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TMI Blog2024 (8) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of GENERAL MANAGER, ELECTRICAL RENGALI HYDRO ELECTRIC PROJECT, ORISSA AND ORS. VERSUS GIRIDHARI SAHU AND ORS. [ 2019 (9) TMI 1696 - SUPREME COURT] . It appears that the Hon ble Supreme Court after consideration of several authorities on the subject, including the case of SYED YAKOOB VERSUS KS. RADHAKRISHNAN [ 1963 (10) TMI 26 - SUPREME COURT ] had categorically identified the jurisdiction to issue a writ of certiorari and a writ of prohibition, and it is in that context the Hon ble Supreme Court held 'The High Court gave a further opportunity to the Appellate Tribunal to consider the claim of the first respondent. Though the High Court quashed the order of the Tribunal, the observation in the judgment clearly shows that the Tribunal could reconsider the matter. Indeed, learned counsel for the first respondent conceded that fact.' Though, both the writ of certiorari and prohibition may be issued for correcting errors of jurisdiction, however, a writ of certiorari is intended to correct a jurisdictional excess once, a decision is rendered, on the other hand a writ of prohibition could be issued while the Tribunal or Authority is yet to conclude the proceeding. Havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner during the pendency of the instant application and/or any other action that may make this application futile and/or infructuous, till the disposal of the instant application; f) Costs of and incidental to this application be paid by the Respondents; and g) Such further or other order or orders be made and/or direction or directions be given as to this Hon ble Court may deem fit and proper, rendering complete justice to the Petitioner. 2. The petitioner insists that this Court without going into the merit of the controversy and without considering whether the petitioner is at all entitled to interim relief, in connection with its proposed challenge to the order passed by the appellate authority on 23rd April, 2024, before the appellate tribunal, by reasons of the appellate tribunal not being constituted under Section 112 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act ) should indefinitely defer the recovery of the demand raised by the respondents in GST Form DRC-07 dated 22nd June, 2023 for the tax period April, 2018 to March 2019, for at least till such time the appellate tribunal is constituted. 3. At the very outset, Mr. Ray, learned Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of certiorari he submits that a writ of prohibition is issued when the tribunal is yet to conclude its proceeding, however, once, the tribunal concludes its proceeding, ordinarily the Court can correct the jurisdictional error by exercising its jurisdiction to issue writ of certiorari. In support of his aforesaid contention, he has placed reliance on a judgment delivered by the Hon ble Supreme Court in the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa Ors. v. Giridhari Sahu Ors., reported in (2019) 10 SCC 695. 7. By drawing attention of this Court to the grounds made out in the writ petition, it is submitted that the writ petition proceeds on the basis of apprehension. The petitioner does not seek adjudication of his rights but is only interested in obtaining a prohibitory order which ordinarily ought not to be granted by this Court. In the facts, it is submitted that the writ petition should not be entertained and should be dismissed. 8. Per contra, Mr. Bhattacharyya, learned advocate appearing on behalf of the petitioner has taken me to the order passed in Form GST DRC -07 dated 22nd June, 2023. He submits that such an order had been passed in conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay the recovery proceeding without imposing any pre-condition. 10. Having regard thereto, he submits that there is no fetter in exercise of jurisdiction by this Court. The judgment relied by the respondents are distinguishable on facts and no reliance ought to be placed on the same. The objection as to maintainability should fail. This Court considering the fact that the petitioner has been prevented from preferring the appeal before the appellate tribunal by reasons of the same not been constituted, may be pleased to grant appropriate relief to the petitioner. 11. Heard the learned advocates appearing for the respective parties and considered the materials on record. Taking note of the reliefs prayed for in the present writ petition, the primary issue that falls for consideration having regard to the argument advanced by Mr. Ray, the learned Government Pleader, is whether this Court can exercise its jurisdiction to grant relief to the petitioner by issuance of a writ in the nature of prohibition notwithstanding, the writ petitioner not challenging the orders which he claims to have been passed erroneously. 12. It is the writ petitioner s case that the determination made by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bombay High Court in the case of Rochem India Pvt. Ltd. (supra), has tried to impress upon this Court that unless, the time to file the appeal before the appellate tribunal expires the orders which are appealable before the tribunal ought not to be enforced. 15. It, however, appears from the judgment delivered in Rochem India Pvt. Ltd. (supra) that challenging an appellate order the writ petition was filed before the Bombay High Court and it is in connection therewith, the Bombay High Court had granted such relief. Incidentally, in the present case, there is no such challenge to the appellate order. 16. Since, in the instant case maintainability of the writ petition having regard to issuance of a writ of prohibition is an issue, without the petitioner insisting for issuance of writ in the nature of certiorari, it would be relevant to note the observations made by the Hon ble Supreme Court in the case of S. Govinda Menon (supra). Paragraph 5 of the said judgment is extracted hereinbelow: 5. The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, including the case of Yakub v. K. S. Radhakrishnan, reported in AIR 1964 SC 477, had categorically identified the jurisdiction to issue a writ of certiorari and a writ of prohibition, and it is in that context the Hon ble Supreme Court in paragraph 28 thereof was, inter alia, pleased to observed as follows: 28. On the conspectus of the decisions and material, we would hold as follows: the jurisdiction to issue writ of certiorari is supervisory and not appellate. The Court considering a writ application of certiorari will not don the cap of an appellate court. It will not reappreciate evidence. The writ of certiorari is intended to correct jurisdictional excesses. A writ of prohibition would issue when a tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body, it is amenable to certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural justice. The body whose decision wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been prevented from preferring the appeal, this Court has proceeded to consider whether in the facts of the case grant of interim relief is permissible. On the issue that no writ should be issued only for the purpose of granting interim relief, reliance has been placed on the judgment delivered in the case of State of Orissa (supra). It is noticed that the Hon ble Supreme Court has noted that if the Court is of the opinion that there was no other convenient or adequate remedy open to the petitioner, discretion lies with the Court to investigate the case on its merits and come to a decision as to whether the petitioner succeeds in establishing that there was an infringement of any legal right which entitled him to relief. 21. Although, Mr. Bhattacharyya has emphasized that the legal right of the petitioner to prefer the appeal before the appellate authority has been infringed, I find that the petitioner has not come forward to examine his rights qua the order passed either by the proper officer on 22nd June, 2023 or by the appellate authority on 23rd April, 2024. 22. Having regard thereto, I am of the view, that this is not a fit case for exercising discretion in favour of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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