TMI Blog2021 (4) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... nt writ petition. The petitioner has to exhaust the statutory remedy, if at all chosen to do so. This being the factum established, the petitioner is at liberty to approach the Tribunal under Section 86 of the Act by following the procedures contemplated - Petition disposed off. - W.P.No.5513 of 2017 And W.M.P.No.5859 of 2017 - - - Dated:- 7-4-2021 - Honourable Mr.Justice S.M. Subramaniam For the Petitioner : Ms.G.Varshitha for Mr.K.Vaitheeswaran For the Respondent : Mr.V.Sundareswaran, Senior Panel Counsel ORDER The order of the respondent dated 02.12.2016, confirming the levy of service tax passed on a deceased person, is sought to be quashed in the present writ petition. 2.The learned counsel appearing on behalf of the petitioner vehemently argued that the order impugned is perverse on the ground that it was passed against a dead person. The learned counsel reiterated that no statutory order can be passed against a dead person and therefore, the petitioner is constrained to move the present writ petition. 3.Perusal of the impugned order dated 02.12.2016 reveals that the copy of the order was communicated to M/s.Guna Engineering and Erectors, No.15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provided for an aggrieved person under a statute. If the High Courts started interfering with such Appellate powers without any valid and substantiated reasons, then the very purpose and object of the statute and provision of appeal under the statute became an empty formality and the High Courts also should see that the provisions of appeal contemplated under the statutes are implemented in its real spirit and in accordance with the procedures contemplated under the rules constituted thereon. While entertaining a writ petition as narrated by the Apex Court, the provision of efficacious alternative remedy under the statute also to be considered. If the writ petitions are entertained in a routine manner, by not allowing the competent Appellate authority to exercise their powers under the provisions of the statute, then this Court is of an opinion that the power of judicial review has not exercised in a proper manner. Thus, it is necessary for this Court to elaborate the legal principle settled in respect of the separation of powers under the Constitution of India. 1. Madras Bar Association vs. Union of India (UOI) (25.09.2014 - SC) : MANU/SC/0875/2014 If the historical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs- legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of power, the separation of power between legislature, executive and judiciary is not different from the constitutions of the countries which contain express provision for separation of powers. (ii) Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India. (iii) Separation of powers between three organs-- legislature, executive and judiciary--is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ proceedings. Thus, the institutional functions and exhausting the appeal remedies by the aggrieved persons, are to be enforced in all circumstances and writ proceedings can be entertained only on exceptional circumstances. Rule is to prefer an appeal and entertaining a writ is only an exception. This being the legal principles to be followed, this Court cannot entertain the writ petitions in a routine manner by waiving the remedy of appeal provided under the statute. 21.Now, let us look into the legal principles settled by the Apex Court for exhausting the efficacious alternative remedy provided under the statute. 22.When an effective alternative remedy is available, a writ petition cannot be maintained. 1. In City and Industrial Development Corporation v. DosuAardeshirBhiwandiwala and Ors. MANU/SC/8250/2008 : (2009) 1 SCC 168, this Court had observed that: The 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) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have entertained the writ petition in view of the adequate alternate statutory remedies available to the Respondent. The interim order was passed on the very first date, without an opportunity to the Appellant to file a reply. Reliance was placed on United Bank of India vs. Satyawati Tandon and others, 2010 (8) SCC 110, and General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs. Ikbal and others, 2013 (10) SCC 83. The writ petition ought to have been dismissed at the threshold on the ground of maintainability. The Division Bench erred in declining to interfere with the same. The Supreme Court agreed to the arguments and held the same also noted that the writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. 5. State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. reported at AIR 2005 SC 3856, the Supreme Court explained the rule of 'alternate remedy' in the following terms Considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 9.Careful scrutiny of the above principles, which were already considered by this Court in the case cited supra, it is clear that the petitioner has to exhaust the statutory remedy provided under the Act and this Court, under Article 226 of the Constitution of India, cannot adjudicate disputed facts, which are all to be adjudicated with reference to the documents as well as the evidences to be produced before the competent authority and before the Appellate Tribunal. In the absence of establishing such facts with reference to the records, High Court cannot place appreciation on those facts now raised by the petitioner in the present writ petition. 10.Thus, the petitioner has to exhaust the statutory remedy, if at al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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