Case BriefsForeign Courts

South Africa High Court, Eastern Cape Local Division, Port Elizabeth: G.H. Bloem, J. while dismissing the application suggested an alternative remedy to the applicant whereas an application for order could have been instituted to either review or set aside the respondent’s decision to declare or find its bid unsuccessful.

In the instant case the respondent, the Nelson Mandela Bay Municipality in need of attorneys had invited tender.

The applicant, a firm of attorneys, submitted a tender. But, could not succeed for the reason that they failed to submit proof of indemnity insurance.  The Municipality also advised that there is a remedy for the rejection. As per Section 52 of the Nelson Mandela Bay Municipality (NMBM) Supply Chain Management (SCM) Policy, a person can file a complaint within 14 days to the Accounting Officer.

Terming the rejection incorrect, the applicant objected to the SCM Policy. Saying, that the internal policies of the respondent are not in line with that of the Government i.e., Section 62(1) of the Municipal System Act, 2000.

Section 62(1): “A person whose rights are affected by a decision…written notice of the appeal and reasons to the municipal manager within 21 days…”

  1. Mullins SC, Counsel for the applicant sought an order that the respondent be compelled to resolve its written objection within two weeks from the date of the granting of the order that it sought. The Counsel’s submission relied on paragraphs 49 and 50 of the respondent’s supply chain management policy which stated that for resolution of disputes, objections, complaints and queries, the Accounting Officer must appoint an independent and impartial person.

After hearing the parties, the Court observed that the reliance placed on the aforesaid paragraphs by the appellant is misplaced. Those paragraphs do not give the applicant a right to claim that the respondent should resolve its written objection, as the relief sought suggests. The power of the independent and impartial person is limited to assisting the parties to resolve an objection.

A case was cited in reference to this. In Esda Properties (Pty) Ltd. v. Amathole District Municipality, [2014] ZAECGHC 76 (18 September 2014), an independent and impartial person was described as “a person with no decision-making powers … appointed to assist the parties to resolve their dispute, acting, it would appear, as a mediator or conciliator.” Therefore, the applicant had failed to demonstrate that it has a right to claim that the respondent should be directed to resolve its written objection. [AA Solwandle Attorneys Incorporated v. Nelson Mandela Bay Municipality, Case No. 1093 of 2019, decided on 25-09-2019]

Case BriefsHigh Courts

Jharkhand High Court: Sujit Narayan Prasad, J, dismissed the writ petition on the ground of availability of alternative remedy.

In the pertinent case, the petitioner moved to the High Court under Article 226 of the Constitution of India being aggrieved with the decision taken by the Ranchi Regional Development Authority (RRDA) of not sanctioning the map of the Building Construction Map vide Building Plan.

The counsel for the respondents raised the preliminary objection on the ground of availability of alternative remedy of appeal before the Tribunal stating that various factual aspect is to be adjudicated in this writ petition and as such, the same is fit to be appreciated by the Tribunal since the statute has created the remedy to file an appeal against the decision taken by the RRDA.

The Court held that it is evident that the petitioner is questioning the building map plan, on various ground and Court is of the considered view that although there is no absolute bar in entertaining the writ petition under Article 226 of the Constitution of India but where question of determination of the issues on factual aspect is involved, the writ Court should refrain from adjudicating the issues, if alternate remedy is available for adjudication of the issues after appreciating the factual aspect. Hence, the writ petition cannot be entertained on the ground of availability of the alternative remedy of appeal before the Tribunal of the RRDA is available.[Prakash Munjal v. State of Jharkhand, 2019 SCC OnLine Jhar 1153, decided on 06-09-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., dismissed a petition filed under Article 226 Constitution of India to direct the respondents to register an FIR on the basis of the complaint made by her.

The main question before the High Court to decide was ‘whether a writ petition under Article 226 of the Constitution of India for registration of the FIR is tenable or not?’

The Supreme Court in the case of Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 had held that the High Court in exercise of its power under Article 226 can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of the process as provided for in the Code. Even in cases where no action is taken by the police on the information given to them, the informant’s remedy would lie under Sections 190, 200 of CrPC, but a writ petition in such a case cannot be entertained.

Similarly, in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Supreme Court held that cases like these do not pertain to issue of entitlement to writ of mandamus for compelling the police to perform statutory duty under Section 154 CrPC without availing alternative remedy under Sections 154(3), 156(3), 190 and 200 of CrPC.

Therefore, the Court finally dismissed the petition as the petitioner still had an efficacious and alternative remedy of filing a criminal complaint before the Court of competent jurisdiction.[Mamta Prajapati v. State of Madhya Pradesh, 2019 SCC OnLine MP 2477, decided on 06-09-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Alok Kumar Verma, J. entertained a special appeal filed against the order of Single Judge in a writ petition where the petition was dismissed on the ground of alternative remedy.

Factual matrix of the case was that the appellant purchased timber from Uttarakhand Forest Development Corporation, under Section 3 of the U.P. Forest Development Corporation Act, 1974. It was contended by the appellant that the Corporation issued an invoice where both CGST and SGST were charged on the sale price of goods. It was further contended that the appellant paid the amount to the Corporation even before the goods were transported.

It was the appellant’s case that the Corporation should have raised two separate e-way bills for two separate consignments but had raised one e-way bill for the total amount on both the consignments. Further, the goods of the appellant were in transit, they were seized and, on the ground that only one e-way bill was issued instead of two, a penalty of Rs 1,70,688 was sought to be levied on the appellant-writ petitioner. Hence, it was contended that the penalty, if at all, should have been paid by the Corporation since the error in issuing one e-way bill instead of two was on their part and not on the part of the appellant. The Single Judge, however, dismissed the writ petition at the stage of admission relegating the appellant-writ petitioner to the remedy under Section 107 of the Central Goods and Services Tax Act, 2017. Hence the appellant found the special appeal appropriate for proper adjudication of the case.

The counsel for the appellant Piyush Garg, submitted that the proceedings under challenge was an order of detention of goods under Section 129 of the CGST Act; it was against the demand raised on detention of the goods, for payment of tax and penalty, that the writ jurisdiction of Court was invoked; tax had already been paid to the Corporation before the goods were even transported by the appellant; the remedy, under Section 107 of the CGST Act, was not efficacious since sub-section (6) of Section 107, which required 10% of the disputed amount to be paid, only provided for stay of payment of the remaining amount, and nothing more; the appellant was not able to take delivery of the seized goods from the second respondent since Section 107 of the CGST Act does not provide for such an eventuality; and the appellant had perforce to avail the remedy of invoking the jurisdiction of this Court under Article 226 of the Constitution of India.

The Law point discussed by the Court was that, Section 107 of the CGST Act related to Appeals to the Appellate Authority and, under sub-section (1) thereof, any person, aggrieved by any decision or order passed, under the CGST Act or the State Goods and Services Tax Act, by an adjudicating authority may appeal to such Appellate Authority. While an appeal, under Section 107 of the CGST Act, would lie to the Appellate Authority against any decision or order passed by an adjudicating authority, Section 2(4) of the CGST Act defines “adjudicating authority” in very broad terms. Under Section 2(4) of the CGST Act, an “adjudicating authority” has been defined to mean any authority, appointed or authorised to pass any order or decision under the Act, but not to include the authorities specified therein. Admittedly the Appellate Authority, under Section 107(1) of the CGST Act, was not one such. Since an appeal would lie against any order passed or decision taken by any authority appointed or authorized to pass any order or decision under the Act, it does appear that an order of detention can also be appealed against under Section 7(1) of the CGST Act.

Hence, the Court observed that there was no dispute regarding tax and it was the appellant’s case that the tax in its entirety had been paid to the Corporation which, in turn, was obligated to remit the said amount to the State Tax Department. Since the appellant-writ petitioner disputed levy of penalty in its entirety, they would, in terms of Section 107(6) of the CGST Act, were only required to deposit 10% of such penalty. That did not, however, solved the problem which the appellant faced i.e. for release of the goods detained by the respondent-authorities. If, on the other hand, he were to comply with the demand notice issued under Section 129(1) of the CGST Act then, in terms of Section 129(5) of the CGST Act, on payment of the amount referred to in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded, in which event the goods were to be released. Hence, the Court ordered the amount to be refunded to the appellant.[Agarwal Timber Suppliers v. State of Uttarakhand, 2019 SCC OnLine Utt 730, decided on 06-08-2109]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Alok Singh and N.S. Dhanik, JJ. dismissed a writ petition filed by the 66-year-old petitioner, who sought mandamus against respondent authority to provide police protection to her as respondents threatened her.

The petitioner contended that her estranged son and daughter-in-law were disowned by the husband of the petitioner from all the movable and immovable properties by way of public notice. She further alleged that she had an apprehension of being killed by the respondents.

The Deputy Advocate General for the State argued that the present petition was not maintainable before this Court, in as much as the petitioner had efficacious and alternative remedy; and in view of the law laid down by the Supreme Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and Lata Singh v. State of U.P., (2006) 5 SCC 475, the petitioner cannot be granted police protection because she had an efficacious and alternative remedy. It was further contended that the petitioner should have registered an FIR if she apprehended any sort of threat to her life. The counsel submitted that the petitioner may approach the Superintendent of Police under Section 154(3) CrPC by an application in writing; even if that did not give any satisfactory result in the sense that either the FIR was not registered, or that even after registering it no proper investigation was held, it was open to the petitioner to file an application under Section 156 (3) CrPC before the Magistrate concerned. If an application under Section 156(3) CrPC was filed before the Magistrate, the Magistrate would direct the FIR to be registered and also a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made.

The Court held that, it was not a case where the Senior Superintendent of Police concerned had to be directed to provide necessary protection to the petitioner and the petitioner was not permitted to abandon or bypass that remedy and invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, when she had an efficacious and adequate remedy open to her.[Sahjahan Begum v. State of Uttarakhand, 2019 SCC OnLine Utt 567, decided on 08-07-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Madhuresh Prasad, J., allowed the writ petition which was filed against the act of arbitrary stoppage of the salary of the panchayat teachers.

The facts of the case are that petitioners were appointed as panchayat teachers in the year 2010 and they continued till April 2017. From the month of May, 2017 their salary had been arbitrarily stopped without issuing any order in respect thereof.

The respondents asserted that the petitioners’ degrees of integrated course from Central Board of Higher Education, New Delhi were not recognized in view of the letter issued by the Principal Secretary and as such the very appointment of the petitioners as panchayat teacher was bad.

The Court held that there was nothing in the counter affidavit to show that prior to withholding of such salary/stoppage of salary with effect from May, 2017 the petitioners were ever afforded any opportunity of being heard in the matter. It is trite law that when an order is violative of the principles of natural justice, the plea of alternative remedy would not be a bar to exercise of jurisdiction under Article 226 of the Constitution of India in such matter.

The Court observed that whether the petitioner’s degree obtained in 2010 on basis of which petitioners were appointed as panchayat teacher was recognized or not was an issue which was required to be looked into by the authority before inflicting such harsh penal consequence.[Kanchan Kumari v. State of Bihar, 2018 SCC OnLine Pat 2293, Decided on 06-12-2018]

Case BriefsHigh Courts

Meghalaya High Court: This petition was filed before a Single Judge Bench comprising of Mohammad Yaqoob Mir, CJ, under Article 227 of the Constitution of India.

Facts of the case were that an application was filed by the petitioner before the Trial Court seeking interim relief. An ex parte interim relief was granted directing status quo regarding subject matter to be maintained. Respondent submitted the existence of two title suits. It was submitted before Trial Court that preliminary decree was still operative not challenged by anyone and suit property was the same. Court observed that interim order cannot be extended beyond the date already mentioned by the court. Petitioner was aggrieved by the above order and thus filed petition before the High Court where petition’s maintainability was challenged as the petitioner had two alternate remedies available i.e. application for modification of interim relief under O. 39 R. 4 CPC and the second to file an appeal under O. 43 CPC. Respondent relied on the case of State Bank of Travancore v. Mathew K.C. (2018) 3 SCC 85 where it was observed that relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person.

High Court was of the view that respondents have not yet filed objections before the court. After the respondent file their objection the trial court ought to hear both parties in few weeks and then decide the matter. The petition was thus dismissed. [Md. Saquib v. Md. Ilyas,2018 SCC OnLine Megh 177, order dated 28-09-2018]