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Judgment
G.S. Singhvi, J.—This appeal is directed against the order dated July 27, 1987 passed by the learned Single Judge whereby the writ petition filed by the petitioner was disposed of and the petitioner was relegated to the remedy of appeal.
In the amended writ petition filed by the appellant, legality of the order passed by the Collector on 2.4.1987 was challenged in addition to the prayer already made for quashing of the orders dated 3.12.1986, 26.12.1986 and the instructions dated 1.12.1986.
After hearing the parties the learned Single Judge up-held the objection raised on behalf of the respondents to the maintainability of the writ petition on the ground that an effective alternative remedy of appeal was available to the petitioner against the order dated 2.4.1987.
We have heard learned counsel for the appellant and perused the order passed by the learned Single Judge and memorandum of appeal. In our opinion, there is no valid justification to interfere with the discretion exercised by the learned Single Judge, who refused to entertain the prayer made by the petitioner for quashing various orders impugned in the writ petition on the ground of availability of an effective alternative remedy.
The power conferred upon the High Court under Article 226 of the Constitution to issue directions, orders of writs in the nature of certiorari/mandamus etc. are wide and pervasive and while exercising its jurisdiction the High Court is not bound by technicalities of rules or procedures evolved by the British Courts. However, the Courts in India have evolved rules of self imposed restraint for exercise of the vast power conferred by the Constitution One of such rule is that ordinarily the High Court will refrain from exercising its power under Article 226 of the Constitution to give relief to the petitioner in a case where an effective alternative remedy is avail- able to the party. This rule has been applied more rigorously in cases involving levy and collection of taxes etc. In Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, , the Apex Court examined the issue relating to exercise of jurisdiction by Courts under Articles 32 and 226 of the Constitution. While up-holding the decision of the High Court which had refused to entertain writ petition on the ground that the petitioner was entitled to avail alternative remedy available to it under the Orissa Sales Tax Act, the Supreme Court observed:
"In the instant case against the order of assessment made by Sales Tax Officer under the Orissa Sales-tax Act the petitioners, assessees, 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-s.(l) of S.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-s. (3) of S.23, and then ask for a case to be stated upon a question of law for the opinion of the High Court under S.24. 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 Art. 226 of the Constitution. It is now well recognised 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."
The principle laid down in Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, has been re-iterated in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, . The Supreme lamented on the practice of the High Courts to entertain writs and to pass orders of stay against the recovery of taxes and observed:
"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 vires of the statute is in question or where private or public wrongs are so in-extricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constitution. But 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. The Supreme Court can 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 needs to be strongly discouraged."
After 14 years of rendering of the decision by it in Titaghur Paper Mills Co. Ltd.''s case (supra), the Apex Court has once again laid emphasis that High Courts should not entertain the petitions where alternative remedy is available to the writ petitioners. In State of Goa and others Vs. Leukoplast (India) Ltd. etc., , the Supreme Court observed:
"In our view, whether the products manufactured by the assessee can be treated as "drugs or medicines" cannot be answered straightaway. The medicinal content of the products, if any, has to be ascertained. Its curative function has to be found out. Can the product be called a medicament at all? Is it used to cure or alleviate or to prevent disease or to restore health or to preserve health? Are these products treated as drugs or medicines in common parlance? These are basically questions of fact. There was no reason for the assessee-company to by pass the statutory remedy and come to the Court with a writ petition. These questions basically of fact should be agitated before the statutory appellate authority."
After making these observations, the Apex Court referred to decision in Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, and then proceeded to say:
"We are of the view that the assessee should not have been allowed to by pass the statutory remedies where the questions of fact could have been properly agitated and ascertained. The appeal, therefore, is allowed. The impugned order of the High Court is set aside."
By relying on the observations made by the Supreme Court in Titaghur Paper Mills Ltd. v. State of Orissa (supra) and Asstt. Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others, a Division Bench of this Court of which one of us (G.S. Singhvi, J.) was a member held in Sachdeva and Sons Rice Mills Ltd. Vs. State of Punjab and Others, that remedy of appeal available u/s 20 of the Punjab General Sales Tax Act, 1948 cannot be allowed to be by-passed and it is the duty of the Court not to exercise writ jurisdiction under Article 226 in a case where the petitioner has failed to avail the alternative remedy provided under the same very statute under which the impugned order has been passed. This principle has been re-iterated in Hindustan Vegetables Oils Mills Ltd. v. State of Punjab & others, CWP No. 9775 of 1994 decided on 26.7.1994.
The matter deserves to be looked upon from another angle. In matters involving payment of compensation for land acquisition or disputes relating to the dismissal, retrenchment, termination of service and other conditions of employment of the workmen, the Courts have always insisted that grievance raised by an aggrieved person shall not be adjudicated directly in writ petition filed under Article 226 of the Constitution. In The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, and Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, , the Supreme Court has pronounced that where a right sought to be enforced flows from a statute and same very statute makes provisions for redressal of the grievance of aggrieved party, writ jurisdiction under Article 226 of the Constitution should not be exercised.
The Judgment of the Supreme Court in Filterco and Another Vs. Commissioner of Sales Tax, Madhya Pradesh and Another, relied upon by Mr. V. Ramswaroop, counsel for the appellant is clearly distinguishable. In that case writ petition filed by the petitioner was dismissed in limine by the High Court on the ground of availability of alternative remedy. Reversing the order of the High Court, the Supreme Court observed that the High Court should not have dismissed the writ petition summarily ignoring the fact that the Commissioner of Sales Tax had passed a well considered order in the exercise of his statutory jurisdiction under sub-section (1) of Section 42-B of the M.P. General Sales Tax Act, 1959 holding that 21 varieties of the compressed woollen felt manufactured by the appellants are not eligible for exemption under Entry 6 of Schedule 1 of the Act and this order was binding on the assessing authority as well as the Appellate Assistant Commissioner who was acting as Appellate Authority. The ratio of that decision is where the higher departmental authority has in exercise of statutory powers taken a particular view in particular matter the authorities subordinate to such higher authority can not be expected to take a different view.
In the present case the remedy of appeal available to the petitioner is before the Central Excise and Gold (Control), Appellate Tribunal and not before the department-authorities. Learned Counsel for the appellant was fair enough to concede that Tribunal is not an authority Subordinate to the Department. Therefore, the remedy of appeal available to the. petitioner cannot be termed as an in-effective remedy.
In view of the above discussion, we hold that the discretion exercised by the learned Single Judge to relegate the petitioner to the alternative remedy of appeal is neither illegal nor unjust.
Consequently, the appeal is dismissed. However, we give 30 days further time to the appellant to avail the remedy of appeal and direct the Appellate Authority to decide such appeal on merits.