Madras High Court
M/S.Association Of Greenwoods' ... vs The District Collector on 10 March, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.7351 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.No.7351 of 2025
&
W.M.P.Nos.8204 and 8207 of 2025
in W.P.No.7351 of 2025
M/s.Association of Greenwoods' Community
Represented by its President Chakkaravarthy Rajagopal
S/o.M.Rajagopal
Woods Club, Greenwood City
Navalur
Chennai – 600 130 ... Petitioner
vs.
1. The District Collector
Chengalpattu District
Chengalpattu – 603 111
2. The Tahsildar
Thiruporur Taluk, Thiruporur
Chengalpattu – 603 110
3. M/s.Navalur Suresh Nagar Residents Association
Rep. By its President Mr.Seshathri.P.
Office at Plot No.20, Suresh Nagar
Navalur, Chennai – 600 130
Its Residential Address – Flat No.15B
Page Nos.1/28
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W.P.No.7351 of 2025
1st Main Road, Perungudi
Chennai – 600 096
4. M/s. Arihant Unitech Realty Projects Ltd.,
Having its Office at No.6, Community Centre
Saket, New Delhi – 110 017
Represented by its Authorized Signatory
Mr.O.P.Madhav ... Respondents
Writ Petition filed under Article 226 of The Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records
culminating order dated 03.02.2025 its Reference
No.Na.Ka.14692/2024/AA3 passed by the first respondent and quash the
same and direct the second respondent to remeasure the property based on
the Survey Report dated 28.05.2024 issued by the Tahsildar ordered by this
Court.
For Petitioner : Mr.Aravind Subramaniam
Senior counsel
for Mr.D.Lingappa
For Respondents : Mr.T.K.Saravanan
Addl. Govt. Pleader for R1 and R2
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
Captioned main 'Writ Petition' ['WP' for the sake of brevity] has been
filed with a prayer for issue of a Writ of Certiorarified Mandamus. In and
vide the certiorari limb of the prayer, an order dated 03.02.2025 bearing
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reference e/f.14692/2024/AA3 made by R1 (District Collector,
Chengalpattu District) has been assailed and this order shall hereinafter be
referred to as 'impugned order' for the sake of brevity, convenience and
clarity. As regards the mandamus limb, there is a prayer to direct R2 (The
Tahsildar, Thiruporur Taluk) to remeasure (based on a survey report dated
28.05.2024) the property that is subject matter of captioned writ petition.
2.The mandamus limb is consequential qua the certiorari limb.
3.When the captioned matter was listed in the Admission Board for
the first time (first listing) on 05.03.2025, the following proceedings were
made:
&
W.M.P Nos.8202, 8204 and 8207 of 2025
M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI.,J.
[Order of the Court was made by M.SUNDAR. J.,]
Learned counsel for writ petitioner sought time to place
before us certain case laws particularly on alternate remedy.
Request acceded to.
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2. List in the Admission Board i.e., Motion List but under the
cause list caption 'ADJOURNED ADMISSION' day-after-tomorrow.
List on 07.03.2025.'
4.Before we embark upon the legal drill of considering the case laws
pressed into service by the writ petitioner, we deem it appropriate to write
that as regards how case laws have to be relied on and how a citation should
be adverted to, we respectfully follow the dictum laid down by Hon'ble
Constitution Bench in Padma Sundara Rao case [Padma Sundara Rao Vs.
State of Tamil Nadu reported in (2002) 3 SCC 533: 2002 SCC OnLine SC
334], wherein the factual matrix is, a notification issued under Section 6 of
the Land Acquisition Act, 1894 was assailed in Madras High Court and the
High Court relying on N.Narasimhaiah case reported in (1996) 3 SCC 88
held that the same was validly issued. The matter was carried to Hon'ble
Supreme Court on the question of law as to whether after quashing of a
notification under section 6, a fresh period of one year is available to the
State Government to issue another notification under section 6. It is in this
context, i.e., while deciding this legal question, a Constitution Bench of
Hon'ble Supreme Court declared the law as regards how courts should place
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reliance on case laws / precedents. Relevant paragraph is paragraph 9 and
the same reads as follows:
'9.Courts should not place reliance on decisions without
discussing as to how the factual situation fits in with the fact situation
of the decision on which reliance is placed. There is always peril in
treating the words of a speech or judgment as though they are words
in a legislative enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular case,
said Lord Morris in Herrington v. British Railways Board [(1972) 2
WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v.
Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility,
one additional or different fact may make a world of difference
between conclusions in two cases.'
5.Today, Mr. Aravind Subramaniam, learned Senior counsel
instructed by Mr.D.Lingappa, counsel on record for the writ petitioner was
before us. On alternate remedy, learned Senior counsel pressed into service
State of H.P and Ors. Vs.Gujarat Ambuja Cement Ltd. and Ors. reported
in MANU/SC/0421/2005, drew our attention to paragraph 21 thereat and
submitted that alternate remedy is a rule of discretion and not a rule of
compulsion. Gujarat Ambuja Cement arose under Sales Tax Law and an
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order made by an Assessing Authority inter alia granting exemption is the
fulcrum of the factual matrix thereat. That was a case where the High Court
exercised writ jurisdiction on the teeth of alternate remedy and Hon'ble
Supreme Court held that there is no error in the order of the High Court on
the basis of two well recognized exceptions to the doctrine of exhaustion of
statutory remedies. One exception is that the proceedings initiated before a
forum under a provision of law which is ultravires and another exception is
where the impugned order has been made in violation of 'natural justice
principles' ['NJP' for brevity]. It is in this context that Hon'ble Supreme
Court made it clear that alternate remedy rule is a self-imposed restraint. In
this view of the matter, Gujarat Ambuja Cement case does not come to the
aid of the writ petitioner as it is not the case of the writ petitioner that the
impugned order was made under a provision which is ultravires or where
the impugned order is an abuse of process of law. To be noted, impugned
order has been made by R1 as Appellate Authority in exercise of appeal
powers under Section 10 of 'the Tamil Nadu Land Encroachment Act, 1905
(Tamil Nadu Act III of 1905)' {hereinafter 'said 1905 Act' for the sake of
brevity}. While there can be no disputation that alternate remedy rule is not
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an absolute rule, it is a rule of discretion and that it is a self-imposed
restraint qua writ courts, the point in the case at hand is whether Gujarat
Ambuja Cement comes to the aid of writ petitioner. Therefore, it will
suffice to say that on facts Gujarat Ambuja Cement is clearly
distinguishable and it does not come to the aid of the writ petitioner as it is
neither a case of proceedings under law that is ultravires nor is it a case of
violation of NJP.
6.The next judgment relied on by learned Senior counsel is, the oft-
quoted Whirlpool case being judgment dated 26.10.1998 rendered by
Hon'ble Supreme Court in Whirlpool Corporation Vs. Registrar of Trade
Marks, Mumbai reported in CDJ 1998 SC 371. Whirlpool case arose
under the Trademarks Act and exceptions to the alternate remedy rule were
laid down by Hon'ble Supreme Court in Whirlpool. The exceptions have
come to stay in legal parlance as 'Whirlpool exceptions'. Exceptions have
been well recognized by Hon'ble Supreme Court in catena of authorities and
the exceptions are (i)Enforcement of fundamental rights, (ii)Violation of
Natural Justice Principles (NJP), (iii)Order being 'wholly' without
jurisdiction; and (iv)When the vires of a statute are assailed. In the case on
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hand, the writ petitioner's case does not fall under any of the exceptions and
therefore, Whirlpool case does not come to the aid of the writ petitioner.
On the contrary, Whirlpool case would apply in cases where the writ Court
would adhere to the self-imposed restraint when none of the exceptions are
attracted.
7.The next case law pressed into service by writ petitioner is
Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M.Kamalia and ors
reported in MANU/SC/1065/2003. This is a case which arose out of a
Public Interest Litigation. Learned counsel drew our attention to paragraph
26 of the MANU report and submitted that when an order is made by an
authority in a post-haste manner, alternate remedy will not come in the way
of exercise of writ jurisdiction. In support of this contention, learned Senior
counsel submitted that the statutory appeal of the writ petitioner is dated
03.02.2025 and the impugned order has been made by Appellate Authority
on the same day in great haste. In the light of this point, we issued notice to
the official respondents and Mr.T.K.Saravanan, learned Additional
Government Pleader accepted notice for R1 and R2 and learned State
counsel produced the records before us. A careful perusal of the records
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brings to light that the writ petitioner Association itself has written a letter
dated 29.11.2024 stating that the statutory appeal has been preferred and a
scanned reproduction of the letter from the Government file is as follows:
When the aforementioned file was shown to learned Senior counsel, learned
Senior counsel, on instructions, fairly submitted that the aforementioned
letter is from the writ petitioner only. Therefore, even as of 29.11.2024,
appeal has been filed. In this regard, it is to be noted that No.7 in the
reference part of impugned order mentions that the statutory appeal is dated
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28.11.2024. It is also seen that there is a connected PIL being
W.P.No.12071 of 2022 and in the contempt petition arising out of the same,
even as of 17.12.2024, following order has been made by another Hon'ble
Division Bench:
'IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17-12-2024
CORAM
THE HONOURABLE MR.K.R.SHRIRAM, CHIEF JUSTICE
AND
THE HONOURABLE MR JUSTICE SENTHILKUMAR
RAMAMOORTHY
Navalur Suresh Nagar Residents Association
Rep. By its President,
Office at Plot No.20, Suresh Nagar,
Navalur, Chennai - 600 130. ..
Petitioner
Vs
Poongodi
Tahsildar,
Thirupporur,
Chengalpattu District - 603 110. .. Respondent
For Petitioner(s):
Ms.R.V.Gayathri
For M/s.P.B.Ramanujam Associates
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For Contemnor(s):
Mr.A.Edwin Prabhakar
State Government Pleader
assisted by Mrs.E.Renganayaki,
Additional Government Pleader
ORDER
(Order of the Court was made by the Hon'ble Chief Justice)
Mr.Prabakar states that after the order dated 6.5.2022 was
passed, when respondents issued a notice under Section 7 of the Tamil
Nadu Land Encroachment Act, 1905 (the Act), respondent No.7 filed a
writ petition, which came to be disposed of with a direction that the
Collector will consider their representation as well and dispose it in
accordance with law. Subsequently, an order under Section 6 of the said
Act has been passed for removal of the obstruction and an appeal has
been preferred against the order issued under Section 6 of the Act.
2. Mr.Prabakar states he has received a letter dated 29.11.2024
from seventh respondent. A copy of the appeal is also annexed to the
said letter, in which it is only stated that if the encroachment is removed,
seventh respondent will be put to irreparable monetary loss to the tune
of lakhs of rupees.
3. Mr.Prabakar states, since the appeal has been filed, the
Collector has to consider the same and dispose of in accordance with
law. At the same time, Mr.Prabakar states he has no instructions as to
whether any application under Section 10B of the said Act for stay of
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the order under Section 6 of the said Act has been filed. Mr.Prabakar
states, if any such stay application is filed or if stay has not been
granted, the order will be executed. Statement accepted.
Stand over to 21.1.2025 for directions.
(K.R.SHRIRAM, C.J) (SENTHILKUMAR RAMAMOORTHY J.)
17-12-2024 '
(underlining made by this Court for
ease of reference)
The above buttresses the position that the statutory appeal is actually dated
28.11.2024 and not 03.02.2025 as submitted by the learned senior counsel
for the writ petitioner. Therefore, the argument that the impugned order has
been made in undue haste on the same day as that of the appeal does not
hold water, becomes a damp squib and therefore, Jagdishbhai M.Kamalia
case does not come to the aid of the writ petitioner.
8.To be noted, alternate remedy available to the writ petitioner is by
way of a statutory revision under Section 10-A. To be precise, it is 10-
A(1)(c), which reads as follows:
'10-A.Revision._(1) Any decision or order passed under this
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Act may be revised either suo motu or on application-
(a) ....
(b) .....
(c) by the State Government if such decision or order was
passed by the appellate authority or the Commissioner of Land
Administration.'
Adverting to the above provision, learned counsel submitted that unlike the
above provision i.e., Section 10, revision provision does not say 'shall' and it
deploys 'may'. In support of this contention, an English case law in RSL
Funding, LLC v. Alford [239 Cal.App.4th 741 (Cal.Ct.App.2015)] was
pressed into service. This English case law reiterates the principle that 'may'
is permissive and 'shall' is mandatory. This argument in our considered
view is no argument as 'may' occurring in Section 10-A qualifies suo motu.
As a revision can either be suo motu or on an application (unlike a statutory
appeal under Section 10 which cannot be suo motu) the expression 'may'
occurs in Section 10-A and 'may' is obviously qua suo motto. To put it
differently this 'shall' and 'may' argument as between the statutory appeal
provision (Section 10) and statutory revision provision (Section 10-A) is
clearly a non-starter.
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9.Lastly, learned counsel relied on judgment of Hon'ble Supreme
Court in A.P.Electrical Equipment Corporation Vs. The Tahsildar & Ors.
Etc., in Civil Appeal Nos.4526 to 4527 of 2024 being an order dated
27.02.2025. Learned counsel drew our attention to paragraph 48 thereat to
say that even disputed questions of fact can be looked into in writ
jurisdiction. In the case on hand, it is not one where the writ petitioner is
being relegated to alternate remedy solely because of disputed question/s of
facts. This Court has repeatedly held that said 1905 Act is a self contained
Code. The reason inter-alia is that there is a provision to have the alleged
encroacher show caused under Section 7 followed by an order (considering
the cause shown). The order under section 6 is appealable under section 10
[District Collector is the appellate authority] and there is a provision for
further revision to the Government under Section 10-A [Section 10-A(3) to
be precise] of said 1905 Act. Pending appeal / revision, there is a provision
for making interim prayer vide Section 10-B of said 1905 Act. Therefore,
said 1905 Act is a self contained Code in every sense of the expression.
10.As already alluded to supra, alternate remedy rule is not an
absolute rule and it is clearly a rule of discretion and a self-imposed
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restraint. On the facts and circumstances of the case, the writ petitioner is
unable to demonstrate any reason as to why alternate remedy of statutory
revision cannot be resorted to. There is nothing on the part of the writ
petitioner to demonstrate that alternate remedy is inefficacious. Therefore,
it will suffice to write that A.P.Electrical Equipment principle also does not
come to the aid of the writ petitioner.
11.On alternate remedy rule itself, this Court would respectfully refer
to Dunlop India case [Assistant Collector of Central Excise, Chandan
Nagar, West Bengal Vs. Dunlop India Ltd. and others reported in (1985) 1
SCC 260], Satyawati Tandon case [United Bank of India Vs. Satyawati
Tondon and others reported in (2010) 8 SCC 110], Commercial Steel case
law i.e., The Assistant Commissioner of State Tax and Others Vs.
Commercial Steel Limited reported in (2022) 16 SCC 447, K.C.Mathew
case [Authorized Officer, State Bank of Travancore Vs. Mathew K.C.
reported in (2018) 3 SCC 85] and Greatship case [State of Maharashtra
and Others Vs. Greatship (India) Limited reported in (2022) 17 SCC 332
2022 SCC OnLine SC 1262].
12.The factual matrix in Dunlop India is, the respondent Dunlop
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India has been manufacturing rubber goods and allied products like tyres,
tubes, etc., The Government of India had issued a notification, under which
tyres, falling under Item 16 of the First Schedule to the Central Excise and
Salt Act, 1944, were exempt from certain percentage of excise duty to the
extent that the manufacturers had not availed themselves of the exemption
granted under certain other earlier notifications. The department was of the
opinion that the respondent was not entitled to exemption. The respondent
claimed the benefit of exemption to a tune of Rs.6.05 Crores and had filed a
writ petition before the Calcutta High Court. It had sought interim order
restraining the Central Excise Authorities from the levy and collection of
excise duty. Learned Single Judge of Calcutta High Court by an interim
order allowed the benefit of exemption to the tune of Rs.2,93,85,000/- and
the respondent was directed to furnish a bank guarantee and goods were
directed to be released on such bank guarantee being furnished. Aggrieved
Department preferred appeal before Division Bench which had confirmed
the order of learned Single Judge with a slight modification by giving
liberty to encash 30% of the bank guarantee. Being aggrieved, the Assistant
Collector of Central Excise preferred appeal before Hon'ble Supreme Court.
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It is in this context, while deciding the appeal, Hon'ble Supreme Court
deprecated the practice of granting interim orders for mere asking and in
matters involving public interest and revenue, interim orders ought not to be
granted merely because a prima facie case has been shown, more is
required. The balance of convenience must be clearly in favour of the
making of an interim order and alternative remedy provided by the statute
must be availed first. The Court must have good and sufficient reason to
bypass the alternate remedy provided by Statute and surely matters
involving the revenue where statutory remedies are available are not such
matters.
13.Relevant paragraph in Dunlop India case is paragraph 3 and the
same reads as follows:
'3. ....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 had to Article 226 of the Constitution.
But then the Court must have good and sufficient reason to bypass the
alternative remedy provided by statute. Surely matters involving the
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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 Article 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 needs to
be strongly discouraged.'
(Underlining made by this Court to supply emphasis and highlight)
14.The factual matrix in Satyawati Tondon case is respondents had
obtained loan from the appellant Bank but was irregular in repayment of the
loan amount. The appellant bank sent letters to respondents asking them to
deposit the outstanding dues. Initially, first respondent deposited a sum of
Rs.50000/- and gave a written undertaking to repay the loan in instalments
but failed to fulfil the promise made. Therefore, the appellant bank initiated
proceedings by filing an application under 'the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002' ['SARFAESI Act' for the sake of brevity], which was allowed by
learned District Magistrate/Collector, Allahabad. The first respondent filed a
writ petition before the High Court praying to restrain the appellant from
taking coercive action. Though an effective alternative remedy was
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available to the writ petitioner under Section 17 of the SARFAESI Act, the
High Court passed the impugned order restraining the appellant from taking
action in furtherance of notice issued under Section 13(4) of the SARFAESI
Act. When the appellant Bank took the matter to Hon'ble Supreme Court,
Hon'ble Supreme Court held that the High Court will ordinarily not
entertain a petition under Article 226 of the Constitution if an effective
remedy is available to the aggrieved person and that this rule applies with
greater rigour in matters involving recovery of taxes, cess, fees, other types
of public money and the dues of banks and other financial institutions.
15.The factual matrix in K.C.Mathew is that the respondent had
obtained loan from the appellant bank but failed to repay the loan. The loan
account of the respondent was declared a non performing asset. The
appellant bank proceeded under the SARFAESI Act and issued statutory
notice under Section 13(2), the objections raised by the respondent were
considered and rejected and thereafter, a possession notice was issued. The
respondent preferred a writ petition and the writ court passed an interim
order granting stay of further proceedings. The appeal before the Division
Bench was also dismissed. Challenging the same, the appellant bank
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preferred appeal before Hon'ble Supreme Court. It is in this context,
Hon'ble Supreme Court observed that the discretionary jurisdiction under
Article 226 is not absolute but has to be exercised judiciously in the given
facts of a case and in accordance with law. The normal rule is that a writ
petition under Article 226 of the Constitution ought not to be entertained if
alternate statutory remedies are available, except in cases falling within the
well-defined exceptions. In K.C. Mathew's case, Satyawati Tondon
principle has been reiterated.
16.Relevant paragraph in K.C.Mathew is paragraph 10 and the same
reads as follows:
'10. In Satyawati Tondon the High Court had restrained
further proceedings under Section 13(4) of the Act. Upon a
detailed consideration of the statutory scheme under the
SARFAESI Act, the availability of remedy to the aggrieved under
Section 17 before the Tribunal and the appellate remedy under
Section 18 before the Appellate Tribunal, the object and purpose
of the legislation, it was observed that a writ petition ought not
to be entertained in view of the alternate statutory remedy
available holding: (SCC pp.123 & 128, Paras 43 & 55)
“43. Unfortunately, the High Court overlooked the
settled law that the High Court will ordinarily not
entertain a petition under Article 226 of the
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Constitution if an effective remedy is available to the
aggrieved person and that this Rule applies with
greater rigour in matters involving recovery of taxes,
cess, fees, other types of public money and the dues
of banks and other financial institutions. In our view,
while dealing with the petitions involving challenge
to the action taken for recovery of the public dues,
etc., the High Court must keep in mind that the
legislations enacted by Parliament and State
Legislatures for recovery of such dues are a code
unto themselves inasmuch as they not only contain
comprehensive procedure for recovery of the dues but
also envisage constitution of quasi-judicial bodies for
redressal of the grievance of any aggrieved person.
Therefore, in all such cases, the High Court must
insist that before availing remedy under Article 226
of the Constitution, a person must exhaust the
remedies available under the relevant statute.
55.It is a matter of serious concern that despite
repeated pronouncement of this Court, the High
Courts continue to ignore the availability of statutory
remedies under the DRT Act and the SARFAESI Act
and exercise jurisdiction under Article 226 for
passing orders which have serious adverse impact on
the right of banks and other financial institutions to
recover their dues. We hope and trust that in future
the High Courts will exercise their discretion in such
matters with greater caution, care and
circumspection.'
(underlining made by this Court to supply
emphasis and highlight)
17.The factual matrix in Commercial Steel is, the respondent is
engaged in the business of iron and steel. The respondent purchased some
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materials from suppliers at Karnataka. The consignment of goods was being
carried in a truck and while it was proceeding from State of Karnataka, it
was intercepted at Jeedimetala. The tax invoice indicated that the goods
were earmarked for delivery at Balanagar, Telangana. It is the case of the
appellant that in the guise of inter-State sale, the respondent was attempting
to sell the goods in the local market by evading SGST and CGST. A order of
detention was issued and a notice was served on the person in charge of the
conveyance. Challenging the proceedings, the respondent filed writ petition
and sought for refund of tax. The High Court entertained the writ petition
and ordered for refund of the amount. Aggrieved the appellant preferred
appeal before Hon'ble Supreme Court. Hon'ble Supreme Court observed
that the existence of alternate remedy is not an absolute bar to the
maintainability of a writ petition under Article 226 of the Constitution and a
writ petition can be entertained in exceptional circumstances. Relevant
paragraphs in Commercial Steel case law are paragraphs 10 and 11 and the
same read as follows:
'10. The respondent had a statutory remedy under section
107. Instead of availing of the remedy, the respondent instituted a
petition under Article 226. The existence of an alternate remedy
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is not an absolute bar to the maintainability of a writ petition
under Article 226 of the Constitution. But a writ petition can be
entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated
legislation.
11. In the present case, none of the above exceptions was
established. There was, in fact, no violation of the principles of
natural justice since a notice was served on the person in charge
of the conveyance. In this backdrop, it was not appropriate for the
High Court entertaining a writ petition. The assessment of facts
would have to be carried out by the appellate authority. As a
matter of fact, the High Court has while doing this exercise
proceeded on the basis of surmises. However, since we are
inclined to relegate the respondent to the pursuit of the alternate
statutory remedy under Section 107, this Court makes no
observation on the merits of the case of the respondent.'
18.The factual matrix in Greatship is that the respondent was issued
proceedings under 'the Maharashtra Value Added Tax, 2002' ['MVAT Act'
for the sake of brevity] and 'the Central Sales Tax Act, 1956' ['CST Act' for
the sake of brevity]. The assessing officer issued notice of assessment
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calling upon the respondent assessee to produce relevant documents and
also to show cause as to why it should not be assessed under the relevant
provisions of the MVAT Act. The respondent submitted required documents
and also showed cause vide letter dated 03.05.2018. Though personal
hearing was fixed, it was not held. The assessing officer passed an
assessment order determining the tax liability along with interest and
penalty under the MVAT Act and the CST Act. The respondent preferred
writ petition challenging the assessment order without availing the appeal
remedy. The High court set aside the assessment order and the demand
notice. Against the same, the State has preferred appeal before the Hon'ble
Supreme Court. The Supreme Court has observed that when there is an
alternate remedy available, judicial prudence demands that the court
refrains from exercising its jurisdiction under constitutional provisions.
Relevant paragraph in Greatship case law is Paragraph 15 and the same
reads as follows:
'15. Now so far as the reliance placed upon the decisions of
this Court by the learned Senior Advocate appearing on behalf of
the respondent, referred to hereinabove, are concerned, the
question is not about the maintainability of the writ petition under
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Article 226 of the Constitution, but the question is about the
entertainability of the writ petition against the order of assessment
by-passing the statutory remedy of appeal. There are serious
disputes on facts as to whether the assessment order was passed
on 20.03.2020 or 14.07.2020 (as alleged by the assessee). No
valid reasons have been shown by the assessee to by-pass the
statutory remedy of appeal. This Court has consistently taken the
view that when there is an alternate remedy available, judicial
prudence demands that the court refrains from exercising its
jurisdiction under constitutional provisions.'
19.As much as alternate remedy rule, it has to be applied with utmost
rigour in fiscal statute. We are of the considered view that it should be
applied with rigour in matters pertaining to revenue records and public land
/encroachment.
20.Ergo the sequitur is, we are of the considered view that we have no
hesitation in holding that this is a fit case where the alternate remedy rule
has to be applied.
21.As we have not expressed any view or opinion on the merits of the
matter, if the writ petitioner resorts to alternate remedy of revision under
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Section 10-A, more particularly Section 10-A (1)(c), it is open to the
revisional authority to consider the statutory revision on its own merits and
in accordance with law but the writ petitioner resorting to alternate remedy
will be subject to limitation and condonation of limitation inter alia vide
Section 11(4) of said 1905 Act.
22.As regards the private respondents i.e., R3 and R4, as we are not
expressing any view or opinion on the merits of the matter but we are
relegating the writ petitioner to alternate remedy and we are not making any
orders adverse to R3 and R4, we make it clear that all the rights and
contentions of R3 and R4 will stand preserved notwithstanding this order.
Therefore, there is no impediment in taking up the main WP in the
Admission Board and we do so with the consent of learned counsel on both
sides.
23.The sum sequitur of the narrative, discussion and dispositive
reasoning thus far is, captioned writ petition fails and the same is dismissed.
Consequently, captioned WMPs thereat also perish with the main WP and
the same are also dismissed. There shall be no order as to costs.
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(M.S.,J.) (K.G.T.,J.)
10.03.2025
Index : Yes/No
Neutral Citation : Yes
gpa/vvk
To
1. The District Collector
Chengalpattu District
Chengalpattu – 603 111
2. The Tahsildar
Thiruporur Taluk, Thiruporur
Chengalpattu – 603 110
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M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
gpa/vvk
10.03.2025
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