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M/S GENERAL CEMENT PRODUCTS LTD., MIRZAPUR versus THE CUSTOMS, EXCISE & GOLD (CONTROL), A.T., N.DELHI & OTHERS

High Court of Judicature at Allahabad

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M/S General Cement Products Ltd., Mirzapur v. The Customs, Excise & Gold (Control), A.T., N.Delhi & Others - WRIT TAX No. 1123 of 2001 [2006] RD-AH 19196 (14 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.22

CIVIL MISC. WRIT PETITION NO.1123 OF 2001

M/s General Cement Products Ltd., village

Kantit, Vindhyachal, Mirzapur.       ....Petitioner

Versus

The Customs, Excise & Gold (Control)

Appellate Tribunal, New Delhi and others.        .Respondents

***************

Hon'ble Rajes Kumar, J.

Present writ petition is directed against the order of Tribunal dated 12.07.2001, which has been passed in appeal.

Learned Standing Counsel has raised the objection that against the said order, reference lies under section 35-H of Central Excise Act and, therefore, the writ petition is liable to be  dismissed on the ground of alternative remedy. In support of his contention he relied upon the decision of this Court in the case of Union of India and another Vs. M/s Balrampur Chini Mills Ltd., Balrampur and another, reported in 2003 UPTC, 982 and recent decision of this Court in Civil Misc. Writ Petition No.922 of 2001, Union of India Vs. Excise and Gold (Control) Appellate Tribunal (Northern Bench), New Delhi and another decided on 18.07.2006, in which following the decision referred hereinabove, the writ petition was dismissed on the ground of alternative remedy. Learned counsel for the petitioner submitted that once the writ petition has been admitted on 22.11.2001, after the lapse of five years, it should not be dismissed on the ground of alternative remedy.  In support of his contention he relied upon the decision in the case of Hriday Narain Vs. Income Tax Officer, reported in A.I.R. 1971 SC, 33. He further submitted that the reference also lies to this Court. Therefore, in any view this Court has to adjudicate the issue, therefore, writ petition should not be dismissed on the ground of alternative remedy.

Heard learned counsel for the parties.

In the case of Union of India and another Vs. M/s Balrampur Chini Mills Ltd., Balrampur and another (Supra), order of the Tribunal was dated 05.12.2001 and the writ petition was entertained in the year 2002 but on the objection being raised by the learned Standing Counsel, this Court on 23.05.2003 has dismissed the writ petition on the ground of alternative remedy. This Court held that against the order of the Tribunal, reference lies, thus, writ petition is not  maintainable. In the case of Union of India Vs. Excise and Gold (Control) Appellate Tribunal (Northern Bench), New Delhi and another (Supra)  writ petition was entertained in the year 2001 and   the writ petition was dismissed on 18.07.2006 on the ground of alternative remedy. It is not the case that the question which is arising from the order of the Tribunal raised in the present writ petition can not be raised in the reference application. When a forum is provided under the Statute for filing of reference, there is no reason to supercede the said provisions and to file the writ petition asking the Court to adjudicate the matter in the writ petition under Article 226 of the Constitution of India. Apex Court consistently held that where statutory remedy is provided, writ petition should not be entertained. In the case of U.P. Spinning Co. Ltd. Vs. R.S. Pandey and another, reported in (2005) 8 SCC 264. (Para 11 to 24), Apex Court has set aside the order passed by the High Court in the writ petition on the ground that the High Court should not entertain the writ petition when the statutory remedy was available under the Industrial Disputes Act, 1947 unless exceptional circumstances are made out. Apex Court has also considered the decision in the case of Hriday Narain Vs. I.T.O. (Surpa). Apex Court held that where under the statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.

In a recent decision in the case of Star Paper Mills Ltd. Vs. State of U.P. and others, reported in 2006 NTN (Vol.31), 249, Apex Court has considered in detail the issue relating to the entertaining the writ petitions when alternative remedy is available. Apex Court held as follows:

"Except for a period when article 226 was amended by the constitution (42nd amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High court to grant relief under article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High court should ensure that he has made out a strong case or that there exist good grounds to invoke the extra-ordinary jurisdiction.

Constitution Benches of this Court in K.S.Rashid and Sons vs. Income tax Investigation Commission And Ors.  (AIR 1954 SC 207); Sangram Singh vs. Election Tribunal, Kotah and Ors. (AIR 1955 SC 425); Union of India vs. T.R.Verma (AIR 1957 SC 882); state of U.P. and Ors. Vs. Mohammad Nooh (AIR 1958 SC 86); and M/s K.S. Venkataraman and co. (P) Ltd. Vs. state of Madras (AIR 1966 SC 1089), held that article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. 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. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there ahs been a breach of principles of natural justice or procedure required for decision has not been adopted.

Another Constitution Bench of this court in State of Madhya Pradesh and Anr. Vs. Bhailal Bhai etc. (AIR 1964 SC 1006) held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes 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 re-iterated in N.t.Veluswami Thevar vs. G.Raja Nainar and Ors. (AIR 1959 SC 422); Municipal Council, Khurai and Anr. Vs. Kamal Kumar and Anr. (AIR 1988 SC  1321); Siliguri Municipality and Ors. Vs. Amalendu Das and Ors. (AIR 1984 SC 653); S.T. Muthusami vs. K. Natarajan and Ors. (AIR 1988 SC 616); R.S.R.T.C. and Anr. Vs. Krishna Kant and Ors. (AIR 1995 SC 1715); Kerala state electricity Board and Anr. Vs. Kurien E.Kalathil and Ors. (AIR 2000 SC 2573); A. Venkatasubbiah Naidu vs. S.Chellappan and Ors. (2000 (7) SCC 695); and L.L. Sudhakar reddy and Ors. Vs. State of Andhra Pradesh and Ors. (2001 (6) SCC 634); Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Anr. Vs. State of Maharashtra and Ors. (2001 (8) SC 509); Pratap Singh and Anr. Vs. State of Haryana (2002 (7) SCC 484) and G.K.N. Driveshafts (India) Ltd. Vs. Income tax Officer and Ors. (2003 (1) SCC 72).

In Harbans Lal Sahnia vs. Indian Oil Corporation Ltd. (2003 (2) SCC 107), this 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 petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

In G. Veerappa Pillai vs. Raman & Raman Ltd. (AIR 1952 SC 192); Assistant Collector of Central Excise  vs. Dunlop India Ltd. (AIR 1985 SC 330); Ramendra Kishore Biswas vs. State of Tripura (AIR 1999 SC 294); Shivgonda Anna Patil and Ors. Vs. State f Maharashtra and Ors. (AIR 1999 SC 2281); C.A. Abraham vs. I.T.O. Kottayam and Ors. (AIR 1961 SC 609); Titaghur Paper Mills Co. Ltd. Vs. State of Orissa and Anr. (AIR 1983 SC 603); Whirlpool Corporation vs. Registrar of Trade Marks and ors. (AIR 1999 SC 22); Tin Plate Co. of India Ltd. Vs. State of Bihar and Ors. (AIR 1999 SC 74); Sheela Devi vs. Jaspal Singh (1999 (1) SCC 209) and Punjab Natiional Bank vs. O.C. Krishnan and Ors. (2001 (6) SCC 569), this Court held that there hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.

If, as was noted in Ram and Shyam Co. vs. State of Haryana and Ors. (AIR 1985 SC 1147) the appeal is from "Caeser to Ceaser's wife" the existence of alternative remedy would be a mirage and an exercise in futility. There are two well recornized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved hereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. (emphasis provided).

The above position was recently highlighted in U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & Another (2005) 8  SCC 264."

Writ petition is liable to be dismissed on the ground of alternative remedy.

Present writ petition is accordingly, dismissed on the ground of alternative remedy. In case, if the petitioner applies for the return of the certified copy of the order of the Tribunal, same may be returned after obtaining the photocopy of the order of the Tribunal.

Dt.14.11.2006

R./


Copyright

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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