M/S M. A. Ramzana vs
2021 Latest Caselaw 1033 j&K

                                                                    S. No.240
               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU




                                                 OWP No. 918/2008 (O&M)


                                                 Reserved on:         09.08.2021
                                                 Pronounced on:       03.09.2021


M/s M. A. Ramzana                                       ...Applicant/Appellant(s)


                   Through :- Mr. Virender Bhat, Advocate.

                  v/s
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     High Court of J&K                                          .....Respondent(s)

                   Through :- Mr. H. A. Siddiqui, Sr. AAG.



Coram:         HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                       ORDER

1. The short grievance projected by the petitioner in this writ petition is

that he being a partnership firm engaged in the business of carpets, Jewelry etc.

at Srinagar was subjected to ex parte assessment under Section 144 of the

Income Tax Act by the assessing authority i.e. Income Tax Officer, Ward No. 1

Srinagar. The ex parte order of assessment passed by the Income Tax Officer

ward No.1 dated 29.03.2004 was challenged by the petitioner by way of an

appeal before the Commissioner of Income Tax (Appeals) Jammu. The appeal

was partly allowed by the Appellate Authority vide its order and judgment dated

11.10.2004 at Jammu. Feeling aggrieved, the petitioner approached the Income

Tax Appellate Tribunal (ITAT), Amritsar Bench, Amritsar by way of ITA No.

623(ASR)/2004. The appellate authority also partly allowed the appeal of the

petitioner vide its judgment and order dated 02.03.2007.

2. The petitioner claims that he intended to challenge the order of the

ITAT, Amritsar before this Court in Jammu Wing and, therefore, filed an

application for grant of leave to file appeal at Jammu Wing of this High Court.

Registrar Judicial, Jammu before whom the application was presented did not

pass any order in writing. However, the request of the petitioner was rejected

verbally on the ground that Hon'ble the Chief Justice on the administrative side

has declined the permission. It is this rejection of prayer of the petitioner to seek

permission to file appeal in Jammu Wing of the High court which is subject

matter of challenge in this writ petition.

3. Respondents have filed their objections and stand taken by the

Registrar General of this Court is that writ petition against the rejection by the

competent authority to grant leave to prefer appeal in Jammu Wing of the High

Court is an administrative order and, therefore, not amenable to challenge in

extraordinary writ jurisdiction. The grant or refusal of leave to prefer appeal in

either wings of the High Court does not decide the rights of the parties and

therefore, the order of competent authority made in this regard cannot be made

subject matter of challenge in the writ petition.

4. Having heard learned counsel for the parties and perused the record,

I am of the view that this petition is not maintainable for more than one reason.

Though it was vehemently argued by Mr. Virender Bhat, learned counsel

appearing for the petitioner that this writ petition, as a matter of right, could have

been filed only in Jammu Wing of the High Court for the reason that first appeal

against impugned order of assessment was decided by the appellate authority at

Jammu, yet, from the contents of the writ petition, it is evident that the petitioner

being well aware of the fact that the appeal in the instant case ought to have been

filed in Srinagar Wing of this Court, filed formal application seeking leave of the

competent authority i.e. Hon'ble the Chief Justice to prefer appeal in Jammu

Wing of this Court. The application has been rejected by Hon'ble the Chief

Justice. Though in the reply filed by the Registrar General of this Court no

reasons for rejection of the application for leave to appeal have been indicated,

yet, I am in agreement with the stand of the Registrar General that grant or

refusal of leave by the competent authority does not decide the rights of the party

claiming such leave and, therefore, no mandamus would lie.

5. The violation of rights by the State or other authority is sine qua non

for issuance of writ of mandamus. Otherwise also, there could be no dispute that

the High Court of J&K is one though it operates at two places i.e. Jammu and

Srinagar. Once the High Court has jurisdiction to entertain a matter, it will have

jurisdiction to entertain it in any of the wings of the High Court. However, for

convenience of business, Hon'ble the Chief Justice is well within its powers to

provide that the cases which pertain to Jammu Wing shall be filed in the Jammu

Wing and those which pertain to Srinagar Wing shall be filed in the Srinagar

Wing and if the cases are required to be filed otherwise, necessary permission of

Hon'ble the Chief Justice may be required. For deciding as to which matter

pertains to the Jammu Wing or Srinagar Wing, the cause of action serves as a

good guide and in the instant case, the petitioner-assessee is based in Srinagar.

His initial order of assessment, which gave him cause of action to approach the

higher forums, was also passed in Srinagar and therefore, the petitioner was right

in seeking leave of Hon'ble the Chief Justice to file his appeal before the Jammu

Wing of this Court.

6. Be that as it may, the petitioner having filed an application for leave

to appeal before Hon'ble the Chief Justice shall be deemed to have conceded to

the position that the appeal in the ordinary course of things ought to have been

filed in Srinagar Wing of this Court. Grant or rejection of leave to appeal is

always in the discretion of Hon'ble the Chief Justice and such order does not

decide the rights of the person/persons seeking such leave and therefore no

mandamus would lie.

7. For all these reasons, I find no merit in this petition and the same is,

accordingly, dismissed.

(SANJEEV KUMAR) JUDGE JAMMU 03.09.2021 Paramjeet Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No