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Mahendra Singh Gautam v. Deputy Commissioner (Appeal), Trade Tax, Banda & anr. - WRIT - C No. 650 of 2003 [2003] RD-AH 129 (2 May 2003)


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Mahendra Singh Gautam -----           Petitioner


Deputy Commissioner (Appeal),

Trade Tax, Banda & anr. -----        Respondents    


Hon'ble Dr.B.S.Chauhan,J.

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.

2 .5.2003



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