Atma Ram Sohan Lal Agencies (P.) Ltd. Vs. Union of India (Uoi) - Court Judgment

Excerpt:

.....delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - according to the petitioner, the arguments in the appeal were heard by the commissioner (appeals) on 14-5-2008 but despite lapse of considerable time, orders in the appeal were not pronounced by the appellate authority forcing the petitioner to approach this court for a declaration to the effect that the failure of the appellate authority to decide the appeal within a reasonable time was illegal, arbitrary and mala fide......the hearing. he urged that this court could set aside the order passed by the appellate authority on that ground alone in the present proceedings. we regret for inability to accept that submission of learned counsel for the petitioner. apart from the fact that there is no challenge nor could there be any challenge to an order which was not in existence on the date the writ petition was filed, we feel that in case the petitioner is aggrieved of the order passed in the appeal, he ought to seek remedy against the same in appropriate proceedings in accordance with the statutory provisions. if the delay in disposal of the appeal is said to be a ground of attack against the order, it shall be open to the petitioner to urge the said ground also, in which event, the tribunal before whom the appeal is filed is expected to examine the said aspect also.5. with the above observation and reserving liberty for the petitioner to challenge the order passed by the appellate authority in appropriate proceedings, the present writ petition is disposed of leaving the parties to bear their own costs.

Judgment:

ORDER

T.S. Thakur, C.J.

1. In this petition for a writ of mandamus, the only relief which the petitioner has sought is a writ of mandamus directing an early disposal of the appeal filed and pending before the Commissioner (Appeals), Central Excise & Customs, Chandigarh. According to the petitioner, the arguments in the appeal were heard by the Commissioner (Appeals) on 14-5-2008 but despite lapse of considerable time, orders in the appeal were not pronounced by the Appellate Authority forcing the petitioner to approach this Court for a declaration to the effect that the failure of the Appellate Authority to decide the appeal within a reasonable time was illegal, arbitrary and mala fide.

2. When the matter came up before us on 15-5-2009, we issued notice to the respondents and directed Mr. Gurpreet Singh, learned Standing Counsel for Union of India to verify whether the appeal filed by the petitioner before the Commissioner (Appeals), Central Excise & Customs, Chandigarh had been disposed of and in case the same was still pending, the reasons why the same was not being disposed of.

3. Mr. Gurpreet Singh, learned Standing Counsel has now filed an application placing on record a copy of the order in appeal dated 19-5-2009. He submits that since the appeal in question has been disposed of by the Commissioner, this petition does not survive for consideration and may be disposed of as such.

4. Learned Counsel for the petitioner, however, contended that the delay in disposal of the appeal was itself sufficient to render the Appellate Authority's order illegal and liable to be set aside. He urged that the Supreme Court had in Anil Rai v. State of Bihar 2009 (233) ELT 13 directed that appeals ought to be decided within six months from the date of the conclusion of the hearing. He urged that this Court could set aside the order passed by the Appellate Authority on that ground alone in the present proceedings. We regret for inability to accept that submission of learned Counsel for the petitioner. Apart from the fact that there is no challenge nor could there be any challenge to an order which was not in existence on the date the writ petition was filed, we feel that in case the petitioner is aggrieved of the order passed in the appeal, he ought to seek remedy against the same in appropriate proceedings in accordance with the statutory provisions. If the delay in disposal of the appeal is said to be a ground of attack against the order, it shall be open to the petitioner to urge the said ground also, in which event, the Tribunal before whom the appeal is filed is expected to examine the said aspect also.

5. With the above observation and reserving liberty for the petitioner to challenge the order passed by the Appellate Authority in appropriate proceedings, the present writ petition is disposed of leaving the parties to bear their own costs.