TMI Blog2021 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... t to pass the order. There is a basic difference in between want of jurisdiction or irregular exercise of jurisdiction and if there is non-compliance of procedure, the same cannot be a ground for granting one of the writs prayed for. The defect, if any, can according to the procedure established by law, be corrected only by a court of appeal or revision. The Hon ble Supreme Court has in one of its latest judgments in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [ 2020 (5) TMI 149 - SUPREME COURT] held that even though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India, but it has not to do so as a matter of course when aggrieved person could have availed the effective alternative remedy in the manner prescribed by law. Thus, what can be deduced from the aforesaid exposition of law is that the Hon ble Supreme Court has recognized some exception to the rule of alternative remedy, i.e. where the statutory authority has not acted in accordance with the provisions of the Act or in defiance the fundamental principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. EXN-JCSTE/SEZParwanoo/ 2020-21/1171 dated 28.10.2020 (Annexure P-2) and to M/s Fujikawa Power vide Memo No. EXN-JCSTE/SEZParwanoo/ 20209-21/1167 dated 28.10.2020 (Annexure P-3) being inter alia, illegal, arbitrary, misconceived, erroneous and even violative of principles of natural justice equity and fair play. c) Issue a writ in the nature of mandamus, directing the respondent No.3 to revoke the provisional attachment and not to resort to further coercive measures against the petitioner. 2. A detection case under section 74 of the Himachal Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as the GST Act for short) and the Central Goods and Services Tax Act, 2017 read with section 20 of the Integrated Goods and Services Tax Act, 2017 was conducted against one of the suppliers of M/s Radha Krishan Industries, Kala-Amb, i.e. M/s GM Powertech, Kala-Amb on 10.10.2018 by way of search and seizure as provided under section 67 of the HPGST/CGST Acts. A show cause notice dated 9.1.2019 (Annexure P-8) was issued to M/s Fujikawa Power, Bagbania, BBN Baddi regarding provisional attachment of payment of the petitioner under section 83 of the Act. In response to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of jurisdiction and the same would not result in the order being without jurisdiction. Even if there is some defect in the procedure followed during the hearing of the case, it does not follow that the authority acted without jurisdiction. It may make the order irregular or defective but the order cannot be a nullity so long it has been passed by the authority, which is competent to pass the order. There is a basic difference in between want of jurisdiction or irregular exercise of jurisdiction and if there is non-compliance of procedure, the same cannot be a ground for granting one of the writs prayed for. The defect, if any, can according to the procedure established by law, be corrected only by a court of appeal or revision. 6. In drawing this conclusion, we are fortified by the following judgments of this Court : Indian Technomac Company Ltd . vs State of H.P. and others , CWP No. 4779 of 2014 and analogous matters decided on 4.8.2014, which in turn has been followed in M/s Samsung India Electronics Pvt Ltd . vs State of H.P. and others , ILR 2015 (3) HP 226 and both these judgments in turn have been followed in Micromax Informatics Ltd. vs State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where right or liability is created by a statute which gives a special remedy for 1 enforcing it, the remedy provided by that statute must be availed.... 10. In other words, existence of an adequate alternate remedy is a factor to be considered by the writ court before exercising its writ jurisdiction (See Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566). 11. In Whirlpool Corpn. v. Registrar of Trade Marks, 1998 8 SCC 1, this Court held: 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of the Fundamental Rights or whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation. 25. What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents. 14. The Apex Court in a recent decision in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, 2014 1 SCC 603, has discussed the law, on the subject, right from the year 1859 till the date of judgment i.e. 8th August, 2013. We deem it proper to reproduce paragraphs 12, 13, 15, 16 and 17 hereunder: 12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, 1954 AIR(SC) 207 Sangram Singh vs. Election Tribunal, 1955 AIR(SC) 425 Union of India vs. T.R. Varma, 1957 AIR(SC) 882 State of U.P. vs. Mohd. Nooh, 1958 AIR(SC) 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, 1966 AIR(SC) 1089 have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and will leave the party applying to it to seek resort to the machinery so set up.' 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, 1983 2 SCC 433 this Court observed: (SCC pp. 440-41, para 11) '11. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 1859 141 ER 486 in the following passage: (ER p. 495) There are three classes of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking [remedy] are excluded.' xxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx 15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal v. Supdt. of Taxes, 1964 AIR(SC) 1419 Titagarh Paper Mills, 1983 SCC(Tax) 131 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners have sufficient efficacious remedy(ies) available. 17 .. . 18. Having said so, we are of the considered view that the writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable. Accordingly, the same merit to be dismissed in limine. However, it is made clear that the observations made herein shall not cause any prejudice to the petitioners in case they intend to file appeal(s) before the prescribed Authority and the period spent by the petitioners for prosecuting these writ petitions shall be excluded by the Appellate Authority while computing the period of limitation. [18] The apex Court in case titled Union of India and others versus Major General Shri Kant Sharma and another, 2015 AIR(SCW) 2497) has also held that in the given circumstances, the writ petition is not maintainable. It is apt to reproduce paras 34, 37 and 38 of the said judgment herein: 34. The aforesaid decisions rendered by this Court can be summarised as follows: The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act. 38. The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 1859 6 CBNS 336 [, 356] in the following passage: There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant Co. Ltd., 1935 AC 532 and Secretary of State v. Mask Co., 1940 AIR(PC) 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. (emphasis s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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