The Commissioner, Bangalore Mahanagara Palike Vs. Sri P.K. Joseph S/O Sri P.J. Kurian - Court Judgment

Excerpt:
- karnataka value added tax act, 2003 [k.a. no. 30/2005] section 72 [as amended by act 6 of 2005, 4 of 2006, 6 of 2007, 5 0f 2008]: [d.v. shylendra kumar, j] penalties relating to returns and assessment - levy of held, power though ancillary and incidental to main power of levy on sale of goods cannot go beyond scope of accidental and ancillary powers. extent of penalty reaches 100 times or more of actual tax liability it is grossly disproportionate to act of failure in not complying with requirement of filing of return within stipulated time and paying tax within such stipulated time - extent of levy of penalty in facts goes much beyond the scope of power of ancillary and incidental power i.e. ensuring prompt tax remittance to state - it becomes a tax in nature of tax on income being at 10% of tax liability is beyond legislative competence of state. provision of sub-section (1) of section 72 of act fails twin test of non-arbitrariness and irrationality leading to discrimination, violative of article 14. also fails test of reasonable restrictions saved under article 19(6) of constitution of india vis--vis article 19(1)(g). it can be declared unconstitutional.b.s. patil, j.1. the appeal is directed against the judgment and decree dated 25.8.2005 passed in os no. 796/99.2. the appellant herein was the defendant before the court below. the respondent herein filed a suit for permanent injunction against the appellant corporation alleging that the officials of the appellant corporation were making to demolish the compound wall put up (sic) his property and also a portion of his property.3. it is the case of the plaintiff respondent herein that the suit schedule property was originally a site allotted in favour of one m. omkar by kaveri house budding co-operative society and later on the society executed a registered sale deed dated 27.11.1998 in favour of the said m. omkar. subsequently, the allottee m. omkar sold the suit site in favour of one ramakka under a sale deed dated 15.12.1984 and from the said ramakka the plaintiff purchased vide sale deed dated 1.3.1991. it is the farther case of the plaintiff that the layout formed by the society had been approved by the bangalore development authority arid the bda had issued khata certificates in favour of the original allottee and subsequently in favour of the subsequent purchaser ramakka and as also in favour of the plaintiff. plaintiff further pleaded that after purchasing the site, having obtained an approved plan from the bda, he had put up construction of a residential house in the suit site find a compound wall enclosing the same. thus the plaintiff contended that he was in lawful possession of the same and the defendant without having any manner of right in respect of the suit property, made attempts to demolish a portion of the building and the compound wall allegedly on the ground that they intended to widen the road. in this background, he approached the court below seeking; permanent injunction.4. the defendant contested the suit contending inter-alia that plaintiff was trying to encroach upon the road belonging to city corporation by putting a compound wall, hence the officials of the corporation attempted to restrain the plaintiff from encroaching upon the road and in spite of the same, he succeeded in putting up a compound wall by encroaching the road belonging to the corporation.5. based on the respective plea taken by the parties, the court below framed necessary issues with regard to the lawful possession of the plaintiff over the suit property and also of the alleged unlawful interference by the officials of the defendant.6. in support of his case, the plaintiff examined himself as pw-1 and produced and marked exs.p1 to 21. the defendants did not choose to adduce any evidence either oral or documentary. based on the evidence on record, the court below recorded the findings in favour of the plaintiff at regards his lawful possession and the attempted interference by the corporation. the court below further held that the defendant corporation failed to prove that plaintiff was attempting to encroach upon the road while putting up his construction.7. the court below has placed reliance on the evidence, both oral and documentary produced by the plaintiff to hold that he is in lawful and peaceful possession and enjoyment of the suit schedule property having put up a construction based on the sanction plan given by the bda. as regards the defence taken by the appellant-defendant that the plaintiff was attesting to encroach a portion of the road, the court below has held that if there was any such alleged encroachment on the road, the defendant would have taken steps to dear the encroachment by issuing necessary notice as contemplated under the provisions of karnataka municipal corporations act. as the defendant neither pleaded anything about the same nor placed any material on record to show that any action was initiated in that direction, the court below has come to the conclusion that the defendant failed to show to the satisfaction of the court that there was any such attempted encroachment on the road by tine plaintiff.8. having heard the learned counsel for the parties and on careful perusal of the records, i find that the findings recorded by the trial court are baaed on evidence, both oral and documentary. plaintiff has established his actual lawful possession over the property and the factum of having constructed a house with compound wall after securing sanction plan from the bda. in the absence of any material to show that he bad infect made an attempt to encroach the road, there was no justification for the authorities of the defendant corporation to mess any attempt either to demolish the constructed portion or to interfere with the court below, if there was any attempt on the part of the plaintiff to encroach the public road, the corporation would have initiated action in accordance with the provisions of the karnataka municipal corporations act for clearing the encroachment on the road. even now if the plaintiff has encroached any portion of the road, the corporation is not loft with any remedy to initiate appropriate action. at rightly held by the court below, in the guise of preventing the petitioner horn, making alleged encroachment on the road it cannot highhandedly resort to demolish the construction put up by the plaintiff. therefore, i do not find any illegality or perversity in the findings recorded by the court below so as to warrant interference in exercise of the appellate jurisdiction.9. in the result and for the aforementioned reasons, this appeal fails and the same is dismissed. no costs.