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2021 Supreme(J&K) 507
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Pankaj Mithal, Javed Iqbal Wani, JJ.
M/s. Sant Enterprises – Petitioner
Versus
State and Ors. – Respondents
OWP No.2186 of 2018
Decided On : 14-12-2021
Advocate Appeared:
For the Petitioner:Sh. Parag Sharma, Advocate
For the Respondent:Sh. D.C. Raina, Advocate General with Sh. F.A. Natnoo, AAG
Headnote:
Jammu and Kashmir Levy of Toll Act, 1995-Sections 13 and 14-Toll exemption-Section 13 (2) manifestly provide that before passing an order under sub-section (1), person in default has to be mandatorily provided an opportunity of being heard-This right to be heard precisely would mean that party must know the case he has to meet and party must have reasonable opportunity to present his case-Requirement of a show cause notice flows directly from principle that no party should be condemned unheard-A show cause notice is more than a notice-Circular dated 15.10.2018 claimed to be a show cause notice by respondents served upon petitioner as reflected in impugned order cannot by any sense of imagination said to be a show cause notice, more so in view of fact that said Circular/alleged show cause notice is issued not for alleged violation for which impugned order has been issued-Non-serving of a proper notice and non-providing of an opportunity of hearing to petitioner, cannot said to be substantial adherence of procedural fairness by respondents before issuance of impugned order-Existence of an adequate alternative remedy is no bar to a relief under Article 226 where there has been a violation of principle of natural justice-Instant petition succeeds and impugned order quashed-However, respondents shall be free to initiate an action against petitioner herein in accordance with law for alleged violation of provisions of Act. (Paras 14, 16, 17 and 18)
Result-Writ Petition disposed of.
ORDER :
Javed Iqbal Wani, J.-In the instant petition, petitioner on the foundation of the case set up implores the following reliefs:-
“i) Certiorari quashing Circular No. 1085-89/DEC/LKP dated 15.10.2018 issued by Respondent No. 3.
ii) Quashing order No. DEC/LKP/1100-05 dated 17.10.2018 issued by Respondent No. 4.
iii) Writ of prohibition directing the Respondents 2,3 & 4 not to interfere in the business of the petitioner herein at Village Pandori, District Kathua.
2. The background facts those emerge from the petition under the cover of which the petitioner claims aforesaid reliefs are that the Government of India in order to boost the investors’ confidence issued notification dated 14.06.2002, for providing incentives to the industrial development in the State of Jammu and Kashmir resulting into issuance of an industrial policy vide Govt. Order No. 94-IND of 2004 dated 31.03.2004 inviting industrial units to invest in the State of Jammu and Kashmir.
3. It is being stated that the petitioner being Small Scale Industry applied pursuant to the aforesaid Government Order and established a stone crusher in village Pandori, District, Kathua in the year 2014, after obtaining necessary registration and no objection certificates from the department of Geology & Mining as also the State Pollution Control Board.
4. It is being stated that in line with the Industrial Policy, the respondent No. 1 issued SRO 22 dated 31.03.2004 providing therein toll exemptions to new local/small/medium and large scale industrial units. 100 % exports exemption is stated to have been given to the said units and that the petitioner herein is stated to have been availing the said benefit of exemption of toll tax including basic toll as well. A toll post in village Nagri 8 km away from the village Pandori, where the petitioner’s unit is established is stated to have been established by the government.
5. It is next stated that respondent Nos. 2 and 3 in the year 2015 started harassing the petitioner on the ground that the petitioner is liable to pay toll tax, in that, the provisions of SRO 22 had expired in the month of March, 2015, whereupon the petitioner is stated to have preferred OWP No. 1472 of 2016, contending therein that the petitioner is entitled to toll exemption in view of the Industrial Policy and in terms of SRO 22. The said petition is stated to have been dismissed on 02.02.2018 on a statement made by the then Advocate General that the life of SRO 22 has not been extended beyond 31.03.2015 and, as such, the petitioner is not entitled to any exemption and is liable to pay toll tax according to the of Jammu and Kashmir Levy of Toll Act, 1995 (for brevity ‘the Act’).
6. It is being stated that aggrieved of the dismissal of the petition (supra) the petitioner preferred an appeal being LPAOW No. 21/2018 before the Division Bench on the ground that the life of the SRO 22 had been infact extended beyond 31.03.2015 till 31.03.2018 and that the Advocate General has made a wrong statement before the Writ Court. The said appeal is stated to have been allowed holding that “if the appellants are importing raw material, which falls in the limitation of exemption under the exemption instructions, they would be entitled for the same, while agreeing with the Advocate General that in no case the appellants should be permitted to by-pass the toll post set up at Village Nagri District Kathua.”
7. It is being next stated that the respondent No. 3 issued a Circular NO.1085-89/DEC/LKP dated 15.10.2018, wherein the decision passed in the writ petition being OWP No. 1472 of 2016 (supra) providing therein that all the stone crushers’ vehicles shall pass through Toll Post Gandial and Toll Post, Nagri and that the stone crushers which are registered as SSI units may claim toll exemption in accordance with the provisions of the Act.
8. It is further stated that respondent No. 4 passed the impugned order No.DEC/LKP/1100-05 dated 17.10.2018 under Sections 3 and 8 of the Act a
