HC dismisses writ petition seeking prohibition to restrain recovery proceedings under Section 107

The HC dismissed a writ petition seeking prohibition to restrain recovery proceedings. The court held that prohibition writs are issued to prevent courts/tribunals from exceeding jurisdiction or acting without jurisdiction, typically before proceedings conclude. Since the appellate authority had already made a determination under Section 107, and the petitioner only sought to defer recovery without challenging the underlying orders or seeking adjudication of rights, the court found no basis for exercising discretionary jurisdiction. The petition was dismissed as the petitioner failed to examine their rights properly.

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Issues Involved:
1. Maintainability of the writ petition.
2. Issuance of a writ of prohibition.
3. Interim relief pending the constitution of the GST Tribunal.

Detailed Analysis:

1. Maintainability of the Writ Petition:

The primary issue raised by the Government Pleader concerned the maintainability of the writ petition. The argument was that the petitioner, without challenging the appellate authority's order, sought a writ of prohibition. The Government Pleader contended that no interim relief could be granted if it partakes a final character without a challenge to the appellate order in the writ petition. The petitioner's case was based on apprehension rather than seeking adjudication of rights, and thus, the writ petition should be dismissed. The Court noted that the petitioner had a statutory remedy under Section 112 of the GST Act, but the tribunal under this section was yet to be constituted.

2. Issuance of a Writ of Prohibition:

The Government Pleader argued that a writ of prohibition is supervisory and is issued to restrain courts or inferior tribunals from exercising jurisdiction they do not possess. It is not to correct the course, practice, or procedure of any inferior tribunal or a wrong decision on the merits. The Court noted that a writ of prohibition is issued to prevent excess of jurisdiction or absence of jurisdiction but not to correct errors in the final order once proceedings are concluded. The Court referred to the Supreme Court's decision in S. Govinda Menon v. Union of India, emphasizing that a writ of prohibition is issued to keep tribunals within their jurisdictional bounds.

3. Interim Relief Pending Constitution of GST Tribunal:

The petitioner argued that the appellate tribunal under Section 112 had not been constituted, preventing them from challenging the appellate authority's order. They referenced a Notification dated March 18, 2020, which extended the time limit for filing an appeal to the tribunal until the President or State President of the tribunal assumes office. The petitioner cited similar cases where courts had stayed recovery proceedings pending the constitution of the tribunal. The Court acknowledged the Notification and the petitioner's right to appeal but emphasized that the petitioner had not challenged the appellate authority's order in the writ petition. The Court also referenced the Supreme Court's decision in General Manager, Electrical Rengali Hydro Electric Project, Orissa & Ors. v. Giridhari Sahu & Ors., which distinguished between the issuance of writs of certiorari and prohibition.

The Court concluded that the petitioner had not come forward to examine their rights regarding the orders passed by the proper officer and the appellate authority. Therefore, the writ petition was not a fit case for exercising discretion in favor of the petitioner, especially when only deferring the recovery proceeding was sought without seeking adjudication of rights. The Court dismissed the writ petition without costs, noting that the judgments cited by the petitioner did not support deferring recovery proceedings indefinitely by issuing a writ of prohibition.

Conclusion:

The writ petition was dismissed as it was not maintainable without a challenge to the appellate authority's order. The Court emphasized that a writ of prohibition is supervisory and not intended to correct errors in final orders. The petitioner's right to appeal was acknowledged, but without challenging the appellate order, the Court could not grant interim relief.

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