Himachal Pradesh High Court
Smt. Sudesh Kumari vs State Of H.P. And Others on 7 April, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No. 9124 of 2014 Judgment reserved on: 31.3.2015 Date of Decision : April 7, 2015.
Smt. Sudesh Kumari ...Petitioner
Versus
State of H.P. and others . ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? No For the Petitioner : Mr. Ajay Sharma, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Mr. Romesh Verma, Addl. Advocate Generals and Mr. Kush Sharma, Dy. Advocate General, for respondents No. 1 to 3.
Ms. Seema K. Guleria, Advocate, for respondents No. 4 and 5.
Tarlok Singh Chauhan, Judge By medium of this writ petition, the petitioner has claimed the following substantive relief:
"(a). Respondent No.3 may very kindly be directed to allow the petitioner to run her bus on the route on which bus No. HP-56A-
1475 was being run by her since 2010 without putting any hindrance. In the alternative respondent No.3 may very kindly be directed to take same and similar action against respondents No. 4 and 5 who are running their buses on the routes exactly the same as is that of the petitioner but on the route from which bus of the petitioner has been stopped.
2. In reply, the respondents have raised preliminary objection ______________________ 1 Whether reporters of Local Papers may be allowed to see the JudgmentYes ::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 2 regarding very maintainability of this petition on the ground that an .
alternative and efficacious remedy is available to the petitioner under Section 89 of the Motor Vehicles Act, 1988 (for short 'Act').
3. In response to this objection, learned counsel for the petitioner would submit that the appeal under Section 89 of the Act is only maintainable if one is aggrieved by refusal to grant permit, or any condition attached to the permit or aggrieved by the revocation or suspension of the permit or by variation of the conditions thereof and so on. But the same is not attracted to the facts of the present case.
4. Section 89 of the Act reads as follows:
"89. Appeals. - (1) Any person -
(a) aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him, or
(b) aggrieved by the revocation or suspension of the permit or by any variation of the conditions thereof, or
(c) aggrieved by the refusal to transfer the permit under Section 82, or
(d) aggrieved by the refusal of the State or a Regional Transport Authority to countersign a permit, or by any condition attached to such counter-signature, or
(e) aggrieved by the refusal of renewal of a permit, or
(f) aggrieved by the refusal to grant permission under section 83, or
(g) aggrieved by any other order which may be prescribed, may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal constituted under sub-
section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final.
(2) The State Government shall constitute such number of Transport Appellate Tribunals as it thinks fit and each such Tribunal shall consist of a judicial officer who is not below the rank of a District Judge or who is qualified to be a Judge of the High Court and it shall exercise jurisdiction within such area as may be notified by that Government.
::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 3(3) Notwithstanding anything contained in sub-section (1) or sub-
section (2), every appeal pending at the commencement of this .
Act, shall continue to be proceeded with and disposed of as if this Act had not been passed.
Explanation. - For the removal of doubts, it is hereby declared that when any order is made by the State Transport Authority or the Regional Transport Authority in pursuance of a direction issued by the Inter-State Transport Commission under clause
(c) of sub-section (2) of section 63A of the Motor Vehicles Act, 1939 (4 of 1939), as it stood immediately before the commencement of this Act, and any person feels aggrieved by such order on the ground that it is not in consonance with such direction, he may appeal under sub-section (1) to the State Transport Appellate Tribunal against such order but not against the direction so issued."
5. It is the specific case of the petitioner that respondent No.5 is running the buses on the route which has otherwise been allotted to her and because of many complaints to respondent No.3 (RTA, Una), she was allotted another route. Her further contention is that even the respondent No.5 had been plying the buses on the route allotted to the petitioner and upon such representation, the respondent No.3 vide letter dated 7.11.2014 though asked the respondent No.5 to stop plying the buses but no coercive steps were taken. It is then claimed that the bus of the petitioner was got stopped, whereas no action was taken against the respondents No. 4 and 5.
6. The official respondents No. 1 to 3 in their reply apart from raising the preliminary objection as referred to above, have stated that they had received complaints against the petitioner from respondents No. 4 and 5 regarding plying of bus by the petitioner beyond the route allotted to her and it was on this account that notice was issued to her with the direction to ply her bus strictly as per the route permit issued to ::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 4 her. Similar directions have also been issued to respondents No. 4 and .
5.
7. The respondents No. 4 and 5 filed reply wherein it was alleged that the petitioner was in arrears of Special Road Tax and Token Tax and yet was being permitted to ply the bus. It is further submitted insofar as the respondent No.4 and respondent No.5 are concerned, there is no violation on their part as they are plying their buses as per the route permits rather it is petitioner, who is violating the route allotted to her.
8. In rejoinder to the reply filed by respondents No. 1 to 3, the petitioner apart from reiterating the contents of the petition, has stated that respondents No. 3 to 5 are hand in glove with each other and in order to give undue benefit to respondents No. 4 and 5, time table of three buses has been chalked out by the respondent No.3 in such a manner so as to give undue benefit to these respondents.
9. Likewise, in rejoinder to the reply filed by respondents No.4 and 5, the petitioner has claimed damages of ` 1.50 - 2.00 lacs which is alleged to have been caused by respondents No. 3 to 5. The issue of time table has been reiterated as aforesaid.
10. The pleadings of the parties and the provisions of the Act have been set out in extenso only to show that the petition raises disputed questions of fact which can only be considered by the competent authority under the aforesaid provisions of the Act which provisions are wide enough to include within its ambit the claim raised by the petitioner. The case relates to the route permit and conditions ::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 5 attached thereto and, therefore, once an alternative remedy is .
available to the petitioner, the present writ petition is not maintainable.
11. We are not oblivious of the fact that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion but then we cannot ignore the rules of self-imposed restraint evolved by the Hon'ble Supreme Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. We otherwise are of the considered view that the petitioner has not only an alternative but an effective and efficacious remedy of filing the appeal under Section 89 of the Act particularly when a detailed mechanism for redressal of grievance has been provided therein.
12. This Bench in M/s Indian Technomac Company Ltd. vs. State of H.P. and others, CWP No. 4779 of 2014, (decided on 4th August, 2014) was seized of a matter relating to the provisions of the H.P. VAT Act, 2005 which provided for a remedy of filing appeal. The writ petition was dismissed on the ground of availability of alternate remedy and it was observed as under:
"11. Now, the question which arises for determination is - when an Act provides mechanism to have remedy(ies), can a writ lie in the given circumstances? The answer is in the negative for the following reasons. It is well settled principle of law that High Courts have imposed rule of self limitation in entertaining the writ petition in terms of writ jurisdiction when alternative remedy is available. High Court must not interfere if there is adequate efficacious alternative remedy available and the practice of approaching the High Court, without availing the remedy(ies) provided, must be deprecated, unless express case is made out.::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 6
12. The Apex Court in Union of India and another vs. Guwahati Carbon Limited, (2012) 11 SCC 651, while dealing with .
the similar question, has observed in paragraphs 8, 9, 10, 11, 14 and 15 as under:
"8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, AIR 1979 SC 1250. In the said decision, this Court was pleased to observe that: (SCC p.88, para 23) "23. ....... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner and all the -other forums and modes of seeking remedy are r excluded."
9. A Bench of three learned Judges of as Court, in Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433, held: (SCC p.440, para 11) "11......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 Article 226 of the Constitution. It is now well recognised that where right or liability is created by a statute which gives a special remedy for 1 enforcing it, the remedy provided by that statute must be availed...."
10. In other words, existence of an adequate alternate remedy is a factor to be considered by the writ court before exercising its writ jurisdiction (See Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566).
11. In Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1, this Court held:
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of the Fundamental Rights or where there has been a violation of the principle of natural justices or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged......"::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 7
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14. Having said so, we have gone through the orders .
passed by the Tribunal. The only determination made by the Tribunal is with regard to the assessable value of the commodity in question by excluding the freight/ transportation charges and the insurance charges from the assessable value of the commodity in question. Since what was done by the Tribunal is the determination of the assessable value of the commodity in question for the purpose of the levy of duty under the Act, in our opinion, the assessee ought to have carried the matter by way of an appeal before this Court under Section 35L of the Central Excise Act, 1944.
15. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the r Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, thelearned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first.
The order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent/assessee."
13. The Apex Court in Nivedita Sharma vs. Cellular Operators Association of India and others, (2011) 14 SCC 337, after discussing its various earlier decisions, held that the High Court had committed error in entertaining the writ petition without noticing and referring to the relevant provisions of law applicable in that case, which contained statutory remedy of appeal and accordingly set aside the order of the High Court in terms of which the writ petition was entertained. It is apt to reproduce paragraphs 24 and 25 hereunder:
"24. Section 19 provides for remedy of appeal against an order made by the State Commission in exercise of its powers under sub-clause (i) of Clause (a) of Section 17. If Sections 11, 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation.
25. What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents."::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 8
14. The Apex Court in a recent decision in Commissioner of .
Income Tax and others vs. Chhabil Dass Agarwal, (2014) 1 SCC 603, has discussed the law, on the subject, right from the year 1859 till the date of judgment i.e. 8th August, 2013. We deem it proper to reproduce paragraphs 12, 13, 15, 16 and 17 hereunder:
"12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd.
Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089, have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High r Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. (See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das,(1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj); Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72).
13. In Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: (SCC pp.343-45 paras 12-14) "12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7).
'7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even ::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 9 itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not .
permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.'
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed:
(SCC pp. 440-41, para 11) '11. ... 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. This rule was stated r with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) "... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co., AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.'
14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed:
(SCC p. 607, para 77) '77. ... So far as the jurisdiction of the High Court under Article 226--or for that matter, the jurisdiction of this Court under Article 32--is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power ::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 10 under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the .
Act and would exercise their jurisdiction consistent with the provisions of the enactment.'" (See: G. Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192;
CCE v. Dunlop India Ltd., (1985) 1 SCC 260;
Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472; Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5; C.A. Abraham v. ITO, (1961) 2 SCR 765; Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433; H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312; Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1; Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272; Sheela Devi v. Jaspal Singh, (1999) 1 SCC r 209 and Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569)
14. In Union of India vs. Guwahati Carbon Ltd., (2012) 11 SCC 651, this Court has reiterated the aforesaid principle and observed: (SCC p.653, para 8) "8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23).
'23. ... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded.'"
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15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case AIR 1964 SC 1419, Titagarh Paper Mills case 1983 SCC (Tax) 131 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 1116. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, .
imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility.
17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under r the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued thereon."
15. The decisions referred to by the learned counsel for the petitioners have been discussed by the Apex Court in the decisions of Union of India and another vs. Guwahati Carbon Limited, Nivedita Sharma vs. Cellular Operators Association of India and others and Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, referred to hereinabove.
16. The sum and substance of the above discussion is that the writ petitioners-Company have remedies of appeal(s), before approaching the High Court by way of the writ petitions, for the redressal of their grievances. The petitioners ought to have exhausted the remedy of appeal before the Deputy Excise and Taxation Commissioner or Additional Excise and Taxation Commissioner or the Excise Commissioner, as the case may be, and if the petitioners were not successful in those appeal proceedings, another remedy available to them was to challenge the said order(s) by the medium of appeal before the Tribunal, and again, if they were unsuccessful, they could have availed the remedy of revision before the High Court in terms of Section 48 of the HP VAT Act, 2005. Keeping in view the above discussion, read with the fact that the dispute raised in these ::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 12 writ petitions relates to revenue/tax matters, it can safely be concluded that the petitioners have sufficient efficacious .
remedy(ies) available.
18. Having said so, we are of the considered view that the writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable."
13. In view of the aforesaid discussion, the present writ petition is not maintainable. However, the petitioner is at liberty to approach the competent authority under the provisions of the Motor Vehicles Act and needless to say that the time spent in pursuing this litigation, shall be excluded in the event of the petitioner approaching the competent authority within 30 days of the receipt of the order by the petitioner.
14. Before parting, it only needs to be emphasized that in the event of the petitioner approaching respondent No.3, he shall fix the time table(s) in such a manner so as to ensure that there is no unnecessary competition or heart-burning amongst the different stake-holders. The Court cannot be oblivious to the fact that of late there has been increase in fatal accidents and one of the reasons for the same is the policy of liberalization adopted in the matter of granting stage carriage permits. In order to grab maximum passengers, the stage carriage buses are driven at reckless speed without observing any norms as to speed limits and, therefore, in case the time table(s) is/are fixed in such a manner where each of the stake-holders would get sufficient passengers, the situation could improve drastically.
::: Downloaded on - 15/04/2017 17:57:45 :::HCHP 13With these observations, the writ petition is disposed of, so .
also the pending application(s) if any. The parties are left to bear their own costs.
( Mansoor Ahmad Mir)
Chief Justice
April 7, 2015 (Tarlok Singh Chauhan),
(GR) Judge
r to
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