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2005 DIGILAW 405 (KAR)

SMT. B. S. VARADA v. DEPUTY COMMISSIONER OF COMMERCIAL TAXES (ASSESSMENTS)-3, MANGALORE.

2005-06-24

D.V.SHYLENDRA KUMAR

body2005
ORDER D. V. SHYLENDRA KUMAR J. - Writ petition is directed against the order dated November 20, 2004, copy at annexure B to the petition, passed by the first appellate authority under the provisions of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as "the KST Act"), who has declined to exercise his appellate jurisdiction on the premise that the appeal preferred by the petitioner was much beyond the period of limitation permitted under law and even beyond the period within which the appellate authority can condone the delay. The first appeal under section 20 of the Act is required to be filed to the Deputy Commissioner or the Joint Commissioner of Commercial Taxes, as the case may be, depending upon who has passed the order under appeal and as such the appeal should be preferred within the period of 30 days from the date of receipt of the order sought to be appealed. However, under the proviso to sub-section (2) of section 20 of the Act, the appellate authority is given a discretion to condone the delay if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period provided that the appeal is brought before the appellate authority within a period not exceeding 180 days. In the facts and circumstances of the case, it is not disputed that the appeal was sought to be preferred beyond this period of time and therefore the appellate authority declined to entertain the appeal being disabled in law to condone the delay beyond 180 days. Submission of Sri Aravind Kamath, learned Counsel for the petitioner, is that the petitioner had justifiable reason for not preferring the appeal within the period of 180 days; that it was a bona fide situation where the petitioner could not have preferred the appeal within that time; that the appellate authority having refused to entertain the appeal beyond the period of 180 days, petitioner has approached this court; that in earlier instances this court had condoned the delay and had directed the appellate authority to entertain the appeal, etc. Orders of this nature passed on consideration of a given set of facts or in the peculiar circumstances of a case are not orders determining any issue of interpretation of the provisions of law so as to say that they lay down a ratio decidendi which would constitute a precedent that can be construed as a binding precedent based on which subsequent cases are required to be decided. In fact, there is no ratio decidendi at all in such orders. I am not persuaded by the submission of the learned counsel for the petitioner that a writ of mandamus does lie to compel a statutory authority to act either in contravention of a statutory provision or in ignorance of a statutory provision. That definitely is not the function of the High Court in the exercise of writ jurisdiction under article 227 of the Constitution of India. Writs are meant for issue of directions in situations where the statutory authority or the Tribunal acts in contravention of the statutory provisions or exercises the powers in an arbitrary or exotic manner. It is to put the authorities and the Tribunal in their place, the prerogative writs are issued under article 226 and in supervisory jurisdiction under article 227 of the Constitution of India, to ensure that the authorities act within the bounds as provided in law and do not transgress such limits. If the functioning of a Tribunal or an authority is in conformity with law, it is not the function of this court to exercise the supervisory jurisdiction under article 227 of the Constitution of India, to pass orders either to quash such action or order by issue of a writ of certiorari nor does a writ of mandamus lie to compel the statutory authority or the Tribunal to act in a manner contrary to law or as provided under the statute itself. There is absolutely no occasion for this court to compel the Tribunal to entertain the appeal on merits, if the statute providing for filing of the appeal itself, does not enable the Tribunal to do so. There is absolutely no occasion for this court to compel the Tribunal to entertain the appeal on merits, if the statute providing for filing of the appeal itself, does not enable the Tribunal to do so. In view of the fact that the appeal has been presented beyond the permitted time, the appellate remedy being a statutory remedy and conditioned by the provisions of the statute itself no interference by this court is called for, particularly for issuing a writ of mandamus to direct the Tribunal to act in a manner not provided under the statute itself. However, the learned counsel for the petitioner seeks to draw support from the decision of the Supreme Court in the case of Kailash v. Nanhku reported in AIR 2005 SCW 2346 ; AIR 2005 SC 2441 , In the said case the Supreme Court had occasion to consider the correctness or otherwise of the order of the High Court in declining to accept a statement of objection filed by the respondent beyond the period of 180 days from the date of receipt of the notice of the election petition which had been filed under section 21 of the Representation of People Act (43 of 1951), and had directed to receive a written statement filed in the petition on behalf of the respondent - defendant beyond the period permitted under order 8, rule 1 of Code of Civil Procedure itself, on the premise that the provision is more directory in nature; that it is not a provision curtailing the power of the court, etc. The Supreme Court itself has drawn a distinction in the said case about the applicability of the restrictive provision to suits filed invoking the original jurisdiction of the court and in the matter of appeals by observing that while in the case of the former, i.e., in suits it is directory in nature in the case of latter, i.e., appeal provisions are to be strictly construed. It is not necessary for this court to examine this aspect any further, as I find there was scope for filing a further appeal to the second appellate authority even under the statute itself, which it is open to the petitioner to avail of. It is not necessary for this court to examine this aspect any further, as I find there was scope for filing a further appeal to the second appellate authority even under the statute itself, which it is open to the petitioner to avail of. I cannot accept the submission of Sri Aravind Kamath, learned counsel for the petitioner, that as the Tribunal is not enabled to condone the delay there is no purpose in filing the appeal to the Tribunal. Neither the Tribunal nor this court is enabled to issue directions to entertain the appeal by condoning the delay when the statute prescribes a bar for entertaining an appeal in terms of section 20 of the Act. However, the petitioner can definitely draw sustenance from further appellate provision, i.e., under section 22 of the Act and urge all such contentions which are open to him before the second appellate authority. No occasion to interfere in writ jurisdiction. Writ petition is dismissed.