TMI Blog2019 (8) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... tionary or officer of the State. It is clear that the action of the authority denying the benefit of the scheme to the writ applicant in question is totally arbitory and the benefit is required to be given to the writ applicant - petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 17759 of 2018 - - - Dated:- 24-7-2019 - MR J. B. PARDIWALA AND MR A. C. RAO For The Petitioner : MR TUSHAR HEMANI for MS VAIBHAVI K PARIKH(3238) For The Respondents : MS MAITHILI MEHTA, AGP ORAL ORDER ( PER : HONOURABLE MR.JUSTICE A.C. RAO) 1.00. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main reliefs :- 7(a). to quash and set aside the impugned order dated 04/07/2018 passed by the Commercial Tax Officer (1), Ghatak-7, Ahmedabad (Annexure-A) rejecting the application for granting benefit of the composition scheme dated 14/10/2014 for the years 2009-10 and 2010-11. ( b). to direct the Respondent No.2 to allow the benefit of composition scheme dated 14/10/2014 for the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 7, Ahmedabad vide order dated 4/7/2018 rejected the application preferred by the petitioner for availing benefits of the scheme framed by the Government and denied the benefits of the composition scheme to the petitioner mainly on the ground that the assessment for the years 2009-10 and 2010-11 were already framed prior to payment of taxes for such period under the composition scheme. 4.00. Submission of the petitioner : 4.01. Mr.Tushar Hemani, learned counsel appearing for Ms.Vaibhavi Parikh, learned counsel appearing on behalf of the petitioner vehemently contended that Clause 10 of the scheme categorically provides that benefit of the composition scheme can be availed even in those cases where appeal is pending. It is contended that in the case of the petitioner, the application preferred by the petitioner has been rejected and the benefit of the scheme has been denied by the impugned order on the ground that the assessment has been framed, which is contrary to the spirit and provision of the scheme. He has contended that the benefit of scheme can be availed even in cases where appeal is pending implies that even if assessment has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of the scheme. It is contended that the scheme was introduced on 14/10/2014 for a period of 180 days, and as stated above, the said period of 180 days had expired on 11/04/2015 i.e. much before the petitioner deposited the amount. She further contended that the scheme subsequently came to be extended on 26/05/2015 for the further period of 4 months, however, the said extension was subsequent to the application made by the petitioner and the application made by the petitioner seeking to avail the benefit under the scheme. The application was made when the first time limit under the scheme had already expired and the subsequent extension of the original scheme was not in existence. She contended that therefore the benefits under the scheme have not been extended to the present petitioner. She further contended that without any prejudice to the above contentions, once the assessment was carried out without any claim to such benefit, neither any benefits were sought at the time of assessment nor any disclosure with reference to seeking benefit of the scheme was made, the present petitioner is not entitled to any benefit under the scheme. 5.03. Ms.Mehta, learned AG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore as per the scheme of the year 2014, once the assessment was already carried out in regular mode, without any disclosure or without any request to avail the benefit of the scheme dated 14/10/2014, the present petitioner cannot avail the benefit under this scheme, has no substance. 6.04. It is pertinent to note that the petitioner made the application seeking benefit of the scheme for the years 2009- 10 and 2010-11 on 09/04/2015 and the petitioner, the scheme was operative till 11/04/2015 and the petitioner deposited the amount to take benefits of the scheme on 13/04/2015 i.e. beyond the period of the scheme. However, merely initially the scheme was introduced on 14/10/2014 for a period of 180 days, and the said period of 180 days had expired on 11/04/2015 i.e. much before the petitioner deposited the amount, benefit of the scheme cannot be denied on that ground. It is pertinent to note that the scheme subsequently came to be extended on 26/05/2015 for the further period of 4 months. As per Government Resolution dated 14/10/2014 Annexure-B page 11, more particularly para 1(C), the scheme would be applicable to the traders whose assessment, reassessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inisters of the Crown. Nor is it confined to the sphere of administration: it operates wherever discretion is given for some public purpose, for example where a Judge has a discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this can have no application in public law. For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as unfettered discretion. The question which has to be asked is what is the scope of judicial review, and in a few special cases the scope for the review of discretionary decisions may be minimal. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere. 7.02. The decision in the case of Padfield Versus Minister of Agriculture, Fishery and Food , reported in (1968) A.C. 997 , is an important decision in the area of administrative law. In that case the Minister had refused to appoint a committee to investigate the complaint made by the members of the Milk M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the case of S.G. Jaisinghani versus Union of India AIR, reported in 1967 SC 1427 , it is emphasised that absence of arbitrary power is the foundation of a system governed by rule of law and observed (Para 14) : In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey - Law of the Constitution - Tenth Edn., Introduction ex.). 'Law has reached its finest moments', stated Douglas, J. in United States v. Underlick (1951 342 US 98:96 Law Ed 113), when it has freed man from the unlimited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so . Such considerations may be that some directive principle is sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it or that the person who has offered a higher consideration is not otherwise fit to be given the contract or the property. We have referred to these considerations only illustratively, for there may be an infinite variety of considerations which may have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Common Cause, A Registered Society versus Union of India, reported in (1996) 6 SCC 530 : AIR 1996 SC 3538 : 1996 AIR SCW 3696 , the Apex Court has considered the legality of discretionary powers exercised by the then Minister of State for Petroleum and Natural Gas in the matter of allotment of petrol pumps and gas agencies. While declaring that allotments made by the Minister were wholly arbitrary, nepotistic and motivated by extraneous considerations the Court observed and held as under : The Government today - in a welfare State - provides large number of benefits to the citizens. It distributes wealth in the form of allotment of plots, houses, petrol pumps, gas agencies, mineral leases, contracts, quotas and licences etc. Government distributes largesses in various forms. A Minister who is the executive head of the department concerned distributes these benefits and largesses. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the people's property in a fair and just manner. He cannot commit breach of the trust reposed in him by the people. 7.09. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present. 7.12. It can no longer be doubted at this point of time that Article of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. As held in the case of Ramana Dayaram Shetty versus The International Airport Authority of India, reported in (1979) 3 SCR 1014 : AIR 1979 SC 1628 and in the case of Kasturi Lal Lakshmi Reddy versus State of Jammu and Kashmir, reported in (1980) 3 SCR 1338 : AIR 1980 SC 1992 , In the case of Col. A.S. Sangwan versus Union of India, reported in (1980 (Supp) SCC 559 : AIR 1981 SC 1545 , while the discretion to change the policy in exercise of the executive power, when not trammelledly the statute or rule, was held to be wide, it was emphasised as imperat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the activity, scope and nature of the controversy. The distinction between public law and private law remedy has now become too thin and practicably obliterated. ... In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or arbitrary in its decision. Duty to act fairly is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest. 7.14. In the case of New India Public School versus HUDA, reported in (1996) 5 SCC 510 , the Apex Court approved the judgment of the Division Bench of the Punjab and Haryana High Court in Seven Seas Educational Society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion, if any, conferred upon the particular functionary or officer of the State. On forgoing discussion, it is clear that the action of the authority denying the benefit of the scheme to the writ applicant in question is totally arbitory and the benefit is required to be given to the writ applicant and accordingly the petition is allowed. 8.00. For the reasons stated hereinabove, present petition is allowed. The impugned order dated 04/07/2018 passed by the Commercial Tax Officer (1), Ghatak-7, Ahmedabad (Annexure-A) rejecting the application for granting benefit of the composition scheme dated 14/10/2014 for the years 2009-10 and 2010-11, is hereby quashed and set aside. The concerned respondent authority is directed to grant benefits of the scheme to the petitioner within four weeks from the date of receipt of this order. Sd/- ( J. B. PARDIWALA, J) Sd/- ( A. C. RAO, J) PER J.B. PARDIWALA, J. :- I am in complete agreement with the final conclusion arrived at by my esteemed brother Justice Rao. However, I would like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph No. 1(b). 12) The traders availing benefit under this scheme will not be able to file appeal against the orders passed under this scheme. 13) If the taxes, interest and penalty are already paid earlier for the transactions specified in the above paragraph 1(b) then the trader availing benefit of this scheme will not be given refund of such amount paid under any circumstances. xxx... 3 A conjoint reading of the eligibility criteria as well as the negative covenants would reveal the following vital aspects: ➢ Only an eligible trader as defined in the clause 1(A) of the scheme in question can avail benefit of the scheme and that too for eligible transaction as defined in the clause 1(B) of the scheme; ➢ Additionally, the benefit of the scheme in question can be availed even by traders in whose case assessment, reassessment or revision proceedings are pending; ➢ Benefit of the scheme in question can be availed even pending appeal; ➢ The scheme categorically provides fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended to debar the eligible traders having the eligible transactions from availing the benefit of the scheme on the mere count that the assessment / reassessment / revision proceedings are pending. Had that been the case, then the Legislature would have taken care of such a situation while providing for the negative covenants; 5 In view of the aforesaid, the respondent is not justified in denying the benefit of the scheme in question to the petitioner merely on the count that assessment was not pending. It is not open to the authorities to read any additional or extra clause in the scheme which is not specially enacted or stated. 6 The contention raised by the respondent to the effect that the scheme was not operative when the petitioner applied for availing such benefit, is devoid of any merit. The respondent has stated in the affidavit-in-reply that the scheme was introduced on 14.10.14 for a period of 180 days and accordingly, such scheme expired on 11.04.15. Since the petitioner had deposited the tax on 10.04.15 for the year 2009-10 and on 13.04.15 for the year 2010-11. Whereas the scheme was operative only till 11.04.15, such deposit was be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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