M.C.AGARWAL,J. - (1.) BY this petition under Article 226 of the Constitution of India, the petitioner challenges an assess­ment order dated 16-7-1981 passed by the Khandsari Inspector-cum-Assessing Of­ficer under the U.P. Sugarcane (Purchase Tax) Act, 1961 and an appellate order dated 18-11-1981 dismissing the appeal against the first mentioned order and also challenge the citation dated 15-2-1997 is­sued in the recovery proceedings of the tax levied. Counter and rejoinder affidavits have been exchanged.
(2.) I have heard Sri KM. Garg, learned counsel for the petitioner and Sri K.M. Sahai, learned counsel for the respon­dents. As is evident, the assessment and the appellate orders were passed as far as back as 1981 and this petition was filed in February, 1991 i.e., after a lapse of a little more than 16 years. The petitioner's case is that he alongwith his brother Khhechhru Mai were carrying on business in partner­ship in the name and style of M/s Manglik Sugar Industries in village Salempur Distt, Moradabad where they had established a sugarcane manufacturing unit. According to the petitioner, they had two distinct and separate non-hydraulic sulphitation units of different sizes established at different times for which different licence fees were also paid. For the year 1980-81 to which the dispute relates, the petitioner opted to pay the sugarcane purchase tax on the assumed basis for which it moved applica­tion dated 11-11-1980 in the prescribed Form XIII under Rule 13-A of the U.P. Sugarcane (Purchase lax) Rules, 1961 in which it was stated that out of two crushers only one of the size of 13” x 18” with 6 rollers will be operated. The option was accepted by the authorities and was acted upon by the parties throughout the crush­ing season. The unit was inspected by the Khandsari Inspectors and other officers several times during the crushing season and it was always noticed that only one crusher was being operated and the other crusher that was of the size of 12” x 18” was not being operated. Copies of the various Inspection notes have been annexed to the writ petition as Annexures-2-A to 2-J. Sugarcane purchase tax was, thus, paid from time to time on the basis of the one crusher and during the crushing season, no objection was raised by the authorities. However, the Khandsari Inspector-cum-assessing officer Respondent No. 4 without giving any notice or opportunity of hearing to the owner of the unit i.e., M/s Manglik Sugar Industries passed an order dated 15-10-1981 levying the additional purchase tax in the sum of Rs. 38,674.57 paise with regard to the second power crusher taking the view that since the licence was for two power crushers, pur­chase tax will be levied in respect of both of them. It is claimed that the licence fee for the other crusher was paid only to keep the licence alive and avoid its lapse, the partnership firm Le., Manglik Sugar In­dustries preferred an appeal against the assessment order dated 16-7-1981. Since the departmental authorities were press­ing for the realisation of the aforesaid amount even during the pendency of the appeal and issued a notice that the ques­tion of renewal of the licence would be considered only after the payment of the tax, the firm M/s Manglik Sugar Industries filed a writ petition No. 803/81 in this Court. The writ petition was admitted and an interim order dated 27-11-1981 was passed in favour of the firm. The appeal of the firm was, however, dismissed by the Asstt. Sugar Commissioner Respondent No. 3 by order dated 18-11-1981. On the dismissal of the appeal, Khhechhru Mai, the brother of the present petitioner and the partner of the said firm, contacted his counsel in Writ Petition No. 803/81 who advised him that the judgment dated 18-11-1981 is not required to be challenged because if the W.P. No. 803/81 was decided in his favour, the judgment dated 18-11-1981 will become redundant. According to the petitioner because of the disputes amongst the partners, the unit ceased to function from 31-3-1991 and Khhechhru Mal died on 29th of April, 1995. On 15-2-1997 the collection amin came to the petitioner and demanded a sum of Rs. 1,21,673 plus collection charges towards the amount of the purchase tax for the year 1980-81. He then rushed to Allahabad to enquire into the matter and came to know that the senior counsel Sri S.N. Misra who was engaged in the aforesaid writ petition had died and the said writ petition No. 803/81 had been dismissed by this Court on 20-7-1995 without entering into the merits. The petitioner claims that he had/ no knowledge of the dismissal of the writ petition prior to 17-2-1997 and the counsel never informed about the decision dated 20-7-1995. It is claimed that the as­sessment order dated 16-7-1981 is ar­bitrary and illegal and was passed without affording any opportunity of hearing. Similarly the appellate order is bad in law.
(3.) IN the counter-affidavit filed on behalf of the respondents, it is stated that the licence that was issued to the firm M/s Manglik Sugar Industries was in respect of two power crushers and 7 bels as a single unit and the option in the Form XIII was filed in respect of the said unit mentioning that it had two crushers one of the size of 13” x 18” with 6 rollers non-hydraulic and the other 12” x 18” with 3 rollers non-hydraulic. It is contended that Form XIII having been filed in respect of the two crushers the tax was payable for both of them and, therefore, assessment was right­ly made and the appeal was rightly dis­missed. It is claimed that earlier writ peti­tion of M/s Manglik Sugar Industries being W.P. No. 803/81 was dismissed on 20-7-1995 and a second W.P. No. 828/96 filed by Vivek Agarwal S/o Late Khhechhru Mal aforesaid was also dismissed on 13-12-1996, a copy of the later judgment has been annexed to the counter-affidavit as Annexure CA-1. It is claimed that this is the third writ petition on the same ground and is, therefore, liable to be dismissed.;