TMI Blog2015 (1) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ary issue, leaving the issues of mixed questions of fact and law to be decided in the end, but before considering the merits of the matter. In Tin Plate Co. of India Ltd. v. State of Bihar [1998 (11) TMI 532 - SUPREME COURT OF INDIA] the SC has observed that when an alternative and efficacious remedy is open to a person, he should be required to pursue that remedy and not to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution - where such a remedy is available, it would be a sound exercise of discretion to refuse entertainment of the writ petition under Article 226 of the Constitution - if the writ petition under Article 226 is to be dismissed on the ground of alternative remedy, the Court is not required to express any opinion on the merits of the case which is to be pursued before an alternative forum. Whether it is a proper or improper exercise of taxing power on the part of the respondents – Held that:- It bears reiteration, if not repetition, that it is the inherent lack of power, as is not the case presently, that could give rise to the necessary cause of action for the appellant to knock at the doors of this Court, notwithstand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding a hearing on 28.05.2010. It also required the appellant to produce the books of accounts on that day. The representatives of the appellant appeared before the 2nd respondent and represented that, in the light of the decentralisation of the accounting procedure spreading along numerous branches across the length and breadth of Kerala, the records are too voluminous to be carried and that necessary explanation with reference to the audit report had already been submitted before the first respondent. Despite the said representation, the second respondent insisted on the authorities of the appellant that they produce the details of particular receipts shown under Schedules N and O to the balance sheet. 4. On the failure of the appellant to produce the desired records, the first respondent issued Exhibits P2 and P3 notices dated 07.06.2010 to complete the assessment for the said years to the best of his judgement. In response thereto, the appellant submitted Exhibit P4 petition dated 14.06.2010 to the Commissioner of Commercial Taxes, the third respondent. In Exhibit P4, the appellant has requested the third respondent to instruct the assessing authority not to fasten them wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction facility to other service providers. 10. Making strenuous efforts to surmount the hurdle of alternative remedy, the learned Standing Counsel has vehemently contended that since the assessment is without jurisdiction on the part of the assessing authority, it is essentially a matter of lack of jurisdiction and ipso facto, the very assessment proceedings are ultra vires the assessing authorities. Expatiating on his submissions, the learned Standing Counsel has submitted that it is too well known to be restated that when a proposed act of an authority is ultra vires, the principle of alternative remedy cannot come in the way of adjudication by this Court under Article 226 of Constitution of India. 11. Laying specific emphasis on the volume of records, the learned Standing Counsel has submitted that the basic records maintained by all the units of the appellant throughout the State run to lorry-loads and that it is not practicable to bring all those records to the office of the first respondent. Hitherto, the practice, according to the learned counsel, was to produce only the audited statement of accounts. Wherever the assessing authority requires any information regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention to Section 34 of the Act, has strenuously resisted the submission of the learned Standing Counsel that given the importance of the issue, this Court alone should decide the matter. According to him, Section 34 of the Act provides an elaborate mechanism to assail the orders of the assessing authority. In his submissions, it is not a mere alternative remedy, but certainly an efficacious one, too. 18. The learned Government Pleader for the respondent, taking us through the records, further submitted that the appellant, either in the pleadings or during making oral submissions before this Court, has not established any valid reason to ignore the alternative remedy of appeal and take recourse to judicial review, the scope of which, in the words of the learned Government Pleader, is severely restricted. He has also stated that just because the appellant is a Public Sector Undertaking, there could not be any different approach either in assessing it or in adjudicating the issue before any judicial forum. 19. Eventually, referring to the judgement impugned, the learned Government Pleader has submitted that no prejudice has been caused to the appellant, the remedy of which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, it would be a sound exercise of discretion to refuse entertainment of the writ petition under Article 226 of the Constitution. It is further observed that if the writ petition under Article 226 is to be dismissed on the ground of alternative remedy, the Court is not required to express any opinion on the merits of the case which is to be pursued before an alternative forum. 23. Though the Indian Telegraph Act, 1885 and the Indian Wireless Telegraphy Act, 1933 are the statutes that govern the telecommunications and radio frequencies in India, it is the New Telecom Policy, 1999, which replaced the National Telecom Policy of 1994, that takes care of the nuances of the technical issues. In fact, the Telecom Regulatory Authority of India (TRAI), a statutory body under Telecom Regulatory Authority of India Act, 1997, regulates the network-to-network interconnection service between different service providers. Providing such a service is a pre-condition in the Unified Access Service license granted by the Department of Telecommunications. 24. It is the Telecommunication Interconnection (Charges and Revenue Sharing) Regulation, 1999 that regulates the arrangements among service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithstanding the availability of an alternative remedy. 28. The learned Standing Counsel has also submitted that the appellant was not provided with sufficient opportunity before passing the assessment orders. Without quibbling over semantic niceties, it can be stated that there is difference between denial of opportunity and lack of ufficient opportunity. 29. A perusal of the impugned judgement reveals that the learned Single Judge has ruled on two aspects. In the first place, it is observed that there is an efficacious alternative remedy and accordingly, necessary directions were also given in that regard. Secondly, the learned single Judge has also observed that the appellant has been provided with sufficient opportunity, including that of personal hearing, before passing the Exhibits P8 and P9 assessment orders. 30. It is settled law that refusal to entertain a petition under the writ jurisdiction by the High Court when an efficacious alternative remedy is available to the party is a self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious. As such, we could not persuade ourselves to accept the contention of the learned Standing Counsel that the alternative remedy is not a bar. Neither the urgency of adjudication, nor the gravity of the issue, leave alone the status of the appellant being a public sector undertaking, can be judicially acknowledged as an exception to the rule of alternative remedy. 34. We shall now address the other aspect of the matter. As has already been adverted to, there shall be no discussion on the merits of the matter if the issue is to be decided primarily on the question of maintainability. At the same time, it has to be stated that if an issue, seemingly one concerning the merits of a matter, is inextricably linked to the question of maintainability, it is inevitable that to that extent the issue has to be adjudicated upon. To be more specific, if we examine the present case, the writ petition is essentially refused to be entertained on the ground that there is an efficacious alternative remedy. Usually, the bar of alternative remedy would not be available in the face of infraction of the principle of audi alteram partem. Accordingly, it was indeed necessary for the learned Single J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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