TIN PLATE CO. OF INDIA LTD.versusSTATE OF BIHAR AND ORS.

                   TIN PLATE CO. OF INDIA LTD.                                    A
                                      ll.

                     STATE OF BIHAR AND ORS.

                          NOVEMBER 5, 1998

              [S.P. BHARUCHA AND V.N. KHARE, JJ.)                                 B

      Constitution of India-Article 226-Jurisdiction of the High Court-In
cases an efficacious alternative remedy available to the writ petitioners-
Scope of-Held, it would be a sound exercise ofdiscretion to refuse to entertain   C
the writ petition-However, while dismissing the writ petition on such ground,
High Court should refrain from expressing any opinion touching upon the
merits ofthe case-Practice and Procedure-Writ petition-Alternative remedy.

      Appellant, manufacturer of tinplates, was registered under State Sales
Tax Act as well as Central Sales Tax Act. For a particular assessment year D
the appellant filed its return. The Commercial Tax Officer disallowed the
entire claim of stock transfer to outside States and treating the same as inter-
state sales and levied tax@ 10% thereon and issued a notice of demand.
The appellant challenged the assessment order and the notice of demand in
a writ petition before the High Court. The High Court accepting the
objection of respondent that the appellant had an equally efficacious E
alternative remedy, however, made certain observations touching upon the
merits of the case. The appellant filed an lippeol against the assessment
before the Joint Commissioner of Commercial Taxes (Appeals) along with·
an application for condoning the delay in view of the pendency of the writ
petition before the High Court. The Joint Commissioner of Commercial F
Taxes (Appeals) rejected the appeal in view of the observation made by the
High Court on the merits of the case. Appellant then filed a review petition
before the High Court but the same was rejected. Hence this Appeal.

      It was contended by the appellant that certain observations of the High     G
Court touching upon the merits of the case while dismissing the writ petition
filed by the appellant on the ground of efficacious alternative remedy has
prejudiced the case of the appellant before the Appellate Authority who was
bound to decide the case in terms of the observations made by the High
Court.
                                     547                                          H
    548                      SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.

A         Allowing the appeal, this Court

          HELD: 1.1. It is no doubt true that when an alternative and equally
    efficacious remedy is open to a person, he should be required to pursue that
    remedy and not to invoke extraordinary jurisdiction of the High Court
    under Article 226 of the Constitution and where such a remedy is available,
B   it would be a sound exercise of discretion to refuse to entertain the writ
    petition under Article 226 of the Constitution. (550-B)

        1.2. If a writ petition is to be dismissed on the ground of alternative
  remedy, the High Court is not required to express any opinion on merits of
C the case which is to be pursued before an alternative forum. Thus, if the
  High Court is to dismiss the writ petition on the ground of alternative
  remedy, it would be a sound exercise of jurisdiction to refrain itself from
  expressing any opinion on the merits of the case which ultimately is to be
  taken by a person before an alternative forum. (550-D-E)

D         1.3. In the present case, in view of the observations made by the High
    Court, the Appellate Authority has rejected the appellant's appeal at the
    threshold and the appellant has been left without any remedy under the law.
    In such circumstances, the observations made by the High Court in its
    judgment on merits of the case was totally on-called for and deserves to be
E   set aside. [550-F)

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1782 of
    1997.

         From the Judgment and Order dated 6.6.96 of the Patna High Court in
F   C.W.J.C. No. 404 of 1994.

        H.N. Salve, M.P. Jha, Nikhil Sakhardhande, Ram Ekbal Roy and Pawan
    Kumar for the Appellant.

         H.L. Aggarwal, B.B. Singh and Kumar Rajesh Singh for the
G   Respondents.

          The Judgment of the Court was delivered by

        V.N. KHARE, J. The appellant herein is a company registered under
  the Indian Companies Act having its registered office at Bankshal Street,
H Calcutta in the State of West Bengal and factory at Jamshedpur in the State
            PLATE CO. OF INDIA LTD. v. STATE [V.N. KHARE,J.)               549

of Bihar. The appellant manufactures tinplates and black plates in its factory A
at Jamshedpur and is registered under the Bihar Sales Tax Act and Central
Sales Tax Act.

       For the assessment year 1985-86, the appellant had filed its return. The
Commercial Tax Officer by its order dated 01.12. 93, assessed the appellant
under the Central Sales Tax Act for the period l.4.85. to 31.3.86, after B
disallowing the appellant's entire claim of stock transfer to outside States and
treating the same as inter-state sales and thus levied tax @ 10% thereon. In
pursuance of the said assessment order the Commercial Tax Officer issued a
notice of demand for a sum of Rs. 4,53,50,430. The appellant challenged the
aforesaid assessment order and the notice of demand by means of a writ C
petition under Article 226 of the Constitution before the High Court of
Judicature at Patna. In the said writ petition, the respondents therein.raised
a preliminary objection that in view of an alternative remedy being available
to the appellant, the petition deserves to be rejected. The High Court accepted
the objection of the respondents in the writ petition and dismissed the same
primarily on the ground that, the appellant has an equally efficacious alternative D
remedy. However, the High Court while throwing out the writ petition on the
ground of alternative remedy, made certain observations touching upon the
merits of the case. The appellant, in view of the fact that the petition was
dismissed on the ground of alternative remedy available to it, filed an appeal
against the order of assessment before the Joint Commissioner of Commercial E
Taxes (Appeals) along with an application for condoning the delay in filing
the appeal in view of the pendency of the writ petition before the High Court.

       The Joint Commissioner of Commercial Taxes(Appeals) rejected the
appeal filed by the appellant at the stage of admission in view of the
observations made by the High Court. The Appellate Authority, while rejecting F
the appeal observed that the delay in filing the appeal could have been
condoned, but since the High Court has not given any direction to admit the
appeal on merits, the appeal cannot be entertained. Under such circumstances,
the appellant filed a review application in the High Court but the same was
rejected by an order dated 27.8.96. It is in this way the appellant has come G
to this Court by filing a special leave petition.

      Learned counsel appearing for the appellant urged that the High Court
has committed grave error in making various observations touching upon the
merits of the case while dismissing the writ petition on the ground of alternative
remedy and thereby prejudicing the case of the appellant to be taken up H
    550                        SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.

A before the Appellate Authority who was bound to decide the case in tenns
    of the observations made by the High Court. The argument is well
    substantiated. It is no doubt true that when an alternative and equally
    efficacious remedy is open to a person, he should be required to pursue that
    remedy and not to invoke extraordinary jurisdiction of the High Court under
B   Article 226 of the Constitution and where such a remedy is available, it
    would be a sound exercise of discretion to refuse to eptertain the writ petition
    under Article 226 of the Constitution. In the present case, admittedly, the
    appellant had an alternative and equally efficacious remedy by filing an
    appeal before the Appellate Authority against the order of assessment and in
    view of such a remedy being available to the appellant, the High Court was
C   right in dismissing the writ petition on the ground that the appellant has an
    altefilative remedy available under the Bihar Sales Tax Act. However, we do
    not subscribe to the view of the High Court when it made a number of
    observations touching upon the merits of the case while dismissing the writ
    petition on the ground of alternative remedy. If the writ petition under Article
    226 is to be dismissed on the ground of alternative remedy, the High Court
D   is not required to express any opinion on merits of the case which is to be
    pursued before an alternative forum. It is true that in the present case the
    appellant's counsel in his effort to get over the objection of existence of an
    alternative remedy, addressed the Court on merits of the case and thereby
    invited the observations on merits of the case by the High Court. But in such
E   a situation if the High Court is to dismiss the writ petition on the ground of
    alternative remedy, it would be a sound exercise of jurisdiction to refrain
     itself from expressing any opinion on the merits of the case which ultimately
     is to be taken up by a person before an alternative forum.

          In the present case, in view of the observations made by the High
F   Court, the Appellate Authority has rejected the appellant's appeal at the
    threshold and the appellant has been left without any remedy under the law.
    Jn such circumstances, we are of the view that the observations made by the
    High Court in its judgment on merits of the case was totally un-called for and
    deserves to be set aside. Consequently, we set aside the observations 11).ade
G   by the High Court in the judgment under appeal to the extent they relate to
    the merit of the case which was the subject matter of appeal before the Sales
    Tax Appellate Authority. Since the Appellate Authority under the Act observed
    that delay could have been condoned and also the fact that the appellant has
    deposited 20% of the tax, we set aside the order of the Appellate Authority
    dated 22.6.96 and restore the appeal to the file of Joint Commissioner of
H   Commercial Taxes(Appeals), who shall decide the appeal expeditiously on
           PLATE CO. OF INDIA LTD. v. STATE[V.N.KHARE,J.]                551
its own merit without being influenced by any of the observations made by       A
the High Court in the writ petition.
     The appeal is thus allowed in part. There shall be no order as to costs.
R.K.S.                                                      Appeal allowed.