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Rajasthan High Court · body

1966 DIGILAW 221 (RAJ)

Loobchand Dalichand v. State

1966-10-10

S.L.KAKAR

body1966
A preliminary objection was raised in this revision filed against the order of the Assistant Commercial Taxes Officer, Pali on the ground that the revision application was time-barred. Sec. 14(2) provides that such an application by a dealer should be made within six months of the date of the order. The impugned order was passed on 25th of September, 1964. The revision was filed on 17th of May, 1965, i.e. after 7 months and 21 days of the date of the order. The learned counsel for the petitioner urged that he came to know of this order only on the 16th of November 1964 and therefore he filed the revision petition in time. His contention is that the period of revision should be taken from the date of communication of the order and not from the order itself. He had not filed any affidavit with his revision petition but presented one on the 26th of September, 1966, after arguments in this case had been heard. Obviously the affidavit about his knowledge of this order could not be taken into consideration as it was filed even after hearing of the arguments of the case. As would be discussed hereafter, it would also not be relevant for deciding the point at issue. The main question for determination in this case is whether the period of six months should be counted from the date of the order as specifically given in sec. 14(2) or from the date of the communication of the order. The main argument urged by the counsel for the applicant in support of his contention was that R. 36 of the Rajasthan Sales Tax Rules, lays down that a copy of every order of the appellate authority disposing of an appeal shall be sent to the applicant, and the assessing authority concerned, either by personal delivery or by post. By virtue of R. 40, this procedure is also made in the case of revisions. It was argued that since it is mandatory to send a copy of the order passed in appeal by an appellate authority, the period of limitation given under sec. 14(2) of the Rajasthan Sales Tax Act, should be counted from the date of the communication of the order. I fail to understand how this inference can be drawn from R. 36 read with R. 40. 14(2) of the Rajasthan Sales Tax Act, should be counted from the date of the communication of the order. I fail to understand how this inference can be drawn from R. 36 read with R. 40. R. 36 lays down an obligation on the appellate authority to send a copy of its order to the appellant and the assessing authority. It cannot change the specific provision of the law that the period of limitation should be counted from the date of the order as given in sec. 14(2) ibid. Incidentally, in this case the revision is not directed against any order in appeal but against the order of the Assessing Authority, so R. 36 is inapplicable. A similar question arose in M/s Narainlal Bhorilal Tripolia Bazar, Jaipur vs. State, Revision No. 27 of Jaipur 1960, unreported, and it was held that the argument that the application for revision was filed within six months from the date of the serving of the notice could not be of any weight as sec. 14(2) clearly lays down that limitation period will start from the date of the order and that if there is a specific provision in law that a limitation period should start from a particular event, it cannot be construed to mean that it can start from happening of any other event. That will mean violent flagration of the clear provisions of law. This question also came up for consideration in M/s. Dispensing Chemists vs. State (RRD 1967, p. 34) on which the counsel for the applicant relied. In that case one of the learned Members relying on Madhya Pradesh High Court case of Sheojiram Parmanand vs. Commissioner of Sales Tax Madhya Pradesh held that the period of limitation should run from the date of communication of the order. This contention was repelled by the other Member on the ground that the decision of the Madhya Pradesh High Court relied upon has reference to the provisions of the law in that State which is that the period of limitation runs from the date of the communication of the order. As against this, the provision contained in the Rajasthan Sales Tax Act, 1954, is that the petition for revision should be filed within six months of the date of the order. As against this, the provision contained in the Rajasthan Sales Tax Act, 1954, is that the petition for revision should be filed within six months of the date of the order. The learned Member further observed that in that case the date of the order must be deemed to be the date on which the petitioner had knowledge of the order in all its particulars. In my opinion the subsequent observation of the learned Member was applicable to only facts of that case and cannot be interpreted to lay down a rule that limitation period should be deemed to commence from date of notification of the order. In that case the order was not announced on the date The principle at issue in this case was also examined in a Full Bench decision in Civil Misc. Petition No. 2282 of 1950 ( AIR 1951 Mad. 204 ). The point for decision in that case was whether one year has to be computed from the date when the order was signed by the Income Tax Officer or the date when it was communicated to the petitioner, or the date, if there be any, on which the petitioner had the opportunity of coming to know of the order. Their Lordships laid down the following principle— "If a person is given a right to resort to the remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knows of the order or had an opportunity of knowing the order and therefore must be presumed to have had knowledge of the order". Even applying this principle the conclusion is inescapable that unless there are exceptional circumstances, the limitation period as given in S. 14(2) should run from the date of the order. Such exceptional circumstances may be the order having not been actually written on the date of its pronouncement, or the order not having been actually pronounced on the date fixed/or the order having been announced with-out fixing any date for its pronouncement. If, however, a date is fixed for the pronouncement of the order, and the order is duly pronounced, the limitation period will run from that date and not from the date of its communication. If, however, a date is fixed for the pronouncement of the order, and the order is duly pronounced, the limitation period will run from that date and not from the date of its communication. In a case in which a party had intimation of the date of pronouncement of the order but does not appear on that date, it is evident that the party had an opportunity of knowing the order and must be presumed to have had knowledge of the same. In circumstances mentioned above such as the order having been pronounced without any date or the order having not been written on the date when it was pronounced, or the order not being pronounced on the date fixed, the limitation period would run from the date of the knowledge of the party in accordance with the general principles of law. In the present case, I find that the petitioner was given a number of opportunities to present his case before the lower court, but he did not appear on any of the hearings in the court below. He was duly informed of the date of the order but he absented himself on that date. He cannot complain now in this court that he did not know of the order passed against him. It was his duty to pursue his interest in the court below when he had due knowledge of the proceedings. He cannot now set up a plea that the order was pronounced in his absence. He would be presumed to have knowledge of the order. No revisionary court can make good the lapses on the part of a party. The principle "volenti nonfit injuria" i.e. no man who consents to a thing will be suffered thereafter to complain of it as an injury" is clearly applicable in such a case. In my opinion, therefore, the preliminary objection that this revision is time-barred has to be upheld. I, therefore, reject the revision application on the ground.