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Writ Petition is not maintainable, in alternate to appeal which stands time barred: SC

The SC on May 6, 2020 {Assistant Commissioner (CT) LTU, Kakinada & Ors. v. M/s. Glaxo Smith Kline Consumer Health Care Limited} held that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.

It was further held by the SC Bench, comprising of Justice A.M. Khanwilkar & Justice Dinesh Maheshwari, that even though the High Court can entertain   a   writ   petition   against   any   order   or   direction passed / action   taken   by   the   State   under   Article   226   of   the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law.

The Supreme Court held that, indubitably, the powers of the High Court under Article 226 of the Constitution are wide, but certainly not wider than the plenary powers bestowed on it under Article 142 of the Constitution. It was held that Article 142 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties.

The   moot   question in this lis before the SC was: whether   the   High   Court   in   exercise   of   its   writ jurisdiction under Article 226 of the Constitution of India ought to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation? The SC answered it in negative.

In the present case, the High Court allowed the writ petition vide the impugned judgment and order on the ground that the statutory remedy had become ineffective for the respondent (writ petitioner) due   to   expiry   of   60   days   from   the   date   of   service   of   the assessment order. It was reasoned by the HC while allowing the writ petition that inasmuch as, the appellate authority had no jurisdiction to condone the delay after expiry of 60 days, despite the   reason   mentioned   by   the   respondent   of   an   extraordinary situation   due to   the   act   of   commission   and   omission   of   its employee   who   was   in   charge   of   the   tax   matters,   forcing   the management   to   suspend   him   and   initiate   disciplinary proceedings against him. The SC found the said reasoning of the HC for entertaining writ petition patently erroneous and against the settled law.

The SC relied upon Oil   and   Natural   Gas Corporation   Limited   vs.   Gujarat   Energy   Transmission Corporation Limited & Ors., (2017) 5 SCC 42, in which it concluded that Section 5 of the Limitation Act, 1963 cannot be invoked   by   the   Court   for   maintaining   an   appeal   beyond maximum prescribed period in Section 125 of the Electricity Act. To   put   it   in   a   different   way, it was held by the SC in that case, the prescription of limitation  when   the   statute   commands   that   the  SC  may condone   the   further   delay   not   beyond   60   days,   it would   come   within   the   ambit   and   sweep   of   the provisions and policy of legislation. It was held that it is equivalent to Section   3   of   the   Limitation   Act.   Therefore, it was held therein that it is uncondonable   and   it   cannot   be   condoned   taking recourse to Article 142 of the Constitution.

Similarly, the SC earlier in State   vs. Mushtaq   Ahmad & Ors., (2016) 1 SCC 315, opined that where minimum sentence is provided for an offence then   no   Court   can   impose   lesser   punishment  on   ground   of mitigating factors.

A priori, the SC in present case held that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High   Court   can   take  a   different   approach   in   the   matter   in reference   to   Article   226   of   the   Constitution. The Court held that the   principle underlying the rejection of such argument by the SC would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution.

The SC held that remedy of appeal is creature of statute. It was held that if the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the Andhra Pradesh Value Added Tax Act, 2005 and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such. It was held that it is well settled that rejection of delay application by the appellate forum does not entail in merger of the assessment order with that order.

The Court held that taking any view of the matter, the High Court ought not to have entertained the subject writ petition filed by the respondent herein. Accordingly, the SC allowed the appeal and set aside the impugned judgment and order passed by the High Court and dismissed the writ petition.  

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