N.A. Raju vs The Deputy Commissioner

K. Vinod Chandran, J.—The petitioner has filed the above writ petition challenging the sale notices issued at Exhibits P11 and P12. The petitioner, in fact, was aggrieved with the penalty orders passed for the years 2005-06, 2006-07, 2007-08 and 2008-09. The petitioner contends in the writ petition that, appeals were filed from the said penalty orders, as is evidenced from Exhibits P1 to P4. Interlocutory applications for urgent hearing of the appeals were also filed, as is evidenced from Exhibits P5 to P8, on 14.11.2011. The petitioner sought for expeditious consideration of the appeals by a writ petition, numbered as W.P.(C).31507 of 2011. A learned Single Judge of this Court, by judgment dated 25.11.2011, directed consideration of the stay petitions filed in the appeals, expeditiously, at any rate, within one month from the date of receipt of a copy of the said judgment. The petitioner contends that Exhibit P10 order was passed and the conditional order could not be complied with by the petitioner. Now, Exhibits P11 and P12 revenue recovery proceedings have been initiated and the petitioner, in the present writ petition, prays that the appeals filed may be considered and in the meanwhile the auction proceedings initiated may be stayed.

The learned Government Pleader on instructions, however, submits that time and again when revenue recovery proceedings were initiated, the petitioner had approached this Court and interdicted the same; but, however, had not complied with the conditions. The learned Government Pleader also refers specifically to W.P.(C).No.31935 of 2013 filed by the petitioner, inter alia seeking disposal of the stay petitions filed and the delay in final hearing of the appeals. This Court, on taking up the matter, had in fact passed an interim order, as is indicated in the judgment:

"The learned Government Pleader submits on instructions that Exts.P2 to P7 I.As preferred by the petitioner for stay were considered and interim orders were passed pursuant to the verdict passed by this Court in W.P.(C) No. 31507/2011 dated 25.11.2011. But the condition imposed so as to have the benefit of interim stay was not satisfied. The factual position in this regard is suppressed in this writ petition, submits the learned Government Pleader.

The said version is sought to be rebutted by the learned counsel for the petitioner pointing out that, all the appeals have been numbered in the year 2012 as discernible from Ext.P8 notice of hearing and if this be the position, the I.As could not have been considered and disposed of in the year 2011 as now contended by the respondents. Respondents are directed to file a statement pointing out the facts and figures. Post along with J.Ps in W.P.(C) No. 31507/2011 on 03.03.2014. Maintain status quo till such time".

However, later, on the filing of a statement, this Court found that despite the categoric assertions as to the sequence of events made by the petitioner, the factual position was to the contrary. The operative portion of the judgment of this Court in W.P.(C).No.31935 of 2013 is extracted hereunder:

"3. A statement has been filed from the part of the second respondent, pursuant to above order, categorically asserting the sequence of events as to the writ petition filed by the petitioner and the verdicts passed in this regard. Copies of the judgments in W.P.(C) Nos. 31507 and 31543 of 2011 have been produced as Annexures R2(a) and R2(b). The factual position is that, interim stay was granted by the appellate authority ie. the first respondent, asking the petitioner to deposit 1/3rd of the amount due and to furnish security for the balance in respect of KVATA Nos. 304/2012 to 307/2012. It is also pointed out that copies of the stay orders were sent by post on 11.04.2014, which have been produced as Annexures R2(c) and R2(d). It is also asserted that the petitioner has not complied with the condition, nor has he brought it to the notice of this Court while filing the writ petition. It is further pointed out that the appeals preferred by the petitioner are heard in part.

Considering the facts and circumstances, this Court finds that the petitioner has not approached this Court with clean hands. Interference is declined and the Writ Petition is dismissed with a cost Rs.5,000/- (Rupees five thousand only) to be paid to the Kerala State Mediation & Conciliation Centre, which has to be effected within one month'' failing which, it will be open for the Registrar General to issue necessary certificate to the beneficiary so as to have the same caused to be realized by way of appropriate proceedings. Serve a copy of the verdict to the Director, Kerala State Mediation & Conciliation Centre as well".

Hence, the writ petition was dismissed imposing costs on the petitioner, but, however, leaving open the remedy of the petitioner to approach the appellate authority for redressal of the grievances. The said judgment was passed on 04.03.2014. It is depressing to note that the filing of the said proceedings and the judgment in the said proceedings have not been disclosed herein.

The learned counsel appearing for the petitioner herein, who also appeared for the petitioner in the earlier writ petition, would contend that the earlier writ petition has absolutely no relevance, since this is on a separate cause of action, being Exhibits P11 and P12 sale proceedings. It is to be noticed that the appeals which were sought to be expedited and produced herein as Exhibits P1 to P4, are the appeals which were the subject matter in Exhibit P9 judgment and the judgment passed in W.P.(C).No.31935 of 2013. At the earlier point, when the petitioner was urging that Exhibit P9 was not complied with, the petitioner did not disclose to the Court that already conditional orders were passed therein, which order is presently produced as Exhibit P10. This Court finding that the petitioner had not come forward with clean hands, dismissed the writ petition with costs.

In the present case, though the cause of action is different in so far as the recovery proceedings in Exhibits P11 and P12, the petitioner had an obligation to bring to the notice of this Court the dismissal of the earlier writ petition. Considering the fact that consistently petitioner has been suppressing facts before this Court, it has to be deemed to be an attempt to controvert the due process with a deliberate intend, which this Court cannot countenance. Considering the entire circumstances and also going through the writ petition W.P.(C).No.31935 of 2013 and the judgment, which is extracted herein above, this Court finds that the petitioner has deliberately attempted an abuse of process of this Court. The petitioner, hence, would be imposed with exemplary cost of Rs.25,000/- [Rupees twenty five thousand only], which shall be paid to the Kerala State Mediation and Conciliation Centre. If payment is not effected within a month, the Registrar General shall issue necessary certificate to the beneficiary so as to realise the same by way of appropriate proceedings, including revenue recovery. Registry shall forward a copy of the judgment to the Director, Kerala State Mediation and Conciliation Centre.

However, it is to be noticed that on 04.03.2014 when the earlier writ petition was disposed off, the Government had submitted that the appeals filed by the petitioner at Exhibits P1 to P4 were partly heard. Even now orders have not been passed. Hence, though the petitioner has disentitled himself from any equitable consideration, the sale scheduled as per Exhibits P11 and P12 shall, for the time being, stand adjourned; to meet the ends of justice. The 1st respondent, who is said to have heard the appeals, shall dispose of the same within two months from the date of receipt of the judgment. Such disposal shall be made de hors the administrative Circular brought out by the Commissioner of Commercial Taxes; that appeals from penalty orders shall be heard by the Deputy Commissioners having jurisdiction over the area; taken note of by this Court in other matters. The petitioner if not already fully heard, shall be afforded an opportunity for personal hearing on 14.08.2014, when he shall appear before the 1st respondent at 11.00 a.m. The sale and recovery shall depend upon the orders passed in appeal.

Writ petition disposed off, imposing costs as above on the petitioner.