Munir Ahmed vs Union of India

By this appeal, the impugned judgment and the order dated 24-4-1997, has been challenged and a prayer has been made that the impugned order be quashed. In a petition moved before the learned S ingle Judge, the petitioners claimed that they have purchased the property from the respondent No. 6 and that the property was attached for the recovery of taxes. The petitioner-appellants have challenged the attachment order, as it was absolutely void and contrary to the provisions of the income tax Act, 1961 (''the Act''). The learned S ingle Judge found that there was an alternative remedy provided under rule 11 of the Second Schedule and the petitioners can file objection before the TRO challenging the attachment. Therefore, the petition was dismissed on the ground that the alternative remedy is available and that the petitioners can avail of that remedy. Challenging that impugned judgment and the order of the learned S ingle Judge, this appeal was filed and also a prayer for stay was made. The Division Bench in its interim order dated 25-5-1997, though allowed the revenue to proceed and consider the objection filed under rule 11 of the Second Schedule, but kept the appeal pending till the outcome of the result of the decision of the TRO after considering the objection of the petitioners.

A question was put to the learned counsel appearing for the petitioner-appellants as to whether once the alternative remedy has been availed of simultaneously the proceeding under article 226 of the Constitution can continue. The learned counsel submitted that normally both the remedies cannot be availed of, but when the interim order was passed, none objected and direction was given to the TRO to consider the objection of the petitioners, if any, filed under rule 11 of the Second Schedule, the maintainability of the writ petition can be considered after formal affidavits are filed.

Heard the learned counsels for the parties. When the alternative remedy is available in respect of the same issue, the matter cannot be agitated under article 226. Admittedly, the alternative remedy has been availed of. Therefore, in our opinion, no grounds survive for entertaining the writ petition under article 226 or the appeal arising against the impugned order. Therefore, we, at this stage, would not like to make any comment on the merits as the alternative remedy has been availed of. The appeal arising out of the impugned judgment and the order invoking the jurisdiction under article 226 of the Constitution, therefore, does not survive.

When the matter was pending since long there was a direction for considering the objection of the petitioners under rule 11 of the Second Schedule and an order has also been passed by the TRO and communicated to the petitioner-appellants by a covering letter dated 21-7-1997.

It is true that alternative remedy has been availed of, but at the same time the appeal was not disposed of. Therefore, that order has not been challenged on the ground that the order of the TRO can be considered by the Division Bench. As this order was not the subject-matter before the learned S ingle Judge in the writ petition, we would not like to go into the merits of that order of the TRO. If the petitioner-appellants have any grievance against that order, they are at liberty to file a fresh writ petition, if the writ petition is maintainable within a month from the date.

For the period of one month from the date status quo as on date, as regards the property in question and any amount realised on account of rent will be maintained. Both the appeal and the application are, accordingly, disposed of with the above observation.