Andhra HC (Pre-Telangana)
Prudential Co-Operative Urban Bank ... vs Deputy Commissioner Of Income-Tax And ... on 3 November, 2000
Equivalent citations: [2001]250ITR121(AP)
JUDGMENT S.R. Nayak, J.
1. Against the impugned order of the second respondent, the petitioner can institute a suit in a civil court to establish the right claimed by it. However, learned counsel for the petitioner would contend that the provision for alternative, remedy would not come in the way of this court exercising discretionary power under Article 226 of the Constitution of India. It is true that in certain circumstances this court can entertain a petition filed under Article 226 of the Constitution of India despite the fact that the party approaching the court has alternative statutory or other common law remedies. But this discretion vested in the court under Article 226 of the Constitution, as held by the constitutional courts including the apex court quite often, should be exercised with circumspection and judiciously. The point for our consideration is whether the present case is one where this court could possibly for good reason incline or decline to exercise the power under Article 226 of the Constitution of India. We do not find any extraordinary circumstance or situation which could justify us to permit the petitioner to approach this court under Article 226 of the Constitution of India without exhausting the comprehensive, effective legal remedy by way of a suit before the civil court. It cannot be gainsaid that ultimately the claim put forth by the petitioner before the second respondent touches upon the title to the property and it is quite often held by the courts that title question cannot be decided in a petition under Article 226 of the Constitution of India.
2. It is also brought to our notice at the time of hearing that the petitioner has already filed an 0. P. before the A. P. Co-operative Tribunal, Hyderabad, seeking recovery of Rs. 2 crores from respondents Nos. 4 and 5 herein and he has already obtained an injunction against the Income-tax Department in that O. P., not to appropriate or pay the recovered amounts to respondents Nos. 4 and 5 herein. However, learned senior standing counsel for the Income-tax Department would tell us that the O.P. filed by the petitioner before the Tribunal itself is incompetent. We do not wish to express any opinion as to whether the O.P. filed by the petitioner before the Co-operative Tribunal is competent or incompetent. That question is left open to be agitated before the Tribunal. Be that as it may, it is suffice to say that the petitioner can definitely institute a suit under rule 11(6) of the Second Schedule to the Income-tax Act.
3. In the result and for the foregoing reasons, we decline to entertain the writ petition and it is accordingly dismissed reserving liberty to the petitioner to avail of the statutory alternative remedies under rule 11(6) of the Second Schedule to the Income-tax Act. No costs.