Pawan Kumar vs State of U.P.and Others

M. C. Agarwal, J.—By this petition under Article 226 of the Constitution of India, the petitioner challenges an assessment order dated 1671981 passed by the Khandsari InspectorcumAssessing Officer under the U.P. Sugarcane (Purchase Tax) Act, 1961 and an appellate order dated 18111981 dismissing the appeal against the first mentioned order and also challenge the citation dated 1521997 issued in the recovery proceedings of the tax levied. Counter and rejoinder affidavits have been exchanged.

I have heard Sri KM. Garg, learned counsel for the petitioner and Sri K.M. Sahai, learned counsel for the respondents.

As is evident, the assessment and the appellate orders were passed as far as back as 1981 and this petition was filed in February, 1991 i.e., after a lapse of a little more than 16 years. The petitioner''s case is that he alongwith his brother Khhechhru Mai were carrying on business in partnership in the name and style of M/s Manglik Sugar Industries in village Salempur Distt, Moradabad where they had established a sugarcane manufacturing unit. According to the petitioner, they had two distinct and separate nonhydraulic sulphitation units of different sizes established at different times for which different licence fees were also paid. For the year 198081 to which the dispute relates, the petitioner opted to pay the sugarcane purchase tax on the assumed basis for which it moved application dated 11111980 in the prescribed Form XIII under Rule 13A of the U.P. Sugarcane (Purchase lax) Rules, 1961 in which it was stated that out of two crushers only one of the size of 13� x 18� with 6 rollers will be operated. The option was accepted by the authorities and was acted upon by the parties throughout the crushing season. The unit was inspected by the Khandsari Inspectors and other officers several times during the crushing season and it was always noticed that only one crusher was being operated and the other crusher that was of the size of 12� x 18� was not being operated. Copies of the various Inspection notes have been annexed to the writ petition as Annexures2A to 2J. Sugarcane purchase tax was, thus, paid from time to time on the basis of the one crusher and during the crushing season, no objection was raised by the authorities. However, the Khandsari Inspectorcumassessing officer Respondent No. 4 without giving any notice or opportunity of hearing to the owner of the unit i.e., M/s Manglik Sugar Industries passed an order dated 15101981 levying the additional purchase tax in the sum of Rs. 38,674.57 paise with regard to the second power crusher taking the view that since the licence was for two power crushers, purchase tax will be levied in respect of both of them. It is claimed that the licence fee for the other crusher was paid only to keep the licence alive and avoid its lapse, the partnership firm Le., Manglik Sugar Industries preferred an appeal against the assessment order dated 1671981. Since the departmental authorities were pressing for the realisation of the aforesaid amount even during the pendency of the appeal and issued a notice that the question of renewal of the licence would be considered only after the payment of the tax, the firm M/s Manglik Sugar Industries filed a writ petition No. 803/81 in this Court. The writ petition was admitted and an interim order dated 27111981 was passed in favour of the firm. The appeal of the firm was, however, dismissed by the Asstt. Sugar Commissioner Respondent No. 3 by order dated 18111981. On the dismissal of the appeal, Khhechhru Mai, the brother of the present petitioner and the partner of the said firm, contacted his counsel in Writ Petition No. 803/81 who advised him that the judgment dated 18111981 is not required to be challenged because if the W.P. No. 803/81 was decided in his favour, the judgment dated 18111981 will become redundant. According to the petitioner because of the disputes amongst the partners, the unit ceased to function from 3131991 and Khhechhru Mal died on 29th of April, 1995. On 1521997 the collection amin came to the petitioner and demanded a sum of Rs. 1,21,673 plus collection charges towards the amount of the purchase tax for the year 198081. He then rushed to Allahabad to enquire into the matter and came to know that the senior counsel Sri S.N. Misra who was engaged in the aforesaid writ petition had died and the said writ petition No. 803/81 had been dismissed by this Court on 2071995 without entering into the merits. The petitioner claims that he had/ no knowledge of the dismissal of the writ petition prior to 1721997 and the counsel never informed about the decision dated 2071995. It is claimed that the assessment order dated 1671981 is arbitrary and illegal and was passed without affording any opportunity of hearing. Similarly the appellate order is bad in law.

In the counteraffidavit filed on behalf of the respondents, it is stated that the licence that was issued to the firm M/s Manglik Sugar Industries was in respect of two power crushers and 7 bels as a single unit and the option in the Form XIII was filed in respect of the said unit mentioning that it had two crushers one of the size of 13� x 18� with 6 rollers nonhydraulic and the other 12� x 18� with 3 rollers nonhydraulic. It is contended that Form XIII having been filed in respect of the two crushers the tax was payable for both of them and, therefore, assessment was rightly made and the appeal was rightly dismissed. It is claimed that earlier writ petition of M/s Manglik Sugar Industries being W.P. No. 803/81 was dismissed on 2071995 and a second W.P. No. 828/96 filed by Vivek Agarwal S/o Late Khhechhru Mal aforesaid was also dismissed on 13121996, a copy of the later judgment has been annexed to the counteraffidavit as Annexure CA1. It is claimed that this is the third writ petition on the same ground and is, therefore, liable to be dismissed.

The dispute is regarding the sugarcane purchase tax which is levied under Section 3 of the U.P. Sugarcane (Purchase Tax) Act, 1961, Section 3(la) of the Act provides for the levy of tax on the assumed purchases of sugarcane thereby making it unnecessary to have recourse to the procedure for assessment on determination of actual purchases. Rule 13A of the U.P. Sugarcane (Purchase Tax) Rules, 1961 provides for the procedure of the exercise of option and the other necessary requirements. The said Rule is as under:

�13A. Payment of tax by owner exercising option.The option referred to in proviso to subsection (1) of Section 3 of the Act (hereinafter called �the option�) shall he exercised by the owner of a unit byway of declaration in Form XIII, which shall be sent under registered cover to the Sugar Commissioner, the Assistant Sugar Commissioner and the Assessing Officer so as to reach them 15 days before the start of the unit. In such declaration the owner shall specify the date from which he decides to start the working of his unit:

Provided that where the owner decides to start the working of his unit from any date earlier then the date specified under this subrule he shall, before he starts the working of his unit, give intimation to this effect, in writing and under registered cover at least one week before the date from which he decides to start the working of his unit to the Sugar Commissioner, the Assistant Sugar Commissioner and the Assessing Officer:

Provided further that where the owner decides to start the working of his unit from any date subsequent to the date specified under this subrule, he shall give an intimation to this effect, in writing and under registered cover to I he Sugar Commissioner, the Assistant Sugar Commissioner and the Assessing Officer, at least one week before the date specified.

(1A) The owner of a unit shall give an intimation in writing of the date of which he decides to close the working of the unit. It shall be given under registered cover at least one week before such date to the Sugar Commissioner, Assistant Sugar Commissioner and the Assessing Officer:

Provided that where the owner decides to close the working of his unit from any date earlier than the date specified under this subrule (1A) he shall, before he closes the working of his unit, give an intimation to this effect in writing and under the registered cover at least one week before the date from which he decides to close the working of his unit, to the Sugar Commissioner, Assistant Sugar Commissioner and the Assessing Officer:

Provided further that where the owner decides to close the working of his unit from any date subsequent to the date specified under subrule (1A), he shall give an intimation to this effect, in writing and under registered cover, to the Sugar Commissioner, the Assistant Sugar Commissioner and the Assessing Officer, at least one week before the date specified.

(2) Where the owner of a unit exercises the option, the quantity of sugarcane on the purchase of which he shall be liable to pay the tax shall be assumed on monthly basis according to specification laid down to Schedule 1.

Provided firstly that in the first month of the working of the unit in any assessment year, the quantity of sugarcane for the purpose of payment of tax shall be assumed from the date specified in declaration made under subrule (1) or changed under the first of the second proviso that subrule, as the case maybe:

Provided secondly that in the last month of the unit in any assessment year, the quantity of sugarcane for the purposes of payment of tax shall be assumed upto the date which is intimated by the owner of a unit under subrule (1A), or charged under the first or the second proviso to that subrule, as the case may be and further that if the owner of a unit is found to have closed his unit after the specified or changed date under subrule (1 A), the quantity of sugarcane for the purpose of payment of tax shall be assumed for the whole of such month:

Provided thirdly that where the owner of a unit is found to have started the working of the unit before the date specified or changed under subrule (1), the quantity of sugarcane for the purpose of payment of tax shall be assumed for the whole of such month.

Explanation I The quantity of sugarcane for the purpose of payment of tax, for a part of any month, shall be proportionately assumed according to the specification laid down in Schedule 1.

Explanation H For the purpose of payment of tax in respect of a unit, the owner of which exercises option a month shall be deemed to be a thirty days.

(3) The owner of a unit exercising option shall pay the lax by the twenty fifth day of the month immediately preceding the month for which the lax is due.

(4) The owner of a unit exercising option shall, atleast one week before the closure of the unit for the assessment year, obtain from the Assessing Officer a certificate of clearance of the purchase tax in Form XIV and forward one copy each thereof to the Collecting Authority and the Secretary of the Cane Development Council concerned.�

The option has to be preferred in Form XIII prescribed under the Rules and the tax has then to be paid on the monthly assumed purchases of sugarcane as specified in Schedule I which is as under:

SCHEDULE 1

(Rule 13A)

Category of the Size of power Hydraulic non Average

Power crusher crusher in category Hydraulic spring monthly

loaded device assumed

purchase of sugarcane (quintals) as per capacity.

1 2 3 4

A Not exceeding 20 Hydraulic non 3,500

Cm x 25.5 cm. Hydraulic

B Exceeding Ditto 4,500

20 cm. x 25.5

cm. but not

exceeding 25.5

x 30.5 cm.

C Exceeding 25.5 NonHydraulic 7,000

cm. x 30.5 cm. Hydraulic or 11,500

but not exceeding non Hydraulic

28 cm x 35.5 cm. with spring loaded

Device

D Exceeding 280 cm. NonHydraulic 12,500

X 35.5 cm. but not Hydraulic or non 18,000

Exceeding 33 cm. Hydraulic with

X 46 cm. spring loaded

Device.

E Exceeding 33 cm. NonHydraulic 21,000

X 46 cm. Hydraulic or Non 35,000

Hydraulic with

Spring loaded

device

Note(a) For every extra Meerut type bel add 800 quintals to the quantity shown in column 4 above.

(b) For every extra Rohilkh and type bel add 1,600 quintals to the quantity shown in the column 4 above.

(c) The above specification relates to a unit comprising one powercrusher only.

(d) Where a unit comprises more than one powercrusher of the same category. the specification given in column 4 shall apply in such multiple thereof as there are powercrushers setup in the unit.

(c) Where a unit comprises more than one powercrusher of different categories, the quantity of assumed purchases of cane shall be worked out separately for each category according to column 4 above and the quantities thus worked out shall be totaled.�

Admittedly the petitioner exercised his option by sending the same in the prescribed Form No. XIII on 11111980. A copy of the same has been annexed to the writ petition as Annexure1. In this option it was stated that the unit had two power driven crushers of the size of 13� x 18� and 12� x 18� and 6 Rohilkh and type bels. The option contained a note that only one crusher of the size 13� x 18� will be operated during the year. Thus, the option clearly indicated that the owner was to run only one sugar crusher and intended to pay tax on the assumed purchases of sugarcane of one crusher only. This is also evident from the subsequent conduct of the assessee and the authorities concerned in as much as the assessee i.e., M/s Manglik Sugar Industries paid the tax on the basis of one crusher only and never during the crushing season the authorities raised any objection. The petitioner has annexed to the writ petition copies of ten inspection notes between the period 30111980 to 1941981. The copy of the inspection note dated 30111980 which is probably the first inspection note in that year, is Annexure2G to the writ petition. It states that only one crusher of the size of 13� x 18� 6 rollers hydraulic was in operation and the other power crusher of the size 12�x 18� has not been operated. It further mentions that the second crusher had only one roller and the two other rollers were lying dismantled. It also mentions that in between the two crushers, there was a distance of 150 feet. It also describes the said crusher as a foundation on which there was a crusher of 12� x 18� which at the time of the inspection had only one roller and the two other rollers were lying dismantled on the ground. This inspection note clearly established that only one crusher of the size of 13� x 18� was in a state of complete installation and it is only that crusher that could have been worked. This inspection note also states that the unit had not yet started functioning and would start functioning from 1121980 as already intimated.

The next inspection note is dated 6121980. This inspection was thus carried out in the very first week of (he commencement of the crushing by this unit. The inspection note mentions that the crusher of the size of 12� x 18� had only one roller and was not being run. It also makes a mention about the payment of the tax amounting to Rs. 11,520 for the month of December. Then there are other inspection notes dated 26121980 (Anncxure2F), 1911981 (Annexure2J), 621981 (Annexure21) 1921981 (Anncxurc2D), 2521981 (Annexure2H), 831981 (Annexure 2C), 141981 (Annexure2B) and 1941991 (Annexure2A). The inspection note dated 1941981 is the last inspection note which states that the crushing had been stopped from 1741981. It also mentions that the unit was working under the option and purchase tax upto 2041981 had been paid vide challan No. 13 dated 1541981. All the inspections consistently note that the power crusher of 12� x 18� had not been used and it was not even connected to any source of power. The inspection note dated 26 121980 Annexure2F also states that the crusher of 12� x 18� was in a dismantled state as its two rollers have been knocked down and were lying in the ground. It is important to note that the respondents in their counteraffidavit have not challenged the authenticity of the inspection notes nor have they alleged that the second crusher was also in a workable state during the crushing season or was actually used. The option was certainly in a statutory ''form and mentioned that there were two crushers but there was a note also therein which stated that the only one crusher of the size 13� x 18� would be worked. This clearly indicated that the owner of the unit submitted its option for one crusher only of the size 13� x 18� and wanted to pay tax on that basis. The circumstances of this case show that the concerned authorities also took the option in the same light and did not ever say that the petitioner could not opt for one of the two crushers and its option was, therefore, not in accordance with law. They never rejected the option nor ever during the crushing season raised any objection about the payment of tax by the owner and never issued a demand in respect of the claim that has been raised later on. Form XIII on its receipt has to be examined by the Khandsari Inspectorcumassessing Officer and he has to record a certificate thereon in the following manner:

�Verified that the details of the machinery as given above are correct.�

The Rules imply that on receipt of Form XIII, the Khandsari Inspector must scrutinize the same and inspect the spot and in case the option is not acceptable, must intimate his decision to the owner of the unit either before or soon after the commencement of the crushing season, so that the unit owner may consider the matter and take necessary action either by filing a fresh option or by keeping necessary records that would be necessary for payment of tax on the basis of actuals. In Ganga Saran Gajendra Singh v. Assn. Sugar Commissioner, (Writ Petition No. 1984 of 1988) decided on 13291, this Court held that it is not right and proper to cancel the option exercised by the crushers under Rule 13A after lapse of a long time . after the crushing season is over. This view was followed in Ka/van Singh v. Khandsari Nirikshak, (Writ Petition No. 1367/ 88) decided by a Division Bench on 8101991). In Writ Petition No. 421 of 1998 Charan Singh & Sana v. Asstt. Sugar Commissioner , decided by me on 141998, also a similar situation came for consideration. In that case the option for the year 199697 was set at naught by a succeeding Khandsari Inspector by an order dated 26th August, 1998 on the ground that the machinery installed was different than what was mentioned in Form XIII and it was inter alia, contended on behalf of the respondent authorities that an option can be rejected at any time if it is found to be not in order. This is how I negatived this contention:

�The contention of the respondents that an option can be rejected at any time is untenable. If such a ''contention is accepted an Khandsari Inspector is allowed to open up old matters it would flung the gates of corruption wide open and made the life of a tax payer absolutely insecure. Form XIII in which an option is exercised requires the dealer only to mention the number of power crusher with size. It does not require the owner of a sugar unit to mention all the details of the machinery such as whether it will be a spring loaded device or not. Then the details have to be verified by the Khandsari Inspectorcumassessing Officer and he has to record a certificate on Form XIII itself in the following language:

�Verified that the details of machinery as given above are correct.�

Thereafter, the form has to be forwarded'' to the Sugar Commissioner. All this having been done, it is not open to the Khandsari Inspector after allowing the dealer to act in accordance with the option to take a round about turn and reject the option and proceed to make an assessment. If at all the option was wrongly accepted by the Khandsari Inspector, the remedy lay in a revision to the Sugar Commissioner in terms of Section 3B and that power could be exercised only within six months. In the present case, as is admitted, the erstwhile Khandsari Inspector had accepted the option and the same having been forwarded to the Sugar Commissioner, it was not open to his successor to reject the same and start action for making an assessment. In my view, therefore, the impugned orders are without jurisdiction and this writ petition deserves to be allowed.�

Thus, the option having been accepted and acted upon by both the parties an there being no fraud and collusion, it is not permissible to ignore the option or to give it a different meaning. In the present case, the authorities went to give the option a different meaning that it is for two crushers while the facts show there was consensusadidem, between the parties earlier that it was only for one crusher.

The contention of the respondent has been that since the licence was for two crushers, the owner could not have submitted an option only for one. Firstly there is no provision either in the Act or in the Rules which debars an owner from making an option in respect of one crusher when he does not want to use the other one. If the crusher intended not to be used is in a workable condition, the authorities can seal the same ensuring that same may not be clandestinely used and if it is lying dismantled as in the present case, no problem at all arises. In any case on the receipt of the option such things must be examined and taken note of without any delay whatsoever, so that the owner is not taken unawares and has a chance of taking remedial steps in time. The inspection note dated 1911981, copy of which is Annexure2J to the writ petition, shows that this was an inspection by the Asstl. Sugar Commissioner accompanied by the three Khandsari Inspectors. This inspection note too says that the second crusher (12� x 18�) was not used and was not linked to any source of power. It also mentions that the Khandsari Inspector told the Asstt. Sugar Commissioner that in his option, the owner had noted that only one crusher would be used and the crusher of 12� x 18� would not be used. Here also the Asstt. Sugar Commissioner did not Rule 1 I hat the option was invalid or was to be treated for both the crushers and did not req uire the owner to pay additional tax. He merely noted that this is a legal matter on which the Government instructions should be sought. Yet no instructions from the Government are shown to have been sought before making the impugned assessment.

The learned Standing Counsel placed reliance on a Full Bench decision of this Court in ''M/s Satish Prakash Ajai Kumar v. Asstt. Sugar Commissioner, \\ 980 U.P.T.C. 64, to contend that the owner was obliged to give the option for the entire unit. The facts of that case were different. The owner in that case had three power crushers and had filed an option for all of them. He also started his crushing with all the three crushers and it was during the crushing season that he shut down one of the crushers and still later shut down another crusher and only one crusher worked till the unit was finally closed. It was in these circumstances that the Full Bench held that the owner had to pay taxaccording to the option for all the three crushers. The case of M/s Om Prakash v. Slate of U.P., 1984 U.P.L.B.E.C. 1421, is substantially similar to the one now before me. In that case also the owner had two crushers and had mentioned in the option that the unit would work with one crusher only and in that case also the Unit was inspected frequently by the Khandsari Inspector and only one crusher was found working and the other crusher was lying sealed. It was, therefore, held that the owner could not be taxed in respect of the other crusher. In the case in hand, as noted above, the other crusher was not even in factual existence as it was lying knocked down or dismantled.

In my view, therefore, the impugned assessment dated 1671981 was illegal and had no legal basis for raising a substantial demand of Rs. 38,634.67 paise and the dismissal of the appeal was also improper.

Now comes the question of laches on the part of the petitioner. No period of limitation is prescribed for filing a writ petition under Article 226 of the Constitution of India but the Courts have imposed upon themselves a Rule 1 that a writ petition should be filed without any delay and normally within a period of 90 days. This 90 days is also not a rigid and inflexible period. In Vijai Raja Sindhiya v. Stale of U.P., AIR 1986 SC 756, it was observed by the Hon''ble Supreme Court that there was no period of limitation for filing a writ petition against any executive action. Ordinarily the writ petitions arc expected to be filed without any laches. In that case, the writ petition was not filed within 90 days and was, therefore, dismissed by the High Court. The writ petition was, however, filed within four months and the Hon''ble Supreme Court held that the dismissal of the writ petition on the ground of limitation was improper.

In Kissen v. Kally Prosanna, (1906) ILR 33 Cal. 633, Woodroffe J, observed as under:

�On the whole, the tendency of the Courts is to discourage the pica of laches, unless somebody has been damnified by it, and, as in this country, the period of limitation enacted by the statute is generally very short, there is the less need for the application of the equitable doctrine relating to delay. In my opinion delay is not material so long as matters remain in status quo and it does not mislead the defendant or amount to acquiescence. It must be shown that the delay has prejudiced the defendant. To operate as a part of relief, the delay should be such as to amount to a waiver of the plaintiffs right by acquiescence; or where by his conduct or neglect he has, though perhaps, not waiving that remedy, yet put the other party in a situation which it would not be reasonable to place him, if the remedy were afterwards to be asserted. When such is not the case, any lapse of time short of the period allowed under the Limitation Act should not disentitle the claimant to relief to which he is otherwise entitled.�

In Trilok Chahd Mod Chand v. H.B. Munshi, AIR 1970 SC 898, the Hon''ble Supreme Court observed that the party agreed must explain satisfactorily all semblance of delay. No period can be indicated which may be regarded as the ultimate limit of action for that would be taking upon itself legislative functions. In India each case will have to be considered on its own fact and the avoidable delay affecting the merits of the claim will disentitle a party to invoke the extraordinary jurisdiction.

M/s Dohri Rohtas Light Railway Co. Ltd. v. District Board, Shahabad and others, AIR 1993 SC 802, is a case in which the delay in filing the writ petition was as large as in the present case. The facts stated in the judgment were as under:

�The appellant M/s Dohri Rohtas Light Railway Company Limited carried on business of running a light railway between DehrionSone to Tiura Pipradhih in the district of Rohtas, Bihar. The railway line for the said light railway was laid over 67 kilometers. The area covered was 413.55 acres owned and/or used by the company as a lessee. The appellant was liable to pay cess to the District Board under Section 5 of the Bengal Cess Act IX of 1880.

(2) An unregistered agreement was entered into between the appellant and the District Board of Shahabad, (now Bhojpur) on 781953. Thereby it was agreed that the company will pay a fixed sum of Rs. 10,000 per annum towards cess in respect of the railway under the Bengal Cess Act IX of 1880 irrespective of the profits or losses made by the company in its railway business. The Company paid the cess as per the agreement dated 781953 for the period for 185354 to 196667.

(3) On 27101967, the Collector made a demand of Rs. 9,86,809.33 paise from the appellant intimating therein that State was not bound by the unregistered agreement dated 781953. The Company instituted Suit No. 60 of 1968 before the Court of Third Additional SubJudge, Sasaram, to enforce the agreement and to restrain the respondents from making any demand in excess of Rs. 10,000 per annum. The suit was dismissed by the judgment dated 1391971. The First Appeal No. 1242 of 1971 filed before the High Court against that decision was also dismissed by the Judgment dated 2351980. Civil Appeal No. 3249 of 1983 is directed against this judgment of the High Court.

(4) In the meantime the demand for the cess was raised against the company for the years 196768 to 197172. This demand was challenged by the company before the High Court by filing Writ Petition No. 1372 of 1974. The High Court by judgment dated 3031979 quashed the notice of demand with direction as to how the cess is to be assessed under Section 6 read with Section 5 of the Bengal Cess Act, 1880. Based on this judgment reported in 1979 Bihar Bar Council Journal 428, the appellant filed C.W.J.C. No. 1266 of 1980 under Article 226 of the Constitution before the Patna High Court for quashing the demand notices for the period 195354 to 196667. The High Court by judgment dated 611981 dismissed the writ petition in limine. Civil Appeal No. 3250 of 1983 is directed against the judgment of the High Court dated 611981.�

Dealing with the question of laches, the Hon''ble Supreme Court observed as under:

�The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and. proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied in that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches.�

In the present case, the delay has been explained by the petitioner as being due to the pendency of W.P. No. 803 of 1981. His case is that the said writ petition was pending in this Court and an interim order was granted and when alter the appeal was dismissed, Khechhru Mal contacted his counsel he was advised that the appellate order dated 18111981 was not required to be challenged as it will become redundant it W.P. No. 803/81 was decided in his favour. These averments have been made in paragraph 14 of the writ petition and there is no reason to disbelieve the same. The record of W.P. No. 803/81 is before me and it shows that although an appeal against the assessment order had already been filed, the writ petition was filed because the petitioner M/s Manglik Sugar Industries was being treated as a defaulter and its licence was not renewed. The following reliefs were prayed for in that writ petition:

�It is, therefore, respectfully prayed that a writ of mandamus may be issued against the opposite parties to treat unit �A� as a separate entity as Unit �B� and direct that the licences may be renewed in respect of Unit �A� until the decision of the Appeal in respect of Unit �B� and make such other further order or direction as may be just and proper.

It is further prayed that a writ of mandamus may be issued directing the Assistant Sugar Commissioner to dispose of the appeal and make such other further orders or direction as may be just and proper�.

An application for interim order was also made and an interim order dated 27111981 was passed in the following terms:

�The impugned amount of tax in respect of one crusher of the size of 12� x 18� having three rollers not be recovered from the petitioner and while considering the renewal application for this season the petitioner shall not be treated as being in default for the tax for the aforesaid crusher.�

Thus while the relief prayed for was only until the decision of the appeal, the interim order was an unlimited one and did not restrict its operation till the disposal of the appeal. The result was that even after the appeal had been quickly dispose of, the stay order continued and the dues could not be realised from the petitioner and although the respondents filed a counter affidavit mentioning that the appeal had already been disposed of, no effort seems to have been made to get the writ petition dismissed as having become infructuous. The writ petition ultimately was taken up by the Court for hearing on 2071995 when no one was present for the petitioner M/s Manglik Sugar Industries and the counsel Sri VS. Saxena had sent an illness slip which was not accepted because earlier also he had sent illness slips. The petition was dismissed observing that the petitioner''s appeal was already pending and, therefore, the petition was not maintainable. The writ petition was, therefore, dismissed and the stay order was vacated. It was thereafter that the respondents started recovery proceedings and proceedings were commenced against Khhechhru Mai''s son Vivek Agarwal who then come to this

Court in writ petition No. 828 of 1996. That was dismissed by me in limine on the ground of laches. It was observed that the petitioner had come to challenge the orders that were passed 15 years ago. Though reference was made in that writ petition to W.P. No. 803/81. It was not explained why after the dismissal of the appeal, the assessment order and the appellate order were not challenged by a writ petition. This has been in the present writ petition and it is stated that the counsel advised that Writ Petition No. 803/81 would take care of the matter. This advice, though legally wrong, has been accepted by the petitioner of that writ petition M/s Manglik Sugar Industries through its partner Khhechhru Mai and the fact that the interim stay order dated 27111981 continued throughout might have reinforced. Khhechhru Mai''s belief in the advice of the counsel. The long pendency of W.P. No. 803 of 1981 has, therefore, been a cause why Khhechhru Mal or the present petitioner could not challenge the assessment order and the appellate order earlier.

As is evident, this is a matter regarding the illegal levy of a tax which is yet to be collected and the respondents who have been sleeping over the matter and thus contributing to the delay on the part of the petitioner to challenge the aforesaid orders. It is only when Writ Petition No. 803/81 was dismissed, although Khhechhru Mal had, already died some months ago, that the respondents started recovery proceedings and Vivek Agarwal and the present petitioner were obliged to file the respective writ petitions. It is important to note that neither in Writ Petition No. 803/81 nor in Writ Petition No. 828/96, the merits of the levy of the tax were examined. As demonstrated above, the levy in question is absolutely illegal and unjust. We have a welfare State Governed by the rule of law and the rule of law is not complied with by merely adopting a legal procedure for an illegal levy. All State actions are subject to judicial review by High Courts and the Hon''ble Supreme Court and it is the constitutional obligation of the High Court to protect a citizen from illegal exaction by the State. Therefore, when such a situation comes before the Court, the weak shackles of principles like laches have to be thrown apart to do justice to a citizen. It is important to note in his case that the demand was not realised till this writ petition was filed and the State has not changed its position and no legal right of the State was adversely affected if the Writ Petition is entertained and the petitioner''s claim is allowed. In my view, therefore, a major part of the delay stands explained and the remaining delay, if any, insignificant and liable to be ignored.

The dismissal of the writ petition filed by Vivek Agarwal also does not disentitle the petitioner who was himself an assessee being a partner of the firm M/s Manglik Sugar Industries, The said writ petition was dismissed in limine on the short ground of laches which Vivek Agarwal had not explained and was probably not in a position to explain because he was not the partner in the firm. The dismissal of that writ petition, in my view, cannot operate as resjudicaia on the question of laches. It may be mentioned here that in Writ Petition No. 828 of 1995, the present petitioner was not a party.

In view of the above discussion the writ petition is allowed and the impugned assessment order dated 1671981, appellate order dated 18111981 and the citation dated 1521997, copies of which are Annexures 3,5, and 6 to the writ petition, are hereby quashed. If in the meantime any amount has been realised from the petitioner or if the petitioner has otherwise paid any amount towards the dues in question, the same shall be refunded to the petitioner forthwith.

The parties will, however, bear their own costs. Petition allowed.