Triveni Conductors Pvt. Ltd. Vs. Union of India (Uoi) - Court Judgment

Excerpt:
writ - alternative remedy--court not to interfere at the show cause notice stage.misc. petition dismissed. - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - labh chand) the apex court fittingly illumined the path as under :when a statutory forum or tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the high court should not normally permit such persons to ventilate their specified grievance before it by entertaining petitions under article 226 of the constitution is a legal position which is too well settled.ordera.r. tiwari, j.1. this is a petition under article 226 of the constitution of india and seeks quashment of the show-cause notices dated 3-12-1990 (annexure-t/l') and dated 4-12-1990 (annexure - t/2') issued by respondent no. 3 (superintendent, central excise, dewas).2. briefly stated the facts of the case are that the petitioner is the manufacturer of certain products. it obtained the benefit of exemption from payment of duty on the linchpin of notification which conferred exemption on the manufacturer of 'super enamelled winding copper wire' provided it was made out of wire bars/or rods or any bare wire of not less than 6mm dia. respondent no. 3, however, found that the petitioner contravened the provisions of rules 9(1), 52a, 173f & 173g(1) of central excise rules, 1944 inasmuch as it claimed unintended benefits of exemption under notification no. 69/86-c.e., dated 10-2-1986 as amended from time to time as also other notifications particularised in the aforesaid notices. the petitioner was asked to submit explanation and appear before the adjudicating authority within 30 days.3. aggrieved by these two notices, the petitioner has filed this writ petition.4. the respondents have filed the reply in oppugnation.5. i have heard both the sides.6. the counsel for the petitioner submitted that the show-cause notices are without jurisdiction and thus deserve to be quashed in this petition. the counsel for the respondents on the other hand submits that the notices are within the jurisdiction and the petitioner should have shown the cause and taken all objections before appropriate authority rather than approaching this court. the respondents have also taken a preliminary objection against the tenability of this petition on the ground that recourse to article 226 against show-cause notices is improper and the petitioner cannot be allowed to short circuit or circumvent the statutory provisions.7. the counsel for the respondents placed reliance on the order dated 27-1-1995 -1995 (77) e.l.t. 74 (m.p.) passed by this court in misc. petition no. 2230 of 1993 (grasim industries ltd. v. the collector of customs and anr.) wherein this court declined interference in the face of show-cause notice.8. in a.i.r. 1994 s.c. 654 (state of u.p. and anr. v. labh chand) the apex court fittingly illumined the path as under :-'when a statutory forum or tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the high court should not normally permit such persons to ventilate their specified grievance before it by entertaining petitions under article 226 of the constitution is a legal position which is too well settled.' 9. later in air 1994 sc 2377 (state of andhra pradesh v. t.g. lakshmaiah setty and sons) the supreme court in reiteration ruled that orders of assessment, rendered under tax laws, should be tested under the relevant act and in no other way, earlier it was held in air 1992 s.c. 2279 (shyam kishore v. municipal corporation of delhi) that resourse to writ jurisdiction is not proper when more satisfactory solution is available on the terms of the statute itself. in my view, writ court is not supposed to be killer of all evils visible in whatever shape or stage. in a recent verdict, supreme court has asked the high courts to exercise their 'extraordinary and discretionary power under writ jurisdiction with caution.'10. in view of the identical factual position and legal position, as considered in misc. petition no. 2230 of 1993. i am of the view that preliminary objections raised by the respondents should be permitted to prevail in this case also and as such this petition should also suffer the same fate. in view of this position, i do not express any opinion on the merits of the matter but dispose of this petition with directions as under :-(a) the petitioner is permitted to submit reply to the aforesaid showcause notices (annexures-'p/1' & 'p/2') before appropriate authority by 15th of march, 1995 and to take all objections as may be permissible under the law and to contest the same.(b) the appropriate authority shall consider the objections of the petitioner and take appropriate decision on the aforesaid show-cause notices in conformity with law as early as possible and communicate its result to the petitioner.(c) if the order turns out to be adverse, the petitioner shall have freedom to pursue appropriate remedy against the same.11. with the aforesaid directions, this petition is disposed of finally with no order as to costs.12. the interim order of stay passed on 29-1-1991 and continued on 2-7-1992 is hereby vacated.13. the security cost be refunded to the petitioner after due verification.14. certified copy to both the sides on usual charges.

Judgment:
ORDER

A.R. Tiwari, J.

1. This is a petition under Article 226 of the Constitution of India and seeks quashment of the show-cause notices dated 3-12-1990 (Annexure-T/l') and dated 4-12-1990 (Annexure - T/2') issued by respondent No. 3 (Superintendent, Central Excise, Dewas).

2. Briefly stated the facts of the case are that the petitioner is the manufacturer of certain products. It obtained the benefit of exemption from payment of duty on the linchpin of notification which conferred exemption on the manufacturer of 'Super Enamelled Winding Copper Wire' provided it was made out of Wire Bars/or Rods or any bare wire of not less than 6mm dia. Respondent No. 3, however, found that the petitioner contravened the provisions of Rules 9(1), 52A, 173F & 173G(1) of Central Excise Rules, 1944 inasmuch as it claimed unintended benefits of exemption under Notification No. 69/86-C.E., dated 10-2-1986 as amended from time to time as also other notifications particularised in the aforesaid notices. The petitioner was asked to submit explanation and appear before the adjudicating authority within 30 days.

3. Aggrieved by these two notices, the petitioner has filed this writ petition.

4. The respondents have filed the reply in oppugnation.

5. I have heard both the sides.

6. The counsel for the petitioner submitted that the show-cause notices are without jurisdiction and thus deserve to be quashed in this petition. The counsel for the respondents on the other hand submits that the notices are within the jurisdiction and the petitioner should have shown the cause and taken all objections before appropriate authority rather than approaching this Court. The respondents have also taken a preliminary objection against the tenability of this petition on the ground that recourse to Article 226 against show-cause notices is improper and the petitioner cannot be allowed to short circuit or circumvent the statutory provisions.

7. The counsel for the respondents placed reliance on the order dated 27-1-1995 -1995 (77) E.L.T. 74 (M.P.) passed by this Court in Misc. Petition No. 2230 of 1993 (Grasim Industries Ltd. v. The Collector of Customs and Anr.) wherein this Court declined interference in the face of show-cause notice.

8. In A.I.R. 1994 S.C. 654 (State of U.P. and Anr. v. Labh Chand) the Apex Court fittingly illumined the path as under :-

'When a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievance before it by entertaining petitions under Article 226 of the Constitution is a legal position which is too well settled.'

9. Later in AIR 1994 SC 2377 (State of Andhra Pradesh v. T.G. Lakshmaiah Setty and Sons) the Supreme Court in reiteration ruled that orders of assessment, rendered under Tax Laws, should be tested under the relevant Act and in no other way, Earlier it was held in AIR 1992 S.C. 2279 (Shyam Kishore v. Municipal Corporation of Delhi) that resourse to writ jurisdiction is not proper when more satisfactory solution is available on the terms of the statute itself. In my view, writ Court is not supposed to be killer of all evils visible in whatever shape or stage. In a recent verdict, Supreme Court has asked the High Courts to exercise their 'extraordinary and discretionary power under writ jurisdiction with caution.'

10. In view of the identical factual position and legal position, as considered in Misc. Petition No. 2230 of 1993. I am of the view that preliminary objections raised by the respondents should be permitted to prevail in this case also and as such this petition should also suffer the same fate. In view of this position, I do not express any opinion on the merits of the matter but dispose of this petition with directions as under :-

(a) The petitioner is permitted to submit reply to the aforesaid showcause notices (Annexures-'P/1' & 'P/2') before appropriate authority by 15th of March, 1995 and to take all objections as may be permissible under the law and to contest the same.

(b) The appropriate authority shall consider the objections of the petitioner and take appropriate decision on the aforesaid show-cause notices in conformity with law as early as possible and communicate its result to the petitioner.

(c) If the order turns out to be adverse, the petitioner shall have freedom to pursue appropriate remedy against the same.

11. With the aforesaid directions, this petition is disposed of finally with no order as to costs.

12. The interim order of stay passed on 29-1-1991 and continued on 2-7-1992 is hereby vacated.

13. The security cost be refunded to the petitioner after due verification.

14. Certified copy to both the sides on usual charges.