M/S. Pankaj Food Industries, Bhilwara Vs. the District Level Screening Committee, Bhilwara and anr. - Court Judgment

Excerpt:

.....are filed, then court should not dismiss the petitions on the ground of alternative remedy--it is not a universal rule of thumb--depend upon facts of each case.;appeals dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has..........be slow to non-suit the petitioner on the ground of availability of alternative remedy but it cannot be a universal rule of thumb. it must depend on facts of each case, while invoking the extra ordinary jurisdiction of the constitution.(6). in these cases, we are of the opinion that show cause notice alleged certain facts alleging that the assessee is guilty of concealing turn over of sales and abusing the process of incentive granted for the benefit of the dealers. these allegations necessarily need to be enquired into and necessary facts have been established, whether for taking action against the petitioner on its final conclusion in his favour or against him, and for that reason deciding this controversy made on affidavits would be not an appropriate procedure for the purpose of deciding the issues arising out of the controversy, without establishing the facts in a proper manner, for which the original authority, as well as the fact-finding forum, are the most suitable forum.(7). in these circumstances, we are of the opinion that ihe learned single judge was right in not entertaining these petitions because of the availability of the alternative remedies against the orders.....

Judgment:

ORDER

Balia, J.

(1) We have heard the learned counsel for the appellant.

(2). These three Special Appeals are filed by the same person challenging the show cause notice issued to him for cancelling the eligibility certificate and levying tax for three separate assessment years on the alleged concealment of turnover of sales.

(3). The petitioner filed originally three writ petitions challenging the show cause notices only after filing reply thereto. During the pendency of the writ petitions, orders were made by the assessing authority cancelling the eligibility certificate for availing incentive sales tax under the Incentive Scheme 1987 and levying tax and penalty. Those orders are appealable orders. The learned single Judge has dismissed all the three petitions on the ground of availability of alternative remedy for challenging the assessment orders made by the assessing authority.

(4). The learned counsel challenges the order passed by the learned Single Judge, inter alia on the ground that once writ petitions were admitted and were pending for a long period, the same ought not have been dismissed on the ground of availability of alternative remedy alone.

(5). We are of the opinion that ordinarily it is so that once petitions are admitted and reply and rejoinder are filed and parties have joined issues on merit, the Court should be slow to non-suit the petitioner on the ground of availability of alternative remedy but it cannot be a universal rule of thumb. It must depend on facts of each case, while invoking the extra ordinary jurisdiction of the Constitution.

(6). In these cases, we are of the opinion that show cause notice alleged certain facts alleging that the assessee is guilty of concealing turn over of sales and abusing the process of incentive granted for the benefit of the dealers. These allegations necessarily need to be enquired into and necessary facts have been established, whether for taking action against the petitioner on its final conclusion in his favour or against him, and for that reason deciding this controversy made on affidavits would be not an appropriate procedure for the purpose of deciding the issues arising out of the controversy, without establishing the facts in a proper manner, for which the original authority, as well as the fact-finding forum, are the most suitable forum.

(7). In these circumstances, we are of the opinion that Ihe learned Single Judge was right in not entertaining these petitions because of the availability of the alternative remedies against the orders that may be passed in pursuance of the show cause notice issued to the petitioner. Moreover, when allegations of this nature are made and a show cause notice has been issued, the petition itself is premature even if the alternative remedy is to follow only after making of the final orders.

(8). In these circumstances, we dismiss all the three appeals. However, we make it clear that if final orders have been made by the assessing authority, in pursuance of this notice, during the pendency of this appeal, the petitioner dealer shall be free to avail the alternative remedy of appeal, within a period of 30 days, if it is followed with an appropriate application for condonation of delay.