
After taking into consideration the entire matter, the Chief Judicial Magistrate dismissed the application for release of the Canter on supardari on 3.7.2002. Certified copy of the order dated 3.7.2002 passed by the Chief Judicial Magistrate has been taken from the file of the Municipal Council and placed on the record qf this case. In paragraph 7 of the order, it is mentioned as under:-
"Section 82 of the Punjab Municipal Council Act empowers officials of the Municipal Council to seize any article on which the octroi is chargeable or any vehicle, if the octroi is not paid. In the present case also, the Municipal Council, Kotkapura, has seized the Canter bearing Registration No.HR-22/6671 loaded with chewing tobacco and the requisite octroi has not been paid to the competent authority and according to the seizure of the vehicle as well as the other articles i.e.. Chewing Tobacco is in accordance with the law." No mention of these proceedings has been made in the present writ petition.
8. Prima facie we are satisfied that the petitioner has not come to court with clean hands. He has concealed the material facts from this Court. Therefore, the petitioner is not entitled to be heard on merits. In this view of ours, we are fortified by the judgment of the Supreme Court in the case of S.P. Chengalvaraya Nalidu (dead) by LRs, v. Ja-gannath (dead) by LRs. and Ors.? A.I.R. 1984 Supreme Court 853. Speaking for the Supreme Court Hon'ble Mr. Justice Kuldip Singh has observed as follows:-
"Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
7............ "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
9. The petitioner has clearly not only tried to evade the payment of tax but has tried to mis-lead this court. In view of the above, the petition is dismissed with costs. The costs are assessed at Rs.25,000/-. Certified copy of this order attested by the Special Secretary of this Court be given to the counsel for the respondents.
Sd/- Kiran Anand Lall, J.