TMI Blog1963 (7) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissing the writ petition on the grounds of unjustified delay and laches on the part of the petitioner. The petitioner (appellant) is a merchant conducting trade in bamboos, as well as certain types of works contracts. On 9th March, 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. 4,560-0-9 payable as tax in respect of the assessment, a sum of Rs. 2,277 is again, not in dispute, being the assessment upon the admittedly taxable part of the turnover. The balance of Rs. 2,238-6- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the aforesaid judgment in Gannon Dunkerley and Co., (Madras) Ltd. v. State of Madras [1954] 5 S. T. C. 216 ; [1955] 1 M. L. J. 87., 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. P. 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible to rebut the inference that the appellant has been guilty both of considerable delay and laches on his part. But there is a further argument based upon the Bench decision of this Court in Rayalseema Constructions v. Deputy Commercial Tax Officer, Madras [1959] 10 S.T.C. 345; [1959] 2 M.L.J. 97. (Rajagopalan and Balakrishna Aiyar, JJ.). That was also a case of an alleged illegal assessment, and the Bench observed that no degree of failure on the part of the assessee to pursue his statutory remedies under the taxing statute would render the assessment legal, if it was otherwise without jurisdiction. Hence, such an assessment will not become final under the taxing statute itself, and, when there is thus a total want of jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-B; the decision, therefore, may not be of any direct significance or relevance. Learned counsel for the appellant has cited Himmatlal v. State of Madhya Pradesh [1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403. in support of his proposition that where a levy is made without the authority of law, and in impairment of fundamental rights, relief by way of a writ of mandamus could be granted as the appropriate relief. But it has to be pointed out that this does not really touch the question of laches or delay, which is the main issue now before us. Our attention has also been drawn to three unreported decisions of learned single Judges of this Court, all of them having some relevance in this context. Of these, we might first refer to the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take the obvious steps open to him and he has been guilty of considerable delay in resorting to this Court." The learned Judge declined to exercise jurisdiction under Article 226 in favour of the petitioner. In Writ Petition No. 966 of 1960, Veeraswami, J., had again occasion to consider a very similar situation for the issue of a writ of mandamus directing a refund, and the same judgment now under appeal has been referred to, and the passage therefrom cited and set forth. Finally, the learned Judge concluded that the facts were almost ad idem with the present case, and that the considerable delay and laches disentitled the petitioner to the exercise of discretion in his favour. We have very carefully considered this matter, and in partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles laid down therein, relating to the levy ab initio illegal, and the extent to which it could or could not be affected by the assessment becoming final as far as the taxing statute was concerned, or the failure of the aggrieved party to pursue a departmental remedy. All this apart, no party has a right to approach this Court and to demand the exercise of jurisdiction under Article 226 in his favour, whatever the merits of his case, unless he has exhibited due deligence, or, if there has been undue delay, he is able to explain or account for it in a convincing manner. We do not think it necessary to make any comment upon what would happen even if the decision in Rayalseema Constructions v. Deputy Commercial Tax Officer, Madras [1959 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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