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TMI Blog2025 (4) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... rd on maintainability. As the facts and issue involved in the above writ petitions are identical, therefore, this Court finds it appropriate to decide the same by this common order. 2. The South Eastern Coalfields Limited (SECL) floated different tenders for the work of Hiring Heavy Earth Moving Machines (HEMM) for excavating overburden (all kinds of strata/ overburden in situ), loading into tippers, transportation and unloading of excavated materials and sprinkling & spreading of material at the site shown and other related works. Pursuant to the notice inviting tender, petitioners participated in tender proceedings and on being successful in the tender, the work order was issued in their favour on different dates. After issuance of work order by SECL, petitioners, who are registered dealer under the provisions of the Chhattisgarh Value Added Tax, 2005 (henceforth 'the Act of 2005') and the Central Sales Tax Act, 1956 (for short 'the Act of 1956'), submitted amendment application seeking incorporation of 'High-Speed Diesel HSD)' in their registration certificate for mining activities and granting permission to petitioners for inter-state purchase of HSD at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in para 14, 15, 17 & 18 has held as under: 14. A bare perusal of the contents made in the aforesaid notice issued by the respondent-department would reveal the fact that it were issued to the petitioners only for issuance of the proceeding as required under sub-section (3) of Section 49 of the Act of 2005, else no notice as such asking them as to why the entry made in their registration certificates be not deleted would have been issued, although the wrong provision has been shown to be mentioned therein as "sub-section (1)" instead of "sub-section (3)" of the said provision. But, mere mentioning of the wrong provision as such would ipso facto be not sufficient to vitiate the entire proceedings, as issuance of show cause notice would required to be issued only in sub-section (3) and not under sub-section (1), as observed in precedent paragraphs. Issuance of notice as such, would therefore, lead to an irresistible conclusion that the respondent-department has intended to initiate the proceedings for the amendment of the registration certificates as granted to the petitioners under both the Acts i.e. the State Act and the Central Act, for deleting the words "mining and high speed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nels etc. SECL invited tenders from eligible contractors for the execution of the aforementioned work. In response to the notice inviting tender, the petitioner submitted the bid and was declared successful. After becoming successful in the tender process, the petitioner submitted an application before respondent No. 4-Commercial Tax Officer, Circle-II, Ragiarh, for amending C-Forms issued to the petitioner under the Act of 1956 & the Act of 2005. Based on the application, the petitioner was issued amended C-Forms adding and entering 'HSD for mining machineries'. Based on the entry made in the registration certificate, the petitioner started purchasing inter-state HSD at a concessional rate of tax. Suddenly respondent Department issued a notice under Section 49 (1) of the Act of 2005 to the petitioner calling upon to explain why the entry made in the registration certificate of the petitioner be not deleted. Petitioner submitted reply to said notice, but respondent No.2-Deputy Divisional Commissioner, Commercial Tax, Bilaspur Division No.2, overlooking contents of the reply and provisions of law, passed impugned order 14.10.2020 and deleted entry in the registration certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which is an attempt to rewrite a piece of legislation. The demand made while passing impugned order by respondent authority classifying the word 'mining' as 'in mining' and 'for mining' is misinterpretation of words. Unless and until there is extraction of overburden and its removal, there cannot be winning/extraction of coal, therefore, the nature of work awarded to the petitioner is one of the process of mining. The petitioner requested the respondent Department to amend registration certificates by adding high-speed diesel (HSD) in the list of specified goods for mining activities. He also relied upon the judgment of the Hon'ble Supreme Court in the case of Indra Singh & Sons v. S.T.O., reported in (1966) 17 STC 510 (SC). 9. He further submits that the writ petitions were admitted & entertained by this Court and therefore, after such admission, this petition should not be dismissed on the ground of alternative remedy and it should be decided on merits. 10. Mr. Sumeet Gadodiya learned counsel for petitioners in WPT Nos. 1/2021 and 2/2021, while adopting submissions of learned counsel for the petitioner in WPT No. 99/2020, submitted that work awarde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of the Act. Further submits that there is no proposition in law that once a writ petition is admitted, the petitioner cannot be asked to avail alternative remedy. The grounds raised by the petitioners in writ petitions can very well be considered by the Appellate Authority therefore, the writ petitions are not maintainable. He places reliance upon the judgment of the Hon'ble Supreme Court in the State of Madhya Pradesh and another vs. M/s Commercial Engineers and Body Building Company Limited (Civil Appeal no. 7170/2022) & Renu Singh Vs. Principal Commissioner of Income-tax 2024] 164 taxmann.com 381 (SC). 13. I have heard learned counsel for the parties and perused the documents placed on record with utmost circumspection. 14. The main issue relates to maintainability of these writ petitions and whether this Court should entertain these petitions despite there being alternative remedy or direct the petitioners to approach the competent authority as per Section 49 (4) of the Act of 2005. 15. The substratum of arguments of the Counsel for the petitioners is based on the premise that once a writ petition was entertained, the petitioner cannot be relegated to avail altern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) "2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed." (emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of hearing before passing the impugned order. While deciding these petitions earlier, this court has found that the alleged "amended notice" does not contain the new dispatch number, therefore, it cannot be said that the alleged notice was issued under sub-section (3) of Section 49 of the Act of 2005 and, in consequence, the order impugned passed in pursuance thereof has been declared to be as null and void but the Hon'ble Division Bench has held that the petitioners were fully aware of the intention of the respondent-department for initiation of such a proceeding under sub-section (3) of Section 49 of the Act of 2005, and direction was issued to decide these petitions in accordance with law. 21. In the case of Assistant Commissioner of State Tax & Ors. Versus M/s Commercial Steel Limited reported in 2021 (7) SCR 660, the Hon'ble Apex Court has observed that respondents therein had a statutory remedy under Section 107 of the CGST Act. Relevant paras are reproduced herein below:- 12. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. 23. In The State of Madhya Pradesh and Another vs. M/s Commercial Engineers and Body Building Company Limited (Civil Appeal No. 7170/2022, decided on 14.10.2022), the Hon'ble Apex Court in para 6, held as under: 6. At this stage, a recent decision of this Court in the case of The State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1993 (for short 'the Act'). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum. 24. In the case of M/s. South Indian Bank Ltd. & ORS. Versus Naveen Mathew Philip & Anr. Etc., 2023 LiveLaw (SC) 320 the Hon'ble Supreme Court of India in paragraph 15 has observed that "Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Than singh Nathmal v. Supt. of Taxes [AIR 1964 SC 1419], Titaghur Paper Mills Co. Ltd. v. State of Orissa [(1983) 2 SCC 433: 1983 SCC (Tax) 131] and other similar judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 226 of the Constitution of India against an administrative authority as "not maintainable". The powers under Article 226 of the Constitution of India can be exercised even if there exists an alternate remedy; however, it is in restricted circumstances, within well-defined parameters. As a matter of settled judicial practice, the jurisdiction under Article 226 of the Constitution of India is not exercised if there is an alternative efficacious remedy available, and in such circumstances, the writ court may decline to "entertain" the writ petition. There is, therefore, a difference between maintainability and entertainability of a writ petition. 28. The arguments which have been advanced by the learned counsel for the petitioners are very well to them while filing for statutory appellate remedy. Therefore, looking to the facts and circumstances of the case and the arguments advanced hereinabove, this Court, at this stage, is not inclined to entertain these petitions. However, this Court is inclined to grant liberty to petitioners to file an appeal before the concerned appellate authority according to the provisions of the Act, within 30 days from the date of receipt of the copy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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