TMI Blog2011 (7) TMI 1029X X X X Extracts X X X X X X X X Extracts X X X X ..... oner for restraining M/s. Hindustan Petroleum Corporation Limited (hereinafter referred to as the HPCL , for the sake of brevity) and its wholly owned subsidiary company M/s. HPCL Biofuels Limited (respondent Nos. 1 and 2) from deducting any amount from the bills of the petitioner, which is a contractor, on supply of goods from outside the State of Bihar in course of inter-State trade in the name of payment of entry tax and also for declaration that respondent Nos. 1 and 2, who are the owners/principals, have got no jurisdiction to deduct any amount of entry tax from the bills of the petitioner as the liability of payment of entry tax is of the said respondents alone being the importer of goods into the State of Bihar from outside and for other ancillary reliefs. The petitioner claims that it is a company situated at Haryana engaged in design, engineering, supply, erection, commissioning and performance testing of boilers, sugar plants and co-Gen plants and it also undertakes engineering procurements construction contracts. The learned counsel for the petitioner submitted that three tender enquiries with respect to a sugar plant at Lauriya West Champaran, Bihar; an integra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JT , for the sake of brevity) and the contract in favour of IJT was a composite contract, according to which everything had to be done by IJT and it cannot be legally bifurcated. On this point, learned counsel for the said respondents relied upon two decisions of the Patna High Court in the case of Birendra Kumar Poddar alias Birendra Poddar v. Ghanshyam Mandal reported in [2008] 2 PLJR 782 and in the case of Kaushal Kumar Singh v. State of Bihar reported in [2011] 1 PLJR 205. The learned counsel for respondent Nos. 1 and 2 also claimed that this writ petition is not maintainable as a specific provision of arbitration mentioned in clause 14 of the agreement between the parties (annexure 1). In this regard, he relied upon four decisions of the apex court and one decision of the Patna High Court in case of Titagarh Paper Mills Ltd. v. Orissa State Electricity Board reported in [1975] 2 SCC 436, in case of Bisra Stone Lime Company Ltd. v. Orissa State Electricity Board reported in [1976] 2 SCC 167, in case of State of U. P. v. Bridge Roof Co. (India) Ltd. reported in [1997] 104 STC 78 (SC); [1996] 6 SCC 22, in case of Pimpri Chinchwad Municipal Corporation v. Gayatri Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents that the letter of intent and purchase order having been issued in favour of IJT, the petitioner had no authority to file this writ petition, fails and it is held that the petitioner being the proprietor of IJT has full authority and is justified in filing this writ petition. So far the question of maintainability of this writ petition in view of availability of the provision of arbitration in clause 14 of the agreement between the parties as an alternative remedy is concerned, it may be men tioned that the alternative remedy is not a rule of law or compulsion, rather it is a matter of caution and discretion. Furthermore question of violation of article 14 of the Constitution of India is also involved in this case and the law is well-settled that in case of infraction or violation of fundamental right, the plea of alternative remedy cannot be pressed into service against the exercise of the writ jurisdiction by the court under article 226 of the Constitution of India. It has also been held that if the impugned order suffers from non-observance of the principle of natural justice, the court can interfere even in a case where the alternative remedy is available. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh H. Pandya reported in [2003] 5 SCC 531. Furthermore only because there exists a disputed question of fact or an alternative remedy is available, the same, by itself, would not be sufficient for the High Court to decline to exercise its jurisdiction under article 226 of the Constitution of India as has been held by the apex court in case of Noble Resources Ltd. v. State of Orissa reported in AIR 2007 SC 119. In the light of the aforesaid well-settled principles of law and also in view of the fact that the question of payment of entry tax to the Government having not been included in the arbitration clause of the agreement in question, the case law relied upon by learned counsel for the respondents in case of Titagarh Paper Mills Ltd. [1975] 2 SCC 436, in case of Bisra Stone Lime Company Ltd. [1976] 2 SCC 167, in case of State of U.P. v. Bridge Roof Co. (India) Ltd. [1997] 104 STC 78 (SC); [1996] 6 SCC 22, in case of Pimpri Chinchwad Municipal Corporation [2008] 8 SCC 172, as well as in case of Ashok Kumar Choudhary [1989] PLJR 1108 are not applicable to the facts and circumstances of the case as they are concerned with the arbitration clauses specifically included subject-ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by respondent to IJT dated June 7, 2010 (annexure 3). The specific claim of the petitioner is that after purchase the goods in question were brought from Haryana to Bihar by respondent Nos. 1 and 2 themselves, which is clearly proved by the fact that the entry tax on the goods on arrival in the State of Bihar was levied upon respondent No. 1, which they admittedly paid to the authorities concerned. Section 3(1) and (2) of the Entry Tax Act provides that there shall be levied and collected a tax on entry of scheduled goods into a local area for consumption, use or sale therein, which shall be paid by every dealer liable to pay tax under the Bihar Finance Act, 1981 or any other person, who brings or causes to be brought into the local areas such scheduled goods whether on his own account or on account of his principal or takes delivery or is entitled to take delivery of such goods on such entry; provided no tax shall be leviable in respect of entry of such scheduled goods effected by a person other than a dealer if, the value of such goods does not exceed 25,000 in a year. The term dealer is defined under section 2(e) of the Bihar Finance Act, 1981, meaning any person, who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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