A writ is a formal written order or direction that the Court issues which is to be obeyed by the authority or person to whom it is issued. A person appealing before the Hon’ble Supreme Court and High Courts for issuance of a direction for grant of immediate relief is called Writ petition. A Writ Petition can be filed before the Supreme Court under Article 32 (1) of the Constitution of India and the Supreme Court shall have power to issue directions or orders or writs for enforcement of the rights under Article 32(2) of the Constitution of India. A writ can be filed before the High Court under Article 226 / Article 227 of the Constitution of India. A writ petition is a final resort in the hands of the affected party to get remedy for his injury from the Supreme Court or High Courts.
Article 226 and 227 are the two important parts of the Constitution of India, which confers the special powers to every High Court to provide immediate remedy or relief to the affected parties. Article 226 of constitution empowers the High Courts to issue, to any person or authority, including the government, directions, orders or writs. Article 227 of constitution confers that every High Court shall have power of superintendence over “all courts and tribunals” in their territorial jurisdiction.
Article 226 of the Constitution of India refers to power of High Court’s to issue certain writs throughout the territory in relation to which it exercises jurisdiction. A writ is a written order or direction may be issued by the High Court, which an immediate relief to the affected parties.
Generally, the writ petition are filed in contravention of principles of natural justice and an allegation of infringement of fundamental rights of an individual get immediate remedy. The Court may admit writ petition and exercise “writ jurisdiction” wherein it feels that the action or order was passed under the following situations:
1. A writ petition can be filed against Central and State Government authorities when their field officials denied the legitimate benefits available in the provisions of Rules or laws.
2. A writ petition can be filed against authority that acting under a statute does not have power to issue the order beyond his scope of jurisdiction.
3. A writ petition can be filed against authority where the authority exercised his power dishonestly.
4. A writ petition can be filed against private authorities when they were discharge public functions.
5. A writ can be filed against Lower Court Orders passed in defiance of the fundamental principles of judicial procedure and non-application of his mind.
There are 5 types of writs namely, habeas corpus, mandamus, quo warranto, prohibition and certiorari.
1. A writ of Habeas Corpus: Habeas Corpus means ‘Let us have the body’ (let us see physically the person who has been illegally detained). A writ of habeas corpus is issued by the Courts to an authority or person to produce in court a person who is either missing or kept in illegal custody where the detention is found to be without authority of law or order for his release with compensation to the person illegally detained.
2. A writ of Mandamus: Mandamus literally means a command. A writ of mandamus is a direction to an authority to do or refrain from doing a particular act, which is injustice to the general public. A writ of mandamus is issued by a Higher Court to a Lower Court, Tribunal, or a Public Authority to perform an Act which such a Lower Court etc., is bound to perform. If a public official or a babu is not performing his duty the Court can order him to do that.
3. A writ of prohibition: prohibition is also known as a ‘stay order’. A writ of prohibition is issued to a Lower Court or a body of public authority to stop acting beyond its powers. This could be issued on the ground that the authority lacks jurisdiction and further that prejudice would be caused if the authority proceeds to decide the matter. Where the authority is found to be biased, refuses to rescue and acting contrary to the rules of natural justice.
4. A writ of Certiorari: Writ of certiorari is issued for correcting gross errors of jurisdiction: when it is found that a subordinate Court has acted without jurisdiction, or excess of jurisdiction and in flagrant disregard of law or principles of natural justice, thereby occasioning failure of justice while supervisory jurisdiction under Article 227 is exercised for keeping subordinate court has acted without jurisdiction. Hence, a writ of certiorari is a direction to Lower Courts or an authority to produce before the Court the records on the basis of which a decision under challenge in the writ petition has been taken. By looking into those records, the Court will examine whether the authority applied its mind to the relevant materials before it took the decision.
5. A writ of quo warranto: A writ of quo warranto is issued to prevent a person from acting in a government office when he is not entitled or not qualified to hold the post and appointment can be nullified if found to be illegal. This writ is applicable to the public offices only and not to private offices.
There is availability of statutory provision under Section 260A (1) of the Income Tax, 1961, Section 130 of the Customs Act, 1962 and Section 117 of the CGST Act, 2017, by virtue of the said provisions the affected party may file appeal before the High Court aggrieved by the order passed in appeal by the Appellate Tribunal or order passed by the quasi-judiciary authorities in the matter of tax laws. The High Court will be admitted appeal, if the High Court is satisfied that the case involves a substantial question of law or facts.
Even though the remedies are available in tax laws for adverse statutory provisions, there is constitutional provision to represent to tax litigations before the High Court by way of writ petition under Article 226 and Article 227 of the Constitution of India. The tax litigations mainly relating to the following may be filed writ petition before the High Court:
1. When income-tax authorities acting in excess of their jurisdiction or fails to refund moneys wrongly recovered from the assessees.
2. When quasi-judicial proceedings taken by the income-tax authorities without jurisdiction or pass order without application of mind and violation of the principles of natural justice.
3. When order passed by the income-tax authorities arbitrary or does not comply with the statutory requirements.
4. When the orders of detention and preventive detention orders passed under Section 104 of the Customs Act,1962 without serving the notice constituting the ‘grounds’ on which he is actually detained.
5. When the Customs officer seized goods under Section 110 (1) of the Customs Act, 1962 without giving notice under clause (a) of Section 124 of the Customs Act, 1962.
6. When the GST officer visited a place of business or any other place for the purpose of inspection, search and seizure of goods, documents, books or things liable to confiscation under Section 139 of the CGST Act, 2017 without obtaining authorisation from the proper officer not below the rank of a joint Commissioner.
7. When there is illegal arrest under Section 104 of the Customs Act, 1962 and Section 69 of the CGST Act, 2017.
8. When there is issuance of illegal summon to give evidence or produce documents for investigation under Section 108 of the Customs Act,1962 and Section 70 of the CGST Act,2017.
9. When frivolous show cause notices issued for recovery of illegal demand under Section 28 / 28A of the Customs Act, 1962 and Section 73 / Section 74 of the CGST Act, 2017.
10. Where the benefits available under statutory provisions are denied to the taxpayers or assessees by the authority in statutory power.
11. When the provisions of an Act and Rules is challengeable for constitutional validity.
12. When the provisions prescribed through Notifications, Instruction, Order and Circular has been misinterpreted and held illegal or ultra vires.
13. The tax authority may file writ petition to seek stay on payment of erroneous refund claim sanctioned by the sanctioning authority.
Article 226 & Article 227 of the Constitution of India, grants wide powers to the High Courts, and taxpayers can avail this opportunity for management of tax litigations. Normally, High Courts are reluctant to interfere if there is adequate efficacious alternative statutory remedies are available under tax laws. If somebody approaches the High Court without availing alternative remedy provided, the High Court should ensure that he has made out strong case or that there exist good grounds to invoke the extraordinary jurisdiction. However, there catena of decisions are against as well as support of filing writ petition before the High Court in case of exigency of tax issues and to give immediate interim relief to the injury being suffered by the general public.
The Apex Court decision in the case of D. R. Enterprises v. Assistant Collector of Customs, reported in 2015(322) E.L.T.795 ( S.C.) ,held that the powers of the High Court under Article 226 of the Constitution, while issuing appropriate writs, are very wide. Even if there is an alternate remedy that may not preclude the High Court from exercising the jurisdiction in a particular case. In the face of alternate statutory remedies, when the High Court declines to exercise the jurisdiction under Article 226 of the Constitution, it is a self imposed restriction only. (Para 21)
In the case of Asst. Collector, Central Excise v. Dunlop India Ltd and Ors, [1985(19) E.L.T.22 (SC)], it was held that Article 226 is not meant to short circuit or circumvent statutory provisions and the High Court must entertain the writ petition only when statutory remedies are entirely ill-suited to meet the demands of extraordinary situations and where interference is necessary to prevent public injury and vindication of public justice.
The Apex Court decision in the case of Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, reported in 1987 (32) E.L.T.8(S.C.) ,held that it is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction the High Court should not refuse to exercise its jurisdiction on the existence of alternative remedy under Article 226 of the Constitution. (Para 12).
The Apex Court decision in the case of Collector of Customs v. Ramchand Sobhraj Wadhwani- AIR 1961 SC 1506, it was held that the remedy under Article 226 by way of judicial review is purely discretion. Where the petitioner fails to avail of the effective statutory alternative remedy within the prescribed time due to his own fault, he cannot be permitted to seek remedy under Article 226 of the Constitution of India.
In the case of Titaghar Paper Mills Co Ltd v. State of Orissa (2 SCC 433), a Bench of three judges of the Apex Court held that where efficacious statutory alternative remedy is available in the statute by way of an appeal and second appeal under the Sales Tax Act and the petitioner failed to avail of relief in the appeals, the writ petition is not maintainable in law.
The powers of the High Court under Articles 226 and 227 form a part and parcel of the basic structure of the Constitution and cannot be overwritten and nullified as held by the Constitutional Bench in L. Chandra Kumar v. UOI- ( 1997) 3 SCC 261.
Conclusion: Therefore, there is no absolute bar in entertaining a writ petition under Article 226 and 227 of the constitution of India despite available of an alternative efficacious remedy under statutory provisions. When there is grave injustice to the taxpayers, statutory remedies are entirely ill-suited and the petitioner questioned the vires of Notification / circulars the High Court allowed the writ petition for consideration. But the taxpayers should not prefer writ remedy on first choice unless there is lacking of efficacious statutory alternative remedies under tax laws.