TMI Blog2021 (8) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... of an opinion that mere pendency cannot be a ground for preferring an appeal and the High Court in such circumstances may take a lenient view by condoning the delay in preferring an appeal, if any arises. This being the principles to be considered, this Court is of an opinion that the petitioner has to approach the Tribunal in order to adjudicate the disputed facts as well as the legal grounds raised in these writ petitions. The petitioner is at liberty to prefer an appeal before the Jurisdictional Appellate Authority in the prescribed format and by complying with the provisions of the Act and the Rules, within a period of 60 days from the date of receipt of a copy of this order - petition disposed off. - WP Nos.18913 and 18914 of 2013 And MP Nos.1, 1, 2 and 2 of 2013 - - - Dated:- 24-8-2021 - Honourable Mr. Justice S.M.Subramaniam For the Petitioner in both WPs : Mr.Tarun Gulati, Senior Counsel for Mr.R.Sandeep Bagmar. For the Respondents in both WPs : Mr.V.Nanmaran, Government Advocate COMMON ORDER WP No.18913 of 2013 is filed questioning the sustainability of the appellate order passed by the third respondent dated 24.05.2013 in AP No.1 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing on behalf of the petitioner, is of an opinion that the factual issues raised pertinently in these writ petitions may not have any straight application with reference to the findings in the abovesaid judgment and based on the abovesaid judgment, these writ petitions need not be considered. 10. In M/s.Saint Gobain Glass India Ltd's case (cited supra), this Court has upheld the actions of the respondents. However, in these writ petitions, the ground regarding violation of principles of natural justice and other factual grounds, are also raised. 11. The learned Government Advocate, appearing on behalf of the respondents, opposed the said contentions of the learned Senior Counsel appearing on behalf of the petitioner by stating that the issues raised by the petitioner are elaborately adjudicated by the Appellate Authority in the impugned orders. If at all the petitioner is aggrieved, it is for them to prefer an appeal before the Tribunal as contemplated under the provisions of the Act. Thus, these writ petitions are to be rejected. 12. When an appellate remedy is available to the petitioner under the provisions of the Act, the High Court need not adjudicate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the appellate remedy as contemplated are considered by this Court elaborately in the case of Sri Sathya Jewellery vs. Principal Commissioner of Customs [CDJ 2021 MHC 1799] and the relevant paragraphs 11 to 18 are extracted hereunder:- 11.This Court is of the considered opinion that all such grounds raised on merits are to be adjudicated with reference to the documents and evidences to be produced and the scope of the writ petition under Article 226 of the Constitution of India cannot be expanded so as to exercise the powers of the appellate authority in the matter of examination or scrutiny of original documents and evidences produced by the respective parties. The very purpose of the statutory appeal is to scrutinize the orders passed by the original authorities, and therefore, the legislative intention in this regard is to be scrupulously followed in the mater of adjudication of merits with reference to the documents and evidences. 12.In common parlance, Statutes contain appeal provisions. In some of the Statutes, there are twotier appeal provisions in order to ensure that the facts, grounds, evidences are appreciated and the grievances are redressed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d v. The Deputy Commissioner of Income Tax, Chennai and another [W.P.No.22508 of 2017 dated 16.07.2018], from which, the following paragraphs are extracted : 19. Unnecessary or routine invasion into the statutory powers of the competent authorities under a statute should be restrained by the Constitutional Courts. Frequent or unnecessary invasions in the executive power will defeat the constitutional perspectives enshrined under the Constitution of India. Undoubtedly, the separation of powers under the Indian Constitution has been narrated and settled in umpteen number of judgments. Separation of powers demarcated in the Constitution of India is also to be considered, while exercising the powers of judicial review in the matter of dispensing with the appeal remedy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature, the Executive and the Judiciary. Even though the Constitution has adopted the parliamentary form of government where the dividing line between the legislature and the executive becomes thin, the theory of separation of powers is still valid. 4. State of Tamil Nadu and Ors. vs. State of Kerala and Ors. (07.05.2014 - SC) : MANU/SC/0425/2014 121. On deep reflection of the above discussion, in our opinion, the constitutional principles in the context of Indian Constitution relating to separation of powers between legislature, executive and judiciary may, in brief, be summarized thus: (i) Even without express provision of the separation of powers,the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers 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 org ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional respects are to be maintained by the constitutional Courts. Whenever there is a provision for an appeal under the statute, without exhausting the remedies available under the statute, no writ petition can be entertained in a routine manner. Only on exceptional circumstances, the remedy of appeal can be waived, if there is a gross injustice or if there is a violation of fundamental rights ensured under the Constitution of India. Otherwise, all the aggrieved persons from and out of the order passed by the original authority is bound to approach the Appellate Authority. The Constitutional Courts cannot make an appeal provision as an empty formality. Every Appellate Authority created under the statute to be trusted in normal circumstances unless there is a specific allegation, which is substantiated in a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernative 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. 4. Authorized Officer, State Bank of Travancore and Ors. vs. Mathew K.C. (30.01.2018 - SC) : MANU/SC/0054/2018 The petitioner argued that the SARFAESI Act is a complete code by itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions, the remedy of appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under Section 18. The High Court ought not to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. 7 . First Income-Tax Officer, Salem v. M/s. Short Brothers (P) Ltd., [1966] 3 SCR 84 and State of U.P. and Ors. v. M/s. Indian Hume Pipe Co. Ltd., [1977] 2 SCC 724. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting the statutory remedies provided under the Act. The point raised in this regard are statutory violations. However, even such statutory violations can be dealt with by the Appellate authorities or the Appellate Tribunals. This apart, in a writ petition, if such orders passed with jurisdictional errors and quashed without any remand, then an injustice would be caused to the very spirit of the Statute enacted for the benefit of the public at large. Thus, Courts are expected to be cautious, while granting exoneration of liability merely on the ground of jurisdictional errors, if any committed by the authorities competent. On some occasions, jurisdictional errors are committed wantonly or in collusion with the assessees, knowingly that there is a possibility of escaping from the clutches of law. Thus, the higher authorities of the Department are expected to be watchful and review the orders passed by the Subordinate authorities and in the event of any negligence, dereliction of duty, collusion or corrupt activities, then such officials are liable to be prosecuted apart fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es now raised, including the legal grounds are to be adjudicated before the Tribunal in these writ petitions. 16. The learned Senior Counsel, appearing on behalf of the petitioner, contended that the writ petitions were admitted in the year 2013 and are pending for about 7 years and therefore, the petitioner need not be relegated again before the Appellate Authority. This Court is of the considered opinion that this practice of admitting the writ petition and keeping the same pending is unavoidable and at one point, the High Court has to settle the principles in the matter of exhausting the appellate remedy. If such practices are allowed, then every litigant will take advantage of such circumstances or efflux of time. 17. The consistency and uniformity in exercising the appeal remedy before approaching the High Court is to be developed both in the interest of the aggrieved person as well as in the interest of the institutions. Institutional respects are also to be protected by the High Court. Thus, this Court is of an opinion that mere pendency cannot be a ground for preferring an appeal and the High Court in such circumstances may take a lenient view by condoning the del ..... X X X X Extracts X X X X X X X X Extracts X X X X
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