1 Caw-1220-10 in WP No.1241 of 10 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1220 OF 2010 IN WRIT PETITION NO.1241 OF 2010 Refair Industries ..Petitioner Vs. The State of Maharashtra & Ors. ..Respondents Mr. Prakash Shah i/b PDS Legal for the Petitioner Mr. Kiran Gandhi i/b Little & Co. for Respondent No.5 & 7 Mr. A.A. Garge for Respondent No.6 CORAM :- V.C.DAGA & R.M.SAVANT,JJ. DATE :- 27th OCTOBER ,2010 P.C. 1 Perused Petition 2 Heard the Learned Counsel for the parties. 3 The present Petition is filed by M/s. Refair Industries, a member of the Small Scale Entrepreneurs Association (the Association), who had filed the Writ Petition before this Court being Writ Petition No.2787 of 2001, challenging the jurisdiction of the Navi Mumbai Municipal Corporation to impose cess on entry of goods. 4 The Learned Division Bench of this Court vide its Judgment and order dated 8-7-2010 turned down the challenge set up by the said 2 Caw-1220-10 in WP No.1241 of 10 Association. The rejection of the contentions raised by the Association are binding upon the Petitioner herein, since the Petitioner is one of the members of the said Small Scale Entrepreneurs Association. 5 Mr. Shah, Learned Counsel appearing for the Petitioner, during the course of hearing, submitted that against the said Judgment of the Learned Division Bench of this Court delivered in Writ Petition No.2787 of 2001, a Special Leave Petition has already been filed in Supreme Court. Leave has been granted and the same is pending for final hearing. 6 It is relevant to note that there is no stay to the Judgment of the Learned Division Bench of this Court delivered in the case of Association in Writ Petition No.2787 of 2001 as such the said Judgment is still holding the field and binding upon the Petitioner. 7 So far as the challenge to the order of assessment, levy of penalty and interest is concerned, the said challenge can very well be set up in the substantive appeal provided under the statute against the order of assessment via Section 406 of the BPMC Act. Similarly the issue relating to the alleged double recovery of cess is concerned, that can also be agitated in the substantive appeal provided under the Act. 8 The Learned Counsel for the Petitioner submitted that they may be permitted to amend the Petition so as to challenge the validity of the Rules levying of interest and penalty. At this stage, it is not necessary to grant leave to amend and permit the Petitioner to set up additional challenge so as to expand the scope of the Petition. If the Petitioner succeeds in the appeal 3 Caw-1220-10 in WP No.1241 of 10 against the assessment order, then the challenge to the Rules may not be required to be raised. Else, the vires of the Rules can always be set up in the event appellate order on merits is adverse to the Petitioner and the matter is repaired to be taken to the Higher Court. 9 In the above context, it is useful to refer to the order of the Apex Court in the case of Dilip Murlidhar Lohiya Vs Mohd. Azizul Haq and Anr. 1994 Mh.L.J.1334, wherein the challenge in the writ petition filed before the High Court was to the decree of the civil Court on merits as well as constitutional validity of the provisions of C.P. And and Berar Letting of Houses and Rent Control (Amendment) Order, 1989 dated 27th June, 1989 inserting clause 2(4A) and C.P. And Berar Letting of Premises and Rent Control Order (second Amendment) order 1989 dated 27th October, 1989 incorporating clause 13(A) thereof. In the Writ Petition, the petitioner had challenged the validity of the First and Second amendments in the Rent Control Order introduced by the State Government on the ground that the State Government had no power or authority to regulate letting or sub letting of open sites. By its judgment dated 23rd June,1992, the Division Bench of this Court had held that sub clause (a) of clause (4A) defining the expression “premises” inserted in the Principal Rent Control Order by para 4 of the C.P. and Berar Letting of Houses and Rent Control (Amendment) Order, 1989, published on 27th June, 1989 and clause 13A inserted in the Principal Rent Control Order by para 5 of the C.P. and Berar Letting of Premises and Rent Control (Second Amendment) Order, 1989 were ultra vires. The Division Bench held that since there was no power with 4 Caw-1220-10 in WP No.1241 of 10 the State Government under the C.P. and Berar Regulation of Letting of Accommodation Act,1946 (hereinafter referred to as “Accommodation Act”) to regulate letting or sub letting of open sites, clause 13A was also ultra vires. This judgment was challenged before the Supreme Court in Civil Appeal No. 3815 of 1993 and it was set aside by the Apex Court by order dated 13th April, 1994 (1994 Mh.L.J.1334 SC). It will be apt to reproduce the relevant portion of the order of the Supreme Court passed on 13th April, 1994 and the same is as follows : “Whether these two clauses would be applicable to a matter which are already fruitioned into a decree ought to have been decided first in our considered opinion, on the existing facts. The reason why we state so is, should these clauses be inapplicable to the facts of the present case, there would have been no occasion to deal with vires of sub clause a) of Clause 4(A) at all.” Emphasis supplied 10 The Apex Court with the above observations set aside the order of the High Court since the High Court had not considered the question on merits and went on to decide the vires of Clause 13(A). The Apex Court remanded the matter to the High Court with direction first to decide the question on merit and thereafter consider the question of the vires of those two clauses, if so warranted. 11 Following the above law laid down by the Apex Court, we are of the considered view that at this stage, we need not entertain prayer for amendment. At this stage, it is useful to refer the following decisions: “In Punjab National Bank V. O. C. Krishnan, this Court held (SCC P. 570, para 6) 5 Caw-1220-10 in WP No.1241 of 10 “6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.” In State of H.P. V Gujarat Ambuja Cement Ltd. this Court observed as under (SCC P. 515, para 17) “17. We shall first deal with the plea regarding alternative remedy as raised by the appellant State. Except for a period when Article 226 was amended by the Constitution (Forty- second Amendment)Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.” 12 In the result, the Petitions are dismissed keeping all rival contentions open with no order as to costs. 6 Caw-1220-10 in WP No.1241 of 10 13 In view of the above order, the Civil Application is disposed of with no order as to costs (R.M.SAVANT,J.) (V.C.DAGA,J.)