Rajasthan High Court - Jodhpur
Naresh Kumar Dosi vs State Of Raj. & Ors on 9 March, 2009
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.409/2009.
(Naresh Kumar Dosi Vs. State of Rajasthan & Others)
DATE OF ORDER : March 09, 2009.
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Mr. R.K. Rathi for the petitioner.
BY THE COURT :
Reportable Heard learned counsel for the petitioner.
The petitioner is challenging Annex.-7 dated 23.12.2008, which is demand notice issued by the DTO, Chittorgarh, whereby, the petitioner was directed to deposit Rs.4,63,987/- as tax for the period commencing from 01.01.2007 to 31.12.2008.
Against the said demand, there is provision under Section 14 of the Act to file an appeal. Section 14 of the Act reads as under :
"Section 14. Appeal -
(1) Any person aggrieved by an order relating to the determination of recovery of tax may within a period of thirty days from the date of such order prefer an appeal to the Appellate Authority appointed by the State Government in this behalf (2) Every order in appeal passed by the said Appellate Authority shall be final;
Provided that the Commissioner may on his own motion or on the application of a person aggrieved made in the prescribed manner and 2 filed within a period of ninety days, call for and examine the record of any proceedings under this Act and revise any such order and may reverse or vary the same.
Provided further that no appeal shall be entertained unless it is accompanied by satisfactory proof of payment of tax or such other amount as is admitted by the appellant to be due from him or of such instalment thereof as might have become payable and further that the Appellate Authority shall not stay the recovery of tax.
Provided also that if the owner of the motor vehicle has preferred an appeal or revision under this Section the Commissioner may on an application in writing from the owner of such vehicle, stay the recovery of the disputed amount of tax or penalty or any part thereof during the pendency of the appeal or revision if the owner furnishes sufficient security to his satisfaction such form and in such manner as may be prescribed.
Provided also that if recovery of tax or any part thereof is stayed under the preceding proviso, the amount of such tax shall be recoverable with interest at such rate as may be prescribed on the amount ultimately found due and such interest shall be payable on such amount from the date the tax first became due."
Learned counsel for the petitioner submits that although there is remedy available under Section 14 of the Act by way of filing appeal but the question involved in this case can be decided under Article 226 of the Constitution of India only.
Learned counsel for the petitioner submits that though DTO is having jurisdiction to decide the matter but he has not followed the procedure laid down for determination of the matter. In this view of the matter, the petitioner is not challenging on the ground of jurisdiction but on the ground of lapses on the part of the DTO and, therefore, it is prayed that the petition may be entertained and may not be relegated to the remedy under 3 Section 14.
I have considered the submission advanced by learned counsel for the petitioner.
The Full Bench of this Court, in Gopi Lal Teli's case reported in R.L.W. 1995 (1) (Raj.) p. 1, laid down that where the statutory remedy is available, then, exercise of power under Article 226 of the Constitution of India should be sparingly exercised. Para 40 of the judgment is as follows:-
"(40) After giving our thoughtful consideration to the facts and submissions made at the Bar and in view of catena of cases decided by the apex Court on the question referred to us, we are of the opinion that the answer to the question referred by the learned Single Judge is in negative and we are further of the view that the ratio laid down by the Full Bench of this Court in Smt. Indu's case (supra) and the Division Bench in Rajasthan Pul Nigam's case (supra) do not lay down correct law and we specifically over rule the aforesaid decisions. We are of the opinion that for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 or violation of the principles of natural justice, the normal course is to peruse the remedy provided under the Act and exercise of power under Article 226 of the Constitution of India in such cases should be sparingly exercised."
Further, the Apex Court, in Official Liquidator's case, reported in (2008) 10 SCC 1, has deprecated the practice of the Court in not following the judgments of coordinate or larger 4 Benches. It has been held that there must be consistency in the judgments of the Court. In that view of the matter, when the Full Bench of this Court, in Gopi Lal Teli's case, has held that in the event of availability of the alternative statutory remedy provided under the Act itself, the aggrieved person should first avail the said remedy and writ petition should not be entertained ordinarily. In para 78 and 90 of the judgment of Official Liquidator's, it has been held that:-
"78. There have been several instances of different Benches of the High Courts not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of W.B. This Court observed: (AIR p.941, para 19) "19.....If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decision. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to 5 a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court."
90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed."
In my opinion, in this case, the matter of tax/revenue is in question and, in the Act itself, remedy against the impugned order/notice Annexure-7 dated 23.12.2008 is available to the aggrieved person; therefore, even if the petitioner is aggrieved by any procedural mistake, then, the petitioner should point out the same before the appellate Authority. In the routine manner, it is not proper to entertain the writ petition against demand issued by the Assessing Authority. I do not therefore 6 see any good reason to entertain the writ petition under Article 226 of the Constitution of India and interfere in the matter because admittedly remedy is available under Section 14 of the Act. Therefore, while following the judgment of the apex Court in Official Liquidator's case (supra) and the decision of the Full Bench of this Court in Gopi Lal Teli's case, I am not inclined to entertain this writ petition.
Hence, this writ petition is dismissed.
(Gopal Krishan Vyas) J.
Ojha, a.