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TMI Blog2017 (12) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not the pleaded case of the petitioner that its case falls in any of the exceptions recognized by the Supreme Court as discussed above or that the issue raised in this writ petition cannot be adjudicated by the A.P. VAT Tribunal presided by no less an officer of a Special Grade District Judge - the petitioner is not entitled to invoke the jurisdiction of this Court without availing the statutory remedy of appeal before the Tribunal. Time limitation - case of Revenue is also that as the petitioner has not raised the aspect of limitation in both the rounds of litigation before the Assessing Officer as well as the Deputy Commissioner, it is barred from raising such plea in the present writ petition - Held that: - the counsel for the petitioner is labouring under a misconception that this Court has duty and obligation to entertain writ petitions in order to set aside every wrong or illegal order. The law is well settled that the jurisdiction under Article 226 of the Constitution of India is discretionary and this Court would not be compelled to adjudicate upon the merits of a case merely because a case is made out that the order challenged before it is illegal. While exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 11,22,885/- while permitting the petitioner to produce evidence before the said respondent. In pursuance of the remand, respondent No.3 has issued a show cause notice dt.19.01.2015 proposing to levy tax of ₹ 11,22,885/-. After considering the objections filed by the petitioner on 20.3.2015, respondent No.3 has passed a fresh assessment order on 18.3.2015 confirming the levy of tax of ₹ 11,22,885/-. Assailing the said assessment order, the petitioner again filed an appeal before respondent No.2. On considering the appeal on merits, respondent No.2 has dismissed the same on 31.3.2017. 3. At this stage, it needs to be noted that against every order passed by the Appellate Deputy Commissioner (CT), there is a remedy of appeal before the A.P. VAT Tribunal under Section 33 of the A.P. Value Added Tax Act, 2005. The petitioner, however, bypassed the said remedy and straightaway filed this writ petition with the plea that out of the block period of 1.9.2005 to 31.3.2012, the period of 1.9.2005 to March 2009 falls beyond the limitation period of four years, that therefore respondent No.4 had no jurisdiction to pass such an order and that, as the power exercised by re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336 : 141 ER 486] in the following passage: (ER p. 495) There are three classes of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. [1919 AC 368 : (1918-19) All ER Rep 61 (HL)] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. [1935 AC 532] and Secy. of State v. Mask and Co. [(1939-40) 67 IA 222 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution is a discretionary power. Similar view has been reiterated in N.T. Veluswami Thevar v. G. Raja Nainar [1959 Supp (1) SCR 623 : AIR 1959 SC 422] ; Municipal Council, Khurai v. Kamal Kumar [(1965) 2 SCR 653 : AIR 1965 SC 1321] ; Siliguri Municipality v. Amalendu Das [(1984) 2 SCC 436 : 1984 SCC (Tax) 133 : AIR 1984 SC 653] ; S.T. Muthusami v. K. Natarajan [(1988) 1 SCC 572 : AIR 1988 SC 616] ; Rajasthan SRTC v. Krishna Kant [(1995) 5 SCC 75 : 1995 SCC (L S) 1207 : (1995) 31 ATC 110 : AIR 1995 SC 1715] ; Kerala SEB v. Kurien E. Kalathil [(2000) 6 SCC 293 : AIR 2000 SC 2573] ; A. Venkatasubbiah Naidu v. S. Chellappan [(2000) 7 SCC 695] ; L.L. Sudhakar Reddy v. State of A.P. [(2001) 6 SCC 634] ; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509] ; Pratap Singh v. State of Haryana [(2002) 7 SCC 484 : 2002 SCC (L S) 1075] and GKN Driveshafts (India) Ltd. v. ITO [(2003) 1 SCC 72] . 20. In Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L S) 577] and S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC (Cri) 669]). (ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (Refer: Mafatlal Industries Ltd. [(1997) 5 SCC 536]). (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma v. Cellular Operators Association of India [(2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] . (iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case. In State of Maharashtra v. Digambar (1995) 4 SCC 683 it was held: 19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transgress them. The ratio that could be culled out from the judgment referred to above is that when an Act provided for remedies and created fora for availing such remedies, a litigant cannot be permitted to frustrate the legislative intent of providing alternative remedies under Article 226 of the Constitution of India. This judgment is therefore not of any help to the petitioner. 17. Here is a case where the petitioner has never raised a whisper about the lack of jurisdiction on the part of respondent No.4 for passing an assessment order for the period between 1.9.2005 and March, 2009. Not only in its objections filed before the Assessing Officer before passing of the initial assessment order, but also in the first round of appeal filed by it, before respondent No.3 and in the second round of appeal filed before respondent No.2 after the remand, the petitioner has failed to raise the plea of limitation. Limitation being a mixed question of law and fact, has to be necessarily raised by a party in order that the adjudicating authority applies its mind and renders a finding thereon. The petitioner has not offered any semblance of explanation as to why and for what reason i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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