Patel Parshotamdas Chaturdas vs Union of India

1.This is an appeal by the original plaintiff of the Regular Assistant Judge there. Being aggrieved by the aforesaid Judge (SD) Nadiad, who had dismissed the same. The present appellant''s appeal No. 157 of 1970 in the Court of the District Judge, Kaira at Nadiad also was dismissed by the learned Assistant Judge there. Being aggrieved by the aforesaid judgments and decrees the present appellant had filed the above mentioned appeal.

This appeal had come up before me a few months ago and I had fully heard it, but could not deliver the judgment and as the matter was old, I directed that the matter may be placed before the single Judge who was dealing with the Second Appeal. However, the said matter could not be taken up and it is again notified on my Board when I am sitting as single judge to deal with Second Appeals. Though the matter is on Board for about a fortnight, the learned Advocate Mr. A. F. Patel for the appellant has not so far appeared. In these circumstances, I proceed to deliver the judgment, because the matter was fully heard by me on earlier occasion.

The plaintiff-appellant''s case before the trial court was that he was a cultivator of land bearing Survey No. 273 of Sihunj village of Dholka Taluk. The suit field admeasures six acres. In the cultivating season 1950-60, he had grown tobacco in the field. On 18th November, 1959 he had made a requisite declaration about his having grown tobacco on the land and in that declaration he had given his estimate that 1400 pounds of tobacco was likely to be yielded at the end of the season. However, the season was not favourable and consequently there was no possibility of reaping the expected harvest. On 30th December, 1959, an officer of the Excise Department had visited the field and had estimated that the yield per acre was likely to be 300 pounds and the necessary note also had come to be made by that officer in the prescribed register known as the ''survey-book''. However, the Respondent No. 6 had in collusion with the original defendant No. 2 (the defendant No. 2, the Sub-Inspector of the Excise Department was residing as a tenant in the plaintiff''s premises and had fallen out with him on the plaintiff''s demand of rent from him) had put up a false that he had tilled the land and grown tobacco in three acres out of six acres of the field, and so the defendant No. 6 cut the leaves also. The matter was taken to the Police by the plaintiff in the presence of the Central Excise Officers and the defendant No. 6, in order to avoid the breach of peace, the Police attached the laid crop and with the consent of the parties and it was delivered to the officers of the Central Excise Department. Ultimately the Mamlatdar, the competent authority, had held, the defendant No. 6 to be a trespasser and impostor. The result was that the goods seized by the Police under the panchnama dated 26th February, 1960 were ordered to be delivered to the plaintiff and on or about 25th August, 1960, the goods were delivered to the plaintiff. At the time of delivery, the assessment was made and the plaintiff had paid the requisite duty and the goods had been delivered to him. However, therefore at the instigation of the defendant No. 2, the department had issued a demand notice to the plaintiff and asked him to pay additional duty on the tobacco weighing 1208 pounds alleging that on the earlier occasion the plaintiff had paid duty on tobacco raised only in 3 acres of land and that he had clandestinely disposed of the tobacco raised on the remaining three acres of land to which no claim was made by the defendant No. 6. The proceedings in that connection had started and the defendant No. 3, the Assistant Collector, Central Excise, Nadiad had ordered the plaintiff to pay to the department duty on 1208 pounds of tobacco. As per the Rules, the plaintiff had preferred an appeal to the Collector, Central Excise, Baroda, who had dismissed the appeal on the ground that the plaintiff had not paid up the amount covered by the order under appeal as a condition precedent to the hearing of the appeal. The plaintiff had then carried the matter to the Joint Secretary to the Government of India, Ministry of Finance by way of a revision application. The department, i.e. the Secretary to the Government of India modified the order of the Assistant Collector, Nadiad and directed the plaintiff to pay the duty on 800 pounds of tobacco instead of 1208 pounds. In other words, he was called upon to pay a sum of Rs. 957.97 as a duty. The plaintiff thereafter had filed the present suit for a declaration that the order passed by the Assistant Collector and confirmed by the Excise Collector Baroda and modified by the Government of India in revision were illegal and void and the Government of India had no authority at law to take steps to realise the said sum.

The suit was resisted by the Government of India. The plaintiff''s allegation that he had paid duty on tobacco grown on the entire field was disputed and it was alleged by way of defence that the plaintiff had paid duty only on a moiety of land. The plaintiff''s allegations that the principles of natural justice were violated and he was not afforded a reasonable opportunity to take part in the inquiry before the Assistant Collector also denied. The learned trial Judge upheld the contentions of the defendant, the Union of India, and had dismissed the suit. The plaintiff''s appeal also met the same fate.

On behalf of the appellant it was contended that the duty that was paid by him was paid for the whole of the land and not for a part of it. But both the courts below have negatived this contention. Similarly, it was also held that violation of the principles of natural justice at the time of the inquiry was not established.

The above being the findings of facts, it was not open to the plaintiff-appellant to reagitate those questions before me in Second Appeal. But Mr. Patel appearing for the appellant has raised one question of law. According to him, the amount that is sought to be levied from him by execution is in pursuance of an order that had come to be confirmed in appeal without his having been given a right of hearing. Mr. Patel then contended that subsequent revision or modification of that illegal order of the Assistant Collector, Nadiad would not cure the void character of the original order in pursuance of which the amount was sought to be realised from him. If the original order in question under which the plaintiff''s liability is sought to be enforced is found to be not valid order, then the plaintiff''s suit must succeed on that ground. As far as the inquiry before the Assistant Collector, Nadiad is concerned, the appellate court has found that the plaintiff-appellant had all reasonable opportunity to meet the allegations against him. This finding of the fact has got to be accepted by me and I accept the same. However, Mr. Patel had urged that this order was carried in appeal by the plaintiff to the Collector, but the appellate authority, who was found to hear him, and refused to hear him on the sole ground that the plaintiff had not deposited the amount of challenged as a condition precedent to the entertainment of his appeal. Mr. Vakharia was fair enough to concede before me when the appeal was heard that this provision which made it obligatory on the part of the appellant citizen, to deposit the amount of the order as a condition precedent to the entertainment of the appeal was set at naught by the Supreme Court in the case of Collector of Customs, Collector of Customs and Excise, Cochin and Others Vs. A.S. Bava, . If the original order that gets emerged in the appellate order now passed by the Collector, Customs, without extending an opportunity to the plaintiff-appellant to have his say, the order of the Assistant Collector and the appellate order would be void on the ground that the appellant was not given an opportunity to have say in the matter.

In the case of Hasmukhbhai Dhanjibhai Zaveri v. R. Parthasarthy 12 G.L.R. 128, it has been held that the vice that has been attached to an order passed in contravention of rules of natural justice could not be cured ex post facto by affording to the person affected thereby an opportunity to represent this after the order is passed. An order made in breach of principles of natural justice is void and an opportunity given to the affected person to represent his case after such an order is made cannot have the effect of resuscitating a still born order. Of course, this case deals with a converse proposition, but the principle would apply with equal force to the facts of the present case also. When the appellant-plaintiff was denied an opportunity of hearing at the time of appeal, the appellate order would at any rate be a nullity and if it be so, the plaintiff''s appeal has got to be deemed as pending, ignoring the order of the appellate officer, the Collector of Customs, Baroda, dismissing the appeal summarily. The subsequent modification of the order at the hands of the Central Government is a poor solace to the appellant-plaintiff whose valuable right of an appeal had been negatived by the Collector of Customs, Baroda in ignorance of law. If it be so, the appeal has got to be deemed as pending before the Collector, Baroda and till that matter is not decided, the plaintiff is entitled to an injunction sought for by him.

This very question was urged by the plaintiff-appellant before the learned Assistant Judge at Nadiad, but curiously enough, the learned Judge held that the judgment of the Supreme Court was pronounced subsequent to the order of summary dismissal of the plaintiff''s appeal by the Collector of Customs at Baroda. It seems that the learned Judge was of the view that law declared by the highest court of the land came into force only from the day, the judgment is pronounced. This is something grossly unreasonable. The Supreme Court does not enact the law in the sense of the term. It simply interprets it. This means that when the Supreme Court laid down the law on the point in the above mentioned case of Collector of Customs, Cochin it declared that the law was and if it be so, the order of the Collector, Customs cannot be sustained. On this technical ground alone, the plaintiff''s plea deserves to be accepted with a clarification that it will be open to the department to take up the matter as it was before the Collector of Customs, Baroda or any other succeeding appellate authority and deal with the matter in accordance with law, but till that is done, it would not be open to the department to proceed to realise the amount.

The result is that the appeal is allowed. It is declared that the respondent - Union of India and its officers are not entitled to proceed against the plaintiff-appellant to realise the sum of Rs. 957.97 p. or any other amount in connection with the Excise duty in respect of his field survey No. 273 of Sihunj village of Dholka Taluka and the respondent No. 1 and its officers are restrained from taking any steps to realise the same. If so advised, it will be open to the Collector of Customs, Baroda or any other authority that might have been constituted as succeeding that appellate authority to deal with the appeal of the appellant and decide the question of the plaintiff''s liability to pay the excise duty in accordance with law. This judgment and the injunction issued by this court will not come in the way of the department in dealing with the said appeal of the plaintiff-appellant. In the circumstances of the case, there will be no order as to costs throughout.