(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has made following prayers:
“a) The Hon'ble Court be pleased to admit and allow this petition;
b) The Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, direction or order in the nature of mandamus and be pleased to direct the respondents to issue a license or renew the license for the period 2006 i.e. from 01.01.2006 to 31.12.2006 and the notice issued by the department Annexure-G be quashed and set aside.
c) This Hon'ble Court be pleased to hold and declare that the assessment which has been done by the department as per the show cause notice date 08.07.1994 and subsequent notice dated 16.08.1995 is illegal, null and void and therefore, this show cause notice be quashed and set aside and all the order which are passed consequentially be also declared null and void and the same be set aside.
d) Pending admission, hearing and/or final disposal of this petition, the Hon'ble Court be pleased to direct the respondents to renew the license or not to interfere in the running of Paras Cinema by the petitioner Kiran Exhibitors.
e) Pending admission, hearing and/or final disposal of this petition, this Hon'ble Court be pleased to stay the recovery proceedings of the respondents.
f) Such other and further reliefs as this Hon'ble Court may deem just and expedient be granted in favour of the petitioner.
g) Costs of this petition be provided for to the petitioner.”
2. The prayers are rather vague and general. However, with the assistance of learned counsel for the parties, we have tried to gather the grievances of the petitioner and to ascertain whether such grievances can be redressed in law. On the basis of the pleadings on record, following factual sequence emerged:
2.1 The petitioner is a partnership firm and is engaged in the business of running cinema house at Nadiad. For some alleged irregularities in sale of tickets without payment of taxes, the Prescribed Officer issued a show-cause notice dated 08.07.1994 calling upon the petitioner to show-cause why entertainment tax of Rs. 6,05,319/- alongwith penalty one and half times that much be not recovered. The show-cause notice was founded on the allegation that the petitioner had printed duplicate tickets and sold them without payment of taxes. Such sales were not recorded in the register. Alongwith the show-cause notice, the authority also provided a list of tickets which were allegedly sold without reflecting in the register.
2.2 On the basis of such show-cause notice, the Prescribed Officer passed an order ordering the recovery of the said sum with penalty. Against such order, the petitioner preferred an appeal to the Collector. District Collector, Entertainment Tax, by his order dated 19.04.1995, allowed the appeal on the ground of breach of natural justice. He remanded the proceedings for fresh consideration after giving reasonable opportunity to the petitioner.
2.3 Thereupon, the Prescribed Officer issued a notice dated 16.08.1995 and called upon the petitioner to state his defense in response to show-cause notice dated 08.07.1994.
2.4 On 21.05.1996, the Prescribed Officer passed yet another order, ordering recovery of the said sum of Rs. 6,30,319/- which included the principal sum of tax and penalty. In such order, he recorded that the petitioner was asked to participate and state his defense. The petitioner insisted on return of his entire record which was seized earlier. The petitioner was informed orally as well as in writing that he would be supplied extracts of such documents. However, the petitioner on one pretext or the other in order to evade tax payment, did not participate.
2.4 Against such order of the Prescribed Officer, the petitioner preferred an appeal to the Collector, Entertainment Tax as Appellate Authority who, by his order dated 11.12.1997, dismissed such appeal. Against such appellate order, the petitioner preferred revision before the Commissioner of Entertainment Tax. The Commissioner, vide his order dated 01.07.1998, dismissed the revision.
2.5 For long number of years after such order was passed, petitioner took no steps to challenge the adverse orders. On 13.01.2006, the District Magistrate, Kheda issued a show-cause notice to the petitioner to show cause why the license should not be cancelled. In such notice, he pointed out that tax of more than Rs. 6,30,000/- with interest was outstanding. Thereafter, another notice was issued on 19.09.2005 in which, it was conveyed that date of hearing is fixed on 26.09.2005. No one remained present on behalf of the petitioner and the outstanding amount was also not paid. He, therefore, proposed to cancel the license. At that stage, the petitioner approached this Court and made the above noted prayers.
3. From the above sequence of events, it can be appreciated that the petitioner has made two fold challenges. One is with respect to the order of recovery of tax and penalty passed by the Prescribed Officer as confirmed by the appellate and revisional authorities. The other challenge of the petitioner is to the show-cause notice issued by the District Magistrate calling upon the petitioner to show cause why for non-payment of taxes, license should not be cancelled.
4. Insofar as the challenge to the demand of tax with penalty is concerned, we are of the opinion that the petition is hopelessly barred by delay and laches.
5. The petitioner has not made any mention why the petition has been preferred after years of delay. To recapitulate, the last order in this respect was passed by the Revisional Authority on 01.07.1998. It is not the case of the petitioner that such order was not communicated or was not received by the petitioner at the relevant time. Thus, to challenge such orders, last of which was passed in July, 1998 the present petition came to be filed in the year 2006. The petition is thus filed after more than seven years. To explain such inordinate delay, the petitioner has not made any attempt in the petition. There are no averments, no assertions, no facts, no details given why the petitioner did not challenge the orders for more than seven years after the revision was dismissed. The petitioner thus kept silence for seven years after the revisional order. There was thus acquiescence on part of the petitioner. It was only when the authorities threatened the petitioner with cancellation of license for non-payment of tax and penalty that the petitioner challenged the impugned orders.
6. In our opinion, the petition and the prayer in connection with quashing such revisional order must fail on the ground of delay and laches. It is true that there is no fixed period of limitation for filing writ petition before the High Court under Articles 226 and 227 of the Constitution of India. This is, however, not the same thing as to suggest that a citizen can move the Court at any time without any reference to the nature of delay. It is often suggested that the law does not help the tardy and the lethargic. If it is pointed out that a particular cause is taken-up after long number of years without any explanation for such inordinate delay, the Court would certainly examine such a challenge in the context of laches.
7. To reiterate in the present petition to explain more than seven years of delay for filing the petition against the revisional order, the petitioner, has offered no explanation whatsoever. Despite best efforts of the counsel for the petitioner, we are unable to ignore such delay. Counsel contended that the order is ex facie illegal and ab initio void. He submitted that there has been breach of natural justice. To our mind, such issues would not be germane till we permit the petitioner to argue the cause on merits. When we are not inclined to entertain the petition at the very stage of delay, we do not express any opinion on several contentions raised by the counsel for the petitioner on merits.
Counsel for the petitioner contended that once the petition was admitted, delay would be its significance. Further, the respondents have raised no objection of delay. To our mind both the contentions are devoid of merits. Firstly there is nothing to suggest that the court, while admitting the petition, considered the aspect of delay and admitted the petition over-ruling such obstacle. Question of delay was not therefore gone into. At the time of hearing therefore, if such a question comes to the notice of the court, there is no prohibition from examining the same even if not specifically raised by the respondents.
8. With respect to the challenge to the show-cause notice, the same was founded on non-payment of tax by the petitioner. It would be open for the petitioner to reply to such a show cause notice and thereafter for the authorities to take a view in accordance with law.
9. In the result, the petition is disposed of in following manner:
i) Insofar as the challenge to the notices dated 08.07.1994, 16.08.1995 and the consequential orders passed on the basis of the notices is concerned, the same is dismissed.
ii) Insofar as the challenge to the show-cause notice dated 13.01.2006 is concerned, the petitioner is relegated to the competent authority to oppose the proposals in the show-cause notice for which purpose, the petitioner shall have time upto 31.12.2012 to file reply. The authority shall take a decision thereon after giving opportunity to the petitioner to represent his case.
iii) Under interim order dated 27.04.2006, the petitioner had deposited a sum of Rs. 3,15,000/- and thereafter another sum of Rs. 1 lac to be able to enjoy interim protection against the cancelation of the license. Such amount shall be appropriated by the respondent towards the dues of the petitioner arising out of the impugned orders. The interim protection is vacated. Petition is disposed of accordingly.
[AKIL KURESHI, J.] [HARSHA DEVANI, J.] JYOTI