Judgment:
A. Pasayat, J.
1. Petitioner, a dealer registered under the Orissa Sales Tax Act, 1947 (in short, the 'Act') has questioned correctness of demand of additional security as made by the Sales Tax Officer. Assessment Unit, Dhenkanal by the impugned order dated 3.7.1997 and consequential notice of demand under Annexure-2. Petitioner's grievance is that the said order was passed without grant of an opportunity.
2. Learned counsel for the Revenue stated that even if no notice was issued prior to passing of impugned order, the same being revisable in terms of Section 23(4) (a) of the Act, the writ application is misconceived.
3. Section 9 of the Act deals with registration of dealers. Sub-section (3-a) of Section 9 deals with security to be paid: Chapter-IV of Orissa Sales Tax Rules, 1947 (in short, the 'Rules') deals with registration of dealers. Rule 7 deals with grant of registration. Sub rule (6) of said Rule provides that the Sales Tax Officer for good and sufficient reason to be recorded, may require a dealer in writing, who has applied for registration under the Act to pay by a specified date, reasonable security which in his own opinion will be equivalent to tax estimated by him :as being payable by the dealer for one year. Sub-section (3-a) of Section 9 provides that if reasonable security as estimated is not paid, then grant of certificate of registration shall be refused if the dealer is one who has applied for registration and if the defaulter happens to be a registered dealer, cancel she certificate of registration granted. Maximum security which cars tee demanded in relation to gross turn over of a dealer is indicated in proviso to Sub-rule (6) of Rule 7. In the impugned order dated 3.7.1997 (Annexure-2) the Sales Tax Officer has observed that there was substantial statement of turn over which warranted additional demand of security. On the basis of such conclusion order was passed and demand of security in Form X-B has been issued.
4. Pivotal stand of learned counsel far the Revenue is that order is revisable. Learned counsel for petitioner did not dispute the position, but according to him, principles of natural justice has been violated, and therefore, to avoid unnecessary delay writ application has been presented.
5. Rule relating to exhaustion of alternative remedy is a rule of policy, convenience, caution and discretion, prudence and cannot be termed to be a rule of law. Normally the High Court does not exercise jurisdiction by entertaining petitions under Article 226, when the statute under which impugned order was passed provides a remedy by way of appeal or other proceeding to a party aggrieved, and thereby by-pass the statutory authority. Where the statute provides a complete machinery for obtaining relief in respect of an allegedly improper order passed by the authorities, the affected person cannot be permitted to abandon resort to that machinery and to invoke extraordinary jurisdiction of the High Court under Article 226 of the Constitution. There are certain exceptions to general rule that a person must exhaust statutory remedies before seeking issuance of a writ. One of such exceptions is where there has been violation of principles of natural justice. It would all depend upon circumstances of the case where Court would entertain a writ application, notwithstanding availability of an alternative remedy. In view of the undisputed factual position that petitioner was not granted an opportunity before extra demand was raised, we entertain the writ application for adjudication.
6. Even if it is accepted as urged by learned counsel for Revenue that no specific provision is prescribed in the concerned statute to afford an opportunity before enhancement of security, yet principles of natural justice mandate it. The principles of natural justice must be read into the unoccupied interstices of the statute unless there is a clear mandate to the contrary. Natural justice is an inseparable ingredient of fairness and reasonableness. Observance of the principles is the pragmatic requirement of fair play in action. The rules of natural justice operate as implied mandatory processual requirement, non-observance where of invalidates the action. In the celebrated case of Cooper v. Wandsworth Board of Works, 1963 (143) ER 474, the principle was illuminatingly stated as follows :
'Even God did not pass a sentence upon Adam, before he was called upon to make his defence. Adam 'says God', where art thou has thou not eaten of the tree where of I commanded thee that 'thou should not eat'.
Since then the principle has been chiselled, honed and refined, enriching its content. The right of a man to be heard in his defence is the most elementary protection. Natural justice is the essence of fair adjudication, deeply rooted in tradition, and conscience, to be ranked as fundamental. Before enhancing security petitioner ought to have been granted an opportunity to have its say.
7. In the circumstances, we set aside the impugned order dated 3.7.1997 and consequential notice of demand in Form X-B. To avoid unnecessary delay, petitioner is directed to appear before the Sales Tax Officer, Assessment Unit, Dhenkanal on 6.8.1997 when said Officer shall bring to notice of petitioner materials which are proposed to be utilised against it for the purpose of fixing enhanced quantum of security. We make it clear that no opinion on merits has been expressed by us.
The writ application is allowed to the extent indicated above. No costs.
S.C. Datt, J.
8. I agree.