ALOK SPICES Vs. DY COMMISSIONER

JUDGEMENT

(1.) The petitioner in O.P. No. 4607 of 1988 is the appellant in this writ appeal. The Revenue is the respondent. The appellant was provisionally assessed for the month of January 1988, as per Ext. P6 order dated 26-3-1988. An appeal was filed from the said order, before the first respondent. It is Ext. P7. A petition for stay was also filed. The first respondent, by Ext. P9 order dated 20-5-1988, directed the appellant to remit SO per cent of the tax and also directed to furnish security for the remaining amount. In the Original Petition, the petitioner/appellant attacked Ext. P9 as illegal. He also prayed for the issue of a writ of mandamus directing the first respondent to consider and dispose of Ext. P7 appeal on merits and also for a direction to the second respondent not to initiate proceedings for recovery of amounts till the disposal of Ext. P7 appeal. A learned Single Judge of this Court, by judgment dated 10-6-1988, dismissed the Original Petition. It was held that "in exercise of the power under Art.226 of the Constitution it will not be proper for this Court to interfere with the discretion exercised by the department". The petitioner in the O. P. has come up in appeal.

(2.) We heard counsel for the appellant as also the learned Government Pleader, Mr. N. N. Divakaran Pillai. Ext. P9 order is to the following effect:

(3.) The main thrust of the argument by the appellant's counsel was that the first respondent has failed to exercise the discretion vested in him under S.34(5) of the Sales Tax Act in accordance with law. It was argued that in passing Ext. P9 order the first respondent has totally ignored the basic principles to be borne in mind in disposing of the stay petition. It was stated that by passing Ext. P9 order the first respondent has failed to exercise the discretion vested in him under law as enjoined by the decisions of courts. It amounts to exercise of "no discretion" in the eye of law. On the other hand, counsel for the Revenue tried to persuade us to hold that on a totality of the facts and circumstances of the case the first respondent has acted in accordance with law.