R. Kalyana Sundaram vs Deputy Commercial Tax Officer, Sirkali

Swamikkannu, J.—W.P. No. 2298 of 1981 is filed to issue writ of prohibition or any other appropriate writ, direction or order or orders

and call for the records in TNGST No. 179994/80-81 dated 18th March, 1981 on the file of the Deputy Commercial Tax Officer, Sirkali and

prohibit from proceeding further in pursuance of the said notice in TNGST No. 179994/80-81 on the file of the Deputy Commercial Tax Officer,

Sirkali dated 18th March, 1981.

Writ Petition No. 2602 of 1981 is filed to issue a writ of prohibition or any other appropriate writ, direction or order or orders prohibiting the

respondent from proceeding further in pursuance of his notice dated 3rd April, 1981 and pass such further or other order or orders.

Prohibition is a judicial writ, issuing out of a superior court, to an inferior court, preventing the inferior court from usurping jurisdiction with which

it is not legally vested, or in other words, to compel courts with judicial duties to keep within the limits of their jurisdiction.

Prohibition is an order directed to an inferior court, which forbids that court to continue proceedings therein in excess of its jurisdiction or in

contravention of the law of the land.

The general principle is that where a statutory remedy is provided and that is adequate, the court, in the exercise of its discretion, may refuse to

interfere by prohibition or certiorari where the applicant approaches to the High Court without first resorting to the statutory remedy.

The bar of alternative remedy does not apply where the defect of jurisdiction is patent. Besides the above, there are some additional cases in

India, in view of our written Constitution, where an application for prohibition cannot be refused on the ground that there is an alternative remedy

available to the applicant. Where the law which gives jurisdiction to the Tribunal is itself unconstitutional or ultra vires; where a fundamental right is

infringed.

Where the defect of jurisdiction is not apparent on the face of the proceedings and depends on some fact in the knowledge of the appellant, the

court may, in the exercise of its discretion, refuse the writ on the ground of undue delay, insufficient materials, misconduct, laches or acquiescence.

But the court will readily interfere where the defect of jurisdiction is patent on the face of the record. In such a case, writ though not as of right, will

be granted ""almost as a matter of course"" unless an irresistible case for withholding the writ is made out. Thus, the High Court has no discretion to

refuse prohibition where it is patent that an inferior appellate authority has entertained an appeal where no appeal lay under the statute. This rule

applies even if the application is merely to avoid payment of the costs of the applicant''s own vexatious suit, which was so mentioned in Halsbury,

3rd Ed., Vol. II, para 220.

As already stated, in the writ petitions before me, the remedy that is prayed for is by way of a writ that is in the nature of ""writ of prohibition"".

There are certain limitations to the writ of prohibition. Prohibition will lie only against judicial or quasi-judicial proceedings and not against the

exercise of legislative or executive functions, or against private persons or associations. In short, a writ of prohibition is available only against such

authorities as are amenable to the jurisdiction of certiorari.

A writ of prohibition can be issued only so long as the proceedings are pending before the inferior court or tribunal and cannot issue after the

court or tribunal has ceased to exist or become functus officio. Prohibition is not available where the inferior tribunal has jurisdiction but exercise it

irregularly or erroneously.

Bearing the principles in mind let us discuss the case that is put forward on behalf of the petitioner.

Mr. K. Mani, learned counsel for the petitioner, submits that in the affidavit accompanying the petition, it is specifically stated by the petitioner

herein that he is a dealer in firewood. The petitioner entered into a forest contract, with the Forest Department, Government of Tamil Nadu and

acquired right to remove from their holdings casuarina, cut it into firewood in the thope itself and supply to the various firewood dealers in the

district and to educational institutions. According to the learned counsel for the petitioner it is not timber. For this he relies on the contract that is

entered into between the petitioner and the Forest Department. It is pointed out that in the said contract, the casuarina does not come within the 39

categories of the timber contemplated. Hence under no stretch of imagination, casuarina cuts, which are sold to hostels of Annamalai University as

firewood, can be treated as timber and no sales tax can be imposed on it treating it as timber.

It is further pointed out that the authority concerned had made up his mind to impose penalty and had acted under the provisions of section

45(2)(b) of the Tamil Nadu General Sales Tax Act and that the nature of the casuarina that is cut does not come under the purview of the definition

contemplated as item No. 84 in the First Schedule to the Act. It is also pointed out that the Appellate Assistant Commissioner for the assessment

year 1975-76 had held that the casuarina is only a firewood and does not come under the provisions of the definition of ""timber"" so as to tax under

the provisions of the Tamil Nadu General Sales Tax Act. The learned counsel for the petitioner also taken me through the ratio decidendi of the

decision in Khajan Singh Ashok Kumar Vs. Commissioner, Sales Tax,

Mr. R. Lokapriya, learned Government Advocate for Taxes, has taken me through the counter-affidavit filed on behalf of the Deputy

Commercial Tax Officer, Sirkali and submitted that the casuarina trees are not only used for fuel but also used for the construction of thatched

houses and pandal works, and that therefore the sale of casuarina in any form of sizes will attract liability to tax at 5 per cent. It is also submitted

that the work of the petitioner is to cut the trees and timber in the forest coupes and sell them to other dealers, and that treating him as a first seller

as per the explanation under item 84 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, a pre-assessment notice was issued to

him and as such the petitioner is liable to pay tax u/s 3(2) read with item 84 of the First Schedule.

Though this Court had granted stay in W.M.P. No. 3650 of 1981, the same had been vacated on 18th June, 1987.

The point for consideration in these writ petitions is whether the petitioner is entitled to the relief as prayed for.

Even at the outset, it has to be stated that it is common ground that the writ petitioner herein had not approached the Deputy Commissioner

and raised the points now raised in the writ petition respectively. That forum having been ignored, according to the learned Government Advocate,

the writ does not lie. The arguments advanced and incorporated in the earlier part of this order will clearly show that they are all adverted to the

merits of the case. The point relating to jurisdiction when it has been actually put to the learned counsel for the petitioner, his submission is that the

penalty that had been imposed u/s 45(2)(a) is not one that is called for especially when in the previous order he had been given the advantage of

not paying the tax on the basis that wood cut of casuarina trees at the spot does not come within the purview of the definition of ""timber"", as

contemplated in the contract that is entered into between the forest authorities and the petitioner herein. Only subsequently the department,

according to the learned counsel for the petitioner, has made up its mind and imposed tax utilising the provisions of section 45(2)(a) of the Tamil

Nadu General Sales Tax Act which has to be agitated only by way of writ and not by way of proceedings before the Deputy Commercial Tax

Officer.

This Court is definitely of the view even with respect to this aspect that the matter can be agitated before this Court only after exhausting all the

remedies available before other forums. Other forums ought not to have been ignored before coming by way of writ of prohibition to this Court.

The extraordinary original jurisdiction of this Court can be exercised only after all the remedies available under the provisions of the enactments are

exhausted by the petitioner. In view of this, the writ petition has to be dismissed. The contentions now raised by way of distinction between

timber"" and ""firewood"" so far as the casuarina cut by the present petitioner is concerned in pursuance of the contract with the forest authorities, the

same ought to have been agitated before the Deputy Commercial Tax Officer in appeal as against the assessment order. Since this remedy has not

been exhausted by the present writ petitioner, these two writ petitions are not maintainable and are liable to be dismissed. Accordingly they are

dismissed. But under the circumstances, there is no order as to costs. The court does not enter into discussion relating to the points raised on

merits. The merit of the matter has to be gone into if the petitioner herein taps at the door of the relevant authorities concerned for the remedy

prayed for by him.

Writ petitions dismissed.