Mottur Hajee Abdul Rahman and Co. vs Deputy Commercial Tax Officer, Vaniyambadi, North Arcot Dt. and Another

Ismail, J.—The petitioner in these petitions filed W. P. Nos. 1857 and 1858 of 1968 challenging the validity of Item 7 of the Second

Schedule to the Madras General Sales-tax Act 1959 and prayed for writs of Prohibition restraining the State of Madras and the Deputy

Commercial Tax Officer, Vaniyambadi, North Arcot Dt., the first respondent in these petitions from taking all further assessment proceedings in

respect of the years 1967-68 and 1968-69 enforcing any of the provisions in Item 7 of the Second Schedule to the Madras General Sales Tax

Act, 1959. At the same time, the petitioner also filed C. M. P. 7154 of 1968 and 7155 of 1968 in the said writ petitions praying for stay of all

further assessment proceedings for the respective years pending disposal of the said writ petitions. The writ petitions and the Civil Miscellaneous

petitions came up for admission and on 7th May, 1968, this Court directed the issue of rule nisi in the writ petitions and passed an interim order of

stay in the civil miscellaneous petitions in the following terms:

That all further assessment proceedings for the years 1967-68 and 1968-69 in respect of the petitioners in W. P. Nos. 1857 and 1858 of 1968

on the file of the respondent and enforcing any of the provisions of Item 7 of the Second Schedule to the Madras General Sales Tax Act, 1959 be

and are hereby stayed pending further orders on these petitions"".

A copy of the Interim order of stay was served on the first respondent herein on 9th May, 1968. On the same date after referring to the filing of the

writ petitions by the petitioner herein and also the order of stay passed by this Court, the Assistant Commercial Tax Officer, Vaniyambadi, the

second respondent herein, sent the following notice to the petitioner herein:--

According to the provisions in force you are entitled and liable to tax on the transactions effected by you as a registered dealer. As keeping such

amounts with you till the disposal of the writ petitions filed by you in the absence of any security offered for the realisation of amounts that became

due to Government on the disposal of the writ petitions involved risk to Government, I demand a security on a Bank guarantee or cash at one and

half tunes the average tax due from you. Accordingly based on the final assessment for 1966-67 the tax due (1/2 times) works out to Rs. 42,000/-

(Rs. forty two thousand).

You are hereby required to pay the security within seven days of receipt of this notice, failing which steps will be taken to recover the amount of

security.

On receipt of this notice, the petitioner wrote to the respondents drawing the attention of the respondents to the interim order of stay passed by this

Court on 7th May, 1968, without imposing any conditions and contending that in the face of the order of this Court, the notice issued by the

respondents was neither competent nor proper. On 20th May, 1968, the respondents sent a reply inviting the petitioner''s attention to Section

21(3) of the Madras General Sales Tax Act 1959, and contending that the Registering Authority was competent to demand security for proper

payment of Government dues and calling upon the petitioner to pay the security on or before 1st June, 1968. At the same time, they stated that that

has nothing to do or interfere with the writ petitions filed by the petitioner. It is at this stage the petitioner filed the present civil miscellaneous

petitions for taking action against the respondents for contempt of orders of this Court.

On 17th June, 1968, I directed notice to the respondents. Thereafter, the respondents filed a counter affidavit dated 29th June, 1968. In the

counter affidavit it was contended that the action taken by the respondents had nothing whatever to do with the pendency of the writ petitions on

the file of this court and the interim order of stay passed by this Court on 7th May, 1968. However, the respondents submitted that they had no

intention whatever to disobey the orders of this Court. They wound up by stating--

Further, this respondent submits that if this Honourable Court comes to a conclusion that the order of stay granted in C. M. P. 7154 and 7155 of

1968 would include taking any action, even one u/s 21 (5) of the Act, this respondent submits that he was under the bona fide mistake while

issuing the notice dated 9th May, 1968 and that he tenders his unconditional apology for the same and prays the same may be accepted"".

I am not satisfied with the form in which the apology was sought to be tendered and thereafter the respondents have filed a counter-affidavit

tendering unconditional apology in respect of the action taken by them.

I have no doubt whatever that the notice dated 9th May, 1968, issued to the petitioner does constitute contempt of this Court. The interim order

of stay issued by this Court clearly told the respondents that writ petitions had been filed challenging the validity of Item 7 of the Second Schedule

to the Madras General Sales Tax Act of 1959, and on that basis they were required not to take any further assessment proceedings for the years

1967-68 and 1968-69 in respect of the petitioner, pending further orders on the petitions. As I extracted already the notice dated 9th May, 1968,

categorically informed the petitioner that according to the provisions in force the petitioner was liable to tax on the transactions effected by him as

registered dealer. It is conceded before me that the ''provisions in force'' referred to in the said notice are the identical provisions whose validity has

been challenged in the writ petitions before this Court and with respect to which alone stay order has been issued. Consequently, in issuing the

notice dated 9th May, 1968, the respondents clearly contravened the orders of stay passed by this Court.

The only question that remains for consideration is whether, in the circumstances of this case, any further action is called for in the light of the

unconditional apology tendered by the respondents herein. I am satisfied that the conduct of the respondents was the result of misguided

enthusiasm and seal on their part to safeguard the interests of the Revenue. No doubt, if they honestly and bona fide believed that a risk was

involved in this Court issuing an interim order of stay without imposing conditions, certainly it was open to them to approach this Court and draw

the attention of this Court to the peculiar and particular circumstances in which an unconditional order of stay should not be granted in the interests

of the Revenue. Such a step has not been taken by the respondents. At the same time, it has not been alleged in the affidavit filed in support of

these petitions that the respondents were actuated by any mala fide intention or any ulterior motive in issuing the notice in question. Taking these

circumstances Into account, I accept the unconditional apology tendered by the respondents and drop any further proceedings in this behalf.

I emphasise and it is worth emphasizing that no officer of the Government, however high or exalted he may be, can take upon himself the

responsibility of judging the correctness or validity of an order of any Court and if he honestly and bona fide in the discharge of his functions feels

that the order is erroneous or requires any modification, the only remedy open to him is to approach that Court by way of review of modification

or a higher Court by way of appeal or otherwise. Apart from that, it is not open to him to take upon himself the responsibility of judging the order

and take any action contrary to or inconsistent with the same on the basis o his own judgment. If once an officer is permitted or allowed to do any

such thing, that will mean the end of the very principle of rule of law on the basis of which the entire fabric of our democratic society has been

constructed.