- (1.) SINCE the question raised is common in all the three writ petitions, they are being disposed of by the following common order. For the convenience, I shall refer the case of the petitioner in W.P.No.18576 of 1998. According to them, the petitioner is a dealer in petroleum products registered on the file of the first respondent under the provisions of the Pondicherry General Sales Tax Act, 1967 (hereinafter referred to as the ?Local Act? and the Central Sales Tax Act, 1956 (hereinafter referred to as ?the Central Act?). The petitioner was allotted a sales-tax registration under the local Act as well as under the Central Act and they have been carrying on business since 1983. The first respondent issued a notice dated 10.12.1996 stating that the petitioner had failed to file the monthly returns and pay tax for a few months and further certain cheques issued by the petitioner towards tax dues had returned dishonoured and therefore demanded security of Rs.1 crore to protect the interest of revenue. SINCE the petitioner has not complied with the demand, the first respondent had caused to issue further notice dated 19.5.1997 to show cause as to why the registration under the local Act and the Central Act be not cancelled. The petitioner by reply dated 29.5.1997 informed the first respondent that they were not able to produce the books of account because the same were seized by the income-tax authorities and requested the respondent not to resort to any coercive methods. But the first respondent proceeded to pass orders on 26.8.1997 cancelling the sales tax registration of the petitioner. Against the order of the first respondent, the petitioner had preferred a revision before the Commissioner of Commercial Taxes, Pondicherry. The said revision petition was allowed in favour of the petitioner with certain conditions. The petitioner had duly complied with the main condition. SINCE the petitioner failed to produce the records as demanded, the first respondent proceeded to pass a best judgment assessment by order dated 8.10.1997. As against the order of the respondent, the petitioner had preferred a statutory appeal before the Appellate Assistant Commissioner (CT), Pondicherry. While so, the first respondent issued another notice dated 9.10.1998 stating that for the months of May, June, July and August, 1998, the petitioner has filed the monthly returns belatedly and were also in arrears of tax and penalty. It is further stated that by the impugned order dated 13.11.1998, the first respondent once again cancelled the registration of the petitioner both under the local Act and under the Central Act. The first respondent failed to follow the procedure contemplated under Sec.23 of the local Act. As per Sub-sec.(9) of Sec.23, no order under Sub-sec.(8) shall be made, unless the dealer concerned has been given an opportunity of being heard. SINCE the petitioner was not given an opportunity of personal hearing, the impugned order is liable to be quashed. SINCE the first respondent has communicated the order of cancellation of licence to M/s.Hindustan Petroleum Corporation Limited, they are threatening to cancel the licence given to the petitioner and in such event the petitioner would be forced to close their business. There is no effective remedy by way of appeal or revision. Hence, they approached this Court under Art.226 of the Constitution of India for necessary relief. Similar averments have been made in the other two writ petitions.
(2.) THE respondents have not filed counter affidavit in so far as the first writ petition, namely, W.P.No.18576 of 1998 is concerned. However, the Commercial Tax Officer, Mahe has filed a counter affidavit in the other 2 writ petitions, namely, W.P.Nos.18889 and 19156 of 1998. It is stated that the petitioners have filed revision before the Commissioner of Commercial Taxes at Pondicherry. THEy have not availed the remedy prescribed under Sec.36 of the local Act. Inasmuch as the revisional authority is seised of the matter against the proceedings dated 24.11.1998 of the first respondent, the present writ petitions challenging the same order which is already under challenge before the revisional authority are not proper and legal. THEre cannot be any two parallel proceedings against the order passed by the first respondent. On this ground, all the writ petitions are liable to be rejected. It is always open to the petitioners to get a proper decision from the revisional authority. With these averments, the first respondent prays for dismissal of all the three writ petitions. In the light of the above pleadings, I have heard the learned counsel for the petitioners as well as respondents. Mr.K.Doraisami, learned senior counsel for the petitioners, by relying on Sec.23(8) and (9) of the local Act, would contend that inasmuch as the personal hearing is a mandatory one before cancelling the registration, in the absence of providing opportunity of being heard, the impugned order passed in all the 3 writ petitions is liable to be quashed. He further states that inasmuch as the first respondent failed to follow the mandatory provision, namely, Sec.23(9) of the local Act before cancelling the registration certificate, the petitioners are justified in filing writ petition before this Court irrespective of provision for revision before the revisional authority. On the other hand, learned Government Pleader for Pondicherry would contend that inasmuch as the petitioners have filed revision before the revisional authority and the same are pending as on date, there cannot be any two parallel proceedings against the order passed by the first respondent and in this view of the matter, the writ petitions are liable to be rejected. I have carefully considered the rival submissions. The only point for consideration in all the three writ petitions is whether the writ petitions are liable to be dismissed on the ground of availability of effective alternative remedy by way of revision or not.
(3.) IN view of the limited question raised, it is unnecessary for this Court to go into the merits of various orders passed including the assessment orders and the order of cancellation of registration certificates. It is true that the petitioner in each writ petition has raised various contentions and furnished more details regarding assessment orders etc. We are concerned with the orders of the respondent cancelling the registration certificates of the petitioners. There is no dispute that the petitioners are dealers in petroleum products, registered on the file of the first respondent under the provisions of local Act as well a the Central Act. INasmuch as the petitioners were not able to file monthly returns, pay tax and furnish security as demanded, the first respondent, after issuance of show-cause notice, cancelled their registration certificates, Sec.23 of the local Act speaks about procedure for registration. As per Sub-sec.(8), prescribed authority is empowered to cancel, modify or amend any registration certificate issued by him. However, as per Sub-sec.(9), no order under Sub-sec.(8) shall be made, unless the dealer concerned has been given an opportunity of being heard. IN order to appreciate the contention raised by both sides, it is relevant to refer the relevant clauses. ?Sec.23(8): The prescribed authority shall have power for good and sufficient reasons: (i) to cancel, modify or amend any registration certificate issued by him; and (ii) to demand from any dealer who has been registered or has applied for registration under this sub-section, security for proper payment of taxed by him for an amount not exceeding one-half of the tax payable on the turnover of the dealer for the year as estimated by the prescribed authority. (9) No application for registration or for a copy or duplicate of the certificate and no renewal under this section shall be refused and no order under Sub-sec.(8) shall be made, unless the dealer concerned has been given an opportunity of being heard.? A reading of the above provisions would show that the prescribed authority, namely, the first respondent is empowered to cancel, modify or amend any registration certificate issued by him for good and sufficient reasons. It is not disputed that all the 3 petitioners were granted registration certificates by the first respondent. It is incumbent on the part of the first respondent, before passing any order under Sub-sec.(8) of Sec.23 to afford an opportunity of being heard to the dealer concerned. Sub-Sec.(9) provides not only show-cause notice with regard to proposed action, namely, cancellation of registration certificate but the aggrieved person, namely, the dealer concerned must be given an opportunity of being heard. Admittedly, the first respondent has not afforded personal hearing to the petitioners before passing the impugned order. Learned Government Pleader has brought to my notice that revision is provided before the Commissioner of Commercial Taxes at Pondicherry and as a matter of fact, the petitioners have already availed that remedy, hence the present writ petitions are liable to be dismissed. Availability of alternative remedy namely, revision before the Commissioner of Commercial Taxes is not disputed. Sec.36 of the local Act enables the aggrieved person to file a revision before the Commissioner within a period of 30 days from the date on which a copy of the order or proceeding was served on him. Though the learned Government Pleader has stated that the petitioners have firstly filed revision petitions before the Commissioner and subsequently the above writ petitions before this court petitions the same was disputed by the petitioners by way of filing an affidavit. IN Writ Petition Nos.18576 and 18889 of 98, the petitioners therein have filed an affidavit dated 18.8.2000 wherein they furnished the details such as date of the order passed by the first respondent, date of filing of the writ petition and the date of filing of the revision before the revisional authority. Before considering those factual aspects, now I shall consider the various decisions relied on by the learned senior counsel for the petitioners as well as learned Government Pleader. I have already extracted the relevant provisions namely, Sub-secs.(8) and (9) of Sec.23 which deals with procedure to be followed before cancelling the registration certificate. With regard to the language used in Sub-sec.(9), it is not seriously disputed that the dealer concerned is entitled to personal hearing. By pointing out Sub-sec.(9), learned senior counsel for the petitioner would contend that act shall be done in the manner provided in the Statute. IN support of the above said contention, he very much relied on a decision in the case of (i) Babu Verghese and others v. Bar Council of Kerala and others Babu Verghese and others v. Bar Council of Kerala and others Babu Verghese and others v. Bar Council of Kerala and others , (1999)2 C.T.C. 722 and (ii) State of Gujarat v. Shantilal , A.I.R. 1969 S.C. 634. IN the first case namely, (1999)2 C.T.C. 722, their Lordships of the Supreme Court have held as follows: (paras. 31 and 32) ?31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor , (1875) 1 Ch.D. 426: 45 L.J.Ch. 373 which was followed by Lord Roche in Nazir Ahmad v. King Emperor , 71 MLJ. 473: (1936)63 I.A. 372: A.I.R. 1936 P.C. 253 who stated as under: ?Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.? 32.This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P. Rao Shiv Bahadur Singh v. State of U.P. Rao Shiv Bahadur Singh v. State of U.P. , A.I.R. 1954 S.C. 322: 1954 S.C.R. 1098 and again in Deep Chand v. State of Rajasthan , 1961 S.C. 1527: (1962)1 S.C.R. 662 These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh State of U.P. v. Singhara Singh State of U.P. v. Singhara Singh , A.I.R. 1964 S.C. 358: (1964)1 S.C.W.R. 57 and the rule laid down in , 71 MLJ. 476: (1936)63 I.A. 372: A.I.R. 1936 P.C. 253, was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.? IN State of Gujarat v. Shantilal , A.I.R. 1969 S.C. 634 the Constitution Bench of the Hon?ble Supreme Court observed that it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all: Taylor v. Taylor , (1875)1 Ch.D. 426. It is clear that inasmuch as the power of cancellation being an ?extreme power? which visits the party with serious consequences, they should be exercised in the manner in which the legislature wants the officer to act. Even though Sub-sec.(9) enables the authority to provide an opportunity of being heard, he had not followed the said recourse. In Azhagappa Cotton Mills v. Deputy Commercial Tax Officer Azhagappa Cotton Mills v. Deputy Commercial Tax Officer Azhagappa Cotton Mills v. Deputy Commercial Tax Officer , (1999)2 S.I.S.T.C. 143 (Mad.) J.Kanakaraj, J., had an occasion to consider similar contention. In the writ petition before the learned Judge, the order of the first respondent dated 24.11.1982 was sought to be quashed. By the said impugned order, the first respondent has purported to pass final orders cancelling the registration certificate under the Tamil Nadu General Tax Act, 1959 and under the Central Sales Tax Act, 1956. After referring to Sec.21(6) of the Tamil Nadu General Sales Tax Act which is similar to Sec.23(8) and (9) of Pondicherry General Sales Tax Act, the learned Judge has held thus: ?6. No application for registration or for a copy or duplicate of the certificate and no renewal under this section shall be refused and no order under Sub-sec.(5) shall be made, unless the dealer concerned has been given an opportunity of being heard. It is not disputed that in this case that the first respondent never afforded an opportunity to the petitioner to be heard of in the matter. Learned Government Advocate argues that when the notice dated 21.10.1982 was issued, the petitioners had taken the opportunity to file their objections. Inasmuch as they had filed the objections it is not longer open to them to insist on a personal hearing. I am unable to accept this contention of learned Government Advocate?? Again in para.7, it has been observed that: ??When a statute says that a personal hearing has to be afforded, no amount of argument can be heard to explain as to why such a personal hearing was not given. The power of cancellation being an ?extreme power? which visits the party with serious consequences they should be exercised in the manner in which the legislature wants the officer to act. This is precisely for the reason that cancellation is a serious punishment that the legislature thought that a personal hearing should be given in matters of cancellation.? The decision of the learned Judge fully supports the claim of the petitioners. In M/s.P.K.S.Threads v. The Commercial Tax Officer M/s.P.K.S.Threads v. The Commercial Tax Officer M/s.P.K.S.Threads v. The Commercial Tax Officer , (1993)4 M.T.C.R. 440 (Mad.), Janarthanam, J., had an occasion to consider similar provisions of Tamil Nadu General Tax Act and the Rules made thereunder. The contention before the learned Judge was that cancellation of the certificate of registration is an extreme action and it is obligatory on the part of the respondent Commercial Tax Officer, Mannadi, (East) Assessment Circle to give a personal hearing to the petitioner before ever, he passed the impugned order in accordance with the sanguine and salient provisions adumbrated under Sec.21(6) of the TNGST Act. However, the learned Government Advocate contended that there is no need to give a personal hearing in a case like this where the petitioner failed to take the necessary and requisite steps to renew the certificate of Registration and in such a situation, Certificate of Registration shall be deemed to have been cancelled under Sub-sec.(3) of Sec.21 of the TNGST Act. After referring the provision, namely, Sub-sec.(6) of Sec.21 of T.N.G.S.T. Act, the learned Judge has arrived at the following conclusion: ?17. While considering the said sub-section, a learned Judge of this Court (J.Kanakaraj, J.,), in Azhagappa Cotton Mills v. Deputy Commercial Tax Officer Azhagappa Cotton Mills v. Deputy Commercial Tax Officer Azhagappa Cotton Mills v. Deputy Commercial Tax Officer, (1990)2 S.I.S.T.C. 143 (Mad.) said thus: ?When a statute itself says that a personal hearing has to be afforded, no amount of argument can be heard to explain as to why such a personal hearing was not given. The power of cancellation being an ?extreme power? which visits the party with serious consequence, they (sic: it) should be exercised in the manner in which the legislature wants the Officer to act. This is precisely for the reason that cancellation is a serious punishment that the legislature thought that a personal hearing should be given in matters of cancellation. ? What has been stated by the said learned Judge is squarely applicable to the facts of the present case. 18. For the reasons above, it goes without saying that the impugned order cannot at all be stated to be sustainable in law and the same deserves to be set aside and is accordingly set aside.? The conclusion of the learned Judge supports the stand of the petitioners. ;