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OM CHITRA MANDIR & ANOTHER versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Om Chitra Mandir & Another v. State Of U.P. & Others - WRIT TAX No. 351 of 2003 [2003] RD-AH 134 (6 May 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 351 Of 2003

Om Chitra Mandir & Anr. -----           Petitioner

Versus

The State of Uttar Pradesh & ors. -----        Respondents

------------------------------  

Hon'ble Dr.B.S.Chauhan,J.

Hon'ble Ghanshyam Dass, J.

(By Dr. Justice B.S.Chauhan).

This writ petition is eye opener, as it gives an idea as how easy approach for litigants can permit them to abuse the process of the Courts, assuming to have vested right to present successive writ petitions on misconceived notions at their whims without following any procedure prescribed under the law.

The facts and circumstances giving rise to the instant writ petition are that the petitioner no. 2 who was having licence to exhibit movies under The Cinematograph Act 1952 (hereinafter called the Act, 1952) applied for renewal of the licence after its expiry. The licencing authority vide orders dated 31.3.2002 and 5.4.2002 did not renew the licence inter alia on the ground that the petitioner no.2 failed to deposit the arrears of entertainment tax to the tune of Rs.14,98,485/-.(Rupees Fourteen Lakhs Ninety Eight Thousand Four Hundred and Eighty Five) only. The licencing authority vide order dated 5th April 2002 directed the petitioner no.2 to close the picture hall for non-payment of said amount of  tax.

Feeling aggrieved and dissatisfied petitioner no.2 approached this Court by means of Civil Misc. Writ Petition No. 15913 of 2002 which was dismissed in view of the preliminary objection raised on behalf of the respondents that the petitioner had approached this Court without exhausting the statutory remedy of appeal before the government as provided under section 12 (2) of the U.P. Entertainments and Betting Tax Act 1979 (Hereinafter called the Act,1979). However, to protect the interest of the petitioner no.2 this court granted  her liberty to prefer appeal within a period of three weeks and if such an appeal was preferred, the appellate authority was directed to decide the same within three weeks thereafter without raising the objection of limitation by speaking order in accordance with law. It appears that instead of filing the appeal as provided under section 12 (2) of the Act 1979 read with Rule 65 of the U.P. Entertainments and Betting Tax Rules, 1981 (Hereinafter called the Rules 1981), petitioner merely sent a representation/letter on 3rd May 2002 to the Chief Secretary of the State of U.P. which stood rejected by the Entertainment Commissioner vide impugned order dated 12.12.2002. Hence this petition.

It has been submitted by the learned counsel for the petitioner no.2 that the order dated 12.12.2002 has been passed by the Entertainment Commissioner who had no competence to decide the appeal, therefore the order is a nullity for want of jurisdiction.

The learned Standing Counsel has contended that petitioner no.2 had never presented the memo of appeal before the Appellate Forum as required under the law. Petitioner had been given several opportunities to appear in person, but he did not consider it proper to appear or respond to the said notices. A huge amount of Rs.14,98,485/- towards Entertainment Tax remained outstanding towards her on account of non-payment of Tax. Thus Hon'ble Court should not grant any indulgence at all.

We have considered the rival submission made by learned counsel for the parties and perused the record.

First petitioner in the petition is Om Chitra Mandir i.e. the Cinema Hall. We fail to understand how the cinema hall can become a party before the court as it is not a legal person by any means.

Section 12 (2) of the Act 1979 reads as under:

"Any person aggrieved by an order under Sub-section 1 may, within 15 days from the date of service of such order, prefer an appeal to the State Government in such manner as may be prescribed, and the order of the appellate authority shall be final".

The manner of presenting the appeal has been prescribed under Rule 65 of the Rules, 1981 which reads as under:

"Appeals (1) An appeal under sub-section (3) of Section 10, sub-section (2) of Section 12, sub-section (3) of Section 15 or sub-section (4) of Section 21 of the Act shall be preferred to the Secretary to the Government of Uttar Pradesh in the Finance (Entertainment Tax) Section, U.P. Secretariat, Lucknow along with a certified copy of the order against which the appeal is made and stating clearly the ground or grounds of appeal. A copy of the notice, if any, received, and the reply to the notice, if any, given shall also be submitted.

(2) A copy of the appeal along with its enclosures shall also be supplied simultaneously to the officer against whose order the appeal is preferred and to the District Magistrate concerned who shall supply necessary records and such other information to the Government as may be required along with his comments..."

Thus, there is specific procedure provided for filing the appeal in Section 12 (2) of the said Act read with Rule 65. Rules 1981, which clearly contemplates that a copy of the appeal along with its enclosures shall also be supplied simultaneously to the officer against whose order the appeal is pr4eferred and the District Magistrate concerned who shall supply necessary records and such other information to the Government as may be required along with his comments and if the State Government is satisfied it may grant a temporary stay and send a copy of its order to the Commissioner as well as the District Magistrate concerned.

In the instant case, the petitioner has not filed any memo of appeal as required under Rule 65 of the Rules 1981 read with Section 12 (2) of Act, 1979. As no proper memo of appeal had ever been presented by the petitioner no.2 in consonance with the statutory provisions there was nothing before the government to decide. No copy of the memo of appeal had ever been furnished to the Authority against who's order appeal was preferred. Even if the order passed by the Entertainment commissioner is bad for want of jurisdiction as he has decided the appeal we see no ground as to why the petitioner has not appeared before him despite several opportunities provided by him and raised the issue of jurisdiction.

In Mohd. Swalleh & ors Vs. IIIrd Addl. District Judge Meerut & Anr. AIR 1988 SC 94 wherein the learned District Judge entertained the appeal against the order of prescribed authority under the U.P. Act No. 13 of 1972 though order was not appealable. The Hon'ble Supreme Court held that the order passed by the district Judge was correct in law and as it correctly set aside the order passed by the Prescribed Authority, there was no occasion for the High Court or the Supreme Court to entertain the plea of jurisdiction. Petitioner did not appear to explain her case/agitate the issue of jurisdiction inspite of large number of opportunities given to her, thus she cannot be permitted to take benefit of her own mistake. (Vide G.S. Lamba & Ors. Vs. Union of India & Ors., 1985 (2) SCC 604; T.Srinivasan Vs. T. Varalakshmi, 1988 (3) SCC 112; Narendra Chadha Vs. Unioin of India & ors., AIR 1986 SC 638; Grindlays Bank Ltd. Vs. Dharamsing Vallabhji & ors., (1966) 2 All. E.R. 626; Montriel Street Railways Company Vs. Normandin. AIR 1917 PC 142; and Jose Vs. Alice & Anr., 1996 (6) SCC 342; 253. Petitioner never preferred any appeal as required under the Act 1979 and Rules 1981, thus steps taken by the petitioner cannot be said to be in consonance with the Rules, rather filed this second petition.      

The issue of filing successive writ petition has been considered by the Hon'ble Supreme Court time and again and held that even if the earlier writ petition has been dismissed as withdrawn, Public Policy which is reflected in the principle enshrined in Order 23 rule 1 C.P.C., mandates that successive writ petition cannot be entertained for the same relief.  (Vide M/s. Sarguja Transport Service Vs. State Transport Appellate  Tribunal, AIR 1987 SC 88; Ashok Kumar Vs. Delhi Development  Authority,  1994 (6)  SCC 97; Khacher Singh Vs. State of U.P. and  others,  AIR 1995 All.  332; and Uda Ram Vs. Central State Farm, AIR 1998 Raj.186).

Even  if  a party does not pray  for  the relief in  the  earlier writ petition, which  he ought to have claimed in the earlier petition, he cannot file a successive writ petition  claiming that relief, as  it  would  be  barred by the principle of constructive res judicata enshrined in Explanation  IV to Section 11 and Order 2 rule 2 of the  Code  of Civil Procedure.  in  Order  2 rule 2 C.P.C.,  as   has   been  explained,   in unambiguous  and  crystal clear language by the Hon'ble Supreme  Court in Commissioner of Income Tax Vs. T.P.   Kumaran,  1996 (10)  SCC  561;  Union of  India and others Vs. Punni Lal, 1996  (11) SCC  112;   and  D.  Gudasji &  Co.   Vs. State of Mysore, AIR 1975 SC 813.      

Filing successive petition without any sense of responsibility amounts to abuse of process of the Court.

In  Dr.   Buddi  Kota  Subbarao  Vs.   K Parasaran, AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-                    

"No  litigant  has a right  to  unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes.  However, access to  justice  should not be misused  as  a licence   to   file    misconceived   and frivolous petitions."

Similar view has been  reiterated by the Supreme  Court  in  K.K.  Modi  Vs.   K.N. Modi, (1998)  3 SCC 573.                                        

In Tamil Nadu Electricity Board & Anr. Vs. N. Rajureddiar & Anr. AIR 1997 SC 1005 the Hon'ble Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.

In  Sabia Khan & ors.  Vs.  State of U.P. & ors., (1999)  1 SCC 271, the Hon'ble Apex Court held that  filing  totally misconceived  petition amounts to  abuse of the process of the Court and such litigant  is  not required to be dealt  with lightly.

In  Abdul Rahman Vs.  Prasoni Bai & Anr., 2003 AIR  SCW 14, the Hon'ble Supreme Court  held that wherever  the Court comes to the  conclusion that the  process  of the Court is being  abused, the Court  would  be  justified  in  refusing  to proceed further   and  refuse   the  party  from pursuing the remedy in law.

Thus in view of the above, we are of the considered opinion that petitioner no.2 has considered herself to be a valid licensee to use, misuse and abuse the process of the Court by filing successive writ petitions merely because she has considered that it would be better to prolong litigation and spend money on litigation by filing misconceived and not-maintainable petitions rather than making payment of the outstanding dues of the respondent authorities. The practice of filing the successive writ petitions in such manner is deprecated and the conduct of the petitioner is held to be reprehensible.

The petition is dismissed with cost of Rs.25000/- which shall be recovered by the learned District Collector along with the other dues to be recovered as arrears of land revenue and shall be deposited with the U.P. Legal Service Authority, Lucknow.

A copy of this judgment and order will be sent to the learned District collector Siddharth Nagar forthwith by the Registry for its compliance.  

6 .5.2003

MNU/S.B.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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