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Judgment
P. Shanmugam, J.—The petitioner is an assessee under the Agricultural Income Tax Act. In this original petition, he challenges exhibit P-16 notice of sale issued u/s 49(2) of the Revenue Recovery Act. He has also prayed for a declaration to declare that the respondents are not entitled to demand any amount as arrears of agricultural Income Tax based on exhibits P-6 to P-15 assessment orders.
The assessment orders relate to the periods from 1975-76 to 1990-91. These orders have become final. This original petition, filed without challenging these assessment orders before the appellate authorities for a declaration under article 226 of the Constitution to declare them as unenforceable, is not maintainable for more than one reason. Firstly, the petitioner has not exhausted the effective alternative remedies available to him. Secondly, the assessment orders of the years 1975-76 to 1990-91 which were all passed from the years 1982 onwards and the last of the order under challenge passed on December 27, 1991, cannot be challenged under article 226 of the Constitution after the inordinate delay of more than a decade in some cases and nearly two decades in a few cases. The original petition is liable to be dismissed on the ground of laches.
Thirdly, the assessments are for sixteen different years from 1974-75 onwards and the orders were passed during different years and on dates and therefore a single original petition to declare all these ten assessment orders cannot be maintainable. Fourthly, the main plank of the argument of the petitioner is that these assessment orders were passed behind the back of the petitioner without notice and without service of the assessment orders is factually incorrect in the light of paragraph 4 of the statement filed on behalf of the first respondent. As per this a detailed statement has been set out wherein it is seen that the petitioner has been legally served with all notices and orders from the years 1975 to 1991. The original petition is liable to be dismissed on the suppression of the material facts to the contrary that the petitioner was not served the pre-assess-ment notices and final assessment orders.
From the assessment orders it could be seen that the petitioner has filed the returns only for the assessment years 1974-75 to 1980-81. He had not chosen to file return for the subsequent years till 1991. All these assessment orders state that the petitioner did not avail of the opportunities afforded to him by filing the objections to the pre-assessment notice sent for assessment. Thus the stand of the Agricultural Income Tax Officer who has the jurisdiction and competency to decide the matters that the petitioner did not co-operate with the Department for all these years and after having taken the assessment orders have come before this court suppressing the material facts stands established.
The stand of the petitioner as seen from the various paragraphs in the original petition including paragraph 14 wherein he states that he has not been communicated by the statutory authorities about the orders of assessment passed against him. On the contrary, the statements in the orders of assessment, copies of which have been produced and marked, state clearly that the petitioner was served with notice and he did not respond to that and therefore the assessments were completed as per the proposal, etc.
The details of the notices from 1973-74 to 1990-91 were furnished in paragraph 4 of the statement of the first respondent which are as follows: "The details of service of notices from 1973-74 to 1990-91 are shown below :
Assessment year
Pre assessment notice dated
Acknowledg ment dated
Assessment order dated
Acknowledgment dated
1973-74
30-8-75
refused
29-12-75
7-2-76
1974-75
26-7-80
refused
28-11-79
refused
1975-76
31-7-80
refused
24-2-81
refused
1976-77
17-11-81
refused
16-3-82
refused
1977-78
3-1-82
refused
25-2-83
refused
1978-79
3-1-84
refused
1-3-84
refused
1979-80
10-10-84
refused
22-10-84
refused
1980-81
3-3-86
refused
19-3-86
26-3-86
1981-82 to 1984-85
28-4-87
13-6-87
4-7-87
30-7-87
1985-86 to 1986-87
22-8-87
10-2-88
20-2-88
5-4-88
1987-88 to 1989-90
29-11-89
refused
5-2-90
27-3-90
1990-91
22-11-91
11-12-91
23-12-91
26-3-91
From the above it is evident that the petitioner was not in the habit of co-operating with the Department. On the other hand, now the petitioner contended that none of the notices and assessment orders were served on the petitioner after a lapse of many years. The assessment orders had become final long back and since the petitioner has not remitted the amount. Revenue recovery steps are initiated. Most of the notices and assessment orders were refused as revealed from the table shown above. The refusal of notice is equivalent to service and therefore the petitioner cannot contend that the notices were not served. Since orders have become final without seeking any ordinary remedy the petitioner approached this honourable court without any bona fides."
In so far as exhibit P-16 notice is concerned it is seen from the statement filed on behalf of the third respondent that notice under Sections 7 and 34 of the Kerala Revenue Recovery Act were issued to the petitioner through the Village Officer on May 23, 1987, and January 18, 1990, in reference to demands of Rs. 40,913.60 for the sales tax arrears due from 1980-81 to 1984-85 and Rs. 41,620 for the year 1989-90, respectively. The notices were served on June 30, 1987, and February 2, 1990, respectively. Notices u/s 36 of the Revenue Recovery Act was published on the property and served on the defaulter on December 14, 1990. The land was notified for auction sale on April 18, 1991. The auction was adjourned to July 30, 1991, October 14, 1991, December 16, 1991 and January 7, 1992. Subsequently, further certificates were received from the District Collector for the years 1979-80 to 1989-90 and 1990-91 amounting to Rs. 1,81,282.60. In pursuance of the said notice, exhibit P-16 notice of sale had been issued. None of these facts, namely, the earlier served notices from the year 1987 and the adjournments of the sale were mentioned in the original petition. It is further seen from the counter of the third respondent that the petitioner had transferred 15 cents of land from the 65 cents already attached earlier to his son as per settlement deed No. 1061 of 1997, dated June 4, 1997. The petitioner''s son has filed the suit for the same. Thus there is a clear case of material suppression of facts and lack of bona fides in coming to the court without disclosing them. The jurisdiction under article 226 of the Constitution of India cannot be invoked in favour of a person who has not come to this court with clean hands. In K. Marappa Gounder, K.M.S. Bus Service Vs. The Central Road Traffic Board and Others, the learned judge of the Madras High Court has held that the court shall refuse a writ on the basis of suppression of facts. It was observed as follows :
"It is a well-settled proposition of law that it is the duty of a person invoking the special writ jurisdiction of a court to make a full and true disclosure of all relevant facts. He should not suppress any facts. An applicant for a writ under article 226 of the Constitution must come in the manner prescribed and must be perfectly frank and open with the court. If he makes a statement which is false or conceals something which is relevant from the court the court will refuse to go into the matter. If the court comes to the conclusion that the affidavit in support of the application was not candid and did not fully state the facts, but either suppressed the material facts or stated them in such a way as to mislead the court as to the true facts, the court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits.
The reason for the adoption of this rule is not to arm the applicant''s opponent with a weapon of technicality against the former, but to provide an essential safeguard against abuse of the process of the court.
Where the petitioner is clearly found to have suppressed material and relevant facts which, if brought to the notice of the court when applying for a rule nisi, should certainly have influenced the court in deciding one way or the other, and such suppression was certainly calculated to deceive the court into granting the order of the rule nisi, the petition should on that short ground be dismissed." .
For all these reasons, the original petition is not maintainable and is liable to be dismissed and accordingly it is dismissed with costs.