TaxTMI 
TaxTMI 
2009 (3) TMI 955
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....8-99 (annexure 10). More so, vide order dated September 13, 2001 while considering O.J.C. No. 11672 of 2001 this court granted liberty to the petitioner to challenge the assessment order directly in a writ petition (annexure 6). Therefore, as the Division Bench of this court had earlier granted liberty to the petitioner to approach this court against the assessment order directly, this court has power to decide the case on the merits. In case the petitioner is relegated to the appellate forum, the appeal may be rejected being time-barred. Therefore, the objection raised by the learned counsel for the Revenue is to be overruled. We have considered the rival submissions of the learned counsel for the parties as to whether the writ petition should be heard on the merits or the petitioner should be relegated to the appellate forum without entering into the merits of the case. The issue of exhausting statutory remedy has been considered time and again by the Supreme Court. The Constitution Benches of the Supreme Court in K.S. Rashid and Son v. Income-tax Investigation Commission [1954] 25 ITR 167; AIR 1954 SC 207, Union of India v. T.R. Varma AIR 1957 SC 882 and State of U.P....
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....High Court should direct the party to avail himself of such remedies one or other before he resorts to a Constitutional remedy. . ." Similar view has been reiterated in Rajasthan State Road Transport Corporation v. Krishna Kant [1995] 5 SCC 75, L.L. Sudhakar Reddy v. State of A.P. [2001] 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [2001] 8 SCC 509, GKN Driveshafts (India) Ltd. v. Income-tax Officer [2003] 259 ITR 19 (SC); [2003] 1 SCC 72, and Pratap Singh v. State of Haryana [2002] 7 SCC 484. In Harbanslal Sahnia v. Indian Oil Corporation Ltd. [2003] 2 SCC 107 the Supreme Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the writ seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. While deciding the said case, the apex court placed rel....
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.... In Tin Plate Co. of India Ltd. v. State of Bihar [1999] 112 STC 543; AIR 1999 SC 74 and Punjab National Bank v. O.C. Krishnan AIR 2001 SC 3208, the apex court came to the conclusion that writ should not generally be entertained if statute provides for remedy of appeal and even if it has been admitted, parties should be relegated to the appellate forum. In Sheela Devi v. Jaspal Singh [1999] 1 SCC 209, the apex court has held that if the statute itself provides for a remedy of revision, writ jurisdiction cannot be invoked. In State of Himachal Pradesh v. Raja Mahendra Pal AIR 1999 SC 1786 while dealing with a similar issue the honourable apex court has held as under: ". . . The constitutional court should insist upon the party to avail of the same instead of invoking the extraordinary writ jurisdiction of the court. This does not however debar the court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of alternative efficacious remedy. The existence of the special circumstances is required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said article. .....
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....een held as under: 'It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy'." Similar view has been reiterated in Seth Chand Ratan v. Pandit Durga Prasad (D) by L. Rs. AIR 2003 SC 2736, U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam S. Karmchari Sangh [2004] 4 SCC 268, Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani [2004] 8 SCC 579, Tirupati Balaji Developers (P) Ltd. v. State of Bihar [2004] 5 SCC 1, M.P. State Agro Industries Development Corporation Ltd. v. Johan Khan AIR 2007 SC 3151 and Rajasthan State Electricity Board v. Union of India [2008] 5 SCC 632. In view of the above, the law can be summarized that exhaustion of statutory remedy or availability of alternative remedy is not an absolute bar for maintaining the writ petition. Exclusion of writ jurisdiction due to availability of alternative remedy is a rule of discretion and not one of compulsion. The powers of judicial review can be exercised in exceptional circumstances, particularly, for the purpose of enforcing the fundamental rights or where there is a failure of natural justice or where the impugned orders or proceedings ....