Sikkim High Court
M/S Sicpa India Private Limited And Ano vs Union Of India And Ors on 28 May, 2024
Bench: Chief Justice, Meenakshi Madan Rai
COURT NO.1
HIGH COURT OF SIKKIM : GANGTOK
Record of Proceedings
WA No. 01/2024
M/S SICPA INDIA PRIVATE LIMITED & ANR. APPELLANT (S)
VERSUS
UNION OF INDIA AND OTHERS. RESPONDENT (S)
For Appellants : Mr. Ankit Kanodia and Mr. Passang Tshering
Bhutia, Advocates.
For Respondents : Ms. Sangita Pradhan, Deputy Solicitor General of
India with Ms. Natasha Pradhan and Ms. Purnima
Subba, Advocates.
Date: 28/05/2024
CORAM:
HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
...
JUDGMENT :
(per the Hon'ble, the Chief Justice)
This appeal arises in respect of an order dated 05th December, 2023,
passed by the learned Single Judge of this Court in WP(C) No.54 of 2023. By the
impugned order, the learned Single Judge has proceeded to dispose of the writ
petition permitting the petitioners to approach the statutory tribunal, once
constituted. The writ petitioners are now in appeal before us.
The short ground of challenge in the present Intra-Court Mandamus Appeal
is whether the hands of the High Court -- exercising its extraordinary jurisdiction
under Article 226 of the Constitution of India -- are tied simply because remedies
sought for by the writ petitioners are available before a statutory appellate
Tribunal (which, in the facts of the instant case, is yet to be even constituted).
The answer is obviously 'no'. It is well settled that alternative remedy is not an
absolute bar for the writ Court to take up a matter. The extraordinary powers of
the Court under Article 226 of the Constitution of India cannot be ordinarily
fettered under the facts and circumstances of this case since the appellants
(being the writ petitioners) would remain without any forum till a statutory
appellate Tribunal is constituted and thereby injustice would be caused if the
COURT NO.1
HIGH COURT OF SIKKIM : GANGTOK
Record of Proceedings
appellants have nowhere to go for redressal of their grievances in accordance
with law. Simply because the writ petitioners can seek refund of the unutilised
Input Tax Credit in terms of section 49 (6) of the Central Goods and Services Tax
Act, 2017, as and when the statutory appellate Tribunal is constituted, the writ
Court cannot lose sight of the fact that a valuable right to seek refund has
accrued in favour of the writ petitioners and any delay in exercising that right
may cause prejudice. Whether they eventually succeed or not, however, is a
different matter altogether.
In a given situation such as this, we are of the view that it is the High Court
-- which exercises its extraordinary jurisdiction under Article 226 of the
Constitution of India -- that becomes the proper forum where the writ petitioners
may approach since no statutory appellate Tribunal has been constituted by the
Government of India, yet.
In such circumstances as stated above, we allow the appeal filed by the
writ petitioners and set aside the impugned judgment and order passed by the
learned Single Judge.
The learned Single Judge may hear the writ petition on its merit without
being influenced by any observation made herein.
The writ appeal stands disposed of accordingly.
(Meenakshi Madan Rai) (Biswanath Somadder)
Judge Chief Justice
jk/ds/ami
