{"id":283171,"date":"2023-02-04T14:00:23","date_gmt":"2023-02-04T08:30:23","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=283171"},"modified":"2023-02-04T13:26:55","modified_gmt":"2023-02-04T07:56:55","slug":"supreme-court-mere-availability-of-an-alternative-remedy-of-appeal-or-revision-would-not-oust-the-jurisdiction-of-the-high-court-and-render-a-writ-petition-not-maintainable","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2023\/02\/04\/supreme-court-mere-availability-of-an-alternative-remedy-of-appeal-or-revision-would-not-oust-the-jurisdiction-of-the-high-court-and-render-a-writ-petition-not-maintainable\/","title":{"rendered":"Mere availability of an alternative remedy of appeal or revision would not oust High Court’s jurisdiction and render a writ petition \u201cnot maintainable\u201d: Supreme Court"},"content":{"rendered":"
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Supreme Court:<\/b> In an appeal against the order passed by the Punjab and Haryana High Court dismissing the civil writ petition presented by the appellant and relegating it to the remedy of an appeal under Section 33<\/a> of the Haryana Value Added Tax Act, 2003<\/a> (‘the VAT Act’), the division bench of S. Ravindra Bhat and Dipankar Datta*<\/b>, JJ. held that mere availability of an alternative remedy of appeal or revision, which the party has not pursued, would not oust the jurisdiction of the High Court and render a writ petition “not maintainable. Further, it held that it is not the Assessing Authority’s orders but those passed by the Revisional Authority, which suffer from patent illegality. Thus, it invalidated the impugned final revisional orders for the Assessment Years 2003-04 and 2004-05, and made the interim order dated 18-01-2010 absolute.<\/p>\n

The Court before answering the issues in this case, said that having come across certain orders passed by the High Courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. Article 226 does not impose any limitation or restraint on the exercise of power to issue writs. Though, the exercise of writ powers despite availability of a remedy under the very statute ought not to be made in a routine manner, yet the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him, it cannot mechanically be construed as a ground for its dismissal.<\/p>\n

It said that one of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the High Courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. However, mere availability of an alternative remedy of appeal or revision, which the party has not pursued, would not oust the jurisdiction of the High Court and render a writ petition “not maintainable”. Further, the Court pointed out the distinction between “maintainability” and “entertainability.”<\/p>\n

The Court also said that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available.<\/p>\n

The issues in this appeal were:<\/p>\n

• Whether the High Court was justified in declining interference on the ground of availability of an alternative remedy of appeal to the appellant under Section 33<\/a> of the VAT Act<\/a>, which it had not pursued?<\/b><\/p>\n

The Court noted that the appellant claimed before the High Court that the suo motu revisional power could not have been exercised by the Deputy Excise and Taxation Commissioner (‘Revisional Authority’) in view of the existing facts and circumstances, and said that this concludes that the assessment orders were legally correct, and the final orders impugned in the writ petition were passed upon assuming a jurisdiction which the Revisional Authority did not possess.<\/p>\n

The Court said that since a jurisdictional issue was raised by the appellant in the writ petition questioning the very competence of the Revisional Authority to exercise suo motu power, being a pure question of law, thus, this plea raised in the writ petition did deserve a consideration on merits and the appellant’s writ petition ought not to have been thrown out at the threshold. Further, it viewed that the reliance of High Court on the decision in Titagarh Paper Mills Ltd.<\/i> v. Orissa SEB<\/i>, (1975) 2 SCC 436<\/a>, was completely misplaced, as in this case it was held that in view of the issues raised, there was no reason why the appellant company should not pursue its remedy in arbitration, having solemnly accepted Clause 23 of the agreement, and instead invoked the extraordinary jurisdiction under Article 226<\/a> of the Constitution<\/a> to determine questions which really form the subject matter of the arbitration agreement.<\/p>\n

Further, it said that this decision could not have been of any relevance having regard to the issue presented for resolution before the High Court by the appellant, particularly when the disputes inter se were not referable to arbitration. The High Court had mistakenly referred to Titagarh Paper Mills<\/i> (supra) while intending to rely on a different decision of this Court on an appeal preferred by the same party in Titaghur Paper Mills Co. Ltd.<\/i> v. State of Orissa<\/i>, (1983) 2 SCC 433<\/a>.<\/p>\n

However, the Court said that the impugned order of the High Court dismissing the writ petition without examining the merits of the challenge cannot be sustained, even if the High Court were to rely on Titaghur Paper Mills Co. Ltd.<\/i> (supra) to support such an order. Thus, it was held that the High Court, by dismissing the writ petition, committed a manifest error of law for which the order under challenge is unsustainable and is set aside.<\/p>\n

• Whether to remit the writ petition to the High Court for hearing it on merits or to examine the correctness or otherwise of the orders impugned before the High Court?<\/b><\/p>\n

The Court said that ordering a remand is an available option but having regard to the lapse of time (almost a life term of fourteen years) since the orders impugned in the writ petition were made, thus it would not be in the best interests of justice to remit the matter to the High Court. Further, the parties have been already heard by the Court on the merits of the jurisdictional issue that was raised before the High Court.<\/p>\n

• Jurisdiction of the Revisional Authority<\/b><\/p>\n

The Court took note of Section 34 of the VAT Act and said that suo motu power of revision could be exercised by the Revisional Authority for the purposes of satisfying himself as to the legality or propriety of any order made in any proceeding which is prejudicial to the interests of the State. The first proviso, however, imposed a restriction on exercise of such suo motu power, if an issue had been settled, inter alia, by an appellate authority. Thus, the prerequisite for exercise of power under Section 34 is the satisfaction of the Revisional Authority that an order has been made by a taxing authority in any proceeding prejudicial to the interests of the State, the legality or propriety of which appears to him to be prima facie vulnerable.<\/p>\n

The Court said that it needs to be seen how far the Revisional Authority was justified in drawing power from such provision and exercising it.<\/p>\n

The Court viewed that the Revisional Authority might have been justified in exercising suo motu power to revise the order of the Assessing Authority, had the decision of the Tribunal been set aside or its operation stayed by a competent Court.<\/p>\n

Placing reliance on Union of India<\/i> v. Kamlakshi Finance Corpn. Ltd.<\/i>, 1992 Supp (1) SCC 443<\/a>, the Court said that unless the discipline of adhering to decisions made by the higher authorities is maintained, there would be utter chaos in administration of tax laws apart from undue harassment to assesses.<\/p>\n

The Court said that there is nothing on record to justify either illegality or (procedural\/moral) impropriety in the proceedings before the Assessing Authority or the orders passed by it, as such. The Assessing Authority was bound by the order of the Tribunal and elected to follow it having no other option. Such a decision of the Tribunal was even binding on the Revisional Authority. Thus, to brand the orders of the Assessing Authority as suffering from illegality and impropriety is unjustified and demonstrates thorough lack of understanding of the principle regulating exercise of suo motu revisional power by a quasi-judicial authority, apart from being in breach of the principle of judicial discipline while confronted with orders passed by a superior Tribunal\/Court. Thus, it viewed that it is not the Assessing Authority’s orders, but those passed by the Revisional Authority, which suffers from patent illegality.<\/p>\n

[Godrej Sara Lee Ltd. v. Excise & Taxation Officer, 2023 SCC OnLine SC 95<\/a>, decided on 01-02-2023<\/span>]<\/p>\n

*Judgment by: Justice Dipankar Datta.<\/span><\/strong><\/p>\n

Know Thy Newly Appointed Supreme Court Judge- Justice Dipankar Datta<\/a><\/p><\/blockquote>\n