Though the Hon’ble Apex Court of the country as well as the English Courts and Privy Council settled the issue long back, still very often a question arises frequently on account of certain misconceptions on the proposition of law arising out of certain judgements of the higher courts in the context of a particular issue that crops up for explanation and interpretation. The foundation for this interesting topic to pen by me is the cause and judicial impact assessment throughout the country on account of a recent decision of Two Judge Bench of the Hon’ble Apex Court, in which certain decisions were referred to, not apposite to the issue involved therein.
A writ court inclusive definition which inter-alia includes the Hon’ble Supreme Court also. Under the Scheme of Indian Constitution that came into force from 01-06-1950, writ jurisdiction has been conferred on the Hon’ble Supreme Court under article 32 and special leave jurisdiction was conferred in terms of article 136 as well article 142 conferring plenary power on the supreme court to do complete justice to the parties to the proceedings, whereas the writ jurisdiction on the High Courts in the country, is conferred under article 226, while power of superintendence over the subordinate judicial courts within the territorial jurisdiction of the concerned High Courts, is conferred in terms of article 227 of the Constitution of India. It is in this connection necessary to state that before the commencement of the Constitution in the country during the regime of law in British Rule, Prerogative writs were used to be issued by three Chartered High Courts in our country namely Madras High Court, Bombay High Court and Kolkata High Courts and other High Courts were not empowered with the jurisdiction to issue writs. There is a kind of difference in the administration of justice between England and India, for, in England there is a kings court but a Court of that stature is not seen in our country. After the commencement of the Constitution in our country, the writ jurisdiction it is conferred and extended on all the High Courts in the country. Since there is the Supreme Court in our country as the Apex Court, which, in terms of article 141 of the Constitution of India commanded that the law laid down by the Supreme Court is the law of the country which shall indisputably bind on all the lower courts, Tribunals, appellate authorities and authorities in the country when a particular proposition of law is stated in explanation and interpretation of a provision of any law.
As is known to everyone that the prerogative writs that would be issued by the Hon’ble Apex Court or High Courts are Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo- Warranto. Of course at this point of time, the details or the circumstances under which a particular writ is to be issued is not being dealt with by me as it is hardly relevant.
It is a matter of no dispute and a well accepted concept that the constitution is the supreme for the country if any compliance with or in furtherance of the certain golden principles and precepts concerning fundamental rights in Part-III and interstate relations, establishment of supreme court and High Courts and other courts, legislative functions and limitation on the powers of the executive, interstate trade and commerce and the Constitutional embargo on levy and collection of taxes and the schedules to the constitution especially VII Schedule providing for the legislative fields, demarcated for legislation by the parliament as well as the State legislatures with limitation and restrictions imposed thereunder and it is a well settled principle that every law enacted either by the parliament or the State legislature shall be within the contours of the directions and guidelines envisaged in the constitution and every law shall yield to the constitution thereby indicating that the law made by the competent legislature is inferior to the dictum of the constitution.
In a recent decision rendered by a Two Judge Bench of the Hon’ble Supreme Court on 06-05-2020 in Civil Appeal No. 2413/2020 in a case arising out of the order of the erstwhile High Court for the States of Telangana and Andhra Pradesh in a writ petition No. 39418/2018 filed by an assessee namely M/s. Glaxo smith Kline Consumer Healthcare Ltd., seeking cancellation of the assessment order with a consequential relief of remittal of the matter to the assessing authority for the purpose of an opportunity whereafter the assessment is to be made afresh and the cause for filing writ petition was that the period of limitation set out in the State legislative Act namely A.P. Value Added Tax 2005 was over and the reason given for belated filing of the appeal by the Company is that the concerned officer looking after the financial and taxation matters failed to bring the order of assessment to the knowledge of the company even after receipt of the assessment order, without the knowledge of the company even after receipt of the assessment order a required predeposit @ 12.5% of tax was paid that too after limitation prescribed for the appeal, whereafter in order to cover up the irregularities and deficiencies, an application under Rule 14A(10) of the CST Rules r/w Rule 60 of the State law of course within the time limit was filed before the same assessing authority which came to be rejected, against which an appeal was filed and in ultimate analysis, the said appeal also came to be rejected. Challenging these factual aspects not within the information and knowledge of the management of the company finally writ petition was advised to be filed in the High Court.
As is discernible, the writ petition was filed after efflux of time prescribed under the statute for filing appeals. The appeal filed against the assessment order long after expiry of limitation was dismissed as to admission. The writ court issued notice and directed payment of one more set of 12.5% of the disputed tax which direction was of course complied with, whereafter the writ petition was allowed setting aside the assessment order under challenge and matter was remitted to the assessing authority to consider the submissions of the assessee Petitioner and also to give an opportunity of hearing ultimately culminating in framing of fresh assessment. The writ petition No. 39418/2018 was ultimately disposed of on 19-11-2018.
The order of the High Court mentioned supra was assailed in Special Leave Petition by the State Government questioning the jurisdiction of the High Court to entertain the writ petition, obviously after expiry of the period of imitation prescribed for filing of appeals and that too to set aside the assessment order dated 21-06-2017 for the tax period 2013-14 under CST Act 1956 being contrary to law , without jurisdiction and in violation of the principles of natural justice to the extent of levy on the branch turnover. The Hon’ble Apex Court admitted the case and finally allowed the appeal filed by the Government dismissing the writ petition ordered by the High Court by placing reliance on few case laws. On consideration of the facts by the High Court, the Apex Court had completely difered and taken a different and variant view. The judgement of the Full Court of the High Court in ECIL Vs. Union of India & Ors reported in 2018(361) ELT 22(AP) was also commented upon as a faulty decision.
In this connection nothing is being stated against the view of the Hon’ble Supreme Court in relation to the disputed facts that were stated to have been considered by the High Court. The whole endeavour of this article is to demonstrate whether the provisions of the statute law would override or supercede the constitutional provisions or for that matter an appellate or revisional jurisdiction under a statute is to be regarded on par with or equal to the constitutional power invested in the courts. In the process of decision making, reliance was placed by the Hon’ble Supreme Court to a handful of judgements reported in AIR 1969 SC 556 in the case of Babu Ram Prakash Chandramaheswari, (2011) 14 SCC 337 in the case of Nivedita Sharma and AIR 1964 SC 1419 in the case of Thansing Nathmal for the proposition for which there was no quarrel as to the exercise of the discretionary power by a High Court under article 226 which is not automatic or routine but the writ jurisdiction is to be exercised very sparingly only in exceptional cases where there is patent error inhering lack of jurisdiction, authority, exercise of excessive jurisdiction or exercise of jurisdiction not conferred and violation of the principles of natural justice. Therefore a century ago, the courts in the world have categorically laid down the Golden principle that the courts shall impose a self restraint and discipline in entertaining the writ petitions and exercise of the discretionary power especially in cases where remedy is provided under the concerned or relevant statute law. Nevertheless, the consistent view of the judiciary throughout is that remedy of appeal under a statute is not a bar on exercise of the writ jurisdiction by the High Court. To this extent, there is no quarrel. However a reference was also made to the judgements of Hon’ble Supreme Court in ONGC Vs. Gujarat Energy Transmission Corporation reported in (2017) 5 SCC 42 Singh Enterprises Vs. Commissioner of Central Excise in (2008) 3 SCC 70, Chattisgarh State Electricity Board reported in (2010) 5 SCC 23 and Suryachakra Power Transmission Corporation Limited in (2016) 16 SCC 152, Union Carbide Corporation reported in (1991) 4 SCC 584 in which the whole discussion revolved around was on the plenary powers of the Supreme Court under article 142 and the Full Bench judgement of the A.P. High Court in ECIL case that was rendered adopting the Full Bench judgement of the Gujarat High Court in AIR 2015 Guj. 197 as also a judgement of the Karnataka High Court in 2013 (298) ELT 481 (Kar) for holding that the judgements of the Three High Courts as faulty.
Before giving my view as to the logic and rationale to hold that the full Bench judgement of A.P. High Court and Gujarat High Court and the judgement of the Division Bench of Karnataka High Court to be branded as faulty, it is to be respectfully stated that there the concerned courts concentrated on a sole aspect that is when there is no remedy under any law, where the order under challenge suffers from the lack of jurisdiction or authority or was in violation of the principles of natural justice, the writ jurisdiction by the writ court can be exercised.
To reach such a conclusion, the judgements show that the order in original under Central Excise or Customs or Service Tax Law ultimately came to be challenged in a writ petition was never examined or adjudicated on merits in any appeal provisions under the statute as the statutory remedy of appeal whether it is first or second or revision or for that matter the appeal to the High Court or the Supreme Court as the case may be, was throughout at threshold due to the statutory limitation in relation to condonation of the delay in presenting the remedy under the statute even for whatever best, sufficient satisfactory and acceptable reasons for excusing the delay negated. The consistent view of the Hon’ble Apex Court in various decisions including Singh Enterprises, ONGC, Suryachakra Power Transmission Corporation and other cases, the core issue was whether the High Court or Supreme Court as an appellate authority under the statute can take upon itself the act of power of enlargement of the limitation period which was specifically prescribed under that law and the consistent view definitely rightly was in negative as a creature under the statute, the Courts were acting or functioning as an appellate or revisional authorities, to focus that no constitutional provision namely article 226 or 32 of the Constitution of India is invoked by the courts while dealing with the remedial provisions under the Statute.
Now what remains to see is whether the statute law placing a limitation on the power of the appellate authorities for condoning the delay would whittle down the conferment of a special power on the constitutional courts in terms of article 32 on the supreme court and 226 on the High Courts ?. The consistent view taken by the Hon’ble Apex Court in various decisions in Suryadev Rai reported in AIR 2003 SC 3044 and another judgement of Hon’ble Apex Court in Radheshyam and another in (2015) 5 SCC 423, Salem Advocates Bar Association, Tamil Nadu in AIR 2005 SC 3353 and the decision in Mahendra Saree Emporium in AIR 2004 SC 4294 and these decisions in other words followed the earlier judgements of the Constitutional Benches of the Supreme Court in AIR 1954 SC 440 in T.C. Basappa, AIR 1954 SC 520 in Durga Shankar Mehta and AIR 1987 SC 386 in the case of S.P. Sampath Kumar. It is for the purpose of this article to reiterate that the statutory limitation does not infringe or whittle down or supersede the constitutional provisions. A short narration is required on the judgement of the Supreme Court in Surya Dev Rai reported in AIR 2003 SC 3044. In the said report in para 34 where the effect of amendment made to CPC in 1999 in section 115 of the CPC which provided inter-alia for revision to the High Court against orders of the lower courts on interlocutory applications pending the suits was examined and following a catena of decisions, the Hon’ble Supreme Court clearly held that curtailment of revisonal jurisdiction under CPC of the High Court does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor power of the superintendence conferred on the High Court under article 227 of Constitution of India is taken away or whittled down. The power exists untrammeled by the amendment in section 115 and is available to be exercised subject to rules of self discipline. Thus the Division Bench of the Supreme Court summarized the discussions and concluded in para 38 interdicting that amendment by Act 46 of 1999 w.e.f. 01-07-2002 in section 115 of the CPC cannot and does not effect in any manner the jurisdiction of the High Court under articles 226 and 227 of the Constitution of India. However the only conclusion reached by the Division Bench in the said judgement is that writ of certiorari can be issued to civil courts was considered by the judiciary as not agreeable as no writ would lie to a civil court and any relief if so warranted, could be issued by the High Court in exercise of its power of superintendence under article 227 of the Constitution. Accordingly on that aspect only the decision in Surya Dev Rai case was referred to a larger bench and the Supreme Court in the case of Radheshyam and another in (2015) 5 SCC 423 while reiterating the proposition as to non curtailment or whittling down of the constitutional power on the High Court or Supreme Court would not require any interference but the observation of the Division Bench in Surya Dev Rai case that a writ of Certiorari would lie to the civil court was disapproved and it was held that none of the writs including writ of certiorari could be issued to the civil courts. Therefore the Apex Court in subsequent decisions also in the case of Mahendra Saree Emporium in AIR 2004 SC 4289 at page 4294 referring to the earlier judgemetns held that article 136 of constitution confers on the supreme court special or residuary powers which are exercisable outside the purview of the ordinary law. It was also by a reference to the decision in Durga Sankar Mehta case observed that section 105 of R.P. Act 1951 gives finality to the decision of the election tribunal which would have effect of giving finality so far as that Act is concerned and the fact that it does not provide for any further appeal, cannot cut down or override the powers of the constitutional courts. It was also held that the constitutional jurisdiction conferred cannot be limited or taken away by any legislation subordinate to the constitution.
In (2010) 8 SCC 329, a Division Bench of the Supreme Court in para 49 on analysis of various divisions held that a petition under article 226 of the constitution is different from petition under article 227. It may be true that a statutory amendment of a rather cognate provision like section 115 of C.P.C by CPC amendment Act 1999 does not and cannot cut down the ambit of High Courts power. Right of remedy in the name of appeal or revision is provided in a general or a special law and the authority under the statute including the High Court or the Supreme Court as the case may be while exercising the powers under the statute law have to follow the limitations placed therein while discharging the functions as appellate or revisional authorities because while acting as an appellate authority or revisional authority, the court concerned would not look at either article 32 or 226 of the constitution or for that matter under article 227. Therefore the Apex Court in ONGC and Chattisgardh Electricity Board or for that matter Surya Chankra Power Transmis Corporation rightly held that the limitations placed on the appellate or revisional authorities on a particular statute namely electricity Act or Consumer Protection Act or Service Tax law or Central Excise and Customs Acts. Thus the catena of decisions in line clearly distinguished drawing a line in between appellate or revisional jurisdiction under statute law and constitutional jurisdiction and power under article 226 or 32 of the constitution of India cannot be looked at as complementary to one another and one cannot go hand in glove with other. On account of the limitation placed on appellate or revisional authority under a statute law deprived a citizen from having a decision on merits cannot once for all be thrown out or deprived of the remedy under the provisions of the constitution of India. Therefore appellate tribunal , authority or court as the case may be is different and distinct from a constitutional court so far as it exercises the jurisdiction and power conferred by the constitution. Appeal provisions under statute are not superior to the constitution. The finality on account of rejection of appeal or revision by efflux of period of limitation is only relatable to remedial provisions under that Act is concerned and it cannot be gain said that the merits of the case have been settled or adjudicated with the rejection of admission of the appeal to say that there is a finality as to the merits. Rejection of appeal for admission cannot and shall not amount to resulting in finality to an order in the eye of the constitution. Therefore in application of the various judgements of the constitutional benches and larger benches of the supreme Court as stated above, the full benches of Gujarat High Court in Panoli case, A.P. High Court in ECIL and Division Bench of Karnataka High Court have correctly taken a right view so as to see that the citizen is left with no remedy when such citizen is thrown out at the threshold under a statue law of course in terms of the rigors laiddown by the Hon’ble Supreme Court it was held that the exercise of writ jurisdiction is only in exceptional circumstances. Therefore it may not be proper on the part of the supreme court to say that simply because appeal was dismissed on admission, writ petition cannot be resorted to, because of the expiry of time limit for filing an appeal under the statute. As already enunciated by the Supreme Court , a writ court is independent and in a writ petition, court would be competent to deal with the aspect of the legality or otherwise of the decision making process by an authority, Tribunal, or forum which would effect the civil rights of the concerned aggrieved person and it was also held that in a writ jurisdiction , the High Court would not act as an appellate authority to examine the disputed factual aspects like an appellate authority or for that matter it would not sit in appeal against the order under challenge and finally court would not revisit or reappreicate or appraise the evidence. Therefore what follows from the principles laid down since times immemorial is that writ court is not an appellate authority and such provisions under statute as applicable to the appellate authority or revisional authority will not overstep or overturn on the conferment of the constitutional power. Therefore it is one thing to say that High Court cannot entertain any writ petition under article 226 against an order or decision of a subordinate authority after efflux of time prescribed by the remedy of appeal under the statute or to say in other words that the writ petition shall also be filed within the time set out in the statue for availment of the remedy of appeal under the Statue and such a view on the part of any court would only amount to supply of cassus omissus into article 226 of the Constitution and as such, the view emerging from the decisions of the court cannot be allowed to tinker with the language employed in the constitutional provisions. Therefore if a legitimate , genuine and satisfactory case is made out in a given case , it is no doubt obvious that the constitutional High Court would be competent within its powers to entertain the writ petition and decide on merits without having any relation to or connectivity to the limitation period prescribed under the statute for availment of the remedy of appeal. Of course, I am not for a moment suggesting for an unreasonable enlarged time for invoking the court jurisdiction after passing of a long time. Therefore within a reasonable time, the High Court in a writ petition can step in and do justice. What would be reasonable time again would always depend upon the context and the facts and surrounding circumstances and it may not be possible to formulate a straight jacket formula as a citizen would not gain anything by belated filing except under certain forbidden circumstances.
Thus as held by the Apex Court in a plethora of decisions , it is well settled that statute law for any purpose is always subordinate to the constitution of India which is supreme and a cut above and there shall be no doubt that statute law is not superior to the constitution.
Therefore the High Court in the country having been conferred with the jurisdiction and power under article 226 for issuing prerogative writs and its powers as rightly held cannot be taken away or whittled down by any statute law. Of course this considered view now spelt on the basis of the catena of decisions of the Supreme Court may not come to the rescue of the ill-fated Petitioner / appellant in a given case but I can only state that despite efflux of time for filing appeal and despite rejection of the appeal at admission without adjudication on merits , there would not be any finality attached to the order under challenge though there may be finality attached to the availment of the remedy under the Act and the citizen / tax payer or a person would be at liberty to invoke jurisdiction of the High Court in a writ petition to canvas its case of course on limited grounds without any effort for discussion or decision on factual aspects or appreciation or appraisal of the evidence. One must appreciate that the whole object of the Part –III provisions of the constitution is to see that no citizen or no person is left without any remedy and one should not be left with in complete despair and dismay as to its future especially in fiscal matters as tax is extracted without the will of the tax payer and it is also a known fact that either remedy of appeal or writ jurisdiction would only centre around disputed levies or high pitched demands without any nexus, ratioinale , logic and ultimately on surmises and wild guess.
The decision under consideration in my article is of two judges bench whereas the line of judgements of the Apex Court were rendered by Larger Benches of 3-Learend Judges, 5-Learend Judges, 7-Learend Judges and so on and so forth. Therefore as the judicial propriety demands in view of the fact a intriguing question of law involved, the matter ought to have been referred to a larger bench. Of course, it would consume a lot of time for revisit of this decision of 06-05-2020 in an appropriate case in future. I also humbly feel that a glance to the provisions of the concerned fiscal law that is APVAT Act 2005 which inter-alia prohibited recourse to institution of a civil suit against an order of assessment or order of appellate authority vide section 65. Thus had been the said section of the Act placed before the Hon’ble Court hopefully in all probability, the Hon’ble Court should have remitted the matter to the High Court for the purpose of examining the grounds taken in the writ petition as to want of authority or jurisdiction and also to what extent there was violation of the principles of natural justice.
I shall not be understood to have entered into any conflict or controversy with the decision considered in this article, for, it is for academic interest and debate and my attempt is only to analyze the true and correct position of law with my rich experience at the bar in constitutional branch of law with specialization to place only the right and correct information to the knowledge and benefit of one and all in legal fraternity.