Concealment of crucial facts and suppression of orders passed by the Apex Court can lead to the dismissal of a petition and imposition of costs on the petitioner.

ORDER

Krishn Kumar Lahoti, J.

1. I.A. No. 9797/11 for vacating ad interim writ dated 29.7.2011.

2. This is an application filed on behalf of Respondents No. 1, 3 and 4 for vacating the ad interim writ dated 29.7.2011. The grounds as stated in the application are that the Petitioner has filed this petition with the collusion of Respondent No. 2 against which the recovery was initiated. The Apex Court in identical matters has passed order in which it was directed that the Assessee shall file return before the Authority and to make payment of tax as per the assessment order. The Apex Court on 6.12.2010 has adjourned the hearing of S.L.P. to facilitate the Assessee for the payment of tax as per assessment order without prejudice to its rights and contentions before the Apex Court.

3. Shri Nagrath, learned Addl. A.G. submitted that the aforesaid facts were not brought into the notice of this Court when ad interim writ dated 29.7.2011 was issued by this Court and prays that in view of the order passed by the Apex Court, the ad interim writ dated 29.7.2011 may be vacated and the writ petition filed by the Petitioner be also dismissed.

4. Shri H.S. Shrivastava, learned Senior Advocate for the Petitioner opposed the aforesaid contention and submitted that W.P. No. 11702 of 2011 M/s NTPC Ltd. State of Madhya Pradesh and Others 24.08.2011 the prayer which is made in this petition is entirely different and the contention of the Petitioner that the tax under M.P. Rural Infrastructure and Road Development Act, 2005 (hereinafter referred as the Act of 2005) for the period from 1.8.2007 to 31.3.2007 is not chargeable as it was included in the royalty. It is also submitted that the entire royalty has been paid by the Petitioner to Respondent No. 2 so the Petitioner is not liable to make payment of any tax to the Respondents.

5. Shri Greeshm Jain, learned Counsel appearing for the Respondent No. 2 submitted that the Respondent No. 2 vide Annexure P-3, demanded the amount from the Petitioner in compliance of the order passed by the Apex Court. However, it is submitted by him that the aforesaid tax was included in the royalty and was not separately payable. That an S.L.P. preferred by the Respondent No. 2 is pending before the Apex Court. Apart from this, another consumer of Respondent No. 2 namely M/s Hindalco Industries Ltd. has also approached to the Apex Court in S.L.P. (Civil) No. 35849 of 2010 which is also pending before the Apex Court in which on 28.1.2011 interim order has been passed directing that No. coercive steps shall be taken against that Petitioner. That the Apex Court had already issued ad interim writ in other identical matters and the aforesaid fact may be taken care of.

6. To appreciate rival contention of the parties, we have perused the record. In this case the Petitioner sought following reliefs :

1. To hold that the tax i.e. MPGATSVA under the Act was not payable additionally when the full amount of W.P. No. 11702 of 2011 M/s NTPC Ltd. State of Madhya Pradesh and Others 24.08.2011 royalty has been paid by subsuming the tax as per the notification.

2. To issue a writ of certiorari quashing the demand of the tax raised vide letter dated 22.6.2011/ 5.7.2011 (Annexure P.3) and taking coercive recovery proceeding.

3. To call for all relevant case records and the recovery records of collector and NCL (Respondent No. 2 and 3).

4. To hold that the action of the Collector and Tahsildar in demanding tax over and above royalty is arbitrary and in disregard of the Government of India notification 1.8.2007.

5. Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition.

7. Earlier to it, the Respondent No. 2 and Ors. have filed a writ petition challenging the vires of the Act of 2005. The matter was heard by a Division Bench of this Court and by a common order dated 18.8.2006, the validity of the Act of 2005 was upheld. It will be pertinent to mention here that