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1963 Supreme(Mad) 177
MADRAS HIGH COURT
ANANTANARAYANAN,RAMAKRISHNAN
B.Kanniah Prasad
Versus
The Deputy Commercial Tax Officer, Peddunaikenpet, Madras
Writ Appeal No. 99 of 1961
Decided On : 3 July, 1963
K. Parasaran, for Appellant; Addl. Govt. Pleader, for Respondents.
A party seeking the exercise of jurisdiction under Art. 226 in his favour must exhibit due diligence, must not delay in any unconscionable manner, and must not be guilty of laches.
Headnote:
WRIT - PROHIBITION - DELAY AND LACHES - WRIT PETITION DISMISSED - MADRAS GENERAL SALES TAX ACT (9 OF 1939), SEC. 12-A.
Fact of the Case:
The assessee filed a writ petition under Art. 226 of the Constitution challenging the assessment order passed under the Madras General Sales Tax Act, 1939. The assessee contended that a part of the turnover upon which tax was levied related to works contracts and was, therefore, not taxable. The assessee had not filed a statutory appeal under S. 12-A of the Act and had approached the court with considerable delay and laches.
Finding of the Court:
The court held that the assessee was guilty of considerable delay and laches in approaching the court. The court further held that the assessee had not exhausted his departmental remedies and had not provided any convincing explanation for the delay. The court also held that the assessee was not entitled to relief under Art. 226 of the Constitution as a matter of vested right.
Issues: Whether the assessee was guilty of delay and laches in approaching the court.
Ratio Decidendi: The court held that a party seeking the exercise of jurisdiction under Art. 226 in his favour must exhibit due diligence, must not delay in any unconscionable manner, and must not be guilty of laches. If he is so guilty, this court may decline to exercise the jurisdiction in his favour, though it may be that, from the strictly legal point of view, a good case existed for the exercise of such jurisdiction, had the party been diligent.
Final Decision: The court dismissed the writ petition.
ANANTANARAYANAN, J. :- This appeal is instituted by the assessee under the Madras Sales tax Act, from the judgment of Ramachandra Iyer, J. (as he then was) in W. P. No. 737 of 1959, in which the learned Judge declined to exercise jurisdiction under Art. 226 and dismissed the petition for the issue of a writ of prohibition. The broad facts are really not in dispute before us, and the crux of the matter is whether the learned Judge was justified in dismissing the writ partition on the grounds of unjustified delay and laches on the part of the petitioner.
2. The petitioner (appellant) is a merchant conducting trade, in bamboos, as well as certain types of works contracts. On 9-3-1954 he was assessed upon a turnover of Rs. 2,89,023-13-3. Of this total turnover, a part related to certain works contracts and amounted to Rs. 1,12,840-6-0. The rest related to turnover upon transactions of the bamboo trade, in the usual course, and that is not in dispute before us. Out of the total sum of Rs. 4560-0-9 payable as tax in respect of the assessment, a sum of Rs. 2277 is, again, not in dispute, being the assessment upon the admittedly taxable part of the turnover. The balance of Rs. 2238-6-0 relates to the tax upon works contracts undertaken by the petitioner (appellant) and, upon the principle of the decisions of the Supreme Court in State of. Madras v. Cannon Dunkerley and Co. Madras Ltd. 1958-2 Mad LJ (SC) 66 : (AIR 1958 SC 560), this part of the levy should bar clearly unsustainable in law.
3. As we indicated earlier, the real point is whether the petitioner approached the court with due diligence, or whether he sought redress only after such unjustified delay and such laches on his part, as would entitle the court to decline to exercise the discretion vested in this court under Art. 226 in his favour, by the issue of a writ of prohibition or other appropriate writ. The learned Judge (Ramachandra Iyer, J.) has pointed out that the assessee (appellant) was obviously content with the order of assessment, at any rate during the early stages of this matter as are did not avail himself of the opportunity of filing a statutory appeal under S. 12-A of the Madras General Sales tax Act. This court delivered the judgment in Gannon Dunkerley and Co., Madras Ltd. v. State of Madras, 1955-1 Mad LJ 87 : (AIR 1954 Mad 1130) on 5-4-1954. Admittedly, that put the assessee on notice concerning the untenable part of the turnover and assessment, and, normally, he should have sought redress under Art. 226 with reasonable diligence after the delivery of this judgment. It is noteworthy that the this for the statutory appeal had expired only by about two days, when the aforesaid judgment in 1955-1 Mad LJ 87 : (AIR 1954 Mad 1130) was delivered by this court. But the appellant did not act. On the contrary, he failed to act and took no steps to obtain redress till the year 1958, when he instituted W. D. No. 737 of 1958 before the learned Judge. It is this delay of practically four years which has led the Judge to decline to exercise his jurisdiction in favour of the appellant.
4. On behalf of the appellant, his learned counsel (Sri K. Parasaran) has again urged the same grounds in extenuation or explanation of the delay, which were urged before the learned Judge himself. The first was that with regard to subsequent periods of assessment, upon more or less the" same basis, there was correspondence between the assessee and the department, and the appellant was led to believe that the decision, of the Supreme Court might govern the matter. The second ground is that the Government have not taken coercive steps for the collection, or even initiated such steps, till very recently, and that since the tax is net collected, a writ of prohibition could appropriately issue, which is different from a writ of mandamus directing a refund of collected tax. But, as the learned Judge (Ramachandra Iyer, J.) has rightly pointed out, if we may say so with respect, this court c
