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Mahendra Singh Gautam v. Deputy Commissioner (Appeal), Trade Tax, Banda & anr. - WRIT - C No. 650 of 2003  RD-AH 129 (2 May 2003)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 650 Of 2003
Mahendra Singh Gautam ----- Petitioner
Deputy Commissioner (Appeal),
Trade Tax, Banda & anr. ----- Respondents
Hon'ble Ghanshyam Dass, J.
This writ petition has been filed against the order dated 28.8.2002, passed by the Deputy Commissioner (Appeal) Trade Tax, Banda (respondent no.1), by which it has imposed the tax liability of Rs.72,450/- upon the petitioner.
Learned Standing counsel has raised the preliminary objection regarding the maintainability of the petition contending that against the said order appeal is provided before the Trade Tax Tribunal under Section 9 of the U.P. Trade Tax Act and petitioner has approached this Court without exhausting the statutory remedy. Thus, it is liable to be dismissed only on this count.
A Constitution Bench of the Hon'ble Supreme Court, in K.S. Rashid & Sons Vs. Income Tax Investigation Commission & ors., AIR 1954 SC 207, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. The said power is limited. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Similar view has been reiterated by the Apex Court in Sangram Singh Vs. Election Tribunal, Kota, AIR 1955 SC 425, holding that the power of issuing writs are purely discretionary and no limit can be placed upon that discretion. However, the power can be exercised alone with recognised line and not arbitrarily and the Court must keep in mind that the power shall not be exercised unless substantial injustice has ensued or is likely to ensue and in other cases the parties must be relegaged to the courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense.
Again a Constitution Bench of the Hon'ble Supreme Court, in Union of India & ors. Vs. T.R. Verma, AIR 1957 SC 882, held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to persue that remedy and not invoke the special jurisdiction of the High Court to issue a prorogative writ. The Apex Court held that existence of an another remedy does not affect the jurisdiction of the Court to issue a writ; but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such remedy is exhausted, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds therefor.
Yet another Constitution Bench of the Hon'ble Supreme Court, in State of U.P. & ors. Vs. Mohammed Nooh, AIR 1958 SC 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and held that writ would like provided there is no other equally effective remedy. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of fundamental principles of justice. Therefore, in a proper case, powers of writ can be exercised, but should not be exercised generally where other adequate legal remedy is available though it may not be, per se, a bar toissue a writ of prorogative. The Apex Court held that the remedy, being discretionary, cannot be asked as a matter of right, even if the order is a nullity, on the ground that it was passed by disregarding the rules of natural justice. The Court held as under:-
"..... save in exceptional cases, the courts will not interfere under Article 226 untill all normal remedies available to a petitioner have been exhausted. The normal remedies in a case of this kind are appeal or revision. It is true that on a matter of jurisdiction or on a questio that goes to the root of the case, the High Courts can entertain a petition at an early stage but they are not bound to do so and a petition would not be thrown out because the petitioner had done that which the Courts usually ask him to do, namely, to exhaust his normal remedies before invoking an extraordinary jurisdiction....... The petitioner would have been expected to persue the remedies of appeal or revision and could not have come to the High Court in the ordinary way until he had exhausted them."
In N.T. Veluswami Thevar Vs. G. Raja Nainar & ors., AIR 1959 SC 422, the Hon'ble Apex Court held that the jurisdiction of the High Court to issue writs against the orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court must properly exercise its discretion in declining to interfere under Article 226 of the Constitution.
Another Constitution Bench of the Hon'ble Supreme Court, in State of Madhya Pradesh & Anr. Vs. Bhailal Bhai etc. etc., AIR 1964 SC 1006, held that the remedy provided in a writ jurisdiction is not intended to supersede completely the mods of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in Municipal Board, Khurai & Anr. Vs. Kamal Kumar & Anr., AIR 1965 SC 1321.
In Siliguri Municipality Vs. Amalendu Das & ors., AIR 1984 SC 653, the Apex Court held that the High court must exercise its power under Article 226 with circumspection and while considering the matter of recovery of tax etc., it should not interfere save under very exceptional circumstances.
In S.T. Mathuswami Vs. K. Natarajan & ors., AIR 1988 SC 616, the Hon'ble Supreme Court held that the High Court cananot be justified to exercise the power in writ jurisdiction if an effective alternative remedy is available to the party.
In Kerala State Electricity Board & Anr. Vs. Kurien E. Kalathil & ors., (2000) 6 SCC 293, while dealing with a similar issue, the Apx Court held that the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy.
In A. Venkateshwaiah Naidu Vs. S. Chellappan & ors., (2000) 7 SCC 695, the Hon'ble Supreme Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. The Court observed as under:-
"Though no hurdle can be put against the exercise of Constitutional powers of the High Court, it is a well recognised principle which gives judicial recognition that the High Court should direct the party to avail himself of such remedy, one or other, before he resorts to a Constitutional remedy."
Similar view has been reiterated in R.S.R.T.C. & Anr. Vs. Krishna Kant & ors., (1995) 5 SCC 75; L.L. Sudhakar Reddy & ors. Vs. State of Andhra Pradesh & ors., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. Vs. State of Maharashtra & ors., (2001) 8 SCC 509; G.K.N. Driveshafts (India) Ltd. Vs. Income Tax Officer & ors., (2003) 1 SCC 72; and Pratap Singh & Anr. Vs. State of Haryana, (2002) 7 SCC 481.
In Harbans Lal Sahnia Vs. Indian Oil Corporation Ltd., (2003) 2 SCC 107, the Hon'ble Supreme Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the writ seeks enforcement of any of the fundamental rights; where there is failure of principle of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. While deciding the said case, the Apex Court placed reliance upon its earlier judgment in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & ors., AIR 1998 SC 22.
A constitution Bench of the Hon'ble Supreme Court, in G.Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192, held that as the Motor Vehicles Act is a self contained code and itself provides for appealable/ revisable forum, the writ jurisdiction should not be invoked in matters relating to its provision.
Similar view has been reiterated in Assistant Collector of Central Exicse v. Dunlop India Ltd., AIR 1985 SC 330; R. Kishore Biswas v. State of Tripura, (1999) 1 SCC 472; and Shivgovinda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5.
In C.A. Ibraham v. I.T.O., AIR 1961 SC 609 and H.B. Gandhi v. M/s Gopinath & Sons, 1992 (Suppl.) 2 SCC 312, the Hon'ble Apex court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.
The Constitution Bench of the Hon'ble Supreme Court, in K.S. Venkataraman & Co. Vs. State of Madras, AIR 1966 SC 1089, considered the Privy Council judgment in Raleigh Investment Co. Ltd. Vs. Governor General in Council, AIR 1947 PC 78 and held that the writ court can entertain the petition provided the order is alleged to be without jurisdiction or has been passed in flagrant violation of the principles of natural justice, or the provisions of the Act/ Rules is under challenge.
In Titaghur Paper Mills Co. Ltd. Vs. State of Orissa & Anr., AIR 1983 SC 603, the Hon'ble Supreme Court refused to extend the ratio of its earlier judgment in State of U.P. Vs. Mohammed Noor, AIR 1958 SC 86, wherein the Court had held that prorogative writ can be issued to correct the error of the Court or Tribunal below even if an appeal is provided under the statute under certain circumstances, i.e. the order is without jurisdiction, or principles of natural justice have not been followed, and held that in case of assessment under the Taxing Statute, the principle laid down by the Privy Council in Raleigh Investment Co. Ltd. (supra) would be applicable for the reason that "the use of the machinery provided by the Act, not the result of that use, is the test."
While deciding the said case, the Hon'ble Supreme Court placed reliance on large number of judgments, particularly New Water Works Co. Vs. Hawkes Ford, (1859) 6 CBNS 336; Neville Vs. London Express Newspapers Ltd., 1919 AC 368, and Attorney General of Trinidad & Taboco Vs. Gordon Grant & Co., 1935 Appeal Cases 532; and Secretary of State Vs. Mask & Co., AIR 1949 PC 105, wherein it had consistently been emphasised that the remedy provided by the statute must be followed and writ should not generally be entertained unless the statutory remedies are exhausted.
In Whirlpool Corporation Vs. Registrar of Trade Marks, AIR 1999 SC 22; and Tin Plate Co. of India Ltd. Vs. State of Bihar, AIR 1999 SC 74 the Apex Court came to the conclusion that writ should not generally be entertained if statute provide for remedy of appeal and even if it has been admitted, parties should be relegated to the appellate forum.
In Sheela Devi Vs. Jaspal Singh, (1999) 1 SCC 209, the Hon'ble Apex Court has held that if the statute itself provides for a remedy of revision, writ jurisdiction cannot be invoked.
In Punjab National Bank Vs. O. C. Krishnan & ors., AIR 2001 SCW 2993, the Hon'ble Supreme Court while considering the issue of alternative remedy observed as under:-
"The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is hierarchy of appeal provided in the Act, namely, filing of an appeal under S.20 and this fast track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Arts. 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Arts. 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Art. 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
Thus in view of the above, as the petitioner has approached this Court without exhausting the statutory remedy of appeal provided under Section 9 of the U.P. Trade Tax Act, we are not inclined to interfere with the impugned order.
Petition is dismissed with liberty to the petitioner that he may approach the Tribunal and for the purpose of limitation he may take the advantage of the provisions of Section 14 of the Limitation Act. The petition has been filed before this Court on 29th April, 2003 against the order dated 28.8.2002.
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