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TMI Blog2007 (12) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... rected dropping of the certificate proceeding and unsealing of the business premises with the observation, the order of the Certificate Officer for sealing the business premises is bad in law . The applicants do not insist on the issue except their claim for damages, because they got the main relief of unsealing the business premises in the aforesaid interlocutory order. Respondent Nos. 2 and 3 contested the application by filing separate affidavit of objection containing nothing about claim of damages. The allegation of the applicants is that on May 13, 2002 at about 2.30 p.m. respondent No. 5, Certificate Officer's man Mr. L.K. Saha, forcibly drove away the employees of the applicants from the place of their business and sealed the said place of business in connection with the certificate case No. 52ST (EL 2000-01) and their repeated requests for unsealing the same were not heeded to by respondent No. 5. This certificate proceeding was directed for recovery of the demand of tax under the Bengal Finance (Sales Tax) Act, 1941, for the period fourth quarter ending March 31, 1995 and also of a separate demand for additional interest on tax due relating to the same period. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is 'guaranteed', that is to say, the right to move the Supreme Court under article 32 for the enforcement of any of the rights conferred by Part III of the Constitution is itself a fundamental right. It is true that article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the ordinary processes of courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a court of lowest grade competent to try it. But the important question for our consideration is whether in exercise of its jurisdiction under article 32, this court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over fourteen years afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viduals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers. Taking into consideration that great harm done to the petitioner by the Government of Bihar, we are of the opinion that, as an interim measure, the State must pay to the petitioner a further sum of Rs. 30,000 (rupees thirty thousand) in addition to the sum of Rs. 5,000 (rupees five thousand) already paid by it. The amount shall be paid within two weeks from today. The Government of Bihar agrees to make the payment though, we must clarify, our order is not based on their consent. This order will not preclude the petitioner from bringing a suit to recover appropriate damages from the State and its erring officials. The order of compensation passed by us is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless until the end of his suit, the many appeals and the execution proceedings. A full-dressed debate on the nice points of fact and law which takes place leisurely in compensation suits will have to await the filing of such a suit by the poor Rudul Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 618. In the case reported in R.K. Jain v. Union of India AIR [1993] SC 1769 the honourable Supreme Court held that the Tribunals set up under articles 323A and 323B of the Constitution of India or under Act of Legislature are creatures of the statute and in no case can claim the substitutes of the High Courts. The Administrative Tribunal may be called a specialised court of law although it does not fulfil the criteria of law court as is ordinarily understood in as much as it cannot, like an ordinary court of law, entertaining suit on various matters including matter relating to the vires of the Constitution. In the case L. Chandra Kumar v. Union of India reported in [1997] 105 STC 618, the honourable Supreme Court held inter alia, . . . though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental as opposed to a substitutional role in this respect. So long as the jurisdiction of the High Courts under articles 226 and 227 and that of the Supreme Court under ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, powers and authority in relation to all matters of adjudication or trial of any disputes, complaints or offences with respect to levy, assessment, collection and enforcement of any tax under any specified State Act and of matters connected therewith or incidental thereto . Section 6 of this Act provides (i) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, in respect of a State Act, with effect from the date on which such State Act is specified in the Schedule referred to in section 5 all the jurisdiction, powers and authority exercisable immediately before that day by all courts including the High Court but excluding the Supreme Court of India for adjudication or trial of disputes or complaints or offences with respect to all matters of levy, assessment, collection and enforcement of any tax under any specified State Act and matters connected therewith or incidental thereto: Provided that where the matter relates to disposal of question of constitutional validity of any provision of any specified State Act, the matter shall be decided by a bench constituted of at least three members of which the Chairman shall be one. Notwithstanding anything ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd vests all such powers of High Court with its civil jurisdiction for the entire State in this Tribunal. No remedial measures against sealing are available in the West Bengal Sales Tax Act, 1994. The damages cannot be claimed in the appeal under section 51 of the Bengal Public Demands Recovery Act, 1913. This Tribunal enjoys the power of the High Court with its original civil jurisdiction excluding its power under article 227 and of judicial review of the Constitution of India as supplemental to the High Court of the State in respect of the State Acts specified in section 5 of the WBTT Act, 1987 and any matter connected therewith or incidental thereto. In the case reported in Basudeva v. Rex AIR 1949 All 513 it was held that the words, connected with must be considered to imply a substantial or direct connection and not a fanciful or highly problematic connection. In the case of M.A. Mohamed Ali v. Dr. Ramadoss reported in AIR 1966 Mad 441 the honourable court held that incidentally the matter which follows as a matter of course being necessary complements the main matter. As per the dictionary, a thing is incidental to another when it appertains to or follows on that other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to interfere therewith. In the interlocutory order passed on June 12, 2002 in the case it was observed, the certificate proceedings which admittedly had been started during the pendency of the appeal and the stay petition are dropped. Consequently, the order of the Certificate Officer for sealing the business premises is bad in law and it is set aside. In this order it is recorded that the learned State Representative, Mr. J.K. Goswami, submitted that when appeal cases were pending and specially stay petitions were there, the initiation of certificate proceeding was bad in law and it should be dropped. The damages as claimed is a consequence of the aforesaid illegal act of sealing. It cannot be said that the matter of sealing is connected and the consequence thereof is not connected. We should say that the consequence is incidental to the matter. Therefore the claim of damages is a matter connected with an/or incidental to the act of recovery of tax under the WBST Act, 1994 being a specified State Act. This Tribunal having power similar to the High Court's power under article 226 of the Constitution of India can award a token or interim damages or exemplary damages not bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttaching officer does not act under the proviso to rule 43, he may, at the instance of the judgment-debtor or of the decree-holder or of any other person claiming to be interested in such property, leave it in the village or place where it has been attached, in the custody of any respectable person (hereinafter referred to as the 'custodian'). Therefore after the order of attachment the Certificate Officer could take the custody of the immovable properties by sealing the same. In that event also, as per the provisions of proviso (d) to section 60, CPC, the books of accounts could not be attached. The mode of attachment of the immovable property is provided in rule 54 of Order 21, CPC which provides, (1) where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge. So sealing of an immovable property in the fact of this case is not permissible by law for execution of certificate of demands. We therefore find that the act of sealing the business place in execution of the certificate of demand is bad in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding was bad in law on the ground of pendency of the appeals and stay applications. (d)(i) The damages are claimed personally from respondent No. 3, Commercial Tax Officer, Esplanade charge, who claimed to have issued the notice for the demand of interest and then took extraordinary mode of recovery in a negligent manner without fully satisfying himself about the recoverability; from respondent No. 5, Certificate Officer, for his illegal act of sealing the business place and from respondent No. 6, State of West Bengal, as it is vicariously liable. Respondents Nos. 3 and 5 are the public offices. The persons who held these offices at the time of alleged commission of wrong may not hold these offices thereafter. So when the officers alleged to have committed the alleged wrongs, are not sued in person, awarding compensation personally cannot be considered. The applicants did not make out the case that they suffered loss for the issue of demand notices. The act of issuing demand notice has also no direct connection with the act of sealing. On fact, he did not take any extra mode of execution. (ii) Section 48 of the Public Demands Recovery Act, 1913 provides, Every Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer. The Certificate Officer had to act in accordance with the provision of law. The act of sealing done by the Certificate Officer is found illegal, i.e., unauthorised. When the act of an agent is unauthorised, the liability of the principal is not direct, it is vicarious. Where the agent acts in excess of the authority while discharging the duty entrusted by the principal, the principal cannot avoid the civil liability for the wrong caused by his agent. So, respondent No. 6, State of West Bengal, is liable for the damages payable due to the wrongful act done by respondent No. 5, Certificate Officer. The applicant did not assert any actual loss and hence actual damages cannot be awarded in exercising the civil jurisdiction as aforesaid. The act of sealing the business place preventing the applicant access to his books of accounts without recourse to the provisions of the section 67 of the WBST Act, 1994 and from carrying business thereof obviously lowered the applicant's prestige in the society and also caused financial loss to him. This act is also an infringement of the applicant's fundamental right guaranteed by the Constitution of India. The circumstances suggest awar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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