Availability of alternative remedy not absolute bar on maintainability of Article 226 petition: Supreme Court

The Supreme Court recently observed that mere availability of an alternative remedy of appeal or revision would not by itself oust the jurisdiction of the High Court under Article 226 and render a writ petition not maintainable[ M/S Godrej Sara Lee Limited v. The Excise and Taxation Officer-cum-Assessing Authority and Others]..A division bench of Justices S Ravindra Bhat and Dipankar Dutta was of the view that availability of an alternative remedy does not operate as an absolute bar to the maintainability of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law."Dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper," the Court observed.The Court was hearing an appeal against a decision of the Punjab and Haryana High Court which had dismissed the writ petition of the present appellant on the ground that he had failed to first exhaust the alternative remedy available to him..As per the facts of the case, the appellant had questioned the jurisdiction of the Deputy Excise and Taxation Commissioner (ST)-cum-Revisional Authority, Kurukshetra to reopen proceedings in exercise of suo motu revisional power conferred by Section 34 of the Haryana Value Added Tax Act, 2003 (VAT Act).The Revision Authority had held that the Assessing Authority erred in levying tax on a product manufactured by the appellant.Aggrieved by the order of the Revisional Authority, the appellant moved a writ petition before the High Court, which dismissed the same on the ground that the appellant had invoked Article 226 jurisdiction without exhausting the remedy of appeal provided by Section 33 of the VAT Act.The High Court was of the view that where any right or liberty arises under a particular Act then the remedy available under that Act has to be availed. The appellant then moved the present appeal before the apex court..At the outset, the Supreme Court observed that the power of the High Court to issue writ under Article 226 does not impose any limitation or restraint on the exercise of power to issue writ. The Court acknowledged that it is true that exercise of writ powers in case of availability of a remedy should not to be made in a routine manner. However, it was clarified that 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."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. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition 'not maintainable'," the Court said. .The Court also reasoned that even a writ petition despite being maintainable may not be entertained by a High Court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of relief would not be in public interest.The Court also placed reliance on the decisions in State of Uttar Pradesh and Others v. Indian Hume Pipe Company Limited (1977) and Union of India vs. State of Haryana (2000) to observe that:"What follows from the said decisions is 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.".The Court noted that since a pure question of law was raised by the appellant before the High Court with regard to questioning the very competence of the Revisional Authority to exercise suo motu power, the High Court should have considered the writ petition on merits."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, we are of the considered view that the 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," the Court observed.Therefore, the Court was of the view that dismissal of a writ petition by the High Court on the ground that the appellant had not availed the alternative remedy would not be proper.It, therefore, allowed the appeal and set aside the order of the High Court. .[Read Judgment]