Writ Petition not maintainable in High Court when alternative remedies exist : Himachal Pradesh High Court

 Hig h C o urt of H.P on 03 01 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 56420 Reserved on : 29.12.2020 Decided on : 1 .1.2021 __________________________________________________________________ M s Radha Krishan Industries ....Petitioner. Versus State of H.P. and others …Respondents. __________________________________________________________________ Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan Judge. The Hon ble Ms Justice Jyotsna Rewal Dua Judge. 1 Whether approved for reporting . yes ______________________________________________________ For the petitioner: Mr. Puneet Bali Sr. Advocate with Mr. Jyotirmay Bhatt Advocate. For the respondents: Mr. Ajay Vaidya Sr. Addl. A.G. Tarlok Singh Chauhan Judge The instant petition has been filed for the grant of following substantive reliefs: a) Issue a writ petition under Article 226 of the Constitution of India in the nature of Certiorari quashing impugned order dated 21.10.2020passed by the Commissioner respondent No.2 delegating his powers absolutely being inter alia illegal arbitrary misconceived erroneous and even violative of principles of natural justice equity and fair play. b) Issue a civil writ petition under Article 226 of the Constitution of India in the nature of certiorari quashing the proceedings initiated by the respondent No.3 under section 83 by provisionally attaching the amount receivable by the petitioner 1 Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 03 01 HCHP 2 from its customer while issuing Form DRC 22 to M s Deepak International Limited vide Memo No. EXN JCSTE SEZ Parwanoo 2020 21 1171 dated 28.10.2020and to M s Fujikawa Power vide Memo No. EXN JCSTE SEZ Parwanoo 20209 21 1167 dated 28.10.2020being inter alia illegal arbitrary misconceived erroneous and even violative of principles of natural justice equity and fair play. c) Issue a writ in the nature of mandamus directing the respondent No.3 to revoke the provisional attachment and not to resort to further coercive measures against the petitioner. 2. A detection case under section 74 of the Himachal Pradesh Goods and Services Tax Act 2017and the Central Goods and Services Tax Act 2017 read with section 20 of the Integrated Goods and Services Tax Act 2017 was conducted against one of the suppliers of M s Radha Krishan Industries Kala Amb i.e. M s GM Powertech Kala Amb on 10.10.2018 by way of search and seizure as provided under section 67 of the HPGST CGST Acts. A show cause notice dated 9.1.2019was issued to M s Fujikawa Power Bagbania BBN Baddi regarding provisional attachment of payment of the petitioner under section 83 of the Act. In response to the show cause notice the petitioner filed representation dated 29.1.2019and respondent Hig h C o urt of H.P on 03 01 HCHP 3 No.3 vide letter dated 30.1.2019withdrew the aforesaid notice. However after initial inquiry into the matter evidences of tax evasion were detected and M s GM Powertech Kala Amb claimed and utilized input tax credit on account of the invoices issued by the fake fictitious firms without actual movement of goods from the fake firms. Similarly M s GM Powertech also issued invoices on the same analogy to various recipients situated in the state of Himachal Pradesh including the petitioner. Consequently respondents issued provisional attachment of the payment receivable by the petitioner vide Annexures P 2 and P 3. 3. Mr. Ajay Vaidya learned Sr. Addl. Advocate General has questioned the very maintainability of this petition on the ground of availability of alternative remedy. 4. Learned counsel for the petitioner does not dispute that there is alternative remedy available by way of appeal under section 107 of the GST Act with respect to the Annexures P 2 and P 3 issued by respondent No.3. However he would contend that the rule of exclusion of jurisdiction due to availability of alternative remedy is a rule of discretion and not one of the compulsions. He would further contend that inspite of alternative remedy the writ court may in an Hig h C o urt of H.P on 03 01 HCHP 4 appropriate case exercise its discretionary jurisdiction of judicial review especially in the following cases: i) Where the writ petition is filed for the enforcement of any of the fundamental rights or ii) where there is a violation of the principles of natural justice or iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged or iv) where the statutory authority has not acted in accordance with the provisions of the enactment in question or v) in defiance of the fundamental principles of judicial procedure or vi) has resorted to invoke the provisions which are repealed or vii) when an order has been passed in total violation of the principles of natural justice 5. It is not in dispute that respondent No.3 and the Divisional Commissioner who has been appointed as Commissionerunder the GST Act are constituted under the Act and therefore it is assumed that there is no illegal or irregular exercise of jurisdiction and the same would not result in the order being without jurisdiction. Even if there is some defect in the procedure followed during the hearing of the case it does not follow that the authority acted without jurisdiction. It may make the order irregular or defective but the order cannot be a nullity so long it has been passed by the authority which is competent to pass the Hig h C o urt of H.P on 03 01 HCHP 5 order. There is a basic difference in between want of jurisdiction or irregular exercise of jurisdiction and if there is non compliance of procedure the same cannot be a ground for granting one of the writs prayed for. The defect if any can according to the procedure established by law be corrected only by a court of appeal or revision. 6. In drawing this conclusion we are fortified by the following judgments of this Court : Indian Technomac Company Ltd. vs State of H.P. and others CWP No. 47714 and analogous matters decided on 4.8.2014 which in turn has been followed in M s Samsung India Electronics Pvt Ltd. vs State of H.P. and others ILR 2015HP 226 and both these judgments in turn have been followed in Micromax Informatics Ltd. vs State of H.P. and others 2015SLC 1293. 7. At this stage we only need to refer to the later judgment in Micromax’s casethe relevant portion reads thus: “[10] Thus the petitioners have efficacious remedy available as per the mandate of Section 48 of the Act.It is beaten law of the land that when the efficacious remedy is available the writ petition is not maintainable.This Court in batch of writ petitions the lead case of Hig h C o urt of H.P on 03 01 HCHP 6 which is CWP No. 47714 titled M s Indian Technomac Company Ltd. versus State of H.P. & others decided on 4.8.2014 held that the petitions are not maintainable. It is apt to reproduce paras 11 to 14 16 and 18 of the said judgment herein: "11. Now the question which arises for determination is when an Act provides mechanism to have remedy(ies) can a writ lie in the given circumstances The answer is in the negative for the following reasons. It is well settled principle of law that High Courts have imposed rule of self limitation in entertaining the writ petition in terms of writ jurisdiction when alternative remedy is available. High Court must not interfere if there is adequate efficacious alternative remedy available and the practice of approaching the High Court without availing the remedy(ies) provided must be deprecated unless express case is made out. 12. The Apex Court in Union of India and another vs. Guwahati Carbon Limited 2012 11 SCC 651 while dealing with the similar question has observed in paragraphs 8 9 10 11 14 and 15 as under: "8. Before we discuss the correctness of the impugned order we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee Chheharta 1979 AIR(SC) 1250 In the said decision this Court was pleased to observe that:"23. . when a revenue statute provides for a person aggrieved by an assessment thereunder a particular remedy to be sought in a particular forum in a particular way it must be sought in that forum and in that manner and all the other forums and modes of seeking remedy are excluded." 9. A Bench of three learned Judges of as Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 2 SCC 433 held:"11......The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of Hig h C o urt of H.P on 03 01 HCHP 7 assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where right or liability is created by a statute which gives a special remedy for 1 enforcing it the remedy provided by that statute must be availed...." 10. In other words existence of an adequate alternate remedy is a factor to be considered by the writ court before exercising its writ jurisdictionof Clauseof Section 17. If Sections 11 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum the State Commission and the National Commission there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation. 25. What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of Hig h C o urt of H.P on 03 01 HCHP 9 statutory remedy of appeal to the respondents." 14. The Apex Court in a recent decision in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal 2014 1 SCC 603 has discussed the law on the subject right from the year 1859 till the date of judgment i.e. 8th August 2013. We deem it proper to reproduce paragraphs 12 13 15 16 and 17 hereunder: "12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission 1954 AIR(SC) 207 Sangram Singh vs. Election Tribunal 1955 AIR(SC) 425 Union of India vs. T.R. Varma 1957 AIR(SC) 882 State of U.P. vs. Mohd. Nooh 1958 AIR(SC) 86 and K.S. Venkataraman and Co.Ltd. vs. State of Madras 1966 AIR(SC) 1089 have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere it can refuse to exercise its jurisdiction. The Court in extraordinary circumstances may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted.422 Municipal Council Khurai vs. Kamal Kumar 1965 2 SCR 653 Siliguri Municipality vs. Amalendu Das 1984 2 SCC 436 S.T. Muthusami vs. K. Natarajan 1988 1 SCC 572 Rajasthan SRTC vs. Krishna Kant 1995 5 SCC 75 Kerala SEB vs. Kurien E. Kalathil 2000 6 SCC 293 A. Venkatasubbiah Naidu vs. S. Chellappan 2000 7 SCC 695 L.L. Sudhakar Reddy vs. State of A.P. 2001 6 SCC 634 Shri Sant Sadguru Janardan SwamiSahakari Dugdha Utpadak Sanstha vs. State of Maharashtra 2001 8 SCC 509 Pratap Singh vs. State of Haryana 2002 7 SCC 484 and GKN DriveshaftsLtd. vs. ITO 2003 1 SCC 72). 13. In Nivedita Sharma vs. Cellular Operators Assn. of India 2011 14 SCC 337 this Court has held that where hierarchy Hig h C o urt of H.P on 03 01 HCHP 10 of appeals is provided by the statute the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows:"12. In Thansingh Nathmal v. Supdt. of Taxes 1964 AIR(SC) 1419 this Court adverted to the rule of self imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:para 7). 7. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applying to it to seek resort to the machinery so set up. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 2 SCC 433 this Court observed:11. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolverhampton New Waterworks Co. v. Hawkesford 1859 141 ER 486 in the following passage:" There are three classes of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by Hig h C o urt of H.P on 03 01 HCHP 11 the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. 1935 AC 532and Secy. of State v. Mask and Co. 1940 AIR(PC) 105 It has also been held to be equally applicable to enforcement of rights and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. 14. In Mafatlal Industries Ltd. v. Union of India 1997 5 SCC 536 B.P. Jeevan Reddy J.observed:77. So far as the jurisdiction of the High Court under Article 226 or for that matter the jurisdiction of this Court under Article 32 is concerned it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is however equally obvious that while exercising the power under Article 226 Article 32 the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. "192 CCE v. Dunlop India Ltd. 1985 1 SCC 260 Ramendra Kishore Biswas v. State of Tripura 1999 1 SCC 472 Shivgonda Anna Patil v. State of Maharashtra 1999 3 SCC 5 C.A. Abraham v. ITO 1961 2 SCR 765 Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 2 SCC 433 H.B. Gandhi v. Gopi Nath and Sons 1992 Supp2 SCC 312 Whirlpool Corpn. v. Registrar of Trade Marks 1998 8 SCC 1 Tin Plate Co. of India Ltd. v. State of Bihar 1998 8 SCC 272 Sheela Devi v. Jaspal Singh 1999 1 SCC 209 and Punjab National Bank v. O.C. Krishnan 2001 6 SCC 569) 14. In Union of India vs. Guwahati Carbon Ltd. 2012 11 SCC 651 this Court has reiterated the aforesaid principle and observed:Hig h C o urt of H.P on 03 01 HCHP 12 "8. Before we discuss the correctness of the impugned order we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee Chheharta 1979 3 SCC 83. In the said decision this Court was pleased to observe that:are excluded. " xxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx 15. Thus while it can be said that this Court has recognized some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed or when an order has been passed in total violation of the principles of natural justice the proposition laid down in Thansingh Nathmal v. Supdt. of Taxes 1964 AIR(SC) 1419 Titagarh Paper Mills 1983 SCC(Tax) 131 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore when a statutory forum is created by law for redressal of grievances a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case the Act provides complete machinery for the assessment re assessment of tax imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities and the assessee could not be permitted to abandon that machinery and to invoke the Hig h C o urt of H.P on 03 01 HCHP 13 jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Taxbefore approaching the High Court by way of the writ petitions for the redressal of their grievances. The petitioners ought to have exhausted the remedy of appeal before the Deputy Excise and Taxation Commissioner or Additional Excise and Taxation Commissioner or the Excise Commissioner as the case may be and if the petitioners were not successful in those appeal proceedings another remedy available to them was to challenge the said order(s) by the medium of appeal before the Tribunal and again if they were unsuccessful they could have availed the remedy of revision before the High Court in terms of Section 48 of the HP VAT Act 2005. Keeping in view the above discussion read with the fact that the dispute raised in these writ petitions relates Hig h C o urt of H.P on 03 01 HCHP 14 to revenue tax matters it can safely be concluded that the petitioners have sufficient efficacious remedy(ies) available. 17 .. . 18. Having said so we are of the considered view that the writ petitioners have alternative efficacious remedy available and these writ petitions are not maintainable. Accordingly the same merit to be dismissed in limine. However it is made clear that the observations made herein shall not cause any prejudice to the petitioners in case they intend to file appeal(s) before the prescribed Authority and the period spent by the petitioners for prosecuting these writ petitions shall be excluded by the Appellate Authority while computing the period of limitation."The apex Court in case titled Union of India and others versus Major General Shri Kant Sharma and another 2015 AIR(SCW) 2497) has also held that in the given circumstances the writ petition is not maintainable. It is apt to reproduce paras 34 37 and 38 of the said judgment herein: "34. The aforesaid decisions rendered by this Court can be summarised as follows: The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee).The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.of Article 136 of the Constitution of India the appellate jurisdiction of this Court under Article 136 has been excluded in relation to any judgment determination sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clauseof Article 136 this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter the person who thus approached the High Court will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act Hig h C o urt of H.P on 03 01 HCHP 16 against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby there is a chance of anomalous situation. Therefore it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above which is binding on the High Court under Article 141 of the Constitution of India allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act. 38. The High Courtwhile entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further the law laid down by this Court as referred to above being binding on the High Court we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India." 8. The Hon’ble Supreme Court has in one of its latest judgments in Assistant CommissionerLTU Kakinada and others vs Glaxo Smit Kline Consumer Health Care Limited AIR 2020 SC 2819 held that even though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India but it has not to do so as a matter of course when aggrieved person Hig h C o urt of H.P on 03 01 HCHP 17 could have availed the effective alternative remedy in the manner prescribed by law. Reference in this regard can be made to the observations as contained in para 11 which read as under:In the backdrop of these facts the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent As regards the power of the High Court to issue directions orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed action taken by the State under Article 226 of the Constitution it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law556 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors. 2011 14 SCC 337 ). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes Dhubri & Ors. 1964 AIR(SC) 1419 the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide the Court must exercise self imposed restraint and not entertain the writ petition if an alternative effective remedy is available to the aggrieved person. In paragraph 7 the Court observed thus: "7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed the appellants moved the High Court challenging the competence of the Provincial Hig h C o urt of H.P on 03 01 HCHP 18 Legislature to extend the concept of sale and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226 where the petitioner has an alternative remedy which without being unduly onerous provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applying to it to seek resort to the machinery so set up."We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. 1983 2 SCC 433 wherein it is observed that where a right or Hig h C o urt of H.P on 03 01 HCHP 19 liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute must only be availed of. In paragraph 11 the Court observed thus: "11. Under the scheme of the Act there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub sectionof Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal they can prefer a further appeal to the Tribunal under sub sectionof Section 23 of the Act and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolverhampton New Waterworks Co. v. Hawkesford 1859 6 CBNS 336in the following passage: There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. 1935 AC 532 and Secretary of State v. Mask & Co. 1940 Hig h C o urt of H.P on 03 01 HCHP 20 AIR(PC) 105. It has also been held to be equally applicable to enforcement of rights and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."In the subsequent decision in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors. 1997 5 SCC 536 this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court however added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently the fact that the High Court has wide jurisdiction under Article 226 of the Constitution does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.” 9. Thus what can be deduced from the aforesaid exposition of law is that the Hon’ble Supreme Court has recognized some exception to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the Act or in defiance the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed or where an order has been passed in total violation of the principle of natural justice but the High Court will not entertain a petition under Article 226 of the Constitution of Hig h C o urt of H.P on 03 01 HCHP 21 India if efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken in mechanism for redressal of grievance still holds the field. Meaning thereby that when a statutory form is created by law for redressal of grievance a writ petition should not be entertained ignoring the statutory dispensation. 10. Having said so we are of the considered view that the writ petitioner has not only efficacious remedy rather alternative remedy under the GST Act and therefore the present petition is not maintainable. 11. Lastly and importantly we find that the writ petition filed by M s GM Powertech the company against whom same and similar allegations as have been levelled against the petitioner herein being CWP No. 54620 has not been entertained and the company has been relegated to avail of the alternative remedy vide judgment dated 7.12.2020. 12. Accordingly the present petition is dismissed. However it is made clear that the observations made herein above shall not cause any prejudice to the petitioner Hig h C o urt of H.P on 03 01 HCHP 22 in case he intends to file an appeal before the prescribed authority and it is further made clear that the period spent in prosecuting this writ petition shall be excluded by the authority while computing the period of the limitation. The parties are left to bear their own costs. Pending application(s) if any also stand disposed of. Judge Judge 1. 1.2021 awasthi 

Summary: High Courts cannot entertain a writ petition wherein alternative remedies are available which have not been availed by the aggrieved. The High Court bench consisting of J. Tarlok Singh Chauhan and J. Jyotsna Rewal Dua, decided upon the matter of M/s Radha Krishan Industries v. State of H.P. and Ors. [CWP No. 568 of 2020], wherein the petition was filed under Article 226. By way of search and seizure as provided under the Himachal Pradesh Goods and Services Tax Act, 2017 and the Integrated Central Goods and Services Tax Act, 2017 against the suppliers of the present petitioners, a detection was made,  post which a show cause notice was issued to them. The petitioner, in response to this filed representation after which the respondent withdrew the aforementioned notice. However, after the initial inquiry, evidences of tax evasion were detected and it was found that input tax credit was claimed and utilized on account of invoices which were issued by fake/fictious firms without any actual movement of goods from them. Consequently the payments were issued by the respondent to the petitioners which led rise to the present appeal. The learned Sr. Addl. Advocate general questioned the very maintainability of the petition on the grounds that alternative remedies were available. The counsel for the petitioner however, argued that though they did not dispute that alternative remedy was available, however, the rule of exclusion of jurisdiction due to availability of such a remedy was a rule of discretion and not a compulsion. The HC relied on the matter of Micromax Informatics Ltd. v. State of H.P. and Ors. [2015 (3) SLC 1293], wherein it was held that “High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation”. Further the HC relied on another latest SC judgement in the case of Assistant Commissioner (CT) LTU, Kakinada and Ors. v. Glaxo Smit Kline Consumer Health Care Limited [AIR 2020 SC 2819], wherein it was held that “though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India, but it has not to do so as a matter of course when aggrieved person could have availed the effective alternative remedy in the manner prescribed by law”.