KUNJAHAMMAD HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) This batch of 15 writ petitions, invokes the jurisdiction of this Court under Art.226. The writ petitioners had been called upon to furnish returns of their agricultural incomes under the Agricultural Income Tax Act, No. XXII of 1950, hereinafter referred to as the Act; and in all the cases, the assessing Officer had again issued notices under S.18 (2), That section provides that, if the Agricultural Income Tax Officer is satisfied that the returns under S.17 are correct, he can assess in writing the total agricultural income of the assessee and determine the sum payable by him on the basis of the returns. Sub-s.(2) authorises him, on his not being satisfied, to serve on the person making the returns, a notice requiring him, on the date specified therein, either to attend the office of the Officer, or to produce or to cause to be produced, any evidence, on which such person may rely in support of the returns. The next authorisation to the assessing Officer, is under S.18 (3), which reads as follows:

(2.) The complaint common to all the writ petitions now before us, is that the petitioners, on their evidence in support of their returns being found not satisfactory, have been assessed on grounds, which they had not been given fair opportunity to meet. The learned Advocate of the petitioners has relied on a number of decisions to show that the assessing Officer is bound to afford the assessee an opportunity of showing cause against the case, on which he proposes to assess, after having rejected the materials furnished by the assessee in support of his returns. The proposition of the assessing authorities in this country being bound to proceed in a judicial manner and come to a judicial conclusion upon ascertained facts, is well settled by D. C. Mills Ltd. v. Commissioner of Income Tax, West Bengal, A.I.R.. 1955 S.C. 65 and Omar Salay Mohd. v. I. T. Commissioner AIR 1959 SC 1238 . In the latter case, it has been held that the judgment of the Income Tax authority must not be on surmises and conjectures, and the assessee must have fair opportunity for meeting the case, on which he is being assessed; and a recent illustration of the same rule is to be found in Dayaram Surajmall v. Commissioner of Income Tax, 38 I.T.R.12. The petitioners have, therefore, a good case when they complain that the rule of natural justice of being given the opportunity to show cause against the case, has not been observed in assessing them, and their complaints of not knowing the basis, on which they had been assessed, are not challenged. It follows that the petitions should be allowed unless there be other grounds for dismissing them.

(3.) On behalf of the taxing authorities, it is argued that the petitioners have adequate alternative remedies of appeals, where they can urge their complaints, and the jurisdiction under Art.226 should not be exercised in their favour. The legal position is well settled that the presence of adequate statutory relief, bars the exercise of jurisdiction under Art.226; but it is equally well settled that persons complaining of rules of natural justice having been violated in proceedings that he seeks to vacate, should not be denied the benefit of the Article, even though they have other adequate statutory remedy, which they can seek. In Sarada Thampatty v. Secretary to Government, 1960 KLT 632 , one of us has held the general rule to be subject to the aforesaid exception, and the learned Government Pleader has not drawn our attention to any case to the contrary. We would, therefore, hesitate in dismissing the writ petitions, where the complaint is of infraction of the principles of natural justice by authorities exercising quasi judicial powers on the ground of the party complaining being entitled to the statutory right of appeal. But the party complaining must not invoke the extraordinary jurisdiction of this Court, and at the same time exercise his statutory right of appeal; for, where such a right of appeal has been availed of, the appellate authority becomes vested with the legal jurisdiction of adjudicating on the complaint, and the authority should not, by our issuing certiorari, be divested of its jurisdiction of adjudication on the order, which becomes the subject matter of appeal before it. Nor there is, in such cases, overriding equity in favour of the petitioner. It is equally clear that the position of such persons is not improved by their appeals having been dismissed. The orders of the assessing Officer then become merged in the orders of the appellate authority, and that cannot be vacated without following the usual procedure for granting certiorari. That procedure requires that the person, whose order is being challenged, must be impleaded in order to permit his showing grounds against vacating his order; and admittedly none of the appellate authorities been impleaded to these petitions. In these circumstances, the appellate orders, without having the appellate authority and the record before us, should not be interfered with, and in such cases, the petitioners should pursue their statutory reliefs to their logical conclusions: