Bela Rani Bhattcharyya vs Union Of India & Ors.
2014 Latest Caselaw 2881 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 2ndJuly, 2014

+                               LPA No.390/2014

       BELA RANI BHATTCHARYYA                  ..... Appellant
                    Through: Mr. Dipak Bhattacharya & Mr. Niloy
                             Dasgupta, Advs.

                                   Versus

       UNION OF INDIA & ORS.                              ..... Respondents

                    Through:           Mr. Vikram Aditya Narayan, Adv. for
                                       Mr. Sachin Datta, Adv. for UOI.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the orders dated 07.11.2013 and

10.01.2014 of the learned Single Judge in W.P.(C) No.5079/2013 preferred by

the appellant and inter alia holding the writ petition preferred by the appellant

impugning the order dated 20.10.2011 of the Competition Appellate Tribunal

(COMPAT) to be not maintainable owing to the remedy of appeal under

Section 53T of the Competition Act, 2002 being available thereagainst. The

learned Single Judge having not gone into the merits of the writ petition, need

is not felt to set out the same. The only question for consideration is of the

maintainability of a writ petition under Article 226 of the Constitution of India

against the order of the COMPAT and which order admittedly is appealable to

the Supreme Court under Section 53T (supra). The counsel for the appellant

merely stated that he has set out the judgments relied upon by him in support of

the proposition of maintainability of the writ petition in the memorandum of

appeal before us.

2. The appellant / writ petitioner, in the memorandum of appeal has referred

to L. Chandra Kumar Vs. Union of India (1997) 3 SCC 261, Timbak Vs. Ram

Chandra AIR 1977 SC 1222, Competition Commission of India Vs. Steel

Authority of India Ltd. (2010) 10 SCC 744, State of U.P. Vs. Mohd. Nooh

AIR 1958 SC 86, Seth Chand Ratan Vs. Pandit Durga Prasad AIR 2003 SC

2736, Shri Ambica Mills Vs. S.B. Bhatt AIR 1961 SC 970, R.K. Jain Vs.

Union of India 1993 AIR 1769, Dulal Chandra Hazarika Vs. Assam Board

of Revenue AIR 1971 Gauhati 123, Madurantakam Coop. Sugar Mills Ltd.

Vs. S. Viswanathan 2005 (3) SCC 193, B.E. Supply Co. Vs. The Workmen

AIR 1972 SC 303, S. Parthasarathi Vs. State of Andhra Pradesh AIR 1973

SC 2701, Syed Yakoob Vs. Radhakrishnan AIR 1964 SC 477 and Ouseph

Mathai Vs. M. Abdul Khalid (2002) 1 SCC 319.

3. A Division Bench of this Court (of which one of us was a member) in

judgment dated 23.02.2012 in W.P.(C) No.1077/2012 titled Union of India Vs.

Aircel Ltd. and other connected matters was similarly concerned with the

maintainability of the writ petition against the order of Telecom Disputes

Settlement & Appellate Tribunal (TDSAT), whereagainst also the remedy of

appeal to the Supreme Court was available under Section 18 of the Telecom

Regulatory Authority of India Act, 1997 (TRAI Act). While Section 53T supra

with which we are concerned, provides for an appeal to the Supreme Court

against "any decision or order of the Appellate Tribunal", Section 18 of the

TRAI Act provided for an appeal against "any order, not being an interlocutory

order". It would thus be seen that scope of appeal under Section 53T is much

wider than the appeal under Section 18 of the TRAI Act. The Division Bench

of this Court held the writ petitions to be not maintainable in view of the

statutory remedy available before the Supreme Court.

4. Reliance was placed by the Division Bench inter alia on the judgment of

the Supreme Court in Nivedita Sharma Vs. Cellular Operators Association of

India (2011) 14 SCC 337. The Supreme Court in the said judgment was

directly concerned with the question, whether this Court was justified in

entertaining the writ petitions against the order passed by the State Consumer

Disputes Redressal Commission, ignoring the statutory remedy of appeal to the

National Consumer Disputes Redressal Commission available under Section 19

of the Consumer Protection Act, 1986. The Supreme Court in the said

judgment inter alia held as under:

"11. We have considered the respective arguments/submissions.

There cannot be any dispute that the power of the High Courts to

issue directions, orders or writs including writs in the nature of

habeas corpus, certiorari, mandamus, quo warranto and

prohibition under Article 226 of the Constitution is a basic feature

of the Constitution and cannot be curtailed by parliamentary

legislation - L. Chandra Kumar v. Union of India (1997) 3 SCC

261. However, it is one thing to say that in exercise of the power

vested in it under Article 226 of the Constitution, the High Court

can entertain a writ petition against any order passed by or action

taken by the State and/or its agency/instrumentality or any public

authority or order passed by a quasi-judicial body/authority, and it

is an altogether different thing to say that each and every petition

filed under Article 226 of the Constitution must be entertained by

the High Court as a matter of course ignoring the fact that the

aggrieved person has an effective alternative remedy. Rather, it is

settled law that when a statutory forum is created by law for

redressal of grievances, a writ petition should not be entertained

ignoring the statutory dispensation.

15. In the judgments relied upon by Shri Vaidyanathan, which,

by and large, reiterate the proposition laid down in Baburam

Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now

Zila Parishad, Muzaffarnagar AIR 1969 SC 556, it has been held

that an alternative remedy is not a bar to the entertaining of writ

petition filed for the enforcement of any of the fundamental rights

or where there has been a violation of the principles of natural

justice or where the order under challenge is wholly without

jurisdiction or the vires of the statute is under challenge.

16. It can, thus, be said that this Court has recognized some

exceptions to the rule of alternative remedy. However, the

proposition laid down in Thansingh Nathmal v. Superintendent of

Taxes (supra) and other similar judgments that the High Court will

not entertain a petition under Article 226 of the Constitution if an

effective alternative remedy is available to the aggrieved person or

the statute under which the action complained of has been taken

itself contains a mechanism for rederssal of grievance still hold

field.

25. What has surprised us is that the High Court has not even

referred to Sections 17 and 19 of the 1986 Act and the law laid

down in various judgments of this Court and yet it has declared that

the directions given by the State Commission are without

jurisdiction and that too by overlooking the availability of statutory

remedy of appeal to the Respondents."

5. The Division Bench, accordingly, in Aircel Ltd. supra, held the writ

petitions to be not maintainable in view of the remedy of appeal to the Supreme

Court.

6. The appellant by the writ petition from which this appeal arises, is not

enforcing any fundamental right. Though the appellant sought to justify the

maintainability of the writ petition on the ground that the order impugned

therein of the COMPAT of dismissal in limine of the appeal preferred by the

appellant was in deprivation of the principles of natural justice and amounted to

refusal by the COMPAT to exercise jurisdiction vested in it but we are unable

to find the case to be still falling in the Baburam Prakash Chandra

Maheshwari (supra) category. The fact remains that the dispute is purely

factual. If writ petitions on such grounds were to be entertained, the same

would negate the provision of the statutory appeal.

7. What the appellant is urging before us, is open to be urged in the

statutory appeal also. The Supreme Court recently in Commissioner of Income

Tax Vs. Chhabil Dass Agarwal (2014) 1 SCC 603, in the context of Income

Tax Act also has held as under:

"15. Thus, while it can be said that this Court has recognized

some exceptions to the rule of alternative remedy, i.e.,

where the statutory authority has not acted in accordance

with the provisions of the enactment in question, or in

defiance of the fundamental principles of judicial

procedure, or has resorted to invoke the provisions which

are repealed, or when an order has been passed in total

violation of the principles of natural justice, the proposition

laid down in Thansingh Nathmal case, Titagarh Paper

Mills case and other similar judgments that the High Court

will not entertain a petition under Article 226 of the

Constitution if an effective alternative remedy is available

to the aggrieved person or the statute under which the

action complained of has been taken itself contains a

mechanism for redressal of grievance still holds the field.

Therefore, when a statutory forum is created by law for

redressal of grievances, a writ petition should not be

entertained ignoring the statutory dispensation.

16. In the instant case, the Act provides complete machinery for

the assessment/re-assessment of tax, imposition of penalty

and for obtaining relief in respect of any improper orders

passed by the Revenue Authorities, and the Assessee could

not be permitted to abandon that machinery and to invoke

the jurisdiction of the High Court under Article 226 of the

Constitution when he had adequate remedy open to him by

an appeal to the Commissioner of Income Tax (Appeals).

The remedy under the statute, however, must be effective

and not a mere formality with no substantial relief. In Ram

and Shyam Co. Vs. State of Haryana (1985) 3 SCC 267

this Court has noticed that if an appeal is from "Caesar to

Caesar's wife" the existence of alternative remedy would be

a mirage and an exercise in futility.

17. In the instant case, neither has the writ Petitioner assessee

described the available alternate remedy under the Act as

ineffectual and non-efficacious while invoking the writ

jurisdiction of the High Court nor has the High Court

ascribed cogent and satisfactory reasons to have exercised

its jurisdiction in the facts of instant case. In light of the

same, we are of the considered opinion that the Writ Court

ought not to have entertained the Writ Petition filed by the

assessee, wherein he has only questioned the correctness or

otherwise of the notices issued under Section 148 of the Act,

the reassessment orders passed and the consequential

demand notices issued thereon."

8. We may mention that the same view has been taken by a Single Judge of

this Court in G.K. Granites Vs. Tata Hitachi Construction Machinery

Company Limited 205 (2013) DLT 355 in respect of Section 53T supra though

we find that LPA No.369/2014 preferred thereagainst is pending consideration.

Mention may however be made of Shree Cement Ltd. Vs. Competition

Commission of India MANU/DE/1342/2014 where another learned Single

Judge of this Court concerned with a writ petition against an interlocutory order

of COMPAT not granting an unconditional order of stay, relying on Whirlpool

Corporation Vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 held the

availability of alternative remedy of appeal under Section 53T supra to be not

an absolute bar to maintainability of writ petition in three contingencies namely

where the writ petition has been filed for the enforcement of any Fundamental

Rights or where there has been a violation of the principles of natural justice or

where the order or proceedings are wholly without jurisdiction or the vires of

an Act is challenged and a writ petition to be maintainable on these limited

grounds. However, the judgments supra referred to by us were not noticed and

save for relying on Whirlpool Corporation supra, after which there has been

much development, no elaborate discussion was made on the subject.

Reference may also be made to a detailed judgment of the Division Bench of

the Allahabad High Court in Surendra Bahadur Singh Vs. Armed Forced

Tribunal MANU/UP/0242/2012 holding writ petitions against the final orders

of the Armed Forces Tribunal and against which appeal lies to the Supreme

Court under the Armed Forces Tribunal Act, 2007 to be not maintainable.

9. We see no reason to take a different view from that taken by a Co-

ordinate Bench in Aircel Ltd.

10. In the face of the aforesaid position, the judgments referred to in the

memorandum of appeal are of no avail.

11. There is thus no merit in the appeal, which is dismissed.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

JULY 02, 2014 „gsr‟