HIGH RANGE BREWERIES LTD Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) ON being assessed to tax under the Kerala General Sales Tax Act and the Central Sales Tax Act for the year 1991-92 by the assessment orders, exhibits P3 and P8, petitioner has preferred appeals under exhibits P4 and P9 to the second respondent on November 18, 1995. Along with the said appeals he also filed stay petitions under exhibits P5 and P10. The appellate authority by order exhibit P11 rejected the stay petitions by passing the following order : " As the appellant could not establish a prima facie case for a stay, the request for complete stay is rejected. " A reading of the above order shows that it is a non-speaking order and there is nothing on the face of the order to show that the appellate authority has applied his mind to the contentions raised by the petitioner in the grounds of appeal. A Division Bench of this Court in Alok Spices v. Deputy Commissioner [1988] 71 STC 347; (1988) 2 KLT 182 has observed that if a statutory authority fails to exercise the discretion or exercise the discretion vested in it arbitrarily or capriciously or totally in an unreasonable manner, as to amount to the exercise of no discretion in the eye of law, this Court can, in exercise of the jurisdiction vested in it under article 226 of the Constitution, issue a writ of mandamus directing the concerned authority to exercise the discretion in accordance with law. The Division Bench deprecated the practice of the statutory authorities in passing orders on stay petitions, unmindful of their statutory duties and obligations and the irreparable injury and hardship that will ensue as a consequence thereof. As the appellate authority did not take into consideration the contentions raised by the petitioner in his appeal memorandum, I am of the opinion that the order passed by the appellate authority under exhibit P11 has to be set aside and accordingly it is set aside.

(2.) NORMALLY this Court will remand the matter back to the appellate authority for fresh consideration of the stay petition. But on the facts and circumstances of the case I feel that it is not necessary to do so and instead the second respondent can be directed to dispose of the appeals filed by the petitioner within sixteen weeks from today and till the disposal of the appeals the recovery proceedings initiated under exhibits P12 and P12 (a) for the recovery of the tax covered by exhibits P3 and P8 will stand stayed. This original petition is disposed of with the above directions. Order on C. M. P. No. 5880 of 1996 in O. P. No. 3380 of 1996b dismissed. Petition disposed of accordingly. .