Smt. Roopa Vs. Vijaya Kumar and anr. - Court Judgment

Excerpt:
- karnataka tax on luxuries act (22 of 1979) section 2(4): [v. gopala gowda & l. narayanaswamy, jj] definition of hotel - amendment including club in the definition of hotel with retrospective effect - challenge as to constitutional validity held, the words used in the definition of hotel in section 2(4) of the act are by way of business. therefore, to attract charging section under the act to levy luxury tax upon the members of the club, the element of business is a must. all hotels are meant to carry on commercial business only but not clubs. clubs are meant for doing social, cultural, sports and recreation activities. the element of business is totally outside the purview of a club. therefore, a club cannot be equated with a hotel under the definition to levy luxury tax. while the definition of hotel expressly mentions by way of business, in the explanation inserted, the words whether or not in the course of business is included. this is in conflict with the word business in the definition clause, therefore, treating the unequals equally amounts to determination, which is in violation of article 14 of the constitution of india. it is not proper and correct for the state legislature to treat a club on par with a hotel as the element of business is lacking in the clubs which is one of the cardinal principle to levy luxury tax. further, the amendment in question to the definition of hotel under section 2 (4) of the act is retrospective in nature, as the words used therein are shall always be deemed to have been inserted. in respect of tax statutes, to bring an assessee under tax umbrella and to levy tax for the first time, the provision of the act shall always be prospective and shall not be retrospective. inclusion of club in the definition of hotel and the explanation inserted to section 2(4) of the act by way of an amendment with retrospective effect are not legal, valid and correct. the amended provision with explanation there to are struck down as bad in law and the impugned notices are quashed. it is declared that club cannot be equated to hotel for the purpose of levying luxury tax under the act.ordersubhash b. adi, j.1. the petitioner has sought for setting aside the order dated 19-8-2009 in e.p. no. 68 of 2009 on the file of the dakshina kannada consumer disputes redressal forum, mangalore.2. it appears, the decree-holder before the consumer forum had filed an execution petition for execution of the decree. in this regard, the matter was posted on 19-8-2009. since the petitioner had not appeared in the case, the presiding officer of the district consumer redressal forum had issued non-bailable warrant through superintendent of police. at this stage, the petitioner is before this court.3. learned counsel for the petitioner submits that before issuing nbw, the presiding officer is required to follow the procedure contemplated under section 27 of the consumer protection act, 1986 and the said procedure is not followed. however, he also submits that the petitioner herein would appear before the consumer forum on the date fixed by this court to avoid unnecessary delay in the matter.4. considering the submission made by the learned counsel for the petitioner, if the petitioner is directed to appear before the consumer forum on a particular date, it would suffice the purpose for which, the nbw is issued. accordingly, the petition is allowed and the order dated 19-8-2009 in e.p. no. 68 of 2009 is set aside, subject to the petitioner appearing before the consumer forum on 4th september, 2009.

Judgment:
ORDER

Subhash B. Adi, J.

1. The petitioner has sought for setting aside the order dated 19-8-2009 in E.P. No. 68 of 2009 on the file of the Dakshina Kannada Consumer Disputes Redressal Forum, Mangalore.

2. It appears, the decree-holder before the Consumer Forum had filed an execution petition for execution of the decree. In this regard, the matter was posted on 19-8-2009. Since the petitioner had not appeared in the case, the Presiding Officer of the District Consumer Redressal Forum had issued non-bailable warrant through Superintendent of Police. At this stage, the petitioner is before this Court.

3. Learned Counsel for the petitioner submits that before issuing NBW, the Presiding Officer is required to follow the procedure contemplated under Section 27 of the Consumer Protection Act, 1986 and the said procedure is not followed. However, he also submits that the petitioner herein would appear before the Consumer Forum on the date fixed by this Court to avoid unnecessary delay in the matter.

4. Considering the submission made by the learned Counsel for the petitioner, if the petitioner is directed to appear before the Consumer Forum on a particular date, it would suffice the purpose for which, the NBW is issued. Accordingly, the petition is allowed and the order dated 19-8-2009 in E.P. No. 68 of 2009 is set aside, subject to the petitioner appearing before the Consumer Forum on 4th September, 2009.