The Hindu Business Line : Significance of court supervisory powers

A writ petition cannot generally be entertained at the show-cause notice stage unless an exceptional case is made out, for instance, that the approach of the authority is erroneous in law. The court can only consider whether an action is valid; it cannot consider the sufficiency or correctness of the material relied upon by the assessing authority. Similarly, the High Court will not investigate sufficiency of reasons for an action in a writ petition. H. P. Ranina on court's supervisory po wers.

WHILE adequate remedies are available against orders issued by tax authorities through a mechanism of appellate proceedings, it is the right of every citizen to insist that no unlawful and unauthorised action should be taken against him. If any such illegal encroachment is attempted, he can always invoke the aid of the court by resorting to Article 226 of the Constitution.

Under Article 226, the High Court has the power to issue not only writs of certiorari, prohibition and mandamus, but also other writs, directions and orders. In other words, even if the case is one in which a high prerogative writ cannot be issued, the High Court has jurisdiction to issue such directions and orders as may be necessary to meet the ends of justice, in respect of both administrative action and judicial or quasi-judicial action.

Similar powers to issue writs, directions and orders are conferred on the Supreme Court under Article 32 of the Constitution, but they are restricted to the enforcement of Fundamental Rights. The fact that an inappropriate writ has been asked for is not a ground for refusing to grant appropriate relief. Section 293 of the Income-tax Act cannot override Articles 32 or 226. Therefore, in appropriate cases writs, directions or orders under Article 32 or 226 may be issued even in respect of something `in good faith done or intended to be done under the Act'.

The question of constitutional validity or vires of a provision of the Act has been held by the Supreme Court to be outside the jurisdiction of authorities appointed under the Act. Hence, such question can be decided only in a suit or a writ petition.

A writ will be issued by the court where the impugned order is patently erroneous. Where the defect of jurisdiction is apparent on the face of the proceedings, or there is an abuse of power, a writ of prohibition or other appropriate writ or order will be issued despite some delay in filing the petition or the existence of an alternative remedy, for instance, the right of appeal.

In T. Prem Sagar versus Standard Vacuum Oil Company, Madras (AIR 1965 SC 111), the Supreme Court held that if the order of a Commissioner is found to contain an error of law apparent on the face of the record, a High Court would be justified in issuing a writ.

In Syed Yakoob versus K. S. Radhakrishnan (AIR 1964 SC 477), the Supreme Court held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction.

A writ can similarly be issued where in exercise of jurisdiction conferred on it, the court or tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice.

There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law, which is apparent on the face of the record, can be corrected by a writ, but not an error of fact, however grave it may appear to be.

In regard to a finding of fact recorded by the tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit material evidence, or had erroneously admitted inadmissible evidence, which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded an error of law which can be corrected by a writ of certiorari.

In Nagendra Nath Bora versus The Commissioner of Hills Division and Appeals, Assam (1958 SCR 1240), the Supreme Court reiterated that an error of law apparent on the face of the record would attract a writ jurisdiction of a High Court.

In SitaRam Sugar Co. Ltd. v UOI (AIR 1990 SC 1277), the apex court held that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.

In Ashok Kumar v Sita Ram (2004; 4 SCC 478), the Supreme Court held that if an order suffers from a manifest error it would have to be corrected by exercise of writ jurisdiction. The reason is that if it is allowed to stand it would amount to perpetuation of great injustice.

In Dwarkanath versus ITO (56 I.T.R. 349), the Supreme Court held that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act.

In Calcutta Discount Co. Ltd. versus ITO (41 I.T.R. 191), the court observed that it is well-settled however that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction.

Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences.

The court further held that when the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. In T. S. Raghavan v Appropriate Authority (270 I.T.R. 27), the Karnataka High Court held that just because there is an irregularity in the passing of an order does not necessarily mean that a writ court must intervene to set right the error. Whether or not the court should exercise its extraordinary writ jurisdiction would depend upon the facts and circumstances of each case.

In Appropriate Authority v Sudha Patil (235 I.T.R. 118), the Supreme Court held that the writ power being supervisory in nature in exercise of such power, a finding/conclusion of an inferior tribunal can be interfered with if the High Court comes to the conclusion that in arriving at the conclusion the tribunal failed to consider some relevant materials or has considered some extraneous and irrelevant materials or that the finding is based on no evidence or the finding is such that no reasonable man can come to such a conclusion on the basis of which the finding has been arrived at.

The existence of an alternative is not an absolute bar to the issue of a writ of certiorari; and a writ of mandamus would not be refused merely because the assessee could have filed a suit. Normally, however, the High Court would not exercise its jurisdiction under Article 226 when an alternative, adequate and efficacious legal remedy is available and the petitioner has not availed of the same before coming to the High Court.

Where an order is quashed by the court for a reason other than want of fundamental jurisdiction, in appropriate cases the Court may direct the authority concerned to pass a fresh order. Similarly, if there is an omission to exercise the discretion on account of failure on the part of the authority to genuinely examine the matter before it, a writ of mandamus can be issued directing such authority to rehear the matter and determine it afresh according to law.

The High Court can prohibit an officer within its jurisdiction from obeying the unlawful directions of another authority even if the latter cannot be reached by reason of his being outside the Court's territories, and can compel an authority ithin its jurisdiction to issue directions to its subordinate officers in other States.

In H. M. Sathyanarayana Setty versus C.C.I.T. ([2004] 139 Taxman 108), the Karnataka High Court held that a writ of mandamus can be issued if the petitioner has a legal right in his favour and there is inaction on the part of a public authority who has a corresponding obligation to give effect to the right and who is duty bound to perform a public duty.

To conclude, a writ petition cannot generally be entertained at the show-cause notice stage unless an exceptional case is made out, for instance, the approach of the authority is erroneous in law. The court can only consider whether an action is valid; it cannot consider the sufficiency or correctness of the material relied upon by the assessing authority. Similarly, the High Court will not investigate sufficiency of reasons for an action in a writ petition.

(The author is a Mumbai-based advocate. He can be contacted at ranina@bom2.vsnl.net.in)