2020 Supreme(SC) 363

SUPREME COURT OF INDIA
A.M. Khanwilkar, Dinesh Maheshwari, JJ.
Assistant Commissioner (CT) LTU, Kakinada & Ors. – Appellant(s)
Versus
M/s. Glaxo Smith Kline Consumer Health Care Limited – Respondent(s)
CIVIL APPEAL NO. 2413 of 2020 (Arising out of SLP(C) No. 12892 of 2019)
Decided On : 06-05-2020

IMPORTANT POINTS
(1) Even though High Court can entertain a writ petition against any order or direction passed/action taken by State under Article 226 of Constitution, it ought not to do so as a matter of course when aggrieved person could have availed of an effective alternative remedy in manner prescribed by law.
(2) Rejection of delay application by appellate forum does not entail in merger of assessment order with that order.

Headnote:

(A) Constitution of India – Article 226 – Writ Jurisdiction – Alternative remedy – Even though High Court can entertain a writ petition against any order or direction passed/action taken by State under Article 226 of Constitution, it ought not to do so as a matter of course when aggrieved person could have availed of an effective alternative remedy in manner prescribed by law – Where a right or liability is created by a statute, which gives a special remedy for enforcing it, remedy provided by that statute must only be availed of – Fact that High Court has wide jurisdiction under Article 226 of Constitution, does not mean that it can disregard substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by statute – Powers of High Court under Article 226 of Constitution are wide, but certainly not wider than plenary powers bestowed on this Court under Article 142 of Constitution. Article 142 is a conglomeration and repository of entire judicial powers under Constitution, to do complete justice to parties – Even while exercising that power, this Court is required to bear in mind legislative intent and not to render statutory provision otiose. (Paras 11 and 12)

(B) Constitution of India – Article 226 – Andhra Pradesh Value Added Tax Act, 2005 – Section 31 – Writ Petition – Maintainability – Challenge to assessment order – It is not a matter of taking away jurisdiction of High Court – In a given case, assessee may approach High Court before statutory period of appeal expires to challenge assessment order by way of writ petition on the ground that same is without jurisdiction or passed in excess of jurisdiction by overstepping or crossing limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified – High Court may accede to such a challenge and can also non-suit petitioner on the ground that alternative efficacious remedy is available and that be invoked by writ petitioner – However, if writ petitioner choses to approach High Court after expiry of maximum limitation period of 60 days prescribed under Section 31 of 2005 Act, High Court cannot disregard statutory period for redressal of grievance and entertain writ petition of such a party as a matter of course – Fact that High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with legislative intent regarding dispensation explicitly prescribed under Section 31 of 2005 Act – That would render legislative scheme and intention behind stated provision otiose – Remedy of appeal is creature of statute – If appeal is presented by assessee beyond extended statutory limitation period of 60 days in terms of Section 31 of 2005 Act and is not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such – Rejection of delay application by appellate forum does not entail in merger of assessment order with that order – High Court ought not to have entertained subject writ petition filed by respondent herein – Same deserved to be rejected at threshold – Impugned judgment and order passed by High Court set aside and writ petition dismissed. (Paras 15, 18, 20, 21 and 22)

Facts of the Case:

The moot question in this appeal emanating from the judgment and order dated 19.11.2018 in Writ Petition No. 39418/2018 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh1 is: whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India ought to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation?

Findings of the Court:

Notably, the respondent had relied on the affidavit of the Site Director and no affidavit of the concerned employee (P. Sriram Murthy, Deputy ManagerFinance) or at least the other employee [Siddhant Belgaonker, Senior Manager (Finance)], who was associated with the erring employee during the relevant period, has been filed in support of the stand taken in the application for condonation of delay. Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non-compliance of statutory requirements in any manner. Since statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by respondent only on 24.9.2018, without substantiating plea about inability to file appeal within the prescribed time, no indulgence could be shown to respondent at all.

Result : Appeal allowed.