TMI Blog2014 (12) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... bitumen in the tanker in question was loaded as per invoice accompanying it and thereafter it was not loaded from the Mathura Refinery till 30.6.2014 - The bills of repair of the tanker in question in support of proof that it was under repair from the night of 28.6.2014 till 30.6.2014, were not even verified by the authorities concerned so as dispute its genuineness - In the supplementary counter affidavit dated 20.8.2014 the Respondents have even admitted that the tanker in question was detained and bitumen was seized without any basis. Even if such an order was actually passed by the respondent No.4, yet it was a complete nullity for reasons that firstly no power is conferred under the Act and the Rules to pass such orders, secondly it was wholly impossible to remove the mounted body of the fully loaded big tanker with bitumen weight 24.60 M.T. from body of the engine and thirdly the petitioner was directed merely to take away the body of the engine which could not be of any use for the petitioner who is engaged in the business of running his tanker on hire – thus, the seizure order dated 5.7.2014, the order of Joint Commissioner under proviso to Section 48 (7) of the Act date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for transportation to M/s Concast Infratech Ltd. Bhopal (Madhya Pradesh). Thereafter some mechanical defect developed in the tanker which was repaired in the Chaudhari Works Shop, Delhi bypass Road, Chaudhari Market, Mathura between 28.6.2014 to 30.6.2014, as per copies of bills collectively filed as Annexure No.1. Thereafter the tanker proceeded in the night of 30.6.2014. The aforesaid tanker was intercepted near Farah by the Assistant Commissioner, Commercial Tax, Shift III Mobile Squad, Mathura and after about two hours a detention memo was issued on Ist July, 2014 at about 1 A.M. The tanker was detained by the said authority even though the bitumen loaded in it was found accompanied with all proper and genuine documents including Invoice of selling dealer M/s Indian Oil Corporation, Mathura, bilti and declaration Form 49 of the Madhya Pradesh Government issued by the purchasing dealer M/s Concast Infratech Ltd. Bhopal, Madhya Pradesh. The petitioner submitted an objection on 2.7.2014 before the aforesaid authority bringing to his notice the facts that certain defect developed in the tanker on 28.6.2016 and it could be repaired on 30th June, 2014. An affidavit of the driver of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not verify the complete number of the vehicle with reference to the information received. Aggrieved with the aforesaid order, the petitioner preferred Second Appeal No. 223 of 2014 before the Member, Commercial Tax Tribunal Bench-I, Agra which was dismissed by the impugned order dated 16th July, 2014. Aggrieved with these orders the petitioner has filed the present writ petition for the relief as quoted above. 4. The writ petition was heard on 7th August, 2014. After noticing the facts in brief and submissions of the learned counsel for the parties, respondents were directed to file counter affidavit and also to produce the records pertaining to seizure. On 14th August, 2014 this Court passed the following orders: 1. Heard Sri Manoj Kumar Pandey, learned counsel for the petitioner and Sri B.K. Pandey, learned Standing Counsel for the respondents. 2. The respondents have filed counter affidavit of Sri B.P. Singh, Assistant Commissioner, Commercial Tax, Mobile Squad, Unit -III, Mathura which is taken on record. Petitioner may file rejoinder affidavit within four days. 3. The seized goods is Bitumen. It is not disputed that the same has been manufactured by Indian Oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on behalf of State respondents was filed by Sri B.P. Singh, Assistant Commissioner, Commercial Tax, Sector V, Mathura in which he stated in paragraph No.2,3,7 and 8 as under: 2. That an enquiry has been made by the deponent from Indian Oil Corporation vide letter dated 16.8.2014. 3. That on enquiry it has been received by the Indian Oil Corporation that Vehicle No. UP85V/9636 was loaded from our office on 27.6.2014 and thereafter till 30.6.2014 the said tanker was not loaded. 4. That in between 27.6.2014 to 30.6.2014 only three bitumen tanker have been loaded from this office whose last four digit number 9636 are as follows: i) UP85V/9636 was loaded on 27.6.2014 ii) UP81F/9636 was loaded on 30.6.2014 iii) UP85P/9636 was loaded on 30.6.2014 7. That there is no malafide intention on the part of the deponent to harass the petitioner nor the deponent has any personal grievance against the petitioner, because of action of the deponent if any inconvenience cause to the court the deponent prays unconditional apology and assure the court that he will remain careful in future. 8. That there is no place of storage of liquid in the office of Commercial Tax Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision of Government (Liability in Tort) Act, 1967 published in the extra-ordinary gazette of India part 2, Section 2 dated 22nd May, 1967 which lapsed. Sri Jayant Banerjee, learned Central Government Counsel also seeks time to obtain instructions on the line stated by the learned Additional Advocate General. As jointly prayed by learned Additional Advocate General and learned Central Government Counsel, put up on 8th September, 2014 for further hearing. As interim measure as suggested by the learned Additional Advocate General, it is provided that the goods in question and Tanker no. U.P. 85 V 9636 shall be provisionally released forthwith without any security but subject to undertaking to be furnished before the respondent no. 4 by the petitioner that he shall not transfer, alienate or dispose of in any manner the tanker in question till further order of this Court in this revision. Learned Additional Solicitor General is also requested to assist in the matter on next date fixed. 7. On 21st August, 2014 on the request of learned standing counsel for the State of U.P. and learned standing counsel for the central government, the matter was directed to be put up on 28t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further hearing. As interim measure as suggested by the learned Additional Advocate General, it is provided that the goods in question and Tanker no. U.P. 85 V 9636 shall be provisionally released forthwith without any security but subject to undertaking to be furnished before the respondent no. 4 by the petitioner that he shall not transfer, alienate or dispose of in any manner the tanker in question till further order of this Court in this revision. Learned Additional Solicitor General is also requested to assist in the matter on next date fixed. 8. On 8th September, 2014 this Court passed the following orders: Sri Ashok Kumar Pandey, learned Addl. Advocate General stats that the State Government is considering to issue a Government Order to provide a remedy including compensation for wrong committed by Government Officers or Employees and as such ten days time may be granted. Sri Jyont Banerjee, learned Counsel for the Central Government also prays for 10 days further time to obtain instructions in compliance of the order dated 28th August, 2014. Learned counsel for the petitioner submits that sufficient opportunity has already been given to the respondents and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court in the case of N. Nagendra Rao and Company Vs. State of Andhra Pradesh 1994 (6) SCC 205, Lucknow Development Authority Vs. M.K. Gupta AIR 1994 SC 787 and Division Bench Judgment of this Court in the case of Ram Singh and others Vs. State of U.P. and others 2000 U.P. T.C. 865 Submissions on behalf of State Respondents 11. Learned Additional Advocate General fairly submits that the detention of the tanker and the seizure of bitumen in question by the State authorities cannot be justified but he submits that it was bonafidely done and the tanker has already been released in compliance to the order dated 28th August, 2014. He, therefore, submits that no further orders may be passed as the writ petition has practically become infructuous. He submits that the state government is considering for enactment of appropriate law/guidelines/instructions to have a check on arbitrary exercise of power and negligent action of authorities of the state government so as to minimize the possibility of harassment. Submission on behalf of Respondent No.5 12. Learned counsel for the central government submits that the Department of Revenue, Ministry of Finance, Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the supplementary counter affidavit dated 20.8.2014 the Respondents have even admitted that the tanker in question was detained and bitumen was seized without any basis. 15.In para 8 of the aforesaid supplementary counter affidavit dated 20.8.2014 the respondents stated that the application of the petitioner to unload the bitumen from his tanker was rejected on 24.7.2014 and the petitioner was directed to remove the tanker from the body of the engine and then to take away his vehicle. In my opinion even if such an order was actually passed by the respondent No.4, yet it was a complete nullity for reasons that firstly no power is conferred under the Act and the Rules to pass such orders, secondly it was wholly impossible to remove the mounted body of the fully loaded big tanker with bitumen weight 24.60 M.T. from body of the engine and thirdly the petitioner was directed merely to take away the body of the engine which could not be of any use for the petitioner who is engaged in the business of running his tanker on hire. 16.Respondents have also submitted unconditional apology by supplementary counter affidavit dated 20.8.2014. All these facts leaves no manner of doubt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question arises that what amount of compensation may be awarded to the petitioner for illegal detention of the tanker in question. In the case Ram Singh and others (supra) Division Bench of this Court held in paragraph Nos. 7,13 and 15 as under: 7. In the same decision the Supreme Court in para 11 observed as under: Today the issue thus is not only of award of compensation but who should bear the burnt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendmous change with passage of time and change in socio-economic outlook. The authority empowered to function under a Statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bonafide loss may accrue to any person. And he may claim compensation, which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relegating the petitioner to file Civil Suits as we want to stop the illegal practice of detaining and seizing of the vehicle by the U.P. Trade Tax Authorities. Everyone knows that a civil suit often takes ten years or more to decide and hence we are not relegating the petitioner to that remedy, however, Sri Pradeep Kumar Gupta, learned Additional Chief Standing Counsel requested that he will himself speak to the Commissioner, Trade Tax, U.P. and convey the displeasure of this Court and the Commissioner will ensure that these illegalities do not occur in future. We accordingly direct the Commissioner, Trade Tax the charge sheet the officials who had committed these illegalities and proceed Departmentally against them. The Commissioner shall also grant proper compensation to the petitioner in both these cases commensurate to the loss they have suffered preferably within two months from the date of production of a certified copy of this order in accordance with law. The Commissioner shall also issue instructions to all Trade Tax Authorities forthwith that such illegalities must stop immediately. 18. The judgment in the case of M/s Raj Pal Road Lines (supra) relied by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnments by their arbitrary, negligent and illegal actions can be effectively checked provided there is a law providing efficacious remedy for consequential liability of such officers/employees on one hand and on the other hand appropriate compensation to aggrieved person. Such a law/government order may also provide for speedy disposal of such matters. This shall also effectively check corruption. Learned Additional Advocate General for the State Government as well as the central Government Counsel have stated that the State Government as well as Central Government is considering to enact a law or to issue a government order for this purpose. Under the circumstances this Court hopes and trusts that the State Government as well as the Central Government shall consider the matter in the light of the undertakings as recorded in paras 8 and 12 above and may take appropriate decision/action in accordance with law preferably within three months from today. 21. In result the writ petition succeeds and is hereby allowed with cost of ₹ 20,000/- which the respondent No.1 shall pay to the petitioner within a month from today apart from compensation as directed above. Let a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
