S.K. Keshote, J. - (1.) Mr. Pareek prays for adjournment of these matters on the ground that Shri Jagdeep Dhanker, Senior Advocate has gone to Delhi. It is hardly any ground to adjourn the matters. It is the option and the choice of the senior Advocate to remain here or go to Delhi. For his convenience the matters cannot be adjourned. These matters have come up for preliminary hearing on 24.4.2001. The Court has given direction to respondent to afford an opportunity of hearing on the objections they have against attachment and sale of the concerned properties and if the objections are lodged to decide the same within a period of seven days from that day. Till then the properties will not be auctioned, the court ordered. The objections have been filed by the petitioner and the same have been rejected by the respondent No. 1. The matter has come up for consideration in the Court on 25.7.2001 and the petition was admitted and it was fixed for hearing on 31.7.2001. The Court has ordered that till then the stay earlier granted shall continue. From 1.8.2001 the stay is not continued. The matter was placed in Court on 31.7.2001 but it was not reached. Nobody has made a request for the extension of stay earlier granted and it is not extended.
(2.) Mr. Pareek submitted that the matter may be taken up for hearing tomorrow and the interim relief may be extended. So far as hearing of the matter is concerned, I fail to see to give any priority to the matter when the counsel appearing for the petitioner is not available. The Court cannot fix the matter at the convenience of the parties or the Advocates. I do not find any ground to extend the stay earlier granted and which is not in force with effect from 1.8.2001, already discontinued. It is a matter where the property in dispute is to put to auction for recoveries of the excise duties from the licencee. This amount is in the tune of Rs. 28.5 crores approximately as is come out from the reply filed by the department. The grievance of the petitioner is that it has nothing to do with the dues of licencee. He was not the licensee or the partner of the licensee. These are the matter which are to be considered at the time of final hearing of the case. These are the disputed questions of fact and the appropriate remedy for the petitioner possibly would have been to file the civil suit. The petitioner is making all attempts to frustrate the recovery of the excise duty. He filed the civil suit before the trial court challenging the recovery. The learned trial court rejected the application filed by the petitioner for temporary injunction on 4.4.2001. The matter was taken up by the petitioner in the appeal and the appellate court has also rejected the appeal on 16.4.2001. When the petitioner lost in the civil courts to get the desired interim relief, he filed an application for withdrawal of the suit. The reasons given for withdrawal is that there is a technical defect in the suit and the civil court has no jurisdiction to hear the matter the liberty to file the fresh civil suit has also been prayed. This application has been considered by the trial court on 19.4.2001. The learned trial court has observed that the counsel for the petitioner who was plaintiff there, has failed to show any technical defect in the suit. So far as question of jurisdiction of the court is concerned, the court has said that it cannot be said to be a technical defect. Be that as it may, ultimately the suit was permitted to be withdrawn. The petitioner then filed this petition in this Court on 20.4.2001. So this petition prima facie though nothing can be said finally at this stage appears to be an attempt to abuse the process of the court. This approach of the petitioner to take chance in the civil court for stay of recovery of tax dues and on failure to withdraw the suit and filed this writ petition deserves to be deprecated. Sole purpose and object of the filing of this writ petition prima facie seems to be not to pay dues of the revenue of the Government. The petitioners do not want to pay the money as well to create all hindrance in the way of the Government to proceed with the proceedings of the recovery of this amount. This Court has given opportunity to the petitioners to file their objections against attachment and auction of the properties in dispute. Those objections have been considered and the same were rejected. Instead of to pay the amount and stop all their activities to create hurdle in the way of the Government to affect the recovery of the amount making all efforts to withhold the amount of tax dues.
(3.) From the reply of the petition I find that one Paras Ram was given the licence for the area in dispute and he made default in payment of the excise duty. Shri Paras Ram while submitting the solvency affidavit lo categorically mentioned the list of property namely M/s. K.K. Distilleries Private Limited, Ex. 9. Chambal Industrial Area, Kota. He stated that he is having 50% share in this property and has also given out the market value of the property. That solvency affidavit was duly verified by the revenue authority and counter-signed by the Additional District Magistrate, Kota after due inquiry. Shri Shyam Sunder who stood the surety also submitted affidavit and he declared that he is having 50% share in M/s. K.K. Distilleries Private Limited. From these affidavits prima facie it is clear that Paras Ram and Shyam Sunder were having 100% share in M/s. K.K. Distilleries Private Limited. This is not the case of the petitioners that what the Paras Ram has stated in his solvency affidavit is incorrect. It is also not the case of the petitioners that they were not knowing about the solvency affidavit filed by Paras Ram regarding the property in dispute. Learned counsel for the petitioners has failed to show any document from record of these petitioners that the liability of Shyam Sunder petitioner was only of Rupees five crores as a surety. The petitions are admitted but by this fact alone it cannot be taken that as a rule the interim relief has to be granted in favour of the petitioners. For grant of interim relief even in the proceedings under Article 226 of the Constitution, the same principles which are to be followed while considering the application for grant of temporary injunction under Order 39 Rules 1 & 2 CPC. Even if it is taken that the petitioners' have prima facie case in their favour still the court may decline to grant the interim relief in their favour where it satisfy that non grant of the same will not result in causing any irreparable injury to the petitioners which cannot be compensated in terms of the money. It is a case of the recovery of the tax dues and time and again the Apex Court has given word of caution that courts are not to stay the recovery thereof. In the matter if ultimately the petitioners succeed they will get each penny of the amount paid by them to the department against this recovery. The grant of stay at this stage in these petitions will result in granting of final relief in favour of the petitioners. It is also no more res integra that in such matter the court to take care that by way of the interim relief the relief of the nature which has to be granted on the final stage is not granted. Learned counsel for the petitioners has failed to show how any irreparable injury will cause to the petitioners in case interim relief is not granted in favour of the petitioners. In the tax recovery matters lightly the court grants interim relief it will become very difficult to the Government to provide facilities and other welfare services to the citizens. In the case the petitioners have failed to get interim relief from the civil court and the suit was withdrawn and matter is brought in this Court, how far it is justify in these facts to grant any interim relief in the matter in favour of the petitioners. The property was not only shown but declared to be the property of the licencee. Now when the default has been made by the licensee in payment of the tax to the Government, these petitioners have come with this petitions and making all the efforts frustrate the recovery proceedings. The Government is to put the property in dispute to auction for recovery of tax dues, the litigations have been taken by the petitioners and in these facts it may be very difficult to get the bidders. The bidders may not participate in the auction of the property as they have to go for the property and not for the litigation. In such matters there is a risk in holding the auction where the court has intervened. The property may not fetch reasonable and adequate price. In such matters, the court should be very very slow to grant any interim relief. So considering the matter from any angle it is not a fit case where the interim relief granted earlier is to be ordered to be continued pending the decision of the petitions. In the matter where the petitioners are challenging the demand of tax the court can legitimately and legally ask them to first deposit that amount in the Court. On filing of the petitions in case stay orders are granted it will ultimately result in sufferance to the public exchequer. The public exchequer has already been suffered. These persons have got the benefit out of the same. By this methodology adopted what they are doing to make it impossible for the department to recover this amount. That way they are keeping the Government money in their pocket and use it. That amount has to be first deposited by the petitioners or the Court can ask the petitioners to deposit the amount and then matters are to be heard and decided. Ultimately in case they succeed they will get the money forthwith. As a result of this discussion, I do not find any ground to extend the stay earlier granted or to grant fresh stay. Mr. Pareek learned counsel for the petitioners then make another submission that the matters may be heard at an early date. I fail to see any justification in this request. Merely because this Court has not granted interim relief in the matter is not a just and reasonable ground to give priority to these matters in hearing. These are matters of year 2001 and any priority is given to them in hearing it will at the costs of and detrimental to the rights of those thousand of the litigants who are waiting for listing of their cases for many years. In this Court the matter of 80's and 90's are pending and these sc matters of 2001 are given priority in hearing it will certainly come very heavily upon those litigants whose cases are waiting for hearing for last 10 or more years in the Court. Otherwise also in the matter of hearing every litigant has equal right. Every litigant may reasonably have expectation of early disposal of his matter.;