# Unit of Saraya Indus.Saradar Nagar Gorakhpur v. Union of India & Ors

- **Citation:** (2015) 1 ILRA 259
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-18
- **Case number:** Civil Misc. Writ Petition No. 182 of 2011
- **Bench:** Tarun Agarwala, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/unit-of-saraya-indus-saradar-nagar-gorakhpur-v-union-of-india-ors-43294
- **Pages:** 4

## Headnote

C.S.C.,
A.S.G.I.
2011/237,
Sri
C.B.
Tripathi, Sri Siddharth Saran
Constitution of India, Art.-226-Writ of
mandamus-seeking direction to private
respondent-the purchaser company to issue
for
'C'-held-the
agreement
between
petitioner and private company-sales tax
department not bound-only course to file
civil suit on invoke arbitration clause-no
mandamus
can
be
issued-petition
dismissed.
Held: Para-8
In the instant case we find that there is
an agreement between the
petitioner
260
 INDIAN LAW REPORTS ALLAHABAD SERIES
and the private respondents for supply of
goods on certain terms and conditions.
The Sales Tax Department is not party to
this agreement nor is privy with any
assurances
that
might
have
been
exchanged
inter
se
between
the
petitioner and the respondents. Form-C
is obtained by the purchasing dealer
from his assessing authority upon due
verification
and
genuineness
being
shown and if for any reason Form-C is
not forwarded by the purchasing dealer
to the selling dealer then the only
recourse available is to file a suit for
recovery
against
the
Sales
Tax
Department from purchasing dealer or
arbitration clause under the agreement.
We are, accordingly, of the opinion that
no mandamus could be issued to the
private respondents for issuance of
Form-C.
Case Law discussed:
(2003) RD-TN 209; (2013) 61 VST 370 (Gau);
Writ Tax No. 1648 of 2009; AIR 2005 SC 958.

## Text

1 All] Saraya Distellery A Unit of Saraya Indus Sardar Nagar Gorakhpur Vs. Union of India & Ors. 259
recovery from pay or deposit at the credit
of an employee of the whole or part of a
pecuniary loss caused to the Corporation
by negligence or breach of an order. The
Regulations
must
necessarily
be
harmonized with the provisions of the Act
and cannot override the express statutory
provision. In any event, it is clear that even
Regulation 63 contains no such provision of
recovery
from
gratuity.
In
these
circumstances, we are of the view that the
action for recovery from gratuity was
contrary to law and in the teeth of the
express provision of the Act. The learned
Single Judge, with great respect, was not
justified in dismissing the petition on the
ground that the appellant had not challenged
the order of penalty or the appellate order.
For the purposes of the present proceedings,
it is not necessary for the Court to enquire
into the grievance of the appellant that he
was not served with the appellate order.
Moreover, we may clarify that the learned
counsel for the appellant has only confined
himself to the payment of gratuity. Even if
the order of penalty has attained finality, as
is urged on behalf of the employer, any
recovery or adjustment of the amount of
gratuity has to be made by following the
statutory provisions contained in the Act.
Since the conditions set out in Section 4 (6)
of the Act for forfeiture of the gratuity have
not been fulfilled, the action of the
employer was ultra vires.
9. We, accordingly, allow the
special appeal and set aside the impugned
judgment and order of the learned Single
Judge dated 9 December 2014. In
consequence, we allow the writ petition
filed by the appellant and set aside the
impugned directions of the Corporation
contained in the orders dated 1 September
2014 and 10 January 2014 in regard to the
recovery from the amount of gratuity. The
gratuity which is admissible to the
appellant shall be paid to him within a
period of two months from the receipt of a
certified copy of this order together with
interest computed at the rate as applicable
under sub-section (3A) of Section 7 of the
Act with effect from the date on which the
gratuity became payable to the appellant.
10.

The
special
appeal
is,
accordingly, disposed of. There shall be
no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2015
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE DR. SATISH CHANDRA, J.
Civil Misc. Writ Petition No. 182 of 2011
Saraya
Distillery
A
Unit
of
Saraya
Indus.Saradar Nagar Gorakhpur..Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri Avnish Kumar Srivastava, Sri Tarun
Veer Singh Khehar
Counsel for the Respondents:
C.S.C.,
A.S.G.I.
2011/237,
Sri
C.B.
Tripathi, Sri Siddharth Saran
Constitution of India, Art.-226-Writ of
mandamus-seeking direction to private
respondent-the purchaser company to issue
for
'C'-held-the
agreement
between
petitioner and private company-sales tax
department not bound-only course to file
civil suit on invoke arbitration clause-no
mandamus
can
be
issued-petition
dismissed.
Held: Para-8
In the instant case we find that there is
an agreement between the
petitioner
260
 INDIAN LAW REPORTS ALLAHABAD SERIES
and the private respondents for supply of
goods on certain terms and conditions.
The Sales Tax Department is not party to
this agreement nor is privy with any
assurances
that
might
have
been
exchanged
inter
se
between
the
petitioner and the respondents. Form-C
is obtained by the purchasing dealer
from his assessing authority upon due
verification
and
genuineness
being
shown and if for any reason Form-C is
not forwarded by the purchasing dealer
to the selling dealer then the only
recourse available is to file a suit for
recovery
against
the
Sales
Tax
Department from purchasing dealer or
arbitration clause under the agreement.
We are, accordingly, of the opinion that
no mandamus could be issued to the
private respondents for issuance of
Form-C.
Case Law discussed:
(2003) RD-TN 209; (2013) 61 VST 370 (Gau);
Writ Tax No. 1648 of 2009; AIR 2005 SC 958.
(Delivered by Hon'ble Tarun Agarwala, J.)
1. The petitioner is a company
incorporated under the Companies Act
and is engaged in the manufacture and
sale of extra neutral alcohol/rectified
spirit and other products. The petitioner
has entered into an agreement with
various parties, i.e., respondent nos. 4 to
20
for
supply
of
the
products
manufactured
by
it
on
terms
and
conditions specified in the agreement. It is
alleged that in the agreement it was also
indicated that the supply of the product
shall be made by the petitioner on
concessional rate of tax and that the
respondent companies would supply Form
-C to the petitioner company to avail the
benefit of concessional sales made by
them. Some of the private respondent
companies are public sector undertakings
but
majority
of
them
are
private
companies.
2. Based on the agreement entered
by the petitioner with various parties it is
alleged that the goods were supplied on
concessional
rate
of
tax
but
the
respondents failed to issue Form-C. Due
to the non-supply of Form-C by the
private respondents, the petitioner could
not submit Form-C to the tax department.
Accordingly,
the
Assessing
Officer
passed assessment order levying the
general rate of tax applicable on the sale
made by the petitioner. The petitioner,
being aggrieved by the assessment orders
passed under U.P. Trade Tax Act, 1948 as
well as under Central Sales Tax Act,1956
for the assessment years 2004-05, 200506 and 2006-07, has filed the present writ
petition for quashing of the assessment
orders as well as for a writ of mandamus
commanding the private respondents to
supply Form-C to the petitioner to enable
the petitioner to avail concessional rate of
tax under the Central Sales Tax Act.
3. We have heard Sri Tarun Veer
Singh Khehar, learned counsel along with
Sri Avnish Kumar Singh, learned counsel
for the petitioner and Sri C.B.Tripathi,
learned special counsel for the State.
4. The contention of the learned
counsel for the petitioner that he had
supplied the goods to the private
respondents, some of whom are public
sector undertaking, at concessional rate of
tax
under
the
agreement
and
consequently, the petitioner was entitled
to receive Form-C from them in order to
avail the concessional rate of tax in the
assessment proceedings. The petitioner
contended that a public duty is cast upon
the respondents to issue Form-C and since
the same has not been issued, the writ
Court has the jurisdiction to issue a
mandamus commanding the respondent
1 All] Saraya Distellery A Unit of Saraya Indus Sardar Nagar Gorakhpur Vs. Union of India & Ors. 261
companies to supply Form-C to the
petitioner. In support of his contention the
learned counsel has placed reliance upon
a decision of the Madras High Court in
Tvl. City Tower Hotels (P) Ltd. Vs. The
Commercial Tax Officer, decided on
13.03.2003 (2003) RD-TN 209. This
decision is not helpful nor applicable in
the instant case. In the said decision the
tax authorities were not issuing Form-C to
the petitioner on the ground that the
petitioner would misuse Form-C and in
that
scenario
writ
Court
issued
a
mandamus directing the authorities to
issue Form-C. The learned Counsel for
the petitioner further relied upon a
decision of the Gauhati High Court in
OMIL-JSC-JV Vs. Union of India and
others, (2013) 61 VST 370 (Gau), where
direction was issued to the respondent
company to issue Form-C.
5. Having heard the learned counsel
for the parties, we are of the view that the
petitioner is not entitled to any relief. In
so far as the assessment orders are
concerned, the petitioner has a remedy of
filing an appeal before the Ist Appellate
Authority under the Act. Consequently,
on the ground of alternative remedy, no
relief could be granted to the petitioner.
6. In so far as, a writ of mandamus is
concerned, no mandamus could be issued
to the private respondents to supply FormC. In M/s U.B.Engineering Ltd. Vs. State
of
U.P.
and
others,
decided
on
27.08.2014, the Court held as under:
"Under the contract, the petitioner
was entitled to receive Form-C from the
purchaser, namely, from the Managing
Director of PVVNL. The said respondent
was obliged to issue Form-C to the
petitioner to enable the petitioner avail
concessional rate of tax in his assessment
proceedings. Since the petitioner did not
receive
Form-C
from
PVVNL
the
petitioner became liable to pay tax at a
higher rate. We are of the opinion that the
petitioner is entitled to recover the
differential rate of tax etc. from PVVNL
as per the contract. However, the writ
jurisdiction
is
not
the
appropriate
proceedings for recovery of the tax. We
find that there is a contract between the
petitioner and PVVNL in which there is a
clause
relating
to
arbitration
for
settlement
of
a
dispute.
We,
are
accordingly, of the opinion that no
mandamus could be issued to PVVNLrespondent no.5 for issuance of Form-C.
7. In Commissioner of Sales Tax,
Delhi and others Vs. Shri Krishna Engg.
Co. and Ors. AIR 2005 SC 958, the
Supreme Court held that if requisite ST-1
form was not being issued the only legal
recourse is for the selling dealer to file a
suit for recovery of the sales tax from the
purchasing dealer. The Supreme Court
held as under:
"Considering the full effect of the
provisions, we are fortified in our
conclusion that exemption from including
the total turnover of the selling dealer is
possible only where the requisite ST-1
form is produced. The embargo on
charging tax under the Act is only in those
instances where the purchasing dealer
contemporaneously offers ST-1 Form to
the selling dealer. The Sales Tax
Department neither privy to nor is it
concerned with any assurances that might
have been exchanged inter se there
parties. As observed by the High Court
quite frequently ST-1 Forms are obtained
from Sales Tax Department by the
purchasing dealer, but for sundry reasons
262
 INDIAN LAW REPORTS ALLAHABAD SERIES
are not forwarded to the selling dealer. The
only legal recourse is for the selling dealer
to file a suit for the recovery of the sales tax
from the purchasing dealer. There is no
reason to deviate from this position. It
should be recalled that, for the benefit of the
assessee, the Rules permit the filing of
exemption Forms till the time of assessment,
this is probably the reason why dealers
postpone their obtainment. There is no
reason for the consequences of the dealers
acts of omission or commission to visit the
Department. The Act and the Rules do not
prohibit the simultaneous furnishing of ST-1
Forms. They, in fact, envisage it."
8. In the instant case we find that there
is an agreement between the petitioner and
the private respondents for supply of goods
on certain terms and conditions. The Sales
Tax Department is not party to this
agreement nor is privy with any assurances
that might have been exchanged inter se
between the petitioner and the respondents.
Form-C is obtained by the purchasing dealer
from his assessing authority upon due
verification and genuineness being shown
and if for any reason Form-C is not
forwarded by the purchasing dealer to the
selling dealer then the only recourse
available is to file a suit for recovery against
the Sales Tax Department from purchasing
dealer or arbitration clause under the
agreement. We are, accordingly, of the
opinion that no mandamus could be issued to
the private respondents for issuance of FormC.
9. In the light of the aforesaid, the
writ petition fails and is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE HARSH KUMAR, J.
Writ-C No. 2002 of 2015
Vineet Sachdeva
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri T.P. Singh, Sri Siddharth Nandan
Counsel for the Respondents:
C.S.C., Sri Suresh Singh
Constitution of India, Art.-226-Cancellation
of application from zone of consideration of
allotment-on ground petitioner by applying
two categories i.e. 'D' & 'E' itself-brought
himself beyond zone of consideration-as
per clause (ii) 10 of brochure 'Terms and
conditions of Residential plots scheme,
2009 (c) a person could apply only one
category out of five-held-wrong-result of
misinterpretation-otherwise from clause iii
of para 10 would be meaningless-petitioner
very fairly surrendered his allotments of
category
'E'-hence
cancellation
of
application illegal.
Held: Para-13 & 14
13. We are of the considered opinion that
there is substance in the submissions
made by the counsel for the petitioner.
From a simple reading of Clause 10 (A) (ii)
or 10(d)(ii) of the Brochure, we find that a
person was entitled to make more than
one application under the scheme, i.e. one
application each in respect of one plot of
each category. Meaning thereby that a
person was entitled to submit as many as
five applications at a time one each for a
plot in each of the five different categories.
But he would be entitled for allotment of
one plot in any of the categories under the
scheme.
14. In fact under clause 10(A) (iii) or 10
(d) (iii) lead to such interpretation,
inasmuch as if clause (ii) permitted
making of one application by a person
only that there would have been no need
to make a provision under clause (iii)