HC Cannot Disregard Statutory Limitation Period To Entertain Writ Petition Challenging Order Passed By Statutory Authority: SC [Read Judgment]

The Supreme Court has observed that a High Court cannot disregard the statutory limitation period to entertain writ petition assailing orders passed by statutory authorities which were not appealed against before the expiry of the maximum limitation period.

In this case, the dealer against whom an assessment order under the provisions of Andhra Pradesh Value Added Tax Act, 2005 was passed, did not file an appeal against it within the statutory period. After the expiry of 60 days, an appeal was filed and the same was dismissed on the ground that it is barred by limitation and also because no sufficient cause was made out. The dealer, thereafter filed a writ petition, which was allowed by the High Court on the ground that the statutory remedy had become ineffective for the (writ petitioner) due to expiry of 60 days from the date of service of the assessment order.

As per the Act, the statutory appeal is required to be filed within 30 days from the date on which the order or proceeding was served on the assessee. If the appeal is filed after expiry of prescribed period, the appellate authority is empowered to condone the delay in filing the appeal, only if it is filed within a further period of not exceeding 30 days and sufficient cause for not preferring the appeal within prescribed time is made out. The appellate authority is not empowered to condone delay beyond the aggregate period of 60 days from the date of order or service of proceeding on the assessee, as the case may be.

Therefore, the issue before the Apex Court in the appeal filed by Revenue 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 Court referred to various earlier judgments and noted the following observations made therein:

• As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. 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.
• Although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person.
• Where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of.
• The constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact 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.

Article 226 Not Wider Than Article 142

Referring to recent judgment in Oil and Natural Gas Corporation Limited vs. Gujarat Energy Transmission Corporation Limited & Ors in which the Court had refused to condone delay by taking recourse to Article 142 of the Constitution, the bench comprising of Justices AM Khanwilkar and Dinesh Maheshwari observed:

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 this Court under Article 142 of the Constitution. Article 142 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties. Even while exercising that power, this Court is required to bear in mind the legislative intent and not to render the statutory provision otiose…
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 18 (2016) 1 SCC 315 32 reference to Article 226 of the Constitution.

Allowing the appeal, the Court further said:

"In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without jurisdiction or passed in excess of jurisdiction ­ by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also non­suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner chooses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose."

The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act 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. 

Case no.: CIVIL APPEAL NO. 2413/20204
Case name: Assistant Commissioner (CT) LTU, Kakinada vs. M/s. Glaxo Smith Kline Consumer Health Care Limited 
Coram: Justices AM Khanwilkar and Dinesh Maheshwari
Counsel: Advocates G.N. Reddy,V. Lakshmikumaran 

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