Haren P. Chowksey vs Union Of India
1995 Latest Caselaw 969 Del

JUDGMENT

M.K. Sharma, J.

(1) The petitioner is carrying on the business of auto consultancy as well as the sale, purchase and hiring of new and second hand cars as a broker on commission basis.

(2) On 5.9.1988, officers of the Directorate of Revenue lntelligence,on the basis of a specific information, conducted a search of Mercedez Benz, 190 Car bearing registration No.DDU-9761. After search and recovery of certain documents the car was seized. During the course of inquiry conducted by the Directorate statements of various persons were recorded and it was found that the said car was imported to India without the cover of a valid import license/CCP.

(3) A show cause notice was issued to the petitioner, in pursuance of which the petitioner showed cause. Personal hearing was fixed on 13.12.1991 when the petitioner prayed for adjournment for another date. His request was acceded to and the hearing was fixed on 27.12.91. On that day the counsel for the petitioner appeared and filed his written submissions. The counsel also requested for copy of his statement dated 20.9.1988, as referred to in the statement dated 13.1.1989. The hearing was fixed on 9.3.1992, when neither the petitioner, nor his counsel appeared for personal hearing.

(4) The Additional Director of Customs by his order dated 6.5.1992 ordered the confiscation of the seized car and imposed a penalty of Rs.5 lakhs on the petitioner. The car was ordered to be released on payment of redemption fine of Rs. 5 lakhs. In the said order the Additional Collector held that the petitioner was responsible for the sale of the car alleged to be smuggled and sold to Mr. Shelley Thapar from whose possession it was seized.

(5) Being aggrieved the petitioner filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal (for short 'CEGAT') which was dismissed by order dated 23.3.94. While dismissing the appeal the Cegat held that although the petitioner was offered opportunity by the Additional Collector he did not avail of the same and as such, the grievance of the petitioner with regard to denial of opportunity of hearing was baseless. Regarding non-supply of documents alleged by the petitioner it was held that non- supply of the documents in question did not prejudice his case. The petitioner thereafter directly approached this court under Article 226 of the Constitution of India challenging the aforesaid orders notwithstanding the statutory remedy available to him under Section 130 of the Customs Act for seeking a reference. The writ petition was filed on 27.5.1994 and show cause notice was issued thereon. After service of notice and on appearance of the counsel for the respondents, we passed an order on 17.2.95 which reads as follows: "A preliminary objection has been raised as to how the petitioner could come up in a writ petition against the final order of Cegat, when the law provides for reference to this court as well. It is stated that similar matter is listed for hearing on 2 March, 1995. Let this matter be listed on that date."

(6) In pursuance of the aforesaid order we heard the learned counsel for the parties on the question of maintainability of the writ petition. In order to appreciate contention of the learned counsel for the parties, on the question of maintainability of the writ petition, in view of availability of and exhaustion of statutory remedy we may refer to the provisions of the statutory remedy available to the petitioner as laid down in Section 130 of the Customs Act; The relevant, part of which read as follows:

"130.Statement of case to High Court.

(1)The Collector of Customs or the other parly may, within sixty days of the date upon which he is served with notice of an order under Section 129-B (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), by application in such form as may be specified by rules made in this behalf, accompanied, where the application is made by the other party, by a fee of two hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court:

PROVIDED that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days.

(2).....

(3)If, on an application made under sub- section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the Collector of Customs or, as the case may be, the other party may, within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly.

(4)..."

(7) Ms. Sangeeta Nanchahal, learned counsel appearing for the petitioner contended before us that existence of alternative and statutory remedy does not bar the jurisdiction of the High Court under Article 226 of the Constitution of India. Her further submission was that there was apparent violation of the principles of natural justice, therefore, in terms of the decision in the case of Babu Ram Prakash v. Zila Purishad, , it was open to the petitioner to approach this Court under Article 226 of the Constitution of India without exhausting the statutory remedy.

(8) Mr. Madan Lokur, however, submitted before us that with regard to the rule of exhaustion of alternative remedy there is a distinction between the concept of alternative remedy and statutory remedy and that in the latter case the law is more stringent. His further submission was that there is nothing exceptional in this case which enables the petitioner to approach this court without exhausting the statutory remedy, of seeking reference under the provisions of the Act, which if refused by the Tribunal, a petition would lie before this court.

(9) The law with regard to the controversy raised at this stage is well settled by a catena of decisions of the Supreme Court. It is settled law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of this court to issue a prerogative writ. The rule of exhaustion of statutory remedy, before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law and in exceptional cases the court can issue such a writ notwithstanding availability and non-exhaustion of such statutory remedies. The courts have envisaged certain exceptions to the doctrine of exhaustion of statutory remedy, where the proceedings are taken before a Tribunal under the provisions of law, which is ultra vires and in case where there is a violation of the principles of natural justice. The further exception to the rule is also held to be when the inferior tribunal has acted without or patently in excess of or without jurisdiction.

(10) In the present case we find that the petitioner had already resorted to the statutory remedies available to him by filing an appeal as envisaged under the provisions of the Act. According to the scheme of the aforementioned provisions of statutory remedies, the petitioner could have filed a reference application before the Tribunal under Section 130(1) of the Act and if refused a reference could have been sought by approaching this court under the provisions of Section 130(3) of the Act. Since the petitioner had already resoled to the statutory remedies available to him by filing an appeal before the Tribunal and getting a decision thereon, we see no reason why he should not exhaust the further statutory remedies available under the provisions of the Act as enumerated above. The said remedies available to him are efficacious. Learned counsel drew our attention to the provisions of limitation prescribed for filing reference application. We, however, feel that since the petitioner approached this court only on 28.2.1994 by filing the writ petition quite belatedly and that also by not fulfillling all the requirements as. laid down under the High Court rules and without filing complete set of paper books and this court on the very first effective date in this case brought it to the notice of the petitioner that there is a doubt about the maintainability of the writ petition, in our considered view, none of the exceptions enumerated above is attracted in the case of the petitioner.

(11) With regard to the comment raised by the learned counsel for the petitioner with regard to the allegation of violation of the principles of natural justice for not supplying the copy of the statement of the petitioner, we find that the Tribunal considered the same and has given a finding on the same stating that non supply of the said statement did not cause any prejudice to the petitioner for the specific reasons stated therein. On the question of hearing also, we find that due opportunity was given to the petitioner and in fad written submissions on his behalf were filed.

(12) Taking the entire facts and circumstances of the case into consideration and also in view of totality of factors delineated above, it is not a fit case wherein the jurisdiction of the High Court under Article 226 of the Constitution of India can legitimately be invoked. This is so especially when a reference lies from the order of CEGAT. We are, therefore, inclined to reject this petition on the ground that the petitioner ought to have availed the remedy of preferring a reference as provided for under sub section (1) of Section 130 of the Act.

(13) Before parting with the ease, we, however, feel inclined to observe that in case the petitioner would choose to prefer a reference application under Section 130(1) of the Act, Cegat will surely regard and consider the factum of pendency of the writ petition in this court and now being dismissed on the ground of availability of statutory remedy for the purpose of construing sufficient cause.

(14) In the result, this writ petition is dismissed. There will he no order as to costs.