SHABBIR HASAN KHAN Vs. UNION OFINDIA

JUDGEMENT

(1.) THE learned Civil Judge, Budaun, under the proviso to Sec tion 113 of the Code of Civil Procedure, has referred the following question for the opinion of this Court:-

(2.) SHABBIR Hasan Khan brought a suit for an injunction restraining the defend ants from selling and auctioning the movable properties detailed in annexure 'A' of the plaint and from taking any coercive action against the plaintiff for recovery of excise duty etc. It was alleged that the plaintiff cultivated tobacco in the year 1965-66 and the produce was stored by him in a godown. The tobacco got somewhat deteriorated and the plaintiff applied to the Central Excise Depart ment for its disposal. The application re mained pending for a long time. The Deputy Superintendent, Central Excise Department at Budaun, harboured some grudge against the plaintiff and maliciously reported that he had removed the tobacco from the premises. The departmental officials, without any enquiry and without adopting the prescribed proce dure, issued a certificate to the Collector, Budaun, to realise a sum of Rs. 11, 016.72 on account of excise duty as arrears of land revenue. On the basis of the recovery certi ficate, movable properties of the plaintiff de tailed in annexure 'A' to the plaint were at tached on of about 10th of September, 1967. It was alleged that the tobacco in question was still in existence and the defendants had no jurisdiction or justification to attach and sell the properties without first taking steps to recover the excise duty by attachment and sale of the excisable goods. It was further alleged that Section 11 of the Central Excises and Salt Act, 1944, (hereinafter referred to as the Act), under which action was taken, was ultra vires and illegal as violative of Art. 14 of the Constitution of India. Section 11 of the Act was also bad for the reason that it afforded no opportunity to the growers to have their say in the matter of determination of excise duty. The attachment of the mov able properties of the plaintiff was illegal and without jurisdiction and hence the suit.

(3.) ON behalf of defendant No. 2 it was pleaded that on receipt of the certificate under Section 11 of the Act the Collector was under an obligation to recover the amount due as arrears of land revenue and the pro ceedings taken were valid and in accordance with law.