M.M. Kumar, J. - (1.) THIS petition filed under Article 226 of the Constitution prays for quashing notices dated 5th September, 2005 and 9th September, 2005 (P -5 and P -8), detention memo dated 3rd September, 2005 (P -7) and order dated 19th September, 2005 (P -14). A further prayer has been made for restraining the Respondents -the Department of Excise and Taxation, Punjab, from interfering in the peaceful working of the railways to carry goods booked with it.
(2.) BRIEF facts of the cause are that on 3rd September, 2005, four persons booked parcels for different locations such as Lucknow, Sealdah and Rampur, with the Northern Railway City Booking Agency, Basti Jodhewal, Ludhiana -Petitioner No. 3. The consignors filled up the relevant from/forwarding note declaring the required particulars therein. In token of having received the consignment, Railway Receipts bearing Nos. 704103, 287280, 287279, 70499 and 70414, dated 3rd September, 2005 were issued to the consignors [P -2 (Collectively)]. The amount received in lieu of the booking of goods for transportation was duly deposited in the account of Northern Railways on 5th September, 2005. The goods were loaded in three tempos bearing Nos. PB -10 -T -3837, PB -2 -AM -9758 and PB -10 -BF -0832 belonging to the Railways, for taking the goods to the Railway Station for their onward transportation to their respective destinations. However, enroute to load goods on goods train the tempos alongwith goods were stopped for checking by the Excise and Taxation Officer, Mobile Wing Punjab, Chandigarh -Respondent No. 3. The drivers of the tempos showed to Respondent No. 3 the Railway Receipts and challan forms which were available with them. On receiving information, the representative of Petitioner No. 3 (Northern Railway City Booking Agency), namely, Shri Tarun Chugh also reached the spot and apprised Respondent No. 3 that as the material belonged to Railways the same cannot be detained. However, the goods were detained by Respondent No. 3. It has been alleged that no notice or detention memo was handed over to Shri Tarun Chugh, who was present at the spot on 3rd September, 2005 at the time of detention of goods. When the goods were not released up to 6th September, 2005, Petitioner No. 3 reported the matter to the Post Commandant, Railway Protection Force, Ludhiana, for taking appropriate action in the matter, - -vide letter dated 7th September, 2005 (P -3). On 7th September, 2005, the Post Commandant, Railway Protection Force, Northern Railways, Ludhiana, sent a letter to Respondent No. 3 for intimating the authority under which the goods belonging to the Railways had been detained (P -4). It has been alleged that on receiving the information about lodging of complaint by Petitioner No. 3 with the Railways Protection Force, Respondent No. 3 got a letter, purported to have been numbered and signed on 5th September, 2005, pasted outside the office of Petitioner No. 3 later in the evening of 7th September, 2005. The aforementioned notice of detention of goods, dated 5th September, 2005, was issued under Section 51(6)(a) of the Punjab Value Added Tax Act, 2005 (for brevity, 'the VAT Act') in the name of owners of the goods, namely, Dhir Madhopuri, Anoop Madhopuri, Lucky Madhopuri and Sonu Madhopuri through the Station Master, Ludhiana CBA Basti Jodhewal, Lhudiana and through the drivers Sarvshri Kherri Raj, Sonu and Balwinder. It was further mentioned in the notice by Respondent No. 3 that on the day of detention of goods i.e. 3rd September, 2005 at 10.30 p.m., she had issued a notice but its acceptance was refused. The addressee of the notice were asked to appear before Respondent No. 3 on 6th September, 2005 in her office at Plot No. 42, Phase -II, Ram Darbar, Chandigarh, to show cause as to way the goods were not being accompanied by the documents as required under Section 51 (2) of the VAT Act and only Railway Receipts were produced at the time of checking. In the said notice a reference to the judgment of Kerala High Court in the case of Senior Divisional Commissioner, Manager, Southers Railway and Ors. v. Intelligence Officer Squard No. 2 Commercial Taxes Attingal, Thiruvanthapuram (OP No. 18234 of 1999 (U), decided on 16th March, 2005) was also made. The provisions of Section 93 of the Indian Railway Act, 1989 (for brevity, 'the Railways Act') were also referred to and extracted in the notice (P -5)
(3.) ON 8th September, 2005, Respondent No. 3 sent a reply to the letter dated 7th September, 2005 (P -4) to the Post Commandant, Railway Protection Force, Northern Railways, Ludhiana, wherein reliance was placed on the aforementioned Single Bench judgment of Kerala High Court, operation of which is stated to have been stayed by the Division Bench of Kerala High Court itself. While referring to various provisions of Section 51 of the VAT Act the Section 93 of the Railways Act, Respondent No. 3 sought to justify her action (P -6). Alongwith the reply dated 8th September, 2005, copy of the alleged notice dated 3rd September, 2005 was also sent (P -7).;