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2017 DIGILAW 708 (ORI)

Utkal Roller Flour Mills Pvt. Ltd. v. Revenue Officer & Tahasildar, Rampur

2017-07-12

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. Filing the writ petition, the petitioner, a Small Scale Industrial Unit, challenges the re-opening of the proceeding, vide Case No.60/2002, the final order passed under Annexure-8 and the consequential demand under Annexure-9. 2. Short background involved in the case is that originally the petitioner’s Establishment was running in the name of Tarini Rice Mill and on the basis of an amendment application changing the name of the Establishment for involving a sale of the Establishment to another person, amendment was made to the Certificate of Registration granted in favour of the newly created Establishment as appearing at Annexure-1 and consequential corrected Certificate of Registration was issued vide Annexure-2 on 1.5.1984. It is stated that while the matter stood thus, the Revenue and Excise Department of Government of Orissa issued a notification on 19.11.1998 bringing exemption of rent, cess etc. for utilization of agricultural land by existing as well as new small, medium and large scale industrial units pursuant to the Industrial Policy Resolution issued by the Government at the relevant point of time thereby exempting the Establishments indicated herein above from the purview of Section 8(A) of the O.L.R. Act, however subject to production of eligibility certificate from the Director of Industries or any other designated authority notified by the Government in that regard. It is alleged that at this stage the petitioner was issued with a notice involving Case No.60/2002 asking it to submit as to why assessment under Section 8(A) of the O.L.R. Act shall not be made for its utilization of the agricultural land for the purpose other than agriculture ? Petitioner submitted its objection, vide Annexure-4 and as appears, an assessment under Section 8(A) of the O.L.R. Act was also made making a demand of Rs.93,488/-as against the petitioner as appearing from the document, vide at Annexure-5 to the writ petition. While the matter stood thus, on intervention of the Auditor A.G. (A & E), Orissa, Bhubaneswar, it appears, the proceeding, vide Case No.60/2002 concluded with an assessment of Rs.93,488/-as against the petitioner, was directed to be re-opened and consequently the petitioner was again issued with a notice vide Annexure-5 for its appearance and filing document in its support in the matter of re-assessment of the amount involved therein. Upon receipt of the notice, the petitioner once again filed its objection along with an application challenging therein the initiation of revival of the proceeding and claimed for dropping the proceeding looking to the exemption granted, vide Annexure-3. Considering the objection and the submission made by its counsel, the 8(A) proceeding involving Case No.60/2002 was closed with a revised assessment of Rs.54,670/-on different heads. Subsequently, a demand based on the result in the 8(A) proceeding was issued as appearing vide Annexure-9 to the writ petition. 3. Challenging the revival order, vide Annexure 8 and the consequent demand at Annexure-9, Sri Mohanty, learned counsel for the petitioner contended that for the provision contained in Section 60 of the O.L.R. Act, the revival of the proceeding involving Annexure-5 is per se illegal. Further even assuming that the proceeding is revived under the direction of the competent authority, there has been no proper assessment on different heads in the re-opening proceeding by the authority and thus requested for interfering with the same and setting aside the orders, vide Annexures-8 & 9. 4. In his opposition, Sri Mishra, learned Additional Government Advocate, while seriously objecting the stand taken by the learned counsel for the petitioner, referring to the document, vide Annexure-3, contended that looking to the relief granted in the notification, vide Annexure-3, the petitioner was required to produce an eligibility certificate from the Director of Industries or any other designated authority notified by the Government and for the petitioner’s not complying with the said requirement, there is no infirmity making the fresh assessment in Annexures-8 & 9 leaving no scope for interference in the said orders by this Court. 5. Considering the rival contentions of the parties and after perusal of the documents appended thereto and referred to herein above, this Court finds, there is no dispute that the petitioner’s Mill was earlier in the name of Tarini Rice Mill. It is for the change of name of the Industrial Establishment, an amendment was brought to the certificate of registration granted in favour of the erstwhile Establishment and as a consequence, the amendment being allowed, a fresh certificate in the name of the present petitioner was issued as appearing at Annexure-2. Therefore, there remains no doubt that the petitioner’s Establishment got initially established since 18.2.1981. The amendment in 1987 involves only a change of the name of the Establishment. Therefore, there remains no doubt that the petitioner’s Establishment got initially established since 18.2.1981. The amendment in 1987 involves only a change of the name of the Establishment. There is also no dispute that the Establishment was utilising the agricultural land from 1981. Coming back to decide the question of maintainability of the proceeding, vide notice under Annexure-5, this Court looking to the provision at Section 60 of the O.L.R. Act, finds force in the submission of the learned counsel for the petitioner but however, looking to the challenge to the notice at Annexure-5, this Court finds, the petitioner since was aggrieved by the order of the A.G. (A & E), Orissa ought to have challenged the direction of the A.G. (A & E) Orissa instead the petitioner is challenging only the notice following the direction of the A.G.(A & E). In absence of the challenge to the direction of the A.G.(A & E) for re-opening of the review proceeding, the stand taken by the petitioner is not sustainable. 6. Now coming to examine as to whether Anexures-8 & 9 have been passed in proper consideration, this Court finds from the observation already made herein above, the petitioner’s Establishment under the previous ownership originally started functioning from 18.2.1981 though in a different name, however looking to the notification vide Annexure-3 granting exemption to the petitioner’s Establishment, this Court observes, the petitioner is entitled to the exemption granted therein beyond the date of notification, which was brought on 19.11.1998. So far as filing of the eligibility certificate, it is observed that for the admitted position that the petitioner is a Small Industrial Unit following the certificate of registration issued by the competent authority the requirement becomes mechanical and not mandatory. For the observations that the petitioner’s Establishment is liable to pay the premium and cess and other dues for utilization of the agricultural land for other purpose at least till 19.11.1998, this Court finds, the assessment of the petitioner’s Establishment on different heads till 2002 is improper. 7. For the observations that the petitioner’s Establishment is liable to pay the premium and cess and other dues for utilization of the agricultural land for other purpose at least till 19.11.1998, this Court finds, the assessment of the petitioner’s Establishment on different heads till 2002 is improper. 7. Under the circumstance, this Court interfering with the impugned order at Annexure-8, remits the matter back to the competent authority for re-assessment of the dues involving the petitioner’s Establishment for the period from 18.2.1981 to 18.11.1998 on the heads indicated therein and the re-assessment process may be concluded within a period of four months from the date of communication of this order by the petitioner. For interference of this Court in Annexure-8, the consequential order at Annexure-9 also stands set aside. It is made clear that since the petitioner has already deposited a sum of Rs.27,000/-(rupees twenty-seven thousand), this money will be kept in deposit till final assessment is made and in the event the final assessment comes below the deposit already made, then the petitioner will be refunded the balance amount forthwith. 8. The writ petition stands allowed but however to the extent indicated herein above. No cost.