CIVIL WRIT JURISDICTION CASE No.3850 of 1995 In the matter of an application under Articles 226 and 227 of the Constitution of India. M/S ASHOK CHITRA (P)LTD., a Company incorporated under the provisions of Companies Act, through its Managing Director Krishna Ballabh Prasad Narayan Singh …… Petitioner Versus 1. THE STATE OF BIHAR, through the Special Secretary cum Commissioner of Commercial Taxes, New Secretariat, Bailey Road, Patna 2. Assistant Commissioner of Commercial Taxes, Patna West Circle, Patna …… Respondents ******** For the Petitioner : Mr. S.D.SANJAY For the Respondents : Mr. Satyabir Bharti Assistant Counsel to Addl. Advocate General no. III P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S K Katriar, J. This writ petition is directed against the order dated 14.9.94 (Annexure 3), passed by the learned Assistant Commissioner of Commercial Taxes, Patna, whereby demand to the tune of Rs.10,83,050.35p., under the provisions of Section 3A of the Bihar Entertainment Tax Act 1948 (hereinafter referred to as `the Act’), read with the Bihar Entertainment Tax Rules 1984 (hereinafter referred to as `the Rules’), has been raised against the petitioner. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner is a private limited company incorporated under the provisions of the Companies Act. It is engaged in the business of public exhibition of cinematograph films in its theatre in the township of Patna. It is liable to pay taxes under the Act and the Rules. It relates to the period 1992-93. Section 3-B of the Act provides for compounding of taxes which in substance means that the proprietor 2 shall have the benefit of payment of a fixed sum of tax prescribed by the authority. The payment has to be made in instalments, once every week, and as per the provisions of the Act and the Rules. 2.1) The petitioner had submitted its application under section 3-B of the Act for compounding of tax payable by it for public exhibition of films in its theatre for the period in question. The application for compounding of tax for the aforesaid period was allowed. The period terminated on 31.3.93. In June 1993, the audit team submitted its report pointing out that the petitioner had defaulted in payment of the weekly taxes as per the prescribed period leading to show-cause notice dated 15.10.93 (Annexure 1), as to why the compounding of tax in terms of section 3-B of the Act be not treated to have been invalidated, and be required to pay taxes in terms of section 3-A of the Act. The respondent authorities had enclosed thereto a copy of the audit report. The petitioner had shown cause by its communication dated 4.11.93 (Annexure 2), wherein it was stated that the alleged delay had taken place only on four occasions and because the last day of deposit of the weekly taxes had fallen either on a holiday, or there was a strike in the treasury or in the bank. It was also stated that the audit report itself acknowledged that the delay had taken place on account of such circumstances. By his order dated 14.9.94 (Annexure 3), passed by the learned Assistant Commissioner of Commercial Taxes, the cause shown by the petitioner was rejected, was accompanied with the demand notice, and impugned herein. 3 3. While assailing the validity of the impugned action, learned counsel for the petitioner has taken us through the scheme of the Act and the Rules, and section 12 of the Bihar & Orissa General Clauses Act, 1917. He also relies on the judgment of the Supreme Court in Mohd Ayub v State of Uttar Pradesh (AIR 2010 SC 431). He lastly relies on the provisions of section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, and the following reported judgments:- (i) Ganesh Prasad Sah Kesari v Lakshmi Narayan Gupta 1985(3) SSC 53 = AIR 1985 SC 964 (ii) Manmohan Kaur vs. Surya Kant Bhagwani AIR 1989 Sc 291 (iii) Kamla Prasad Gupta vs. Arun Kumar Ojha 1999(2) PLJR 779 (iv) Vijay Kumar vs. Shambhu Nath Prasad 1999(3) PLJR 205 4. Learned Government Counsel has supported the impugned action. He submits that law is well settled that if the statute prescribes a particular procedure to do an act, then it has to be done in that manner, and in no other way. He relies on the following reported judgments:- (i) Nazir Ahmad v. King –Emperor AIR 1936 Privy Council 253(2) (ii) Chandra Kishore Jha v. Mahavir Prasad (1999) 8 SCC 266 He next submits that the compounded tax has to be deposited in accordance with the procedure prescribed in section 3-B(5) of the Act, read with the proviso to rule 19 and form `C’ of the Rules, wherein the penal consequence in unmistakable terms is indicated for failure to deposit the instalments within the time prescribed by the Act and the Rules. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is evident that the 4 present matter covers the period 1.4.92 to 31.3.93. Therefore, the delay, if any, has to be with respect to deposit of instalments within this period. The chart prepared by the authorities with respect to the alleged delays is part of the impugned order (Annexure 3). The relevant entries showing the alleged delays are indicated hereinbelow:- Sl.no. Period Date of tax Deposited TCno/date Remarks 8 6.7.92 to 12.7.92 1/ 9.7.92 As defined in Section 3B tax showed(sic) should have to be deposited before the week begins. In case of default, the tax payable under Section 3- A for the actual no. of shows held per week. 9 13.7.92 to 19.7.92 1/ 10.7.92 1/ 15.7.92 38 8.2.93 to 14.2.93 2/ 19.2.93 39 15.2.93 to 21.2.93 -/ 15.2.93 45 29.3.93 to 4.4.93 2/ 27.3.93 4/ 30.3.93 It is evident on a plain reading of the aforesaid entries that the delay in deposits was negligible. The same were indeed explained by the petitioner in the cause shown by it (Annexure 2). The relevant portion of the audit report is also illuminating and is to the effect that the Department itself had acknowledged before the audit team that the delay on the five occasions had occurred because of the holidays prefixed to the date of deposit. It is further evident on a plain reading of the same that the petitioner has explained every entry, and the delay on all the occasions had taken place because there was either a strike in the government treasury or there was official holiday in the bank on the last 5 permissible date. It is further evident that deposit on all occasions was made on the very re-opening day, or after the office working had normalized. This is obviously covered by the provisions of section 12 of the Bihar & Orissa General Clauses Act 1917 (Bihar & Orissa Act 1 of 1917), which is reproduced hereinbelow:- “12. Computation of time.- Where, by any Bihar and Orissa Act or Bihar Act, any act or proceeding is directed or allowed to be done or taken in any Court of office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1887 applies. 6. Learned counsel for the petitioner has rightly relied on the judgment of the Supreme Court in Md. Ayub v. State of U.P. (supra). The application for appointment to the post of Constable had to be made available to the head office by 14.4.2003. The appellant’s application dated 14.4.2003, was not accompanied with the medical certificate of the Chief Medical Officer. The medical certificate was instead submitted on 15.4.2003. The appellant stated in the writ petition that there was a gazetted holiday on 11th April on account of Ramnavami, 12th April was closed for second Saturday, Sunday was on 13th April, and Ambedkar Jayanti was on 14th April. As such from 11th April to 14th April, the appellant could not get the medical certificate which he got on 15.4.2003; and was submitted the same day. He was not considered because of the delay in filing the medical certificate. The writ petition and the appeal were dismissed by the High Court. The Supreme Court disagreed with 6 the High Court, and held that the appellant’s application should have been considered on merits in view of the principles laid down in Section 10 of the General Clauses Act 1897 (Act X of 1897), a Central Act. The Supreme Court relied on its earlier judgments and quoted with approval the following portion of the judgment in the case of (H H Raja) Harinder Singh vs. S Karnail Singh, AIR 1957 SC 271:- “…….Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to the Section the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed and that period should expire on a holiday.” (Page 273 of the Report) In such a situation, the Supreme Court held that it was covered by the provisions of section 10 of the General Clauses Act 1897, and, therefore, directed the authorities to consider the appellant’s case on merits. This case applies on all fours to the facts and circumstances of the present case. 6.1) It may be stated that section 10 of the Central Act is in Pari Materia with section 12 of the Bihar Act. 7. We must deal with the relevant provisions of law which have a bearing on the issue relating to the mode and manner of deposit, and the consequences which will ensue if there is a delay in deposit. Rule 2(o) defines `week’ which means the period beginning from Monday and ending with the following Sunday. Section 3-B of the Act is headed `Compounding of tax’. According to section 3-B(5), the amount of tax specified in the permission granted for compounding of tax within the meaning of section 3-B(3) of the Act, shall be paid to the State 7 Government in the prescribed manner in advance weekly before the week begins. In view of the definition of week indicated hereinabove, the week begins on Monday and, therefore, the last date for deposit of the weekly tax should be the preceding Sunday. The consequence of the delay in deposit is indicated in the proviso to rule 19 which is reproduced hereinbelow:- “Provided that the default in payment of the fixed sum in accordance with the terms and conditions specified in the permission or certificates in Form V shall invalidate such remission or certificate from the date of such default and in that case the general provisions of the Act and Rules shall apply to such proprietor.” (Emphasis added) This has to be read with Form C to the Schedule to the Act, clause 2 of which is reproduced hereinbelow:- “2. The amount of tax shall be deposited by the proprietor in advance for every week before the week begins and default in any payment shall invalidate this permission and in such case it shall be deemed that no permission has been granted.” (Emphasis added) It is thus evident on a plain reading of these two provisions that the default in payment shall invalidate this permission as if no permission was granted, and the general provision of the Act for realization of tax shall be made applicable. We should briefly indicate the apparent contradiction with respect to the consequence contemplated in the two provisions. Whereas one stipulates that the consequence shall ensue from the date of default, the other appears to stipulate that the adverse consequence shall ensue from the inception of the year. We, however, need not detain ourselves to resolve this issue in the present case because the writ petition can be disposed of on a different basis. 8 8. It is manifest that there was marginal and indeed inconsequential delay in deposit of the weekly taxes. It is very doubtful whether or nor there was really in law default in payment of tax. The delay on all the occasions was not in the least attributable to be petitioner. As stated hereinabove, the delay on all the occasions was on account of strike in the government treasury or the bank, or the preceding day or days preceding the last day of the deposit were government holidays. In such a situation, clause 12 of the Act comes to the aid of the petitioner. We are, therefore, of the view that on a combined reading of section 3- B(5) of the Act, read with the proviso to rule 19, and Form C, tempered with the provisions of section 12 of the General Clauses Act, the delay in deposit of the weekly tax for a bona fide reason will not automatically invalidate the arrangement under section 3-B of the Act. It is admitted case of the parties that on all the five occasions of the alleged defaults, the weekly tax was paid on the re-opening day after the government office had opened or had resumed normal functioning. The case is obviously covered by the provisions of section 12 of the Act. The authorities failed or refused to notice the provisions of section 12 of the General Clauses Act. 9. Learned counsel for the petitioner has rightly relied on the provisions of section 15 of the Bihar Building (Lease, Rent and Eviction) Control Act. The same provides that the failure to deposit the rent month by month within fifteen days of the date of the order or by the fifteenth day of the next following month, the court shall order the defence against ejectment to be struck off, and the tenant to be placed in the same 9 position as if he had not defended the claim to ejectment. Interpreting the provisions of Section 15 of the Rent Control Act, the Supreme Court has held that it would be very harsh to interpret this provision literally. There may be bonafide reasons as a result of which the tenant may not be able to deposit on the last day of the deposit. For example, as has happened in the present case, the Government treasury may be closed for one reason or the other, may be a holiday or may be closed on account of a general strike. In fact, the Supreme Court has gone further by observing that section 15 of the Act is subject to reasonable explanation of the tenant. The same has to be bonafide and must convince a person duly instructed in law. Learned counsel for the petitioner has rightly relied on the judgment of the Supreme Court in Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta (supra). 10. Interpreting the provisions of Section 15 of the Rent Control Act, the Courts have held that the provision contained therein as to the time within which rent has to be deposited cannot be taken to be mandatory even though the expression `shall’ has been used therein, and it has to be seen in each case whether or not delay has been properly explained. The following reported judgments interpreting section 15 of the Act, or provisions in Pari Materia, have laid down to the same effect : (i) (Ganesh Prasad v. Lakshmi Narayan) AIR 1985 SC 964 (ii) (Manmohan Kaur vs. Surya Kant Bhagwani) AIR 1989 Sc 291 (iii) (Kamla Prasad Gupta vs. Arun Kumar Ojha) 1999(2) PLJR 779 (iv) (Vijay Kumar vs. Shambhu Nath Prasad) 1999(3) PLJR 205 (v) Rajni Shahi v. Union of India 2004 (1) PLJR 699 10 11. The judgment of the Supreme Court in Manmohan Kaur v. Surya Kant Bhagwani (AIR 1989 SC 291), dealt with section 15 of the Rent Control Act. That was a case where there was genuine mistake in failure to deposit rent of two months under the mistaken belief that the rent for those two months had been deposited and the challans for subsequent period were passed without any objection. It was held that the delay having been properly explained, and the rent having been paid subsequently, the defence cannot be struck off. The Supreme Court proceeded to observe that the Court must from a proper perspective judge the question whether the delay or failure to deposit rent in terms of order under section 13 of the Act has been properly explained and, if yes, then the Court has a discretion to excuse the delay. If the delay has not been properly explained, then Court has no discretion. Such a construction would be a harmonious rendering of the language of section 13 to the claim for justice in each particular case. 12. One of us (S K Katriar,J.) sitting singly in Vijay Kumar v. Shambhu Nath Prasad [1999(3) PLJR 205], had the occasion to consider the provision of section 15 of the Act. This Court had taken the opportunity to apply the judgment of the Supreme Court in Manmohan Kaur vs. Surya Kant Bhagwani (supra). The Supreme Court had the occasion to deal with the Bihar Buildings (Lease, Rent and Eviction) Control Act 1947, the predecessor Act of the present 1982 Act. This Court held to the same effect as in Manmohan Kaur v. Surya Kant Bhagwani (supra). 11 13. The judgment of the Supreme Court in Nasiruddin v. Sita Ram Agarwal (AIR 2003 SC 1543), dealt with the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, which are in Pari Materia with the provisions of the Bihar Act, and has held to the same effect. 14. While dealing with the provisions of Section 148 of the Code of Civil Procedure regarding enlargement of time, the Supreme Court in its judgment reported in the case of Johri Singh v. Sukh Pal Singh & Ors., AIR 1989 Supreme Court 2073, quoted with approval the following portion of its earlier judgment reported in the case of Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882 : “ Even in cases where an order is made by the court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dismissed if the thing is not done within the time fixed, the Court has jurisdiction, if sufficient cause is made out, to extend the time even when the application for extension of time is made after the expiry of the time fixed. It is not the application for grant of further time whether made before or after the expiry of the time granted, which confers jurisdiction on the Court. The Court possesses the jurisdiction under S. 148 to enlarge the time and the application merely invokes that jurisdiction.” 14.1) The Supreme Court also quoted with approval the following portion of its judgment in the case of Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta, AIR 1985 SC 964 at page 968:- “…..Where the Court fixes a time to do a thing, the Court always retains the power to extend the time for doing so. Section 148 of the Code of Civil Procedure provides that where any period is fixed for granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. The principle of this section must govern in not whittling down the discretion conferred on the Court.” 12 14.2) The Supreme Court also approved the law laid down by the Allahabad High Court in its judgment in the case of Gobardhan Singh vs. Barsati, AIR 1972 Allahabad 246, putting the same construction on the provisions of Section 148 CPC. 15. The Force Majeure clause means that the intention is to save the performing party from the consequences of anything over which he has no control. Though this clause is normally applied to commercial contracts, the same in spirit supports the case of respondent no.7. The judgment of the Supreme Court in the case of M/s D Gobindram vs. M/s Shamji & Co.,AIR 1961 SC 1285, illumines the Force Majeure clause. 16. Reference may also be made to the judgment of a learned single Judge of this Court in Smt. Sunita Devi v. Abdhesh Kumar Sinha [2005(2) PLJR 482], where the provisions of Order 8, Rule 9 of the Code of Civil Procedure, came up for consideration. Rule 9 of Order 8, CPC, reads as follows:- “Rule 9: Subsequent pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.” A learned single Judge of this Court held that the expression `shall’ is normally taken to be a mandatory expression except where that interpretation leads to some absurd and inconvenient consequences or is at variance with the intent of the Legislature to be collected from other part of the Act, or results in miscarriage of justice. The learned single Judge, therefore, concluded in paragraph 27 as follows:- 13 “27. But here by the impugned order the learned court below has rejected the written statement of the defendants- petitioners only on the ground that it was filed beyond the period of 90 days from the date of receipt of summons as prescribed in Rule 1 of order VIII of the Code, without even considering the circumstances in which the delay was caused as well as the demand of fair play and justice to subserve the cause of full and final adjudication in accordance with law.” We, however, sound the requisite note of caution that reliance on the judgment of the learned single Judge should not be taken to be affirmance of the views of this Court because that is not directly in appeal before us. The same is being relied only for the purpose of disposal of the present case. 17. In the result, this writ petition is allowed, the impugned order dated 14.9.94 (Annexure 3), is hereby set aside. By order dated 8.8.95, this Court had stayed operation of the impugned order subject to deposit of Rs.3 lacs within three weeks, and if the petitioner ultimately succeeds, the same will be adjusted towards future taxes. Let the sum of Rs.3 lacs be adjusted against the earliest demand against the petitioner. The petitioner shall be entitled to interest @ 6% (six) from the date of deposit till the date of adjustment. ( S K Katriar, J.) Birendra Prasad Verma, J. I agree. ( Birendra Prasad Verma ) Patna High Court, Patna The 16th of September 2010 AFR/ mrl