SC holds availability of alternative remedy not an absolute bar to maintainability of writ petition

This Tax Alert summarizes a recent ruling of the Supreme Court (SC) pertaining to maintainability of a writ petition where an alternative remedy is available in the law.

Assessee, in the present case, had approached Punjab & Haryana High Court (HC) challenging the jurisdiction of Revisional Authority to reopen proceedings under Section 34 of the Haryana Value Added Tax Act, 2003 (VAT Act). HC declined to interfere on the ground of availability of an alternative remedy of appeal.

SC observed that “entertainability” and “maintainability” of a writ petition are distinct concepts. Availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition. 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.

A writ court would be justified in entertaining a writ petition despite the party not having availed the alternative remedy provided by the statute in the following cases:

• where the writ petition seeks enforcement of any of the fundamental rights,
  
• where there is a violation of principles of natural justice,
• where the order or the proceedings are wholly without jurisdiction; or
• where the vires of an Act is challenged.

Where the controversy is a purely legal one involving only questions of law, then it should be decided by the HC. In the present case, since a jurisdictional issue was raised by the assessee, being a pure question of law, the same deserved consideration.

Accordingly, the impugned order of the HC was set aside.

Comments

• The distinction between maintainability and entertainability of writ petition brought out by the SC is likely to provide clarity to businesses seeking writ interference on various issues.
  
• Presently, the Government is yet to set up Goods and Services Tax Appellate Tribunal (GSTAT). This results in an inordinate delay in conclusion of various proceedings. The Apex court judgement may help in filing and disposal of writ petition for issues involving question of law.