Babu Hanmanta Marlla @ Kalay. Vs. the State of MaharashtrA. - Court Judgment

Excerpt:

.....to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. .....to the said impugned order is only on the limited aspect as to no hearing given to the petitioner prior to passing the said order.4. certain factual position, as emerged out from the documents produced in the writ petition, can be narrated in order to have proper perspective of the matter and to decide the only challenge to the impugned order.5. senior pi amboli police station, mumbai submitted a proposal to dcp zoneix, bandra i.e. externing authority for, initiating action under section 56(1)(a)(b) of the mumbai police act, 1951 against the present petitioner, mainly alleging that his activities are injurious to the public at large in the area of andheri and jogeshwari, mumbai and said petitioner was continuously indulging in activities of assault, extortion, rioting etc. and indulging in the offences punishable under chapters xvi & xvii of indian penal code. it is also alleged that the victims and the witnesses of various incidents were not willing to come forward and make complaints against the petitioner by reason of apprehension in their mind regarding safety of their person and property.6. initially show cause notice was issued under section 59 of the mumbai police.....

Judgment:

1. Writ Petition is heard finally. Rule. Rule is made returnable forthwith by consent of the parties.

2. Rival arguments were heard on 23rd March, 2011 and 25th March, 2011. Perused the accompanying documents to the present Writ Petition. Also perused the affidavit filed by the Externing Authority Deputy Commissioner of Police, ZoneIX, Bandra (West), Mumbai dated 24th March, 2011.

3. By the present Writ Petition, the Petitioner has challenged the externment order passed against him dated 15.2.2011 passed by the DCP, ZoneIX, Bandra (W), Mumbai. Challenge to the said impugned order is only on the limited aspect as to no hearing given to the petitioner prior to passing the said order.

4. Certain factual position, as emerged out from the documents produced in the Writ Petition, can be narrated in order to have proper perspective of the matter and to decide the only challenge to the impugned order.

5. Senior PI Amboli police station, Mumbai submitted a proposal to DCP ZoneIX, Bandra i.e. Externing Authority for, initiating action under Section 56(1)(a)(b) of the Mumbai Police Act, 1951 against the present petitioner, mainly alleging that his activities are injurious to the public at large in the area of Andheri and Jogeshwari, Mumbai and said petitioner was continuously indulging in activities of assault, extortion, rioting etc. and indulging in the offences punishable under Chapters XVI & XVII of Indian Penal Code. It is also alleged that the victims and the witnesses of various incidents were not willing to come forward and make complaints against the petitioner by reason of apprehension in their mind regarding safety of their person and property.

6. Initially show cause notice was issued under Section 59 of the Mumbai Police Act. It was issued by the Assistant Commissioner, Dadabhai Nauroji Nagar Division, Mumbai dated 27.10.2010. In the said notice, the details of the offences were mentioned as under : Sr. Police C.R. & Sections Date of Status No. Station Registration

1. Oshiwara 315 / 1997 u/s. 336, 427, 14.07.1997 506(11), 34 of IPC.

2. Oshiwara 277 / 1996 u/s.384, 506(II), 114 of IPC

3. Amboli 167 / 2010 u/s. 141, 143, 05.05.2010 Under 145, 147, 149, 326, 324, investigation 323, 506(II), 34 of IPC and section 37(1) r/w. 135 of Bombay Police Act.

4. Amboli N.C.No.164 / 2009 u/s. 323, 504, 506 of IPC.

5. Amboli N.C. No. 1229 / 2009 u/s. 504, 506 of IPC

7. After service of showcause notice the present petitioner was given opportunity to represent himself before the Assistant Commissioner of Police who served the notice i.e. the enquiry officer. Enquiry was adjourned for about 17 dates and out of which present petitioner remained absent for 7 dates. He also examined two witnesses on his behalf. Sufficient opportunity was given to him by the Enquiry Officer and then the proposal was submitted to the Externing Authority for issuance of final order after the enquiry. After the report from the Enquiry Officer along with documents and the statements of three witnesses examined on behalf of the petitioner were received by the Externing Authority, matter was fixed on 15.2.2011 and intimation was given to the petitioner through police constable. Accordingly, the present petitioner remained present before the Externing Authority on the same day and he was given hearing and after perusal of the material on record the Externing Authority passed the impugned order. Roznama was also prepared on the same day of 15.2.2011 regarding presence of the petitioner before the Externing Authority and hearing given to the petitioner by the said Authority. The said rozanama copy is perused by this Court, which is annexed to the affidavit filed by the Externing Authority Deputy Commissioner of Police, ZoneIX, Bandra (West), Mumbai.

8. By the impugned externment order, the present petitioner was externed from Mumbai and BrihanMumbai area for the period of three months. Said externment order was served on the petitioner on the same day of the order dated 15.2.2011. It is a factual position that the present petitioner did not choose to file appeal against the said order and opted to file present Writ Petition. It is also a factual position that in the entire Writ Petition there are no other grounds taken except that he was not given opportunity to be heard by the Externing Authority prior to passing the order.

9. As mentioned in the foregoing paras, it is crystal clear that sufficient opportunity was given to the petitioner even at the stage of enquiry before the ACP and also thereafter before the Externing Authority and as such there is no merit in the submission advanced on behalf of the petitioner that the order passed under Section 59 of the Mumbai Police Act is against law and is liable to be quashed.

10. Considering these circumstances and considering the said order of only three months externment imposed on the petitioner after giving full opportunity to be heard and after hearing the matter by the Externing Authority, there is nothing to intervene in the said order in the writ jurisdiction. Hence, Writ Petition is dismissed. Rule stands discharged accordingly.