2010 (1) TMI 1146 - HC - Service Tax

When the petitioner s remedy of filing an appeal is barred, can he invoke the extraordinary jurisdiction under article 226 of the Constitution of India? Held that - The reliefs as sought for in the writ petition are reliefs which ordinarily could be granted by the appellate authority. Therefore, there is no extraordinary situation for invoking the power under article 226 of the Constitution of India, even if this writ petition is filed within the period of limitation. This court would have declined to exercise jurisdiction under article 226 of the Constitution. If that be so, there is an added ground as to why it will not entertain the writ petition. When admittedly such remedy is available, but not availed. Resultantly, the writ petitions fail and are accordingly dismissed.

Issues Involved:
1. Whether the writ petitions can be entertained under Article 226 of the Constitution of India despite the availability of an alternate statutory remedy.
2. Whether the expiration of the statutory period for filing an appeal bars the invocation of the extraordinary jurisdiction under Article 226.

Issue-wise Detailed Analysis:

1. Alternate Remedy and Article 226:
The petitioner argued that an alternate remedy by way of an appeal is not a bar for entertaining a writ petition under Article 226 of the Constitution of India, especially in exceptional circumstances. The petitioner relied on various judgments, including the Madras High Court decision in Rayalseema Constructions v. Deputy Commercial Tax Officer, and Supreme Court decisions in K. Venkatachalam v. A. Swamickan and Deputy Commercial Tax Officer, Madras v. Rayalaseema Constructions. These cases highlighted that the High Court's jurisdiction under Article 226 is wide and covers all violations of law or the Constitution when recourse cannot be had to other remedies provided by law.

2. Expiration of Statutory Period for Filing an Appeal:
The respondents contended that once the period of limitation for filing an appeal has expired, the remedy of the petitioner comes to an end, and no cause survives to entertain the writ petition. This was supported by the Division Bench decision in Assistant Commissioner of Central Excise v. V. Krishna Poduval, which held that the High Court cannot resurrect an unenforceable cause of action by invoking Article 226. The court referred to various precedents, including Kerala Motor Transport W.W.F. Board v. Government of Kerala and T. Krishnan v. State of Kerala, which emphasized that the High Court will not entertain a writ petition when an effective appellate remedy is available but not availed within the prescribed period.

Judgment:
The court concluded that the principles enunciated in the cited cases are applicable. The court reiterated that the High Court's jurisdiction under Article 226 is to be exercised sparingly and only in appropriate cases where there is a gross failure of justice or grave injustice. The court emphasized that a party aggrieved must choose the remedy available under the statute rather than abandon it to invoke the extraordinary jurisdiction under Article 226. The court found no extraordinary circumstances warranting interference under Article 226 in the present case.

The court held that the petitioner had the right to file an appeal against the impugned order. However, the period prescribed under the statute for filing the appeal had expired, and the delay could not be condoned. Consequently, the court dismissed the writ petitions, stating that the extraordinary jurisdiction under Article 226 cannot be invoked to resurrect a cause of action that has become unenforceable due to the law of limitation.

Conclusion:
The writ petitions were dismissed on the grounds that the petitioner had an adequate statutory remedy which was not availed within the prescribed period, and there were no exceptional circumstances justifying the invocation of the extraordinary jurisdiction under Article 226 of the Constitution of India.

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