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M/S RAMA DAIRY PRODUCTS LTD. versus SECRETARY, U.P.KRISHI UTPADAN MANDI SAMITI,SHAMLI, MUZAFFARNAGAR & ORS.

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M/S Rama Dairy Products Ltd. v. Secretary, U.P.Krishi utpadan Mandi Samiti,Shamli, Muzaffarnagar & ors. - WRIT - C No. 635 of 2003 [2005] RD-AH 3437 (23 September 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 38

CIVIL MISC. WRIT PETITION NO. 635 Of 2003

M/S Rama Dairy Products Ltd. -----           Petitioner

Versus

Secretary, U.P.Krishi utpadan Mandi Samiti,

Shamli, Muzaffarnagar & ors. -----        Respondents    

    --------------

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

Hon'ble K.N.Ojha, J.

This writ petition has been filed for quashing the notice dated 24.3.2003 (Annex.-10), issued by the Trade Tax Officer, Grade-II, Mobile Squad, Shamli, Muzaffarnagar, and further for direction to the respondents to release the Deshi Ghee detained from the vehicle in question.

Facts and circumstances giving rise to this case are that a vehicle was carrying the goods (Deshi Ghee), and as the proper documents were not found of the goods, the vehicle and the goods were seized by the respondent no. 2, Trade Tax Officer, Grade II and the order impugned was passed. Hence this petition.

Shri Rakesh Ranjan Agrawal, learned counsel for the petitioner has submitted that the seizure has been in flagrant violation of principles of natural justice and the statutory provisions. Allegation made by the respondent no. 2 that the goods were not accompanied by documents is totally false and the seizure memo etc. is liable to be quashed.

On the contrary, learned Standing Counsel appearing for the respondents has submitted that against the order impugned, remedy has been provided under the Statute itself by making a representation under the provisions of Section 13-A (6) of the U.P. Trade Tax Act, 1948 (hereinafter called the Act), and therefore, this Court should not entertain the writ petition.

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  jurisdictioon 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 prerogative 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  and  others,  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  bankls  and  the financial   institutions.     There   is hierarchy  of appeal provided inthe 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."

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   depricated   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 State of Himachal Pradesh & ors. Vs. Raja Mahendra Pal & ors., AIR 1999 SC 1786 while dealing with a similar issue the Hon'ble Apex Court has held as under:-

"It is true that the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature and can be invoked for the enforcement of any fundamental right or legal right-------. The constitutional Court should insist upon the party (to avail of the efficacious alternative remedy) instead of invoking the extraordinary writ jurisdiction of the Court. This does not however debar the court from granting the appropriate relief to a citizen in peculiar and special facts notwithstanding the existence of alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article."

In Govt. of A.P. & ors. Vs. J. Sridevi & ors., (2002) 5 SCC 37 the Apex Court held that where a authority is competent to determine the issue, "the High Court in a writ jurisdiction should have directed the authority only to take an appropriate decision. When the statutory authority is vested with the power to determine the question as to the applicability of the provisions of the Act, it is ordinarily desirable to leave the question to be decided by such authority. The aggrieved party can file appeal against the decision within the framework provided under the statute and the ultimate decision also could be challenged under judicial review, if permitted in law

In the State of Bihar & ors Vs. Jain Plastics & Chemicals Ltd., (2002)1 SCC 216 the Apex Court held that existence of alternative remedy does not affect the jurisdiction of the writ court but it could be a good ground for not entertaining the petition.

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.

Thus, the law can be summarised that rule of exclusion of the writ jurisdiction is not a law but discretion to be exercised by the Court considering the facts and circumstances of the case, and if the case requires any kind of evidence etc. the writ Court may not exercise its extraordinary jurisdiction at all.

Thus in view of the above, as the statutory remedy was available to the petitioner in Muzaffarnagar itself, we fail to understand why the petitioner has taken the trouble to come to this Court. The preliminary objection raised by the learned Standing Counsel has merit and therefore the petition is liable to be dismissed only on this ground.

Petition is dismissed with liberty to the petitioner to avail the statutory remedy provided under Section 13-A (6) of the Act.

28 .4.2003

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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