9911796707
TMI Blog2014 (12) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of mandamus directing to respondents pay the damages @ Rs. 5,000/- per day from the date of 30.6.2014. iv) issue any other suitable writ, order or direction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. v) Award the cost of the writ petition in favour of the petitioner. 3. Briefly stated the facts of the present case are that the petitioner is a transporter as well as owner of a tanker No. UP85V9636. Bitumen was loaded in the aforesaid tanker from the Indian Oil Corporation, Mathura Refinery in the evening of 27th June, 2014 for transportation to M/s Concast Infratech Ltd. Bhopal (Madhya Pradesh). Thereafter some mechanical defect developed in the tanker which was repaired in the Chaudhari Works Shop, Delhi bypass Road, Chaudhari Market, Mathura between 28.6.2014 to 30.6.2014, as per copies of bills collectively filed as Annexure No.1. Thereafter the tanker proceeded in the night of 30.6.2014. The aforesaid tanker was intercepted near Farah by the Assistant Commissioner, Commercial Tax, Shift III Mobile Squad, Mathura and after about two hours a detention memo was issued on Ist July, 2014 at about 1 A.M. The tanker was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered in the office of the R.T.O. Mathura of which last four digits is "9636". However, the respondent No.2 rejected the application of the petitioners vide order dated 8th July, 2014 after recording a finding that vehicle No. 9636 is entered in the records of the toll plaza. On the aforesaid basis he drawn inference that the tanker in question down loaded bitumen at some place and thereafter it came back and again loaded bitumen which was being illegally transported under the cover of the papers of earlier transaction with an intent to evade payment of tax. The respondent No.2 did not verify the complete number of the vehicle with reference to the information received. Aggrieved with the aforesaid order, the petitioner preferred Second Appeal No. 223 of 2014 before the Member, Commercial Tax Tribunal Bench-I, Agra which was dismissed by the impugned order dated 16th July, 2014. Aggrieved with these orders the petitioner has filed the present writ petition for the relief as quoted above. 4. The writ petition was heard on 7th August, 2014. After noticing the facts in brief and submissions of the learned counsel for the parties, respondents were directed to file counter affidavit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till it is released. 6. Respondents pray for and are granted four days' time to bring on record the facts found in the inquiry made from Indian Oil Corporation, Mathura with regard to the loading of the goods in the tanker in question. They shall specifically explain the aforementioned facts found from the records of this writ petition and the submission of the petitioner on damages. 7. Put up on 20th August, 2014. Personal appearance of both the above noted officers is exempted till further order." 5. On 20th August, 2014 a supplementary counter affidavit on behalf of State respondents was filed by Sri B.P. Singh, Assistant Commissioner, Commercial Tax, Sector V, Mathura in which he stated in paragraph No.2,3,7 and 8 as under: "2. That an enquiry has been made by the deponent from Indian Oil Corporation vide letter dated 16.8.2014. 3. That on enquiry it has been received by the Indian Oil Corporation that Vehicle No. UP85V/9636 was loaded from our office on 27.6.2014 and thereafter till 30.6.2014 the said tanker was not loaded. 4. That in between 27.6.2014 to 30.6.2014 only three bitumen tanker have been loaded from this office whose last four digit number 9636 are as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes that while considering the matter the Government shall take into consideration the view expressed by Hon'ble Supreme Court in the Case of N. Nagendra Rao and Company Vs. State of Andhra Pradesh 1994 (6) SCC 205 para 8, 9, 13 to 20, 25 and 29 and the Division Bench Judgement of this Court in the Case of Ram Singh and others Vs. State of U.P. and others 2000 U.P.T.C. 865 para 6, 7, 8 and 15 and also the judgement of Hon'ble Supreme Court in Lucknow Development Authority Vs. M.K. Gupta, A.I.R. 1994 SC 787 para 8 and 11 and the provision of Government (Liability in Tort) Act, 1967 published in the extra-ordinary gazette of India part 2, Section 2 dated 22nd May, 1967 which lapsed. Sri Jayant Banerjee, learned Central Government Counsel also seeks time to obtain instructions on the line stated by the learned Additional Advocate General. As jointly prayed by learned Additional Advocate General and learned Central Government Counsel, put up on 8th September, 2014 for further hearing. As interim measure as suggested by the learned Additional Advocate General, it is provided that the goods in question and Tanker no. U.P. 85 V 9636 shall be provisionally released forthwith with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Authority Vs. M.K. Gupta, A.I.R. 1994 SC 787 para 8 and 11 and the provision of Government (Liability in Tort) Act, 1967 published in the extra-ordinary gazette of India part 2, Section 2 dated 22nd May, 1967 which lapsed. Sri Jayant Banerjee, learned Central Government Counsel also seeks time to obtain instructions on the line stated by the learned Additional Advocate General. As jointly prayed by learned Additional Advocate General and learned Central Government Counsel, put up on 8th September, 2014 for further hearing. As interim measure as suggested by the learned Additional Advocate General, it is provided that the goods in question and Tanker no. U.P. 85 V 9636 shall be provisionally released forthwith without any security but subject to undertaking to be furnished before the respondent no. 4 by the petitioner that he shall not transfer, alienate or dispose of in any manner the tanker in question till further order of this Court in this revision. Learned Additional Solicitor General is also requested to assist in the matter on next date fixed." 8. On 8th September, 2014 this Court passed the following orders: Sri Ashok Kumar Pandey, learned Addl. Advocate G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents usually cause harassment to transporter and dealers to extract money for their personal gains and such type of illegal actions are the source of corruption. He, therefore, submits that as per undertaking given by the learned Additional Advocate General, the State Government must issue some guidelines or enact some provision to protect and compensate honest and genuine transporters/dealers against arbitrary, illegal and negligent actions of the authorities. He relied upon the judgment of Hon'ble Supreme Court in the case of N. Nagendra Rao and Company Vs. State of Andhra Pradesh 1994 (6) SCC 205, Lucknow Development Authority Vs. M.K. Gupta AIR 1994 SC 787 and Division Bench Judgment of this Court in the case of Ram Singh and others Vs. State of U.P. and others 2000 U.P. T.C. 865 Submissions on behalf of State Respondents 11. Learned Additional Advocate General fairly submits that the detention of the tanker and the seizure of bitumen in question by the State authorities cannot be justified but he submits that it was bonafidely done and the tanker has already been released in compliance to the order dated 28th August, 2014. He, therefore, submits that no further o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On verification from the Indian Oil Corporation, Mathura Refinery, Mathura it was found by the authorities concerned that bitumen in the tanker in question was loaded as per invoice accompanying it and thereafter it was not loaded from the Mathura Refinery till 30.6.2014. The bills of repair of the tanker in question in support of proof that it was under repair from the night of 28.6.2014 till 30.6.2014, were not even verified by the authorities concerned so as dispute its genuineness. In the supplementary counter affidavit dated 20.8.2014 the Respondents have even admitted that the tanker in question was detained and bitumen was seized without any basis. 15.In para 8 of the aforesaid supplementary counter affidavit dated 20.8.2014 the respondents stated that the application of the petitioner to unload the bitumen from his tanker was rejected on 24.7.2014 and the petitioner was directed to remove the tanker from the body of the engine and then to take away his vehicle. In my opinion even if such an order was actually passed by the respondent No.4, yet it was a complete nullity for reasons that firstly no power is conferred under the Act and the Rules to pass such orders, secondly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under proviso to Section 48 (7) of the Act dated 8.7.2014 and the impugned order of the Commercial Tax Tribunal, Bench-I, Agra dated 16.7.2014 passed in IInd Appeal No. 223/2014 cannot be sustained and are hereby set aside. The provisional release of the tanker and bitumen in question by order dated 28th August, 2014 is hereby confirmed. Any undertaking furnished by the petitioner before the Respondent No.4 pursuant to the order dated 28th August, 2014 is discharged. 17.Now the question arises that what amount of compensation may be awarded to the petitioner for illegal detention of the tanker in question. In the case Ram Singh and others (supra) Division Bench of this Court held in paragraph Nos. 7,13 and 15 as under: "7. In the same decision the Supreme Court in para 11 observed as under: "Today the issue thus is not only of award of compensation but who should bear the burnt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendmous change with passage of time and change in socio-economic outlook. The authority empowered to function under a Statute while exercising power discharges public duty. It has to act to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries." 13. In our opinion the time has come when these illegalities by the authorities of detaining and seizing the must be strongly checked, otherwise the law will continue to be violated by such authorities. 15. We are inclined to grant compensation to the petitioners in these cases instead of relegating the petitioner to file Civil Suits as we want to stop the illegal practice of detaining and seizing of the vehicle by the U.P. Trade Tax Authorities. Everyone knows that a civil suit often takes ten years or more to decide and hence we are not relegating the petitioner to that remedy, however, Sri Pradeep Kumar Gupta, learned Additional Chief Standing Counsel requested that he will himself speak to the Commissioner, Trade Tax, U.P. and convey the displeasure of this Court and the Commissioner will ensure that these illegalities do not occur in future. We accordingly direct the Commissioner, Trade Tax the charge sheet the officials who had committed these illegalities and proceed Departmentally against them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department of Revenue, Ministry of Finance, Government of India, New Delhi is considering for making appropriate laws/guidelines/instructions which may have a check on the arbitrary exercise of power by authorities so as to minimise the possibility of harassment of transporters and dealers in general and to facilitate free flow of trade and commerce. Harassment and injury to persons particularly a person of poor class of society, by officers/employees of governments by their arbitrary, negligent and illegal actions can be effectively checked provided there is a law providing efficacious remedy for consequential liability of such officers/employees on one hand and on the other hand appropriate compensation to aggrieved person. Such a law/government order may also provide for speedy disposal of such matters. This shall also effectively check corruption. Learned Additional Advocate General for the State Government as well as the central Government Counsel have stated that the State Government as well as Central Government is considering to enact a law or to issue a government order for this purpose. Under the circumstances this Court hopes and trusts that the State Government as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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