Mr. Sunil Parmeshwar Mittal S/O. ... vs Deputy Commissioner (Recovery) ...
2005 Latest Caselaw 998 Bom

JUDGMENT

V.C. Daga, J.

1. Petitioners by these petitions are 2 challenging demand notices dated 1st October, 2003 issued by the respondent No. 1 calling upon them to pay within seven days a sum of Rs. 28,21,710/- payable by the company M/s. Goldseal Telecommunication Ltd., Gurgoan (M/s. GTL' for short) since they happened to be the directors of the company in the past. The parties are different but the issue involved is common so a single Judgment will dispose of both the petitions. Brief narration of facts will be useful for correct appreciation of the rival contentions.

FACTUAL MATRIX

2. The factual matrix of both the petitions is in narrow compass Mr. S.P. Mittal, petitioner in Writ Petition No. 7015 of 2003 became director of M/s. GTL on 21/2/1997. He resigned on 31/3/1998; whereas Mr. K.T. Shah, petitioner in another Writ Petition bearing No. 7024 of 2003 became director of the said M/s. GTL on 27/7/1989 and ceased to be its director on 19/8/1991 since his directorship was not confirmed and extended in the Annual General Meeting held on 19/8/1991. Thereafter, none of them had any concern with the said company - M/s. GTL.

3. Mr. S.P. Mittal was served with the copy of the show cause notice dated 29/1/1999 issued to M/s. GTL seeking to demand from him sum of Rs. 11,69,855/- Mr. S.P. Mittal replied to the said show cause notice vide his replies dated 03/02/1999 and 07/02/2000 inter alia; stating that he had resigned from M/s. GTL. He has nothing to do with the said company. The Commissioner confirmed the demand notice only against the company - M/s. GTL and directed recovery of Rs. 11,69,855/-of duty liability with interest and further imposed penalty of equal amount amounting to Rs. 11,69,855/-.

4. The Central Excise Department sometime in the month of July, 2000 demanded amount due and recoverable from the company - M/s. GTL along with penalty from the petitioner Mr. S.P. Mittal. He, therefore, preferred an appeal before the Customs Excise & Gold (Control) Appellate Tribunal, New Delhi (the CEGAT). The said appeal was decided by the CEGAT on 19/4/2001 with the following findings :

" Although there is a request dated 17.4.2001 for adjournment from the appellants' Counsel, on perusal of the record, we find that the show cause notice was issued only to M/s. Goldseal Telecommunications Ltd. (of which the present appellant was a Director) and the impugned order confirms a duty demand and imposes penalty only upon the company and there is no liability cast upon the appellant. Hence, he has no locus-standi to file the appeal which is misconceived and is dismissed as such".

(Emphasis supplied)

5. In spite of the above order, not only to Mr. K.T.Shah but even Mr. S.P. Mittal i.e. both the petitioners were again served with the demand notices dated 14/8/2003 by the Central Excise department calling upon them to pay Rs. 27,21,710/-payable by M/s. GTL. Both the petitioners again replied to the said notices denying their liability. In spite of the specific replies, respondent department again served demand notices dated 1/10/2003 to both the petitioners demanding from them the aforesaid sum payable by M/s. GTL and also threatened to attach their personal properties in the event of non payment. Both the petitioners again replied respective demand notices on 7/10/2003 denying their liability to pay. Since the sword of demand and attachment of their personal properties was hanging on their head, both of them chose to invoke the writ jurisdiction of this Court by separate petitions to challenge the action of the respondents.

SUBMISSIONS

6. Mr. V.S. Nankani, learned counsel appearing for the petitioners while assailing the notices of demand issued to the petitioners submitted that the respondents ought not to have issued such repeated notices to the petitioners since they were not liable to discharge the liabilities of the defaulter company; namely M/s. GTL.

7. Mr. Nankani further submitted that the petitioners were not defaulters either under the provisions of the Central Excise Act, 1944 ('Excise Act' for short) or under any of the provisions of the Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995 ('the Rules of 1995' for short).

8. Mr. Nankani submits that none of the petitioners can be said to be the defaulters within the meaning of Section 2(6) of the Rules of 1995 which defines 'defaulter' means any person from whom government dues are recoverable under the Act. In his submission, the alleged government dues if any, recoverable from the company - M/s. GTL under the Excise Act were not recovery from any of the petitioners.

9. Mr. Nankani went a step ahead to submit that there is no provision either under the Excise Act or the Rules of 1995 or the Companies Act of 1956 for holding a former director personally liable for the liability of the company. According to him, none of the petitioners could have been called upon personally to pay the alleged outstanding dues of the company M/s. GTL of which the petitioners were directors in the past.

10. Mr. Nankani further submitted that on the date of issuance of the demand notice to Mr. S.P. Mittal, he was not even a director of the said company - M/s. GTL. He further submits that no liability was fastened upon him by the Adjudicating Authority. No duty liability or penalty was confirmed against him as such there was no question of holding the petitioner -Mr. S.P. Mittal personally liable to pay the alleged liability of the said company - M/s. GTL. So far as the second petitioner Mr. K.T. Shah is concerned, he submits that at no point of time any show cause notice was issued to him. Thus, no threat to recover the money could have been given by the respondents to either of the petitioners. There is no power with the respondent No. 1 to issue any such notices of demand to the petitioners calling upon them to pay any of the liabilities of the defaulter company - M/s. GTL.

11. Alternately, without prejudice to the above contentions, it is further submitted that if at all demand notices were to be treated as show cause notices, even then none of the notices were within limitation prescribed under Section 11A of the Excise Act, since the same were issued almost after the expiry of more than 6 years.

12. Mr. Nankani further submits that so far as Mr. Mittal is concerned, he did file an appeal before the CEGAT to challenge the order of confirmation passed by the Commissioner dated 22/6/2000 against the company M/s. GTL since the demand was being pressed against him personally. While dismissing this appeal, the CEGAT recorded a specific finding that the show cause was issued only to M/s. GTL and that the impugned duty demand with penalty was confirmed only against the company - M/s. GTL, as such appellant Mr. S.P. Mittal had no locus standi to file appeal. The appeal was dismissed as misconceived. Mr. Nankani, thus, submits the above order operates as res judicata and binds the respondents. He further submits that the very same adjudication could be held good vis-a-vis second petitioner Mr. K.T. Shah being a person placed in the same situation. In this view of the matter, he submits that the respondents are estopped from demanding any duty much less penalty or any arrears of duty from the petitioners allegedly due and recoverable from the company - M/s. GTL. He, thus, submits that the notices issued by the respondents are liable to be quashed and set aside.

13. Per contra, Mr. R.V. Desai, learned senior counsel appearing for the revenue submitted that by virtue of Section 12 of the Excise Act, the Central Government has, by Notification issued in the official Gazettee, applied the provisions of Sections 142 & 156 of the Customs Act relating to the levy of and exemptions from duty, drawback of duty, warehousing, offences and penalties, confiscation and procedure relating to offences and appeals subject to necessary modifications and alterations, as may be necessary with regard to duties imposed by Section 3 of the said Excise Act. He, thus, submits that for effecting recovery of the government dues, the respondents could very well invoke the provisions of Customs (Attachment of Property of Defaulters for Recovery of Government Dues) Rules, 1995 against the petitioners.

14. Mr. Desai further contends that the former directors of the defaulting company can also be asked to pay the government dues recoverable from the defaulting company. He also placed reliance on Section 9AA of the Central Excise Act, 1944 to support the impugned action but could not take his submissions to the logical end.

THE ISSUE

15. The issue in the present case, for determination is one of some potentional general significance in relation to the liabilities of the directors of the company. Now, the question for consideration is; whether the former director of the company could be held responsible and liable for payment of liabilities of the defaulting company, after ceasing to be a director of that company.

STATUTORY PROVISIONS

16. Before proceeding further with the discussion, it may be proper to read the relevant provisions for a break-up of the statutory limbs. Central Excise Act is a law relating to central duties of excise on goods manufactured and produced in India.

The Central Excise Act, 1944

Some of the relevant provisions of the said Act are as under :

3. Duties specified in the Schedule to the Central excise Tariff Act, 1985 to levied - (1)

There shall be levied and collected in such manner as may be prescribed

(a) ...

(b) ...

(1A) ...

(2) ...

(3) ...

9AA. Offences by Companies- (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Provided that nothing contained in Sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prove the commission of such offence.

11-A(1) ...

12. Application of the provision of Act 8 of 1878 to Central Excise Duties

-The Central Government may, by notification in the Official Gazettee, declare that any of the provisions of the Customs Act, 1962 (52 of 1962) relating to the levy of and exemption from customs duties, drawback of duty, warehousing, offences and penalties, confiscation and procedure relating to offences and appeals shall, with such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances, be applicable in regard to like matters in respect of duties imposed by Section 3.

The Customs Act, 1962

142. Recovery of sums due to Government -(1) [Where any sum payable by any person] under this Act [including the amount required to be paid to the credit of the Central Government under Section 28B] is not paid

(a) the proper officer may deduct or may require any other officer of customs to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer of such other officer of customs.

(b) the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] may recover or may require any other officer of customs to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] or such other officer of customs; or

[(c) if the amount cannot be recovered from such person in the manner provided in Clause (a) or Clause (b)

(i) [the Assistant Commissioner of Customs or Deputy Commissioner of Customs] may prepare a certificate signed by him specifying the amount due from such person and send it to the Collector of the District in which such person owns any property or resides or carries on his business and the said Collector on receipt of such certificate shall proceed to recover from such person the amount specified thereunder as if it were an arrears of land revenue; or

(ii) the proper officer may, on an authorisation by a Commissioner of Customs and in accordance with the rules made in this behalf, distrain any movable or immovable property belonging to or under the control of such person, and detain the same until the amount payable is paid; and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus, if any, to such person].

156. General power to make rules - (1) Without prejudice to any power to make rules contained elsewhere in this Act, the Central Government may make rules consistent with this Act generally to carry out the purposes of this Act.

17. In exercise of powers subject to Section 156 read with 142 of the Customs Act, 1962 (52 of 1962), the Central Government has made rules known as Customs (Attachment of Property of Defaulters For Recovery of Government Dues) Rules, 1995 ('the Rules' of 1995 for short), the relevant provisions of which are as under:-

RULES OF 1995

2. Definition -In these rules, unless the context otherwise requires

(i) 'Act' means the Customs Act, 1962 (52 of 1962);

(ii) 'Government dues' means any duty or drawback to be recovered from any person or any penalty payable by any person under the Act and has not been paid.

(iii) 'Certificate' means the certificate required to be issued by an [Assistant Commissioner of Customs or Deputy Commissioner of Customs] under Clause (c) of Sub-section (1) of Section 142 of the Act.

(iv) Commissioner' means any person appointed as Commissioner of Customs or Central Excise under the Act.

[(v) Proper Officer' means an officer subordinate to the Commissioner and not below the rank of Assistant Commissioner of Customs or Assistant Commissioner of Customs and Central Excise, who is authorised by the Commissioner for the purpose of attachment and sale of defaulter's property and for realising the amount mentioned in the certificate.]

(vi) Defaulter' means any person from whom government dues are recoverable under the Act.

(vii) Other words or terms used in these rules shall have the same meaning assigned to them under the Act.

3. Issues of Certificate -Where any Government dues are not paid by any defaulter, the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] may prepare a Certificate signed by him specifying the amount due from such person and send the same to the Commissioner having jurisdiction over the place in which the defaulter owns any movable or immovable property or resides or carries on his business or has his bank accounts.

4. Issue of Notice -On receipt of the Certificate mentioned in rule 3 above, the Commissioner may authorise any officer subordinate to him to cause notice to be served upon the defaulter requiring the defaulter to pay the amount specified in the Certificate within seven days from the date of the service of the notice and intimate that in default, such subordinate officer is authorised to take steps to realise the amount mentioned in the Certificate in terms of these rules. "

NOTIFICATION UNDER Section 12

18. Central Government issued a notification under Section 12 extending the provisions of the Customs Act,1962 of the Central Excise Rules as under:-

Notification extending the provisions of Customs Act, 1962 to the Central Excise

In supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) Central Excise No. 69/59 (G.S.R.No.822 of 1959), dated the 18th July, 1959, the Central Government hereby declares that the provisions of Sub-section (1) of Section 105, [Section 110, Section 115 [excluding Clauses (a) and (e) of Sub-section (1),} Clause (a) of Section 118, Sections 119, 120, 121 and 124. {clause (b) and Sub-clause (ii) of Clause (c) of Sub-section (1) of Section 142} and 150] of the Customs Act, 1962, (52 of 1962) relating to matters specified therein, shall be applicable in regard to like matters in respect of the duties imposed by Section 3 of the first mentioned Act, subject to the following modifications and alterations which the Central Government considers necessary and desirable to adapt those provisions to the circumstances, namely :- "

DISSECTION OF STATUTORY PROVISIONS

19. Section 3 of the Central Excise Act provides for levy and collection of central excise duty as per the rules framed under the said Act. It is a levy on excisable goods produced or manufactured in India. Section 4 of the Act provides the measure by reference to which the charge is to be levied. Thus, Section 3(1) is the only charging provisions under the excise law. No other provision either in the Act or the Rules, creates the charge nor can claim to have any ingredient of the incidence of the charge. In other words, Section 4 deals with the measure of valuation when the duty of excise is chargeable on any excisable goods with reference to value. Thus Section 3(1) operates only as charging Section and Section 4 alone provides the measure of charge. It is the sole provision dealing with the basis and method of assessing the value of manufactured goods.

20. Section 6 provides that any person who is engaged in (a) the production of manufacture or any process of production or manufacture of any specified goods included in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), or (b) the whole purchase or sale (whether on his own account or as a broker or commission agent) or the storage any specified goods included in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), shall get himself registered with the proper officer in such manner as may be prescribed. Under Section 6, no person can engage in production or manufacture of any specified goods, included in the first schedule of the Act (now the new Central Excise Tariff) except under authority and in accordance with the terms and conditions of a licence issued under the Act. This provisions makes requirement of licence of the Excise Act necessary for implementing the excise legislation effectively.

21. Section 9 provides for the offences and penalties. Section 6 and 9 enact an absolute prohibition on the wholesale purchase or sale of excisable goods and, therefore, doing such business without licence is illegal. Section 9A states that the offences under the Excise Act are deemed to be non cognisable. Section 9AA deals with offences committed by a company. This provision makes a distinction between the company and its director the scope of which is as under :

" Sub-section (1) of Section 9AA contains a deeming provision and it states that if an offence is committed by a company, every person who is in charge of, and responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty. The proviso to Sub-section (1) enables a person in charge to prove that the offence was committed without his knowledge or that he exercised due diligence to prevent its commission.

Sub-section (2) is an exception to Sub-section (1). It states that if an offence has been proved to have been committed with the consent or connivance or is attributable even to negligence on the part of the Director, Manager or other officer of the company, such officer is also deemed to be guilty of that offence. It should be noted that negligence is a tort and amounts only to a civil wrong. However, Sub-section (2) states that even negligence would make a director guilty of an offence. The explanation to the Section gives an artificial definition to the term "company" so as to include firm and other association of individuals and the word 'Director' is to include event a partner in a firm."

Section 11A provides for making recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. This Section makes it obligatory on the part of Central Excise Officer to serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom refund has erroneously been made within six months from the relevant time requiring the person to show cause why he should not pay the amount specified in the notice. Issuance of notice is condition precedent to a demand under Sub-section 3(2). If this statutory requirement is not complied with, the demand would be in contravention of Section 11A. The decision under Section 11A is in the nature of an adjudication of disputed issue. Thus, the provisions referred to hereinabove are sufficient to understand the liability created by the Act and the Rules framed thereunder :

CONSIDERATION

22. Having heard rival parties, having examined the relevant statutory provisions in the backdrop of the facts emerging from the record, one has to find as to whether the petitioners, former directors of a company are liable to pay the dues of the company under the provisions of the Excise Act. In order to find answer to this question, one has to revert back to the provision of Section 3 of the Excise Act, the analysis of which makes it clear that it provides for levy and collection of the central excise duty as per the Rules framed under the Act. The Section, thus provides for levy and collection. The word 'levy' has been a subject matter of judicial interpretation in the case of Ujagar Prints v. Union of India

. The term 'levy' has been understood as an expression of wide import so as to include both imposition of tax as well as its quantification and assessment. The same view is reiterated by the Apex Court in a subsequent Judgment in the case of Ashok Singh v. Asstt. Collector of Estate Duty . .

23. The term 'collection' is a term used to denote a stage subsequent to the stage of 'assessment' as laid down by the Apex Court in the case of Central Excise v. National Tobacco Co. of India Ltd., . Thus, terms 'levy and collect' means to impose, assess and collect duty under due authority of law. The expression 'levy and collect' are of widest significance and takes within its fold all the proceedings for raising money by the exercise of power of taxation. It means any step taken or any proceeding initiated for the ultimate purpose of determining the liability of the assessee and finally collecting tax from the person liable to pay such tax. As seen hereinabove, Section 4 of the Act provides for valuation of excisable goods for the purposes of charging of duty of excise and makes the assessee; which includes his agent liable to pay the excise duty under the Act. It would be right to say the duty is charged on goods, but the person who is liable to pay the duty is the person known as "the assessee". Clause(a) of sub - Section (3) of Section 4 defines assessee exhaustively to mean the person who is liable to pay the duty of excise under the Act and includes his agent. The duty can be receovered from the person who is an assessee within the meaning of definition. Under Section 6 no person can engage in the production or manufacture of any specified goods, included in the First schedule of the Act (now the new Central Excise Tariff) except under the authority and in accordance with the terms and conditions of a licence granted under the Act. If a person produces 'excisable goods' within the meaning of that expression, he has got to obtain a licence under Section 6 of the Act.

24. Examination of the above provisions would unequivocally go to show that none of the provisions makes the former director personally liable to pay excise duty. The Act does not impose any obligation or liability on the former director to pay the arrears of excise duty. If that be so, even the subordinate legislation cannot bring such a person within its fold.

25. Let us now consider: whether the Rules of 1995 in any way makes a former director liable to pay excise duty. If one turns to the provisions of the Rules of 1995, the word 'government dues' is defined to mean any duty, drawback to be recovered from any person or any interest or penalty payable by any person under the Act and has not been paid. The word 'defaulter' has also been defined to mean any person from whom government dues are recoverable under the Act. Rule 3 deals with the issuance of recovery certificate; whereas, Rule 4 provides for issuance of notice. Notice is required to be issued and served upon a defaulter requiring him to pay the amount specified in the certificate issued under Rule 2(iii) within seven days from the date of the service of the notice. As already stated 'defaulter' means a person from whom government dues are recoverable under the Act. None of the provisions under the Rules of 1995 makes the former director responsible to pay the dues of the government. The absolute liability created under the Act and the Rules is of that person who is an assessee i.e. a person engaged in production or manufacture of any specified goods included in I schedule of the Act (now the new Central Excise Tariff). In this view of the matter, in our opinion none of the petitioners were and are liable to pay the alleged government dues either under the provisions of the Act or Rules of 1995.

26. In view of the above finding, it is not necessary for us to deal with the alternate contention raised by Mr. Nankani. However, since both the parties have addressed us on that aspect in detail, we propose to deal with the submission made in this behalf. Mr. Nankani, in our opinion, is perfectly justified in contending that the order passed by the CEGAT in the case of Mr. S.P.Mittal binds the respondents since a specific finding has been recorded by the Tribunal holding that the order of confirming duty and imposing penalty was only against the company and not against the director Mr. S.P.Mittal. Consequently, his appeal was dismissed for want of locus standi. This order has been accepted by the Revenue. The order has become final and conclusive. The Supreme Court has explained the concept of res judicata in the case of Sulochana Amma v. Narayanan Nair [1995 (77) E.L.T.785 (S.C.)] . The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies, decided and became final, so that parties are not vexed twice over; vexatious litigation is put an end to and the valuable time of the Court is saved. It is based on public policy as well as private justice. The principle would very much apply, to all judicial proceedings whether civil or otherwise. It equally applies to quasi-judicial proceedings of the Tribunals other than the Civil Courts. In this view of the matter, the respondents cannot set up any demand against Mr.S.P. Mittal based on the order dated 22/6/2000 passed against the company - M/s. GTL. The reasons recorded by the CEGAT while rejecting appeal filed by Mr. S.P. Mittal holds good even in the case of Mr. K.T. Shah.

27. Mr. Nankani is also further justified in criticising the action and approach of the respondents to attempt to straightaway recover duties, allegedly payable by the company - M/s. GTL, from the petitioner Mr. K.T. Shah; without there being any prior show cause notice and reasonable opportunity to him to put forth his representation, if any, as required under Section 11A(2) of the Excise Act, 1944. In this behalf, it is relevant to refer to the Judgment of the Apex Court in the case of Gokak Patel Volkart Ltd. v. Collector of Central Excise, Belgaum , wherein it has been held as under :

" No notice seems to have been issued in this case in regard to the period in question. Instead thereof an outright demand had been served. The provisions of S.11A(1) and (2) make it clear that the statutory scheme is that in the situations covered by Sub-sections.(1), a notice of show cause has to be issued and Sub-sections.(2) requires that the cause shown by way of representation has to be considered by the prescribed authority and then only the amount has to be determined. The scheme is in consonance with the rules of natural justice. An opportunity to be heard is intended to be afforded to the person who is likely to be prejudiced when the order is made before making the order thereof. Notice is thus a condition precedent to a demand under Sub-sections.(2). In the instant case, compliance with this statutory requirement has not been made and, therefore, the demand is in contravention of the statutory provision. Certain other authorities have been cited at the hearing by counsel for both sides. Reference to them, we consider, is not necessary."

28. Thus, notices issued to the petitioners were not only in breach of principles of natural justice but the same were in violation of Section of Section 11A of the Excise Act. At this juncture, it will not be out of place to mention that even under the provisions of the Companies Act the petitioners are not liable to discharge the liability of the company, if any, of which they were directors in the past. As soon as a company is incorporated, it constitutes an independent juristic person in the eyes of law as distinct from its members constituting it. Even private limited company consisting of only two members has, nonetheless, a separate legal entity. It is entirely different from its members. From the date of its incorporation a company is endowed with certain special rights and privileges and, unlike the partnership firm or a Hindu undivided family, is not a mere aggregate of members. It can carry on business and can acquire and hold property in its corporate name and has other special advantages e.g. to contract with all its members and others. In short, it becomes a body corporate capable of exercising all functions of an incorporated company having a perpetual succession. It remains in existence, irrespective of the changes in its members, until it is wound up and dissolved under the provisions of the Companies Act. The characteristic of company limited by shares is that it enjoys the privilege of limited liability i.e. liability of its member is limited to the extent of the face value of the shares subscribed by each member and the amount remaining unpaid on them for the time being. Thus, considering effect of incorporation of a company and its independent juristic existence, a former director of the company cannot be held responsible for payment of the liabilities of the company in absence of any specific provision. No contrary provision to persuade us, not to take a view taken hereunder, was brought to our notice. In this view of the matter, we have no hesitation to hold and declare a that petitioners herein cannot be held liable to pay outstanding dues of the central excise duty sought to be demanded from them. We, therefore, quash and set aside the impugned last demand notice dated 1st October, 2003 holding it to be without jurisdiction and without authority of law and make the rule absolutely in terms prayer Clause (a) & (b) with no order as to costs.