V. G. Textiles Private Limited v. Commercial Tax Officer, Udumalpet (North), Udumalpet
1996-08-05
A.R.LAKSHMANAN, K.A.SWAMI
body1996
DigiLaw.ai
Judgment :- K. A. SWAMI, C.J. This appeal is preferred against the order dated July 9, 1996 passed by the learned single Judge in W.P. No. 9309 of 1996 and also the W.M.P. No. 12286 of 1996 [See page 122 supra] filed therein. 2. Petitioner sought for a writ of certiorari to quash the order of the assessment made by the respondent under the Central Sales Tax Act, 1956 on May 13, 1996. The grievance made by the petitioner/appellant is that on the date the order was passed, time granted for filing the objection had not expired. The time the granted for filing the objection expired only on May 21, 1996 inasmuch as it was granted for 15 days from the date of service of notice which was served on May 6, 1996, therefore, 15 days would expire only on May 21, 1996, whereas the order has been passed on May 13, 1996. An argument was advanced before us that before that date, several times, adjournments were granted, but the petitioner/appellant had not filed the objection, therefore, the fact that the order was passed on May 13, 1996 before the expiry of the time granted, cannot be considered to be fatal to the proceedings. Though in the past, time might have been granted to the appellant, but on the date the order was passed, time granted to it for filing the objection had not expired. That being so, we are of the view that the order of assessment has been passed in gross violation of the principle of natural justice and also denying the right to file objection to the proposed assessment. Hence, we are of the view that the appellant need not be driven to the necessity of filing the appeal under the provisions of the Tamil Nadu General Sales Tax Act, 1959. Learned single Judge has declined to interfere with the proceeding on the ground that it can avail the remedy of appeal under the Tamil Nadu General Sales Tax Act. It is true that the right of appeal is a substantive, adequate and efficacious remedy. Normally, this Court does not exercise the discretion under article 226 of the Constitution of India, whenever there is an alternative, adequate, efficacious and substantive remedy is available. Such a limitation for exercising the jurisdiction under article 226 of the Constitution of India is a self-imposed limitation.
Normally, this Court does not exercise the discretion under article 226 of the Constitution of India, whenever there is an alternative, adequate, efficacious and substantive remedy is available. Such a limitation for exercising the jurisdiction under article 226 of the Constitution of India is a self-imposed limitation. But this rule is not without any exception. Wherever there is a gross violation of principles of natural justice, this Court, in deserving cases, does exercise its jurisdiction in order to set right the illegality leading to invalidity of the order. In Karnataka State Road Transport Corporation v. Karnataka State Transport Authority 1984 AIR(Kar) 4, a Division Bench, to which one of us (K. A. Swami, J. as he then was) was a party, while considering the question as to whether the jurisdiction under article 226 of the Constitution can be exercised, when there is an alternative and efficacious remedy is available, after referring to a passage in Halsbury (IV Edition), Volume II, para 1528, has held as follows : "In our opinion, the refusal of the 'STA' to consider the application of the petitioner de hors the inter-State agreement on the grounds set out in the order would show that there is a failure to exercise jurisdiction vested on it besides constituting an error of law apparent on the face of the record. Even where an equally efficacious alternative remedy exists, where, however, fundamental rights are affected where rules of natural justice are violated, or where there is a failure on the part of the authority concerned to confine itself within the bounds of its legitimate jurisdiction or where there is a failure to exercise a jurisdiction vested in it or where there is an error of law apparent on the face of the record, a person aggrieved can invoke the extraordinary jurisdiction of this Court under article 226 without reference to any remedy however equally efficacious it be. The existence of an alternative remedy does not oust the jurisdiction of the High Court under article 226. The rule that the court does not entertain a petition under article 226 when there is an equally efficacious alternative remedy is not a rule of law, but is a principle the courts have evolved for the guidance of their own discretion.
The existence of an alternative remedy does not oust the jurisdiction of the High Court under article 226. The rule that the court does not entertain a petition under article 226 when there is an equally efficacious alternative remedy is not a rule of law, but is a principle the courts have evolved for the guidance of their own discretion. In regard to the effect of the existence of an alternative remedy in the context of certiorari Halsbury (IV Edition), Volume II, para 1528 states : 'There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute." 3. For the reasons stated above, the appeal is allowed. The order dated July 9, 1996 passed in W.P. No. 9309 of 1996 [See page 122 supra] is set aside. The writ petition is allowed. The order of assessment made by the respondent on May 13, 1996 in C.S.T. No. 611243/94-95 is quashed reserving liberty to the respondent to proceed in the matter afresh, in accordance with law. It is also submitted that the objections are filed today. We also further direct the appellant to appear before the respondent on 14th August, 1996, without waiting for the notice fixing the date for hearing. On that day, it is open to the respondent to proceed in the matter, in accordance with law. The C.M.P. is also disposed of. However, we make no order as to costs.