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2015 (1) TMI 179 - HC - VAT and Sales TaxMaintainability of Writ petition - efficacious alternative remedy available to petitioner or not – Assessee has made strenuous efforts to convince the Court by submitting that an expeditious decision on the issue of exigibility of interconnection charges is warranted, since it will have a huge impact on the services being provided by the appellant to the general public at large - Held that:- It is axiomatic that when an objection is raised regarding the very maintainability of the proceedings, the issue, as it goes to the root of the matter, shall be decided first - any positive finding on the issue renders the whole exercise of adjudication on the merits of the matter an exercise in futility - It only serves, conversely, the avoidable purpose of clipping the adjudicatory wings of the lower forum, which ought, ex debito jusitiae, to decide the lis untrammelled by any observations at higher judicial echelons - in a proceedings where trial is to take place, by recording the evidence, only pure questions of law can be decided as a preliminary issue, leaving the issues of mixed questions of fact and law to be decided in the end, but before considering the merits of the matter. In Tin Plate Co. of India Ltd. v. State of Bihar [1998 (11) TMI 532 - SUPREME COURT OF INDIA] the SC has observed that when an alternative and efficacious remedy is open to a person, he should be required to pursue that remedy and not to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution - where such a remedy is available, it would be a sound exercise of discretion to refuse entertainment of the writ petition under Article 226 of the Constitution - if the writ petition under Article 226 is to be dismissed on the ground of alternative remedy, the Court is not required to express any opinion on the merits of the case which is to be pursued before an alternative forum. Whether it is a proper or improper exercise of taxing power on the part of the respondents – Held that:- It bears reiteration, if not repetition, that it is the inherent lack of power, as is not the case presently, that could give rise to the necessary cause of action for the appellant to knock at the doors of this Court, notwithstanding the availability of an alternative remedy - refusal to entertain a petition under the writ jurisdiction by the High Court when an efficacious alternative remedy is available to the party is a self-imposed limitation - it is within the discretion of the High Court to grant relief under Article 226 of the Constitution despite the existence of an alternative remedy - neither the urgency of adjudication, nor the gravity of the issue, leave alone the status of the appellant being a public sector undertaking, can be judicially acknowledged as an exception to the rule of alternative remedy - without disturbing the direction of the single Judge to the appellant to avail itself of the alternative of remedy of appeal and the protective measure of deferment of collection of tax provided thereby, the petition is to be dismissed – Decided against petitioner assessee.
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