TMI Blog2013 (3) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... irecting that the application for condonation of delay should be disposed of within a time-limit, and, if the delay is condoned, further direct the stay petition to be disposed of within a particular limit and pass orders on the same and further orders recovery to be kept in abeyance provided that a reasonable amount is remitted. - W.A. No. 303 of 2013 - - - Dated:- 8-3-2013 - JOSEPH K.M. AND RAMAKRISHNAN K., JJ. For the Appellant : M.K. Dileep Kumar. For the Respondents : Bobby John Pulickaparambil, Government Pleader,. The judgment of the court was delivered by K.M. JOSEPH J.- The appellant is the writ petitioner. The writ petition was filed seeking the following reliefs: (A) Declare that the petitioner is entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. We heard the learned counsel for the appellant and learned Government Pleader. Learned counsel for the appellant would complain that it is because of the denial of the right available to the appellant by the statutory authorities the appellant has approached this court. He would submit that, when there is a right there must be a remedy. He invoked the principles of natural justice. He would submit that, it has been held by the apex court in Ravi Gupta v. Commissioner of Sales Tax, Delhi [2009] 22 VST 529 (SC) as follows (page 533 in 22 VST): It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and giving unconditional orders in others has created great deal of uncertainty in the law. He would also submit the difficulties of the appellant inasmuch as the appellant stopped business and is undergoing treatment. 4. The learned Government Pleader, on the other hand, would submit that, this is a case where the appellant did not produce assessment order. The assessment order would show that the appellant did not even file the return. He was issued with pre-assessment notice. To the same also he did not respond. The officer was left with no other choice. He had the material in the form of previous assessments and he made assessment in this case in the circumstances and really there is no injustice at all. He would further submit tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant cannot get a direction from the court to pass orders on stay petition without the delay petition being heard and allowed. 6. We must also notice that the appellant actually filed appeal on January 14, 2013. The writ petition was filed on January 21, 2013. Mandamus will lie when there is failure on the part of the authority against whom mandamus is sought to act or there is a clear refusal on his part. In this case, as already noticed, the appellant filed appeal on January 14, 2013. In a week's time he is before this court complaining of alleged denial of justice. The explanation, no doubt, is that the appellant was arrested on account of non-payment of tax arrears and he was released so that he could file appeal. Whatever that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders are not being passed on the same that may give a cause of action for the party to approach this court. Merely filing a delay petition and stay petition and then rushing to this court and blaming the authority in not passing orders may not be justified as it is done without giving opportunity to the statutory authority to consider the stay petition on its own. It is, as we already noted, only when there is failure to pass orders within a reasonable time and that too after the stay petition is moved that a cause of action can possibly arise under article 226 of the Constitution for a writ of mandamus. 8. In a case where there is a delay unless and until the delay is condoned, there cannot be an order that the stay petition to be dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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