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Court No. 11
Writ Petition No. 5660 (M/S) of 1988
Mohammad Naseem and others Petitioners
Vs.
Additional District Magistrate Finance
and Revenue District Barabanki and others Opp. parties.
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Hon'ble Anil Kumar,J.
Heard Sri Rajendra Verma holding brief of Sri Shishir Pradhan
learned counsel for the petitioners and Sri Jai Shanker Misra , learned
Standing Counsel for opposite parties.
Present writ petition has been filed against the order dated
4.5.1988 passed by Additional District Magistrate Finance and Revenue
District Barabanki by which a deficiency of Rs. 1575/- has been
imposed.
Learned Standing Counsel for the opposite parties submits that
at the relevant point of time , said order is revisable before the
revisional authority under Section 56 (1) of the Indian Stamps Act 1899
before the Chief Controlling Revenue Authority . Thereafter by virtue of
amendment of U.P. Act no. 38 of 2001, sub section (1-A) has been
inserted in Section 56 of the Indian Stamp Act. As per the said
provision, now the appeal lies before the Chief Controlling Revenue
Authority. As such against the impugned order the petitioner has got a
statutory remedy of appeal so the present writ petition be dismissed on
the said ground.
Learned counsel for the petitioner has not disputed the above
said fact.
There can be no quarrel that it is well established proposition of
law if the statutory alternative remedy is available to the petitioner
then writ petition filed by him is not maintainable under Article 226 of
the Constitution of India as per the law laid down by Hon’ble
Supreme Court in the case of Titaghur Paper Mills Company
Limited and another Vs.State of Orissa and others ( 1983) 2
wherein it was held that where a right or liability is created by a statute
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which gives a special remedy for enforcing it, the remedy provided by
that statute alone must be availed of. Under the scheme of the Orissa
Sales Tax Act, there is a hierarchy of authorities for granting redress.
The petitioners had an equally efficacious alternative remedy by way of
an appeal to the Prescribed Authority under sub-Section(1) of Section
23, then a second appeal to the Tribunal under sub-section (3) (a)
thereof, and thereafter in the event the petitioners get no relief, to have
the case stated to the High Court under Section 24 of the Act. The Act
provides for an adequate safeguard against an arbitrary or unjust
assessment, such as right to prefer appeal under Section 23(1) and to
apply for stay of recovery under clause (a) of the second proviso to
Section 13 (5) . Thus the Act provides for a complete machinery to
challenge an order of assessment, and the impugned orders of
assessment can only be challenged by the mode prescribed by the Act
and not by a petition under article 226.
In the case of Karnataka Chemical Industries and others
Vs. Union of India and others (2000) 10 Supreme Court Cases 13
Hon’ble Supreme Court has held that when there is no challenge to the
validity of any statutory provision, we see no reason as to why a writ
petition should have been filed by passing the alternative remedy which
is provided under the statute. On the short ground we dismiss this
appeal, vacate the interim orders , direct the payment of the balance
amount of duty along with interest @ 15% per annum with yearly rests.
It will be open to the appellant to avail of such statutory remedy as
may be available to it. If an appeal is filed within four weeks from
today, the Department will take a lenient view in condoning the delay.
In the case of Central Coalfields Limited Vs. State of
Jharkhand and others (2005)7 Supreme Court Cases 492, Hon’ble
Supreme Court held that if there is statutory alternative remedy
available to a person under an statute itself, in that case the writ
petition should not be entertained under Article 226 of the Constitution
of India and the petitioner is directed to avail the alternative statutory
remedy.
For the forgoing reasons, as the the petitioner has got an
statutory alternative remedy of appeal , the present writ petition is
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dismissed on the same ground . However in case the petitioner files an
appeal within a period of three weeks from today, the same shall be
decided on merit and shall not be dismissed on the ground of
limitation .
3.2.2010
D.K.