Suresh Kumar and Ors v. District Magistrate Unnao/ Distt.Dy.Dir.Consolidation and Ors

Court No. - 7 Case :- WRIT - B No. - 8199 of 2018 Petitioner :- Suresh Kumar And Ors. Respondent :- District Magistrate Unnao/ Distt.Dy.Dir.Consolidation And Ors. Counsel for Petitioner :- Ravi Nath Tilhari,Mohiuddin Khan,Sonu Shukla Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi,Dheerendra Kr. Agnihotri,Himanshu Suryavanshi,Kamal Kant Singh,Raj Kishor,Seema Gupta Hon'ble Saurabh Lavania,J. Heard Mohd. Zaid, Advocate holding brief of Sri Mohiuddin Khan, learned counsel for the petitioners, learned counsel for the State-Sri Hemant Kumar Pandey and Sri Atul Kumar Dwivedi, learned counsel for the opposite party No.4/Chaudhi. By means of present petition, the petitioners have challenged the order dated 23.02.2018 passed by the opposite party No.2/Settlement Officer of Consolidation, Unnao, (in short "S.O.C.") in Appeal No. 450/2017-18, Computerized Case No.2018541069000024 (Suresh Kumar & Others vs. Chaudhi & Others), instituted under Section 11(1) of the U.P. Consolidation of Holdings Act, 1953 (in short "Act of 1953") and have also challenged the order dated 03.01.2018 passed by the opposite party No.3/Consolidation Officer, Bighapur, Unnao, (in short "C.O.") in Case No. 344 under Section 9A(2) of the Act of 1953 (State vs. Chaudhi). Learned counsel for the State-Sri Hemant Kumar Pandey and Sri Atul Kumar Diwvedi, learned counsel for the opposite party No.4, at very outset, stated that present petition is not liable to be entertained in view of statutory remedy available to the petitioners under Section 48 of the Act of 1953 by preferring a revision. In response, Mohd. Zaid, Advocate holding brief of Sri Mohiuddin Khan, learned counsel for the petitioners stated that the petition is maintainable and in support of his submissions, he place reliance on the judgment passed by the Hon'ble Apex Court in the case of Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771. Para 27 of the same reads as under:- "27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.

27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.

27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.

27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with." Learned counsels for the side opposite in support of their submissions placed reliance on para 27.5 of the judgment passed by the Hon'ble Apex Court in the case of Radha Krishan Industries (Supra) and the judgment passed in the case of State of Maharashtra v. Greatship (India) Ltd., 2022 SCC OnLine SC 1262 and based upon the same, it is stated that in view of the statutory remedy available under Section 48 of the Act of 1953 as also that the present petition does not fall within the parameter set by the Hon'ble Apex Court for entertaining the writ petition, this petition is not liable to be entertained. It is also stated that the Hon'ble Apex Court in the case of State of Maharashtra (Supra) after taking note of the provisions of Maharashtra Value Added Tax, 2002 and Central Sales Tax Act, 1956 and various pronouncements on the issue of entertaining the writ petition by the High Court and also the facts of the case, interfered in the order of the High Court after observing that "the High Court has seriously erred in entertaining the writ petition against the assessment order. The High Court ought to have relegated the writ petitioner - assessee to avail the statutory remedy of appeal and thereafter to avail other remedies provided under the statute." Relevant portion of the judgment passed in the case of State of Maharashtra (Supra), are extracted hereinunder:- "14. At the outset, it is required to be noted that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the assessee straightway preferred writ petition under Article 226 of the Constitution of India. It is not in dispute that the statutes provide for the right of appeal against the assessment order passed by the Assessing Officer and against the order passed by the first appellate authority, an appeal/revision before the Tribunal. In that view of the matter, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the assessment order in view of the availability of statutory remedy under the Act. At this stage, the decision of this Court in the case of Satyawati Tondon (supra) in which this Court had an occasion to consider the entertainability of a writ petition under Article 226 of the Constitution of India by by-passing the statutory remedies, is required to be referred to. After considering the earlier decisions of this Court, in paragraphs 49 to 52, it was observed and held as under: "49. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 were echoed in CCE v. Dunlop India Ltd.,

(1985) 1 SCC 260 in the following words : (SCC p. 264, para 3) "3. … Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged."

¶50In Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569 this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under Section 19 of the DRT Act and observed : (SCC p. 570, paras 5-6) "5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act'). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum.

¶6The 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 a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 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 Articles 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 Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."

¶51In CCT v. Indian Explosives Ltd. [(2008) 3 SCC 688] the Court reversed an order passed by the Division Bench of the Orissa High Court quashing the show-cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy.

¶52In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168] the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paras 29 and 30 of that judgment which contain the views of this Court read as under : (SCC pp. 175-76) "29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.

¶30The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law."

¶53In Raj Kumar Shivhare v. Directorate of Enforcement [(2010) 4 SCC 772] the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed : (SCC p. 781, paras 31-32) "31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.

¶32No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum."

¶15Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order, bypassing the statutory remedies.

¶16Now so far as the reliance placed upon the decisions of this Court by the learned Senior Advocate appearing on behalf of the respondent, referred to hereinabove, are concerned, the question is not about the maintainability of the writ petition under Article 226 of the Constitution, but the question is about the entertainability of the writ petition against the order of assessment by-passing the statutory remedy of appeal. There are serious disputes on facts as to whether the assessment order was passed on 20.03.2020 or 14.07.2020 (as alleged by the assessee). No valid reasons have been shown by the assessee to by-pass the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions.

¶17In view of the above and in the facts and circumstances of the case, the High Court has seriously erred in entertaining the writ petition against the assessment order. The High Court ought to have relegated the writ petitioner - assessee to avail the statutory remedy of appeal and thereafter to avail other remedies provided under the statute.

¶18Under the circumstances, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The writ petition filed before the High Court challenging the assessment order and consequential notice of demand of tax is hereby dismissed. The respondent - assessee is relegated to avail the statutory remedy of appeal and other remedies available under the MVAT Act and CST Act. It is directed that if such a remedy is availed within a period of four weeks from today, the appellate authority shall decide and dispose of the same on its own merits in accordance with law without raising any question of limitation, however, subject to fulfilling the other conditions, if any, under the statute. It is made clear that we have not expressed any opinion on the merits of the case in favour of either of the parties and it is for the appellate authority and/or appropriate authority to consider the appeal/proceedings on its/their own merits and without being influenced in any way by any of the observations made by the High Court which otherwise have been set aside by the present order. The present appeal is allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs." At this stage, Mohd. Zaid, Advocate holding brief of Sri Mohiuddin Khan, learned counsel for the petitioners stated that in view of order dated 08.03.2018 passed by the opposite party No.8/Sub Divisional Magistrate, Bighapur, Unnao, affect of which was that the petitioners would be dispossessed from the property in issue i.e. Gata No. 106 situated at Village-Rishal Kheda, Pargana-Keeratpur, Tehsil-Bighapur, District-Unnao, the petitioners approached this Court. In this regard, attention of this Court is drawn on Annexure No. 12 of the petition. From the record, it is apparent that petitioners have not assailed/impeached the order dated 08.03.2018, however, writ of mandamus to the effect that the authority concerned be restrained from implementing the order dated 08.03.2018, has been sought. It appears from the Annexure No.12 of the petition that an application dated 08.03.2018 was preferred by Chaudhi S/o Ramjiyawan one of the opposite parties before the District Magistrate and the District Magistrate directed the SDM, Bighapur to take appropriate action in the proceedings related to the Act of 1953. After taking note of aforesaid and the fact that challenging the order dated 03.01.2018 passed by the opposite party No.3/C.O. the petitioners preferred the appeal before opposite party No.2/S.O.C. and in the said appeal the opposite party No.2/S.O.C. passed the impugned order dated 23.02.2018 and also the judgments, referred above, on being asked, learned counsel for the petitioners failed to satisfy this Court on the issue of entertaining the writ petition. Having considered the aforesaid as also in view of statutory remedy available to the petitioners and taking note of observations of the Hon'ble Apex Court in the judgment(s), referred above, this Court is not inclined to entertain the present petition. It is accordingly dismissed with liberty to petitioners to avail the statutory remedy available to them under the law by means of preferring a revision under Section 48 of the Act of 1953. Liberty is also given to the petitioners to prefer an application seeking interim relief/protection before the revisional court i.e. D.D.C., who, shall consider and decide the same within a period of two months from the date of preferring such an application alongwith memo of revision. Taking note of the peculiar facts of the present case including the order dated 08.03.2018 passed by the District Magistrate in relation to compliance of order passed under the Act of 1953, in the interest of justice, it is provided that till the period of two months or till disposal of the application for interim relief, petitioners shall not be dispossessed from the property in issue. Order Date :- 16.1.2024 Vinay/- High Court of Judicature at Allahabad, Lucknow Bench High Court of Judicature at Allahabad, Lucknow Bench