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

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”.

Hence, the HC held that in the present matter “the writ petitioner has not only efficacious remedy, rather alternative remedy under the GST Act, and therefore, the present petition is not maintainable”.

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