SUBIR ROY Vs. S K CHATTOPADHYAY

JUDGEMENT

(1.) The petitioners, Subir Roy and Goutam Roy, had moved the writ jurisdiction of this court being aggrieved by the search and seizure stated to have been made illegally and arbitrarily by the Income-tax Department on June 29, 1983, at premises No. 4/1, Roy Bahadur A. C. Roy Road, on the basis of an authorisation issued in favour of the respondents under Section 1 32 of the Income-tax Act. The petitioners contended that they had been duly assessed to income-tax and have permanent account numbers. The sources of income of the petitioners are, inter alia, from rental income and also by way of interest from fixed deposits. Sailendra Nath Roy and his wife, Protima Roy, were out of India since June 29, 1983. The petitioners contended that there was no authorisation for search of the properties of Smt. Nilanjana Roy, the wife of the petitioner No. 1, and also of Smt. Sudharani Banerjee, a widowed aunt, residing in a portion of the premises No. 4/1, Roy Bahadur A. C. Roy Road.

(2.) The petitioners contended that the respondents illegally, mala fide, indiscriminately and wrongfully searched the entire premises including the properties of petitioner No. 2's wife and also of the aunt. The said search was conducted, according to the petitioner, without observance of any of the accepted norms. The search party comprised of more than seventy persons. The search commenced at 9-00 a.m. and continued up to 7-30 p.m. Although a panchnama was prepared recording that the said search was conducted in an orderly fashion without hurting the religious sentiments of any of the occupants and that after the search, the search party offered themselves for personal search which was declined by the inmates, according to the petitioner, those recordings were false and malicious. But it appeared that the petitioners had signed those panchnamas without any protest. The petitioners contended that they were forced to sign under duress and coercion. The premises in which the search was effected is situated on a land measuring four bighas and comprised of built-in-area of more than 14,000 sq. feet. It was the case of the petitioners that the officers did not even spare the prayer room in which the deity was installed. The petitioners contended that the premises No. 4/1, Roy Bahadur A. C. Roy Road, is a trust property of A. N. Roy Trust and there was no warrant of authoriation for the search of such trust property. In spite of that, search and seizure had been made in respect thereof. After the search, certain documents had been seized and order under Section 132, Sub-section (3), was served prohibiting Sri Sailendra Nath Roy from removing or parting with or otherwise dealing with one iron safe kept in the room which was locked and sealed by the respondents. The petitioners, after the search, found that a number of important papers, including deeds, rent receipts and cash worth Rs. 1,200 were missing from the said premises. The petitioner lodged a general diary with the officer-in-charge, Behala Police Station, in respect thereof. The lockers under the prohibitory order dated July 2, 1983, had been sealed. The lockers belonging to the petitioner's sisters, Mondira Mukherjee and Parbati Ganguly, who had been harassed by the income-tax authorities, had not been spared from such prohibitory order. This search, according to the petitioners, subjected them and the other members of the family to humiliation, hatred, contempt, ridicule and lowered them in the estimation of right-thinking persons of the society. The petitioners did not possess any money, bullion, jewellery or other valuable articles which represented either wholly or in part any income or property which had not been disclosed for the purpose of income-tax. The office oi Twenty First Century Properties Pvt. Ltd. of which petitioner No. 2 is the managing director had also not been spared from such search and seizure of papers, deeds and documents. The petitioner's grievance was that none of the conditions for assumption of jurisdiction under Section 132 of the said Act for issuing the warrant of authorisation existed. The Director of Inspection, Calcutta, had no material whatsoever on the basis of which he could entertain any belief as postulated under Section 132 of the said Act. Hence, the warrants of authorisation issued for such search was without any basis and/or material.

(3.) The petitioner's case was that the search and seizure was mala fide and for collateral purposes for the purpose of harassing them inasmuch as Sri Aroop Ratan Chatterjee, the Deputy Director lived very close to the premises. The petitioner's sister, Susmita, was married to Dr. Ashit Mukher-jee, who is a close relation of the said Aroop Ratan Chatterjee. From the very inception of the said marriage, both the mother-in-law of Susmita and her husband ill-treated her. Dr. Ashit Mukherjee wished to open a nursing home in the house of Sailendra Nath Roy in partnership with the wife of said Aroop Ratan Chatterjee who requested for necessary permission from Subir Roy to allow his premises to be used as a nursing home, but such request was turned down by the petitioner No. 1 and as a result due to this unpleasantness, Susmita was ill-treated by her in-laws and she was forced to leave her in-laws and come and stay with her parents. The divorce proceedings are pending before the Alipore Court. It was contended by the petitioners that the said search and seizure made by the Income-tax Department had been motivated and had been done at the instance, instigation and behest of the said Aroop Ratan Chatterjee. The petitioners reserved their rights to take legal steps by filing an action for defamation and damages before the appropriate forum. Hence, in view of such manifest malice in law as well as in fact, the petitioners contended that they were entitled not only to invoke the jurisdiction under Article 226 but also to obtain reliefs. During the search and seizure, the Gold Control Autho-aities came to the premises and seized a few gold coins. The articles seized had not been made over under Sub-section (9)(a) of Section 132 within fifteen days from the impugned seizure, which indicated a clear infraction of the mandatory statutory provisions making the said impugned seizure bad, null and void. The income-tax authorities did not issue any show-cause notice in terms of Rule 112(a) of the Income-tax Rules, 1962.