Bogus Document; Abdulkhader Vs. Intelligence Officer Department of Commercial Taxes [Kerala High Court, 08-08-2016]

Review Petition –Building Plan – Bogus Document – There was a calculated attempt on the part of the petitioner in approaching the High Court with false statements. The petitioner has even produced bogus documents along with the Writ Petition and also in the Review Petition. Therefore, dismissed the Review Petition after imposing a cost of ₹50,000/-(Rupees Fifty Thousand only) on the petitioner.

# Building Plan

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANIL K. NARENDRAN, J.

R.P.No.381 of 2016 in W.P.(C.)No.17194 of 2016

DATED THIS THE 8 th DAY OF AUGUST, 2016

AGAINST THE JUDGMENT IN WP(C) 17194/2016 of HIGH COURT OF KERALA DATED 10-05-2016

REVIEW PETITIONER

ABDULKHADER, ALAPPUZHA.

BY ADV. SRI.P.SHANES METHAR

RESPONDENTS

1. THE INTELLIGENCE OFFICER DEPARTMENT OF COMMERCIAL TAXES, SQUAD -II, MINI CIVIL STATION,TIRUR.

2. M/S.AL AMEEN TIMBERS EDARIKKKODE, KOTTAKKAL, MALAPPURAM 676 501.

R1 BY GOVERNMENT PLEADER SRI C.K.GOVIND

ORDER

This Review Petition arises out of the judgment dated 10.5.2016 in W.P.(C)No.17194 of 2016. The said Writ Petition was filed by the petitioner herein seeking for a writ of certiorari to quash Ext.P4 notice dated 2.5.2016 issued by Intelligence Officer, Squad No.II, Commercial Taxes Department, Tirur, the 1 st respondent herein, under

# Section 47(2) of the Kerala Value Added Tax Act, 2003

(hereinafter referred to as the ‘KVAT Act’) and for a writ of mandamus commanding the said respondent to release the goods under detention without collecting any security deposit.

2. The said Writ Petition was disposed of by the judgment dated 10.5.2016. Paragraphs 5 to 7 of the said judgment read thus;

“5. The learned counsel for the petitioner would submit that the goods were transported on the strength of Ext.P3 purchase bill. However, the finding in Ext.P4 notice is that the consignment was not accompanied by any documents. In such circumstances, the 1 st respondent cannot be found fault with in intercepting the goods and issuing Ext.P4 notice under Section 47(2) of the Act.

6. If the petitioner is aggrieved by Ext.P4 notice, it is for him to file an appropriate objection before the 1 st respondent, along with supporting materials. If any such objection is received, the 1 st respondent shall forward the same along with the relevant file to the competent authority for adjudication, who shall pass appropriate orders, with notice to the petitioner, within a period of two months from the date of receipt of the objection.

7. Pending adjudication, the goods detained pursuant to Ext.P4 notice shall be released to the petitioner, on the petitioner depositing 50% of the total amount demanded in Ext.P4 and furnishing adequate security to the satisfaction of the 1 st respondent for the balance sum in the form of a simple bond with sureties.”

3. Seeking review of the judgment dated 10.5.2016 in W.P.(C)No.17194 of 2016, to the extent the petitioner is directed to deposit 50% of the total amount demanded in Ext.P4 and to furnish adequate security to the satisfaction of the 1 st respondent for the balance sum in the form of a simple bond with sureties, for releasing the goods detained pursuant to Ext.P4 notice, he is before this Court in this Review Petition, contending that there is error apparent on the face of record, warranting review of the judgment dated 10.5.2016.

4. Heard the arguments of the learned counsel for the petitioner and also the learned Senior Government Pleader for the 1st respondent.

5. In the Writ Petition, the specific stand taken by the petitioner was that he is constructing a residential building after obtaining necessary permit from the Panchayat and as per Ext.P1 building plan. For the said purpose, he had purchased pincoda wood, vide Ext.P3 purchase bill dated 2.5.2016, from the 2 nd respondent, who is a registered dealer both under the KVAT Act and the CST Act. On transportation, the goods were intercepted by the 1 st respondent at Tirur, resulting in issuance of Ext.P4 notice dated 2.5.2016 under Section 47(2) of the KVAT Act, requiring the petitioner to remit a sum of ₹2,03,000/- (₹1,01,500/- as security deposit and ₹1,01,500/- as penalty) in lieu of detention. The said notice was under challenge in W.P.(C) No.17194 of 2016.

6. The reasons stated in Ext.P4 notice for invoking the provisions under Section 47(2) of the KVAT Act were that, the vehicle was seen parked in front/premises of Akbar Saw Mill, Tirur; and that no documents were produced by the driver of the vehicle for transportation of the goods, i.e., imported pincoda. In the said circumstances, the 1 st respondent estimated the value of the goods at ₹3,50,000/- and demanded security deposit and penalty.

7. In the judgment dated 10.5.2016, after referring to the decision of this Court in

# Interfield Laboratories v. State of Kerala, 2016 (1) KLT 945

it was held that the 1 st respondent cannot be found fault with in intercepting the goods for the reasons stated in Ext.P4 notice issued under Section 47(2) of the KVAT Act and demanding security in lieu of detention of goods. It was thereafter that, the Writ Petition was disposed of by the judgment dated 10.5.2016, the operative portion of which has already been extracted hereinbefore.

8. In this Review Petition, the main ground raised by the petitioner is that, he had purchased pincoda wood from the 2 nd respondent for purely domestic purpose for constructing doors and windows for his residential building. Though Ext.P3 purchase bill was produced at the time of inspection, it was without noticing the same that, the 1 st respondent issued Ext.P4 notice. According to the petitioner, he is ready and willing to deposit one-half of the security deposit and execute bond with sureties for the remaining one-half of the security deposit and for the entire penalty amount and as such the judgment dated 10.5.2016 may be modified by permitting him to release the goods by making the deposit and executing bond as above.

9. In

# Parsion Devi and others v. Sumitri Devi and others; (1997) 8 SCC 715

the Apex Court held that, there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can be corrected by exercise of the review jurisdiction. Later, in

# Lily Thomas v. Union of India, (2000) 6 SCC 224

the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.

10. In

# Board of control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741

the Apex Court held that, an application for review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

11. In

# Usha Bharti v. State of U.P., (2014) 7 SCC 663

the Apex Court had occasion to consider the scope and limitations of the power of review under Order XLVII Rule 1 of the Code. After referring to the Three Judge Bench decision in

# S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595

and the subsequent decisions in

# Green View Tea & Industries v. Collector, (2004) 4 SCC 122

and in Board of control for Cricket in India (referred to supra), the Apex Court held that, in exercise of the power of review the Apex Court or the High Court can reopen the case and rehear the entire matter. But, whilst exercising such power the Court cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code as well as the rules framed by the High Courts and the Apex Court and that the limits within which the Courts can exercise the powers of review have been well settled in a catena of judgments.

12. In that view of the matter, the grounds raised in this Review Petition are not available to the petitioner in an application for review filed under Order XLI Rule 1 of the Code of Civil Procedure. If the petitioner is aggrieved by the conditions imposed by this Court in the judgment dated 10.5.2016 in W.P. (C)No.17194 of 2016 for releasing the goods under detention, his remedy is to file an intra-court appeal under Section 5 of the Kerala High Court Act, 1958 and not a Review Petition under Order XLI Rule 1 of the Code of Civil Procedure.

13. When this Review Petition came up for admission on 27.5.2016, the learned Senior Government Pleader pointed out that, Ext.P1 building plan produced along with the Writ Petition is not in the name of the petitioner and it is in respect of a residential building of one P.V.Somasekharan Nair, Priya Nivas, Pandiseril House, Vayalar P.O., Cherthala. The learned Senior Government Pleader has also handed over the copy of the Writ Petition served in the office of the Advocate General. In the said copy of the Writ Petition, photocopy of the building plan produced as Ext.P1 at page No.5 does not contain the name of the owner of the proposed building (since photocopy was taken after masking that portion of the said plan with a piece of plain paper). However, another photocopy of that building plan is available on the backside of the purchase bill produced as Ext.P3 at page No.9, in which Sri.P.V.Somasekharan Nair, Priya Nivas, Pandiseril House, Vayalar P.O., Cherthala is shown as the owner of the proposed building.

14. In view of serious doubts as to the genuineness of Ext.P1 building plan, the Judges papers in W.P.(C)No.17194 of 2016 were called for along with the miscellaneous papers. On verification, it was found that the photocopy of the building plan produced as Ext.P1 in the 3 rd set of the Writ Petition, which forms part of the miscellaneous papers, contain the name and address of the owner of the proposed building, which is conspicuously absent in the photocopy of the building plan produced as Ext.P1 in the 1 st and 2 nd set of the Writ Petition, which forms part of the Judges papers. In such circumstances, by order dated 27.5.2016, the petitioner was directed to produce before this Court, along with an interlocutory application for accepting additional documents, the original of Ext.P1 building plan and also the original building permit issued by the Grama Panchayat.

15. Instead of producing the original building plan and permit along with an interlocutory application supported by the affidavit of the petitioner, as mandated by Rule 154 of the Rules of the High Court of Kerala, 1971, the learned counsel for the petitioner has filed I.A.No.254 of 2016, a verified petition which is supported an affidavit sworn to by the Advocate Clerk, producing therewith a document stated to be the original building plan of the building constructed by the petitioner. Paragraphs 2 to 4 of the said affidavit read thus;

“2. The above writ petition was filed seeking release of consignment with was detained by the tax authorities alleging invasion of tax.

3. It is submitted that, for being produced as an exhibit, Ext.P1 in the memorandum of writ petition, the counsel had given me a plan of the building. But the same happened to be substituted with a plan which I mistakenly took from the Xerox shop.

4. The said mistake was not intentional and I sincerely apologise for the inconvenience caused to this Court and I seek apology in the matter. I also pray that further action in the matter may be dropped.”

16. As I have already noticed, the photocopy of the building plan produced as Ext.P1 in the 3 rd set of the Writ Petition contains the name and address of the owner of the proposed building, which is conspicuously absent in the photocopy of the building plan produced as Ext.P1 in the 1 st and 2 nd set of the Writ Petition, since those photocopies were taken after masking that portion of the building plan with a piece of plain paper. Further, the front elevation and floor plan of the building as shown in the building plan now produced along with I.A.No.254 of 2016 do not even tally with the brick masonry in Ext.P2 photographs produced along with the Writ Petition as the photographs of the building under construction.

17. The stand taken by the Advocate Clerk in his affidavit accompanying I.A.No.254 of 2016 is that, the plan entrusted by the learned counsel for the petitioner happened to be substituted with the plan which he mistakenly took from the Xerox shop. However, no explanation is forthcoming from the deponent as to how the front elevation and floor plan of the building as shown in Ext.P1 building plan tally with the front elevation and brick masonry in Ext.P2 photographs produced along with the Writ Petition as the photographs of the building under construction. No explanation is also forthcoming from the deponent as to how such a building plan obtained by another person from the very same locality, i.e., Vayalar Village in Cherthala Taluk, happened R.P.No.381/16 in to be substituted mistakenly at the Xerox shop. The deponent has also not explained the circumstances in which photocopy of the building plan produced as Ext.P1 in the 1 st and 2 nd set of the Writ Petition, happened to be photocopies taken after masking certain portion of that document with a piece of plain paper. Therefore, on the facts and circumstances of the case, the conclusion is irresistible that, the averments made in the affidavit accompanying I.A.No.254 of 2016 are totally devoid of truth and lacking in bonafides.

18. In paragraph 1 of the Writ Petition the petitioner has stated that, he is constructing a residential building having a plinth area of about 3500 sq.ft. after obtaining necessary permit from the Panchayat. By order dated 27.5.2016, the petitioner was directed to produce before this Court the original of Ext.P1 building plan and also the original building permit issued by the Grama Panchayat. In spit of the said order, the petitioner has not chosen to produce the building permit. It has come out during the course of arguments that, the petitioner does not have any building permit for the construction of the building. The petitioner has also admitted the said fact in his affidavit dated 20.6.2016 filed in this Review Petition. Therefore, the statement to the contra made in paragraph 1 of the Writ Petition is a false statement intentionally made to mislead this Court.

19. In

# Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757

the Apex Court held that filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a Court of law. The relevant portion of paragraph 38 of the said verdict reads as follows :

“38. Section 2(c) of the Contempt of Courts Act 1971 (for short the Act) defines criminal contempt as the publication (whether by words, spoken or written or by signs or visible representation or otherwise) of any matter or the doing of any other act whatsoever to (1) scandalise or tend to candalise or lower or tend to lower the authority of any Court : (2) prejudice or interfere or interfere or tend to interfere with the due course of judicial proceedings or (3) Interfere or tend to interfere with, or obstruct or tend to obstruct the administration of justice in any other manner. Thus, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceeding amounts to the commission of criminal contempt. The swearing of false affidavits in judicial proceeding not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any Court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavits or giving of fase statements and fabricating false evident in a Court of law. The stream of justice has to be kept clean and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the Court and interfere with the due course of judicial proceedings or the administration of justice. In

# Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 : 1994 AIR SCW 4994

the respondents produced a false and fabricated certificate to defeat the claim of the respondent for transfer of a case. This action was found to be an act amounting to interference with the administration of justice. Brother Hansaria, J. speaking for the Bench observed: (at p.4995, of AIR)

“the stream of administration of justice has to remain unpolluted so that purity of Court’s atmosphere may give vitaility to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of Court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Anyone who takes recourse to fraud deflects the course of judicial proceeding; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.”

20. In

# Muthu Karuppan v. Parithi Ilamvazhuthi, (2011) 6 SCC 496

the Apex Court expressed the view that filing of a false affidavit should be effectively curbed with a strong hand. In

# Sciemed Overseas Inc. v. BOC India Ltd., 2016 (1) SCALE 264

the Apex Court observed that though the observation in Muthu Karuppan’s case (supra) was made in the context of contempt of court proceedings, the view expressed must be generally endorsed to preserve purity of judicial proceedings.

21. In the instant case, as I have already noticed, there was a calculated attempt on the part of the petitioner in approaching this Court in W.P.(C)No.17194 of 2016 with false statements. The petitioner has even produced bogus documents along with the Writ Petition and also in this Review Petition. Therefore, in the facts and circumstances of the case, I deem it appropriate to dismiss this Review Petition after imposing a cost of ₹50,000/-(Rupees Fifty Thousand only) on the petitioner, which shall be paid to the Kerala Legal Services Authority, an authority constituted under the Legal Services Authorities Act, 1987 to provide free legal service to the weaker sections of the society. Such payment shall be made within two months from the date of this order. In case the petitioner fails to pay the said amount within the time limit specified as above, it would be open to the Kerala State Legal Services Authority to recover the said amount by initiating revenue recovery proceedings against the petitioner and his assets, in terms of G.O.(Ms) No.107/2011/RD dated 26.2.2011, by which the provisions under the Revenue Recovery Act, 1968 were made applicable to the recovery of amounts due from any person or class of persons to the said Authority.

Registry shall communicate a copy of this order to the Member Secretary, Kerala State Legal Services Authority, Kochi.

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