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Vakil Singh Patel v. State of U.P. & Others - WRIT - C No. 45 of 2004 [2004] RD-AH 126 (4 March 2004)


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                       CIVIL MISC. WRIT PETITION No. 45 of 2004

             Vakil Singh Patel       ......... Petitioner


                  State of U.P. & Ors. ......... Respondents

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

Hon. Ghanshyam Dass, J.

(By Hon'ble Dr. B.S. Chauhan,J)

This writ petition has been filed against the impugned order dated 16/1/2003, by which an entertainment tax has been assessed to the tune of Rs. 6,000/- and a penalty of Rs. 10,000/- has been imposed for evading  the tax.

Facts and circumstances giving rise to this case are that that the District Entertainment Tax Officer had raided the premises of the petitioner on 30/10/2002, along with its team and he found that a video film was being exhibited for public at large after issuing tickets without having any valid licence under the statutory provisions. The tickets issued by the petitioner to the cinema goers had been seized from the said persons by the raiding party and their signatures were also taken. A case was registered against him. He was issued a show cause notice by the registered post on 7/11/2002, to show cause, but  he did not submit any reply, nor he appeared before it. Under Section 12 of the U.P. Entertainment and Abetting Tax 1979, inquiry was initiated against him and the impugned order was passed. Direction was also issued to prosecute the petitioner for violation of the provisions of Section 8 of the U.P. Cinema Regulation Adhiniyam, 1955. Hence this petition.    

Learned Standing Counsel has raised preliminary objection that the impugned order had been passed on 16/1/2003, and it has been challenged after expiry of more than 1 year . No explanation has been furnished, for the delay. The order impugned is appellable. Writ petition has been filed without exhausting the statutory remedy of appeal, hence the petition is liable to be dismissed.

Shri P.N. Singh, learned counsel appearing for the petitioner has submitted that the order impugned is arbitrary and  unreasonable and has been passed without giving any opportunity of hearing to the petitioner. The petitioner cannot be relegated to the appellate forum and this Court should entertain this petition and quash the impugned order.

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

There is no averment in the petition that the premises was not raided by the respondent-authorities nor there is any explanation that the raid has been conducted on 13/10/2002, and under what circumstances, petitioner had chosen not to follow the proceedings before the statutory authority. Show Cause notice was sent by registered post on 7/11/2002, therefore, there is a presumption of receipt of the registered letter by the petitioner and this presumption cannot be rebutted by merely making a bald statement that the order has been passed without giving a notice to the petitioner.

Under  Section 27 of the General  Clauses Act, there  is  a  presumption   of  service   by  registered  post, as held by the Hon'ble  Supreme Court in  Gujarat Electricity Board Vs.   Atmaram Sungomal Poshani, AIR 1989 SC 1433;  Commissioner of Income Tax (Adm.), Bengal Vs.  V.K.  Gururaj & ors., (1996) 7 SCC 274;  State of U.P.  Vs.  T.P. Lal Srivastava,  (1996)  10   SCC  702;   Adavala Suthaiah  & ors.  Vs.  Special Deputy  Collector, Land Acquisition  & ors., (1997) 1 SCC 130;   and Shimla Development Authority & ors.  Vs.  Santosh Sharma (Smt.) & Anr., (1997) 2 SCC 637. In  Madan Lal Kadia Vs.  Union of  India, AIR 1968 Orissa 234, the Orissa High Court placed reliance  upon  the judgment of Privy Council  in  Harihar Banerjee  Vs.  Ramshashi Roy, AIR 1918 PC102 and held that there can also be presumption of receiving   the  letter   sent  under   postal certificate  in view of the provisions of Section 114 (f) of the Evidence Act.

In Kanaklata Ghosh Vs.  Amal Kumar Ghosh, AIR 1970  Cal.   328,  a similar  view  has  been reiterated   by  the  Calcutta   High  Court   by observing that if a person makes a claim that the letter was  sent  under postal  certificate,  the other side may cross-examine it on the said issue and try to  find  out further information as  who had posted it, at what time it was posted etc. In  Mst.  L.M.S.  Ummu Saleema Vs.   B.B. Gujral &  Anr., AIR 1981 SC 1191, the Apex Court, dealt with the issue of presumption of service of letter sent  under postal cover, and observed  as under:-

"The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on 14-8-80 and in due course reached the addressee.  But it is only a permissible   and not    an   inevitable presumption.   Neither Section   16 nor Section 114 of the Evidence Act compel the Court to draw a presumption.   The presumption may or may not be drawn.  On the acts and circumstances of a case, the Court may refuse   to draw   the presumption.   On the other hand, the presumption may be drawn initially but on    a consideration of the evidence, the Court may hold the presumption rebutted."

In  M/s.  Surajmal Shiwbhagwan Vs.   M/s. Kalinga Iron Works, AIR 1979 126, the Orissa High Court held that the presumption under Section 114 of the Evidence  Act,  in ca case of sending  the letter under  postal  certificate,   be  examined consciously. In   B.L.     Srivastava    Vs.    M.M.L. Shridhar,  AIR 1975 MP 21, the Division Bench  of Madhya Pradesh   High   Court   held   that   the certificate  of  posting  may give  rise  to  the presumption  that the letters were posted but  no presumption  can be drawn that they were received by the other party. In  Ayisabeevi Vs.  Aboobackar, AIR  1971 Ker.  231,  the  Kerala High Court held  that  in such a case, presumption of receipt of the letter under Section  114  of  the Evidence Act  can  be drawn.

In   J.Mc.   Gaffin  &  Anr.   Vs.   Life Insurance  Corporation  of India, AIR  1978  Cal. 123, a similar  view  has been reiterated by  the Division Bench of Calcutta High Court.

No attempt has ever been made by the petitioner to rebut that presumption of service nor he had taken pain to make inquiry from the office regarding service of notice nor he has asked any postman as what happened to the said letter.

Merely making a bald statement that he did not receive the notice  is not enough. Allegations of malafide had been taken that the order has been passed at the behest of certain persons having rivalry with him which are not worth acceptance, as no such person has been named nor impleaded as a party-respondent in this petition nor any officer who had acted at the behest of the rival party has been impleaded. Allegations of bias falls short taking note thereof.

In view of the above, we find no force in the petition, it is, accordingly dismissed.    




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