IMPORTANT POINT
A writ of prohibition cannot be issued to defer enforcement of an appellate order when the tribunal has already made a decision and the petitioner has not challenged that order.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present writ petition has been filed, inter alia, praying for the following reliefs:

a) A writ/s of, order/s, direction/s in the nature of Prohibition restraining the respondents from giving effect to the impugned order of appeal dated April 19, 2024 till of a period of 3 months after the setting up of GST Tribunal under Section 110 of the relevant GST Acts;

b)A writ/s of, order/s, direction/s in the nature of Prohibition restraining the respondents from giving effect to the impugned notice of demand in FORM GST APL-04 dated April 19, 2024 till of a period of 3 months after the setting up of GST Tribunal under Section 110 of the relevant GST Acts;

c)A writ/s of, order/s, direction/s in the nature of Prohibition restraining the respondents from realizing any amount pursuant to the order of appeal dated April 19, 2024 that of the adjudication date March 31, 2023 and/or any notices of demand arising thereof till 3 months from the setting up of GST Tribunal under Section 110 of the relevant GST Acts;

d)An interim order restraining the respondents from realizing any amount pursuant to the order of appeal dated April 19, 2024 that of the adjudication dates March 31, 2023 and/or any notices of demand arising therefrom till the disposal of the instant;

e)An order of injunction restraining the Respondents and each of them and/or their men and agents from taking any coercive action again the 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 19th 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 31st March, 2023 for the tax period April, 2021 to March 2022, for at least till such time the appellate tribunal is constituted.

3.At the very outset, Mr. Ray, learned Government Pleader, appearing on behalf of the State respondents has raised a preliminary objection as regards the maintainability of the writ petition. In such view of the matter, the Government pleader is permitted to place his arguments on the point of maintainability first. The learned Government pleader argues that the writ petitioner without having his rights qua the controversy between the parties adjudicated and without, inter alia, contending that there has been infringement of his rights, cannot be permitted to simplicitor seeks a writ in the nature of prohibition. He submits that no interim relief can be granted which partakes a final character, without there being a challenge to order passed by the appellate authority, in the writ petition.

4.It is submitted that despite the fact that the powers under Article 226 of the Constitution of India are wide enough, however, ordinarily the same ought not be used to grant a relief by way of interim measure, if no final relief can be granted. Since, the existence of a right is the very foundation for exercise of jurisdiction, it is in aid of the final relief while deciding the rights of the parties that the Court ordinarily grants interim relief and not otherwise. In support of his aforesaid contention, he has placed reliance on a judgment delivered by the Hon’ble Supreme Court in the case of State of Or