2024 (8) TMI 381 - HC - GST

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 ... Maintainability of writ petition - issuance of writ of prohibition - Whether this Court can exercise its jurisdiction to grant relief to the petitioner by issuance of a writ in the nature of prohibition notwithstanding, the writ petitioner not challenging the orders which he claims to have been passed erroneously? HELD THAT:- It would transpire that ordinarily a writ of prohibition is issued for exercising supervisory jurisdiction with an object to restrain courts or inferior tribunal from exercising a jurisdiction which they do not possess at all or to prevent them from exceeding the limits of their jurisdiction. In other words, to keep such courts/tribunals within their bounds. To emphasize the scope and jurisdiction as regards exercise of power to correct a final order passed by an inferior tribunal and the scope and exercise of jurisdiction to correct errors of jurisdiction committed by inferior courts and Tribunals, the learned Government pleader has placed reliance in the case of GENERAL MANAGER, ELECTRICAL RENGALI HYDRO ELECTRIC PROJECT, ORISSA AND ORS. VERSUS GIRIDHARI SAHU AND ORS. [2019 (9) TMI 1696 - SUPREME COURT]. It appears that the Hon’ble Supreme Court after consideration of several authorities on the subject, including the case of SYED YAKOOB VERSUS KS. RADHAKRISHNAN [1963 (10) TMI 26 - SUPREME COURT] had categorically identified the jurisdiction to issue a writ of certiorari and a writ of prohibition, and it is in that context the Hon’ble Supreme Court held 'The High Court gave a further opportunity to the Appellate Tribunal to consider the claim of the first respondent. Though the High Court quashed the order of the Tribunal, the observation in the judgment clearly shows that the Tribunal could reconsider the matter. Indeed, learned counsel for the first respondent conceded that fact.' Though, both the writ of certiorari and prohibition may be issued for correcting errors of jurisdiction, however, a writ of certiorari is intended to correct a jurisdictional excess once, a decision is rendered, on the other hand a writ of prohibition could be issued while the Tribunal or Authority is yet to conclude the proceeding. Having regard thereto, it becomes explicitly clear that in the given facts wherein a determination has already been made by the appellate authority under Section 107 of the said Act, there may be little scope for exercise of jurisdiction by issuance of writ in the nature of prohibition. This is not a fit case for exercising discretion in favour of the petitioner, especially when the petitioner only insists for deferring the recovery proceeding without the petitioner seeking adjudication of its rights. The petitioner having not come forward to examine his rights, the writ petition fails and is accordingly dismissed. 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.