The Supreme Court's division bench, which was chaired by Justices S. Ravindra Bhat and Dipankar Datta, stated on February 2 that it is improper to dismiss a writ petition on the basis of an alternate remedy without first determining whether an exceptional case has been made out for such entertainment.

"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 bench of observed.

Consequently, one of the questions brought before the Apex Court was whether the High Court had a valid reason for rejecting to intervene given that the appellant had access to an alternative appeals mechanism under section 33 of the VAT Act.

When responding to this question, the bench remarked that it had seen numerous orders from high courts declaring writ petitions to be "not maintainable" simply because the parties seeking to invoke the writ jurisdiction had not sought the alternative remedy afforded by the applicable statutes. The court made the following observations in this regard:

"Mere availability of an alternative remedy would not oust the writ jurisdiction."

The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, 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. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. 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”.
“Entertainability” and “maintainability” of a writ petition are distinct concepts

In a long line of decisions, this Court has made it clear 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. 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. 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 the claimed relief would not further public interest. Hence, 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 bench took note of the jurisdictional challenge raised in this writ petition, which called into doubt the Revisional Authority's ability to use its suo motu power. Being a purely legal issue, the bench noted that the appellant's writ petition shouldn't have been dismissed at the threshold and that the argument made in the writ petition did deserve to be evaluated on its merits.

As a result, the court gave the case its full attention and granted the writ petition challenging the challenged order issued by the Revisional Authority.

Case Title: Godrej Sara Lee Ltd. vs Excise and Taxation Officer Cum Assessing Authority
Citation: CA 5393 OF 2010

For Appellant(s) 
Mr. V. Lakshmikumaran, Adv.
Mr. Rajiv Tyagi, AOR
Ms. Apeksha Mehta, Adv.
Mr. Charanya Lakshmikumaran, Adv.
Mr. Rohit Gupta, Adv.
Mr. Pranav Mundra, Adv.
Ms. Falguni Gupta, Adv.

For Respondent(s) 
Mr. Alok Sangwan, Sr. Adv.
Mr. Sumit Sharma, Adv.
Mr. Anurag Kulharia, Adv.
Mr. Sandeep, Adv.
Mr. Apoorv Yadav,Adv.
Mr. Vipul Dahiya, Adv.
Mr. Rajat Sangwan, Adv.
Mr. Samar Vijay Singh, AOR
 Mr. Kamal Mohan Gupta, AOR