When a Writ petition can be entertained under Article 226 without relegating the petitioner to alternative remedy

Godrej Sara Lee Ltd. Vs Excise and Taxation Officer cum-Assessing Authority & Ors. (Supreme Court of India)

When a Writ petition can be entertained under Article 226 without relegating the petitioner to alternative remedy

Though this issue is no longer res integra in view of catena of judicial decisions of the highest court of the Country, the Hon’ble Supreme Court once again considered this matter when the Punjab & Haryana High court relegated the assessee to alternative remedy in a challenge made to jurisdiction of the revisional authority to reopen proceedings u/s 34 of the VAT Act.

The Ld Court observed that though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. The court thereafter considered several judgements including constitution bench decision in the case of State of UP Vs Mohd Nooh 1958 SCR 595, Whirlpool Corporation Vs Registrar of Trade Marks (1998) 8 SCC 1(SC)

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 him, as such. As noted above, the Assessing Authority was bound by the order of the Tribunal and elected to follow it having no other option. Such decision of the Tribunal was even binding on the Revisional Authority. In such circumstances, to brand the orders of the Assessing Authority as suffering from illegality and impropriety appears to us to be not only unjustified but also demonstrates thorough lack of understanding 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. We are inclined to the view that it is not the Assessing Authority’s orders but those passed by the Revisional Authority, which suffer from a patent illegality.

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