Municipal Corporation Of Delhi ... vs Tata Engineering % Locomotive ...
2006 Latest Caselaw 406 Del

JUDGMENT

Markandeya Katju, C.J.

1. This Writ Appeal has been filed against the impugned judgment of the learned Single Judge dated 5.11.2003 in WP(C) No. 21/2003.

2. We have heard learned counsel for the parties and perused the record.

3. The facts of the case have been set out in the judgment of the learned Single Judge and, hence, we are not repeating the same except where necessary.

4. The writ petition was filed against the impugned assessment order dated 17.9.2002 vide Annexure P-16 to the writ petition.

5. It may be mentioned that against the aforesaid assessment order there is a right of appeal provided for under Section 169 of the Delhi Municipal Corporation of Delhi Act, 1957 (for short 'the Act').

6. It is well settled that if there is an alternative remedy, ordinarily a writ petition should not be entertained. No doubt, an alternative remedy is not an absolute bar to the entertaining of a writ petition, but since writ is a discretionary remedy, a writ petition is ordinarily not entertained if there is an alternative remedy. This principle applies with even greater force in tax matters where it has been repeatedly held by the Supreme Court that there should be no short-circuiting of the statutory remedy of appeals/revisions.

7. Thus in Titaghur Paper Mill Company Ltd and Ors. v. State of Orissa and Anr. , the facts were that a writ petition was filed in the Orissa High Court challenging the assessment orders made by the Assistant Sales Tax Officer under the Central Sales Tax. In this connection, the Supreme Court observed (vide paragraph 11):-

Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under Sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under Sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. 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 of the Constitution. It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J in Wolverhampton New Water Works Co. Hawkesford (1859) 6 CBNS 336 at p.356 in the following passage:

There are three classes of cases in which a liability may be established founded upon statute. * * * * * * * * * * But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it * * * * * * * * * * * * * * * * the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.

The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co. 1935 AC 532 and Secretary of State v. Mask & Co. . It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in liming.

8. The above decision makes it clear that where a liability not existing at common law is created by a statute, then the remedy provided by that statute alone can be pursued. In the present case the liability of property tax has been imposed by the Act. Hence the remedy of an appeal under Section 169 of the Act alone was available to the writ petitioner, and the writ petition ought to have been dismissed on the ground of alternative remedy, as observed in the above decision of the Supreme Court.

9. Similarly in Assistant Collector of Central Excise v. Dunlop India Ltd and Ors. , the Supreme Court observed (vide paragraph 3):-

In Titaghur Paper Mill Company Ltd v. State of Orissa A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of appeal to the Prescribed Authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Art. 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be to Art. 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Art. 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly need to be strongly discouraged.

10. A similar view has been taken by us in Municipal Corporation of Delhi v. Sonu LPA No. 1079/2005 decided on 23.2.2006. In the above decision we have referred to the decision of the Supreme Court in U.P. State Bridge Corporation Ltd. and Ors. v. U.P. Rajya Setu Nigam S. Karamchari Sangh , where the Supreme Court observed that where a right or obligation was created by a special statute (in that case the Industrial Disputes Act) it is only the remedy under that statute which is available to an aggrieved person, and a writ petition should not be entertained. The Supreme Court followed its earlier decisions in Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Premier Automobile Ltd. v. Kamlekar Shantaram Wadke .

11. Since the writ petitioner was challenging an assessment order under the Act, in our opinion, it should have availed of the remedy of filing an appeal under that Act, and the writ petition should not have been entertained.

12. Evidently, the writ petition was filed because under Section 169 of the Act there is a requirement of a pre-deposit of the disputed amount by the appellant with the Municipal Corporation of Delhi before the appeal can be entertained.

13. We can understand a person, who is impecunious, filing a writ petition directly without filing an appeal under Section 169 of the Act on the ground that he has no money to make a pre-deposit and hence, the provision for an appeal is futile for him. However, surely, it cannot be said of a well known company like TELCO that it was not in a position to make the pre-deposit mentioned under Sections 169/170 of the Act.

14. If this kind of short circuiting is permitted, then no appeal will ever be filed and straightaway writ petitions will be filed against assessment orders. In our opinion, in view of the clear decisions of the Supreme Court on the point, the learned Single Judge was not justified in entertaining the writ petition at all and he should have dismissed it on the ground of alternative remedy.

15. Learned counsel for the writ petitioner (respondent in this appeal) then submitted that once a writ petition has been entertained, it cannot be dismissed on the ground of alternative remedy. We do not agree. No doubt in some decisions (e.g. Hirday Narain v. I.T.O ) the Supreme Court has observed that having entertained a writ petition it would not be proper for the Court to thereafter dismiss it on the ground of alternative remedy. (See also U.P. State Spg. Co Ltd v. R.S. Pandey and State of H.P. v. Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499. However, in our opinion, no absolute principle has been laid down in these decisions that having entertained a writ petition the High Court cannot thereafter dismiss it on the ground of alternative remedy. In fact, there are a large number of instances where a writ petition was not only entertained, but even allowed by the High Court, but on appeal, the Supreme Court dismissed the writ petition on the ground of alternative remedy, e.g in S. Jagadeesan v. Ayya Nadar Janaki Ammal College and Anr. .

16. In our opinion, the present case was surely not a fit case for entertaining of the writ petition directly against an assessment order when there was a clear alternative remedy of appeal available to the writ petitioner. Hence, without going into the merits of the matter, we allow the appeal, set aside the impugned judgment and dismiss the writ petition on the ground of alternative remedy available to the writ petitioner under Section 169 of the Act.