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Pratap Narain Singh v. Assessing Authority - WRIT TAX No. 946 of 1992 [2005] RD-AH 641 (4 March 2005)


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Court No.37

Civil Misc. Writ Petition No. 946 of 1992

Pratap Narain Singh vs. The Assessing Authority and another

Hon'ble R.K.Agrawal, J.

Hon'ble Prakash Krishna, J.

By means of the present writ petition filed under Article 226 of the Constitution the petitioner has sought the following reliefs:

A. issue writ order or direction in the nature of writ of mandamus or any other appropriate writ declaring the U.P. Taxation and Land Revenue Laws Act, 1975 as unconstitutional and void.

B. issue writ order or direction in the nature of certiorari quashing the order of opposite party no.1 dated 16th July, 1992 (Annexure-I).

C. issue writ order or direction in the nature of mandamus commanding the opposite parties to refund the tax realized from the petitioner and restraining them from realizing any tax under the provisions of U.P. Taxation and Land Revenue Laws Act, 1975.

D. issue any other appropriate writ order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

Briefly stated the facts giving rile to the present writ petition are as follows:

According to the petitioner he is the sole proprietor of Hotel Relax, Englisha Line, Parade Kothi, Cantt. Varanasi. Vide order dated 16th July, 1992 passed by the Assessing Authority under the provisions of U.P. Taxation and Land Revenue Laws Act, 1975 (hereinafter referred to as the ''Act') a sum of Rs. 1,000/- has been imposed as fine under Section 10(2) of the Act and a find of Rs. 100/- per day if the records are not produced on 24th July, 1992 at 3.30 p.m. in the office of the Assistant Director of Tourism, Varanasi. Against the said order the petitioner had preferred an appeal before the Commissioner, Varanasi Division, Varanasi which on legal advice had not got dismissed as not pressed. The grievance of the petitioner is that he was not served with any notice by the Assessing Authority under the aforesaid Act for furnishing any document or opinion and, therefore, the order imposing fine is wholly illegal, arbitrary and liable to be quashed.

We have heard Sri Ram Niwas Singh, learned counsel for the petitioner and Sri S.P.Kesarwani, learned standing counsel for the Revenue.

Learned counsel for the petitioner submitted that the petitioner had not been served with any notice and, therefore, the order dated 16th July, 1992 imposing fine of Rs. 1,000/- and also a fine or Rs. 100/- per day if the records are not produced before the Authority on the subsequent date is wholly illegal and without jurisdiction. Learned standing counsel submitted that the petitioner was served with due notice and in spite of service, for the reasons best known to him, did not appear, therefore, the find has rightly been imposed.

Having heard learned counsel for the parties, we find that in the counter affidavit a specific plea has been taken in paragraph 4 that the notice was served and, therefore, the respondents have filed a copy of the notice along with the counter affidavit. On perusal of Annexure-5 to the counter affidavit we find that notice dated 21st May, 1992 had been issued by the respondent no.1 calling upon the petitioner to appear on 29th May, 1992 before him. That notice has been served on an employee of the petitioner as appears from an endorsement with the seal of the petitioner's Hotel and, therefore, the plea taken by the petitioner that no notice was served upon him is incorrect. The stand taken by the petitioner falsifies from the averment made and the document filed with the counter affidavit.  Since the petitioner had not appeared before the respondent no.1 on the next date fixed, the respondent no.1 was perfectly justified in imposing find of Rs. 1,000/- under Section 10(2) of the Act. So far as imposition of fine under Section 10(1) of the Act for a sum of Rs. 100/- per day if the petitioner does not appear in future is concerned, we find that a find under Section 10(1) of the Act can be imposed only upon conviction and not otherwise. Section 10(1) of the Act reads as follows:

"10 Penalty. (1) Without prejudice to the provisions of sub-section (2) of Section 5 if any persons fails to pay any sum payable under Section 5 or Section 7 within the prescribed period he shall, on conviction be liable to pay a fine not exceeding rupees five hundred and when the offence is a continuing one, with a further fine not exceeding rupees one hundred per day during which the offence continues."

From a reading of the aforesaid provision it is seen that the Prescribed Authority can impose fine only when a person has been convicted and not at his whims. Therefore, in view of the provision of Section 10(1) of the Act imposing fine of Rs. 100/- per day for not appearing in future before the Authority cannot be sustained and is hereby set aside and imposing fine of Rs. 1000/- in view of the provisions of Section 10(2) of the Act shall remain the same, which is hereby confirmed.  At the outset it may be mentioned here that no argument has been advanced on the validity of the provisions of the Act.

The writ petition is accordingly allowed in part.




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