- (1.) BY this appeal the impugned judgment and order dt. 24th April, 1997, has been challenged and a prayer has been made that the impugned order be quashed. In a petition moved before the learned Single Judge the petitioners claimed that they have purchased the property from the respondent No. 6. That property was attached for recovery of taxes. The petitioners-appellants have challenged the attachment order, as it was absolutely void and contrary to the provisions of the IT Act.
(2.) THE learned Single Judge found that there was an alternative remedy provided under r. 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 alternative remedy is available and that the petitioners can avail of that remedy. Challenging that impugned judgment and order of the learned Single Judge, this appeal was filed and also a prayer for stay was made. THE Division Bench in its interim order dt. 25th May, 1997, though allowed the Revenue to proceed and consider the objection filed under r. 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 petitioners-appellants as to whether once the alternative remedy has been availed of, simultaneously the proceeding under Art. 226 of the Constitution of India 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 r. 11 of the Second Schedule, the maintainability of the writ petition can be considered after formal affidavits are filed. Heard the learned counsel for the parties. When the alternative remedy is available in respect of the same issue, the matter cannot be agitated under Art. 226 of the Constitution of India. Admittedly, the alternative remedy has been availed of. Therefore, in our opinion, no grounds survive for entertaining the writ petition under Art. 226 of the Constitution of India or the appeal arising against the impugned order. Therefore, we at this stage would not like to make any comment on merits as the alternative remedy has been availed of. The appeal arising out of the impugned judgment and order invoking the jurisdiction under Art. 226 of the Constitution of India, therefore, does not survive.
(3.) WHEN the matter was pending since long there was a direction for considering the objection of the petitioners under r. 11 of the Second Schedule and an order has also been passed by the TRO and communicated to the petitioners-appellants by a covering letter dt. 21st July, 1997. It is true that alternative remedy has been availed of, but at the same time the appeal was not disposed. 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 Single Judge in the writ petition, we would not like to go into the merits of that order of the TRO. If the petitioners-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 date. For a period of one month from date status quo as 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.;