2010 (2) TMI 1069 - HC - VAT and Sales Tax

Whether on the strength of the decision of the apex court in L. Hirday Narain 1970 (7) TMI 2 - SUPREME Court any law can be understood to have been laid down to the effect that once a writ petition is admitted for adjudication, such adjudication must necessarily be on merits and the writ petition cannot be dismissed on ground of its maintainability? Held that - The facts stated above would make it amply clear that the view of the apex court that failure on the part of Hirday Narain to exhaust the revisional remedy provided to him by the statute was not fatal was taken in the peculiar facts and circumstances of the case and the aforesaid decision, by no means, can be understood to have laid down any law of general application to the effect that once a writ petition is admitted for regular hearing, the same cannot be dismissed or rejected on the ground of maintainability, as asserted by the learned counsel for the petitioner. In the present case the learned single judge had exercised his discretion against the appellant by holding that the appellant (writ petitioner) had accepted the appellate order and had participated in the reassessment proceedings. The learned single judge had also recorded that no explanation had been offered by the appellant (writ petitioner) for not availing of the alternative remedy available to him. In such a situation, it cannot be said that the discretion vested in the learned single judge was exercised in an unacceptable manner. So long the exercise of discretion is proper even if we are to disagree with the eventual conclusion of the learned single judge, (we make it clear that no such disagreement is expressed) the same would not be sufficient to supplant our views in place of those recorded by the learned single judge in an intra court appeal.

Summary

Issues:
Challenge to assessment orders under the Assam General Sales Tax Act for multiple years, maintainability of writ petition, dismissal of writ petition on grounds of maintainability, acceptance of appellate order by petitioner, exercise of discretion by the court.

Analysis:
The writ petition challenged an order by a single judge dismissing the petition filed by the appellant against assessment orders under the Assam General Sales Tax Act for multiple years. The assessments were completed on various dates, and a notice contemplating reopening of assessments for certain years was issued. The appellant appealed against the reassessment orders, which were passed pursuant to the appellate order directing reassessment for five years. The single judge considered the contentions of both parties and noted that the petitioner had participated in the reassessment proceedings. The single judge held that since the appellant accepted the appellate order and did not explain the failure to avail the statutory remedy of appeal, the writ petition should not be entertained on merits and was dismissed.

The appellant argued that the writ petition should not have been dismissed on grounds of maintainability after being heard on merits. The Departmental counsel contended that the appellant's conduct in accepting the appellate order and participating in reassessment proceedings should preclude adjudication on merits. The court considered these arguments and referred to a previous apex court decision to analyze whether a writ petition must always be adjudicated on merits once admitted.

The court clarified that the failure to exhaust statutory remedies is not always fatal, especially in cases involving fundamental rights, violation of natural justice, or lack of jurisdiction. The court found that the reassessment proceedings were not without notice or opportunity for the appellant, and the question of their legality required detailed consideration. The court upheld the single judge's discretion to dismiss the writ petition based on the appellant's acceptance of the appellate order and participation in reassessment proceedings without availing the statutory remedy. The court concluded that the single judge's decision should not be interfered with and dismissed the writ appeal.

In conclusion, the court upheld the dismissal of the writ petition based on the appellant's conduct and the exercise of discretion by the single judge. The court found that the dismissal on grounds of maintainability was justified, considering the circumstances of the case. The writ appeal was consequently dismissed, and no costs were awarded.