TMI Blog2011 (4) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... In the circumstances, without going into the merits of the impugned order, the same is required to be set aside on the ground of being barred by limitation alone. Appeal allowed. - Special Civil Application No. 1222 of 1993 - - - Dated:- 13-4-2011 - HARSHA DEVANI AND BELA TRIVEDI, JJ. JUDGMENT 1 The judgment of the court was delivered by MS. HARSHA DEVANI J. By this petition under article 226 of the Constitution of India, the petitioner has challenged the notice dated July 1, 1981 issued by the Deputy Secretary, Information and Broadcasting Department (annexure F to the petition) as well as the order dated February 6, 1993 (annexure H to the petition) passed by him in exercise of powers under section 13 of the Gujarat Entertainments Tax Act, 1977 ( the Act ). The facts as appearing in the petition shorn of unnecessary facts are that the petitioner established a cinema by the name of Zanjhar Cinema at village Hasanpur and obtained a cinema performance licence for running the said Cinema. Under the provisions of the Act, entertainment tax is liable to be paid under the provisions of section 3 of the Act. However, the proprietor can make an application under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a distance of 5 k.ms from Wankaner city and as such, the same was not falling within the designated area. The petitioner challenged the said show-cause notice before the learned civil judge (S.D.), Morbi in Regular Civil Suit No. 76 of 1989 which came to be dismissed. Being aggrieved, the petitioner preferred an appeal before the learned Assistant Judge at Morbi which came to be registered as Regular Civil Appeal No. 18 of 1989. The said appeal came to be partly allowed by setting aside the judgment and decree passed by the learned ivil Judge (S.D.) in Regular Civil Suit No. 76 of 1989 and declaring that the impugned show-cause notice dated March 2, 1989 issued by the respondent No. 2 was ultra vires his powers, mala fide, motivated by political and extraneous considerations and was also illegal, null and void. The court also restrained respondent No. 2 from reopening or revising or reviewing his own finding that Zanjhar cinema is in the designated area. Against the aforesaid order, respondent No. 1-State has preferred second appeal before this High Court which appears to be still pending. Thereafter, by the impugned notice dated July 1, 1991, respondent No. 1, in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case Appeal No. 12 of 1989 was preferred before the Collector of Entertainment Tax, Rajkot and the same was decided on February 21, 1989. Thus, the period of limitation has to be calculated from February 21, 1989. It was submitted that even considering the period of limitation from February 21, 1989, the show-cause notice dated July 1, 1991 has been issued beyond a period of two years from the date of the order of the prescribed officer. Inviting the attention to the Explanation to section 13(2) of the Act, it was submitted that Explanation (a) would not be applicable to the facts of the present case and that Explanation (b) would also not apply as the proceeding under section 13(1) was never stayed by injunction of any civil court. It was submitted that there being no order or injunction of any civil court against the State Government regarding taking any proceeding under section 13(1) by way of suo motu revision, the show-cause notice is apparently and evidently beyond the period of two years from the date of the order of the prescribed officer, that is, January 5, 1989 or from the date of the order in appeal of Collector of Entertainment Tax, Rajkot, that is, Feb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by an order dated March 30, 1991, whereby respondent No. 2 herein was permanently restrained from re-opening or revising or reviewing his own finding that the Zanjhar Cinema is in the designated area. It was submitted that in the circumstances, till March 30, 1991 when the order came to be passed in the regular civil appeal, respondent No. 1 could not have initiated revisional proceedings in respect of the order passed by the prescribed officer. It was further submitted that it was only after the order was passed in the Regular Civil Appeal No.18 of 1990 on March 30, 1991, that the State Government could take the matter in revision under section 13 of the Act by issuing notice on July 1, 1991. The learned Assistant Government Pleader invited the attention of the court to the fact that against the notice issued under section 13(1) of the Act, the petitioner had instituted proceedings being Civil Suit No. 153 of 1991 wherein the court had passed an order restraining the respondents from implementing and executing the final order which may be passed on the basis of the notice dated July 1, 1991. It was submitted that the injunction application, exhibit 5, filed in the said civil sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or injunction of any civil court, shall be excluded. On a plain reading of section 13 of the Act, it is apparent that subsection (1) thereto empowers the State Government on its own motion to call for and examine the record of any proceeding under the Act for the purpose of satisfying itself as to the legality or propriety of any order passed therein by the prescribed officer, or, as the case may be, the appellate authority. Insofar as an application made by any aggrieved proprietor is concerned, sub-section (1) provides for a limitation of 90 days from the date of the order for making an application whereas insofar as revisional proceedings initiated by the State Government on its own motion is concerned, sub-section (1) does not prescribe any time-limit for initiation thereof. 15 The proviso to sub-section (1) lays down that no record of any proceeding of the prescribed officer shall be called for, (i) in a case where an appeal from the order passed therein has been made, when such appeal is pending, and (ii) in a case where an appeal has not been made from such order, before the expiry of the time prescribed for making such appeal. In other words, it is not permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. The period of limitation for exercising revisional powers is, therefore, required to be computed accordingly. The facts of the present case are, therefore, required to be examined in the light of the aforesaid legal position. As already noted earlier, the order which was subject-matter of revision, 17 viz., the order of the mamlatdar and prescribed officer and is dated January 5, 1989. The said order was subject-matter of appeal before the Collector, who by an order dated February 21, 1989, allowed the appeal of the peti tioner and remanded the matter to the mamlatdar. Thus, the period from January 5, 1989 to February 21, 1989 has to be excluded while computing the period of limitation in the light of the clear provision of clause (a) of the Explanation to sub-section (2) of section 13 of the Act. Thereafter, the petitioner preferred an appeal against the notice dated March 2, 1989 issued by the prescribed officer and mamlatdar calling upon the petitioner as to why the cinema of the petitioner should not be held to be not within the designated area. Being aggrieved, the petitioner approached the civil court and filed Regular Civil Suit No. 76 of 1989 challenging the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil suit. The learned Civil Judge (Senior Division), Morvi by an order dated July 17, 1991 had restrained defendant No. 2 and/or his servants, agents, etc., from implementing and executing the final order which may be passed by him on the basis of the impugned notice dated July 1, 1991 if the final order is passed adverse to the plaintiff up to August 2, 1991. The said interim relief came to be extended from time to time till the final disposal of the suit. Thus, it is apparent that respondent No. 1 was only restrained from implementing and executing the final order which may be passed by him on the basis of the impugned notice dated July 1, 1991 and that there was no prohibition against him from passing the final order. In the circumstances, it cannot be said that respondent No. 1 was in any manner restrained from proceeding further under section 13 of the Act so as to fall within the ambit of clause (b) of the Explanation to sub-section (2) of section 13 of the Act. From the aforesaid facts, it is apparent that from September 24, 1990, when the Regular Civil Suit No. 76 of 1989 came to be dismissed, there was no order of status quo or any other order operating against the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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