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TMI Blog2006 (2) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed under section 35 of the KGST Act, 1963 setting aside the final assessment orders, passed by the Sales Tax Officer, Devikulam, for the years 1992-93, 1993-94 and 1994-95, and remitting them back to the assessing authority for fresh disposal, in accordance with law. Pursuant to the said remand, the Commercial Tax Officer has issued exhibit P5 notice, proposing to hear the petitioner for completing the assessment. This writ petition is filed, challenging exhibit P5, without invoking the appellate remedy available to the petitioner. When there is an appellate remedy available under the Act, a frog leap made to this court under article 226 of the Constitution of India, by filing this writ petition, cannot be entertained. W.P. (C) No. 371 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early hearing petition, he has not filed any stay application along with the appeal. Now, exhibit P4 revenue recovery notice has been served on him, proposing to recover the amounts covered by exhibits P1 and P2. Since there is no challenge against exhibit P2, the recovery of the amount covered by exhibit P2, is perfectly legal and valid. Filing of an appeal, against exhibit P1, will not operate as stay of it. Therefore, I find nothing illegal about the recovery of the amount covered by exhibit P1, especially, in view of the fact that the petitioner has not, even now, filed or moved any stay application in the appeal. W.P. (C) No. 5729 of 2006 The petitioner challenges exhibit P1 assessment order of the Sales Tax Officer for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce; and accordingly, it will issue, to the end that justice may be done, in all cases where there is a specific right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. In Administrative Law (H.W.R. Wade C.S. Forsyth 8th Edition) it is stated: The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities of all kinds. Like the other prerogative remedies, it is normally granted on the application of a private litigant, though it may equally well be used by one public authority against another. The commone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in State of Kerala v. Lakshmi Kutty [1986] 4 SCC 632 reiterated: . . . It is well-settled that a writ of mandamus is not a writ of ourse or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance . . . The existence of a right is the foundation of the jurisdiction of a court to issue a writ of mandamus. Recently, his Lordship Sri B.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court recommending reimposition of a reasonable court fee sent to the State Government is yet to elicit action from the State Government, despite reminders. The second, and, by far, the saddest, factor is that original petitions are being filed in the most undeserving and flimsiest of cases. It is high time that legal fraternity also realises its responsibility and exercises its discretion by ensuring that constitutional remedies are resorted to only in deserving cases where there is no other equally efficacious alternative remedy and that the high prerogative writs remain really high prerogative writs and do not become devalued and degenerated by over-use and abuse. We make these observations with the sad realisation of what is happe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als or stay applications. The petitioners do not have a corresponding legal right also. So, the prayer of the petitioners for interfering with the revenue recovery notices made before this court, is ex facie unsustainable. In some of the cases, without invoking the statutory remedy, they have approached this court directly. In tax matters, a hierarchy of authorities, competent to grant remedies, is provided and thereafter, a provision to move this court in revision is also made. So, the writ petitions, challenging the assessment orders, need not be entertained. In view of the above position, all the writ petitions fail and they are dismissed. The dismissal of these writ petitions is without prejudice to the contentions of the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X
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