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TMI Blog2021 (5) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the respondents of their due revenue thereby enabling the respondents to invoke the jurisdiction under section 58 of the VAT Regulations unfettered by any limitation? - HELD THAT:- This Court referred to the decision of the Supreme Court in HARJAS RAI MAKHIJA (D) THR. L. RS. VERSUS PUSHPARANI JAIN AND ORS. [ 2017 (1) TMI 1736 - SUPREME COURT] which decision highlighted that there must be a specific allegation of fraud. When there is an allegation of fraud, it must be enquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud can be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party fraudulent. Fraud has a definite meaning in law. It must be proved and not merely alleged and inferred - this Court held that to constitute fraud there must be an intent to deceive. When an allegation of fraud is made, it must be enquired into. Enquiry would necessarily mean granting reasonable opportunity of hearing to the party accused of committing fraud. Evidence must be led and thereafter fraud must be proved. No co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that in a case of concealment or omission or failure to disclose material particulars on the part of the concerned person, the limitation of four years gets extended by another two years, to six years. In the instant case, the notice of audit pertains to three years i.e., 2010-11, 2011-12 and 2012-13. We find that for these years the assessments were already made on 25.10.2013. As per section 34, limitation period is four years from the date of filing the return or from the date of assessment, whichever is earlier, which is extendable for a further period of two years in a case of concealment or omission or failure to disclose material particulars. Since the assessments were made on 25.10.2013, certainly the returns were filed much before this date, and it is the earlier date, which is to be taken into consideration for determination of limitation - The impugned notice of audit under section 58 of the VAT Regulations is dated 25.09.2020 which is certainly beyond the period of limitation. It goes without saying that when the notice is barred by limitation, any proceeding or order pursuant to such time barred notice would also be barred by limitation. The impugned notices dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020 as the lead case. 4.1. Writ Petition (St.) No.94222 of 2020 and 94223 of 2020 were argued by Mr. Thorat, learned senior counsel. 4.2. Lastly, Writ Petition (St.) No.94113 of 2020, Khanvel Petroleum Vs. Commissioner of VAT, Dadra & Nagar Haveli was argued by Mr. V. Sridharan, learned senior counsel. 4.3. Since the facts and reliefs sought for in all the writ petitions are identical (besides all the petitioners are similarly placed, being retail petrol pump dealers in the union territory of Dadra and Nagar Haveli), the facts of M/s. Shubham Petroleum Vs. Commissioner of VAT, Dadra & Nagar Haveli, Writ Petition (St.) No.94450 of 2020 argued as the lead case are being referred to for the sake of convenience. 5. Petitioner is a proprietorship firm having its place of business at Khanvel Road, Village Kahdoli in the union territory of Dadra and Nagar Haveli. It is duly registered under the Dadra and Nagar Haveli Value Added Tax Regulations, 2005 (briefly "the VAT Regulations" hereinafter). Petitioner is carrying on the business of retail petrol pump dealership. 6. Deputy Commissioner (VAT), Dadra and Nagar Haveli, Silvassa (briefly referred to as the 'Deputy Commissioner') issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is 13.10.2020; however, the contents of all the audit reports / orders are identical). By the said audit reports (orders), Deputy Commissioner came to the conclusion that information received from various refineries indicated differences with the returns furnished by the retailers for which the VAT Department had decided to conduct audit in respect of all petroleum dealers. Deputy Commissioner recorded that there was violation of sub-section (9) of section 86 and, therefore, the dealer is liable to pay tax and interest, besides payment of penalty. 11. After passing such audit reports (orders), Deputy Commissioner issued notice of default assessment of tax and interest under section 32 in Form DVAT - 24 as well as notice of assessment of penalty under section 33 in Form DVAT - 24A. 12. Aggrieved, the present writ petition has been filed for quashing of the audit reports (orders) dated 12.10.2020 passed under section 58 of the VAT Regulations as well as the notice for audit of business affairs dated 25.09.2020. 13. The challenge has been made primarily on the ground that such audit report / order is basically re-assessment but the time limit for assessment and re-assessment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered petroleum dealers within the territory of Dadra and Nagar Haveli for the period 2010-13. 15.4. The said audit was conducted by the VAT Department and before final order was passed, proper opportunity was granted to the dealers. After issuance of notice and opportunity for furnishing details, final orders were passed on 12.10.2020 and 13.10.2020. Though a few dealers abided by the notice, the rest did not make any attempt of submitting response or documents which included M/s. Shubham Petroleum, the present petitioner. As per the orders passed under section 58 of the VAT Regulations, there is evasion of tax by the petroleum dealers which is sought to be recovered along with interest and penalty. 15.5. It is stated that VAT Department had found differences between purchase from the oil refineries and sale shown by the petitioners in their returns. After considering the figures submitted by the oil refineries, orders under section 58 have been passed following proper investigation, scrutiny of documents and upon due application of mind. The figure of recovery is more than ₹ 106.74 crores. 15.6. On the contention of the petitioner that the impugned notice and orders ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable by the petitioner at nil though interest and penalty were levied for late filing of returns and late payment of taxes. Upon receipt of the said assessment orders dated 07.07.2017 on 11.07.2017, petitioner paid ₹ 12,35,212.00 on account of interest and penalty on 13.07.2017. There is no question of evasion of tax by the petitioner. 17.3. Allegations made by the respondents as to evasion of VAT by the petitioner by resorting to manipulation of figures has been strongly denied further stating that those allegations are vague and wild. Respondents have not produced any single document as regards the so called enquiry / investigation allegedly conducted by them. Copy of letter dated 29.06.2020 has not been served upon the petitioner; no such copy has been annexed to the reply affidavit nor submitted in the Court. 17.4. Referring to the contention of the respondents that many dealers did not approach the VAT Department after receipt of notice, it is stated that petitioner i.e., petitioners in Writ Petition (St.) No.94222 and 94223 of 2020 had filed written submissions on 12.10.2020 but that was not considered by the respondents while passing the audit reports (orders). A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the resultant action are both barred by limitation being beyond the period prescribed in section 34 of the VAT Regulations. It is incorrect and untenable to state that audit provisions are independent and, therefore, not covered by any limitation under section 34. 18.1. Reverting back to section 58, learned senior counsel submits that it is not a stand alone section. A careful reading of this section would make it clear that provisions of assessment and re-assessment have been read into section 58. Limitation for assessment and re-assessment under sections 32 and 33 is found in section 34 which is four years from the date on which the return is furnished or the date on which assessment under section 32 is made, whichever is earlier. This section however extends the time-limit by two additional years for the reasons specified therein. He submits that petitioner (M/s. Shubham Petroleum) was already assessed for the periods 2010-11 and 2011-12 on 25.10.2013 and for the period 2012-13 on 22.01.2014. Though for computing the period of limitation, the date of filing of return is to be considered being the date earlier in point of time, even if the dates of assessment are considered, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural justice which has vitiated the impugned notice and the subsequent orders. 18.5. Mr. Dada has referred to sub-section (4) of section 38 which provides for refund arising out of audit under section 58 as well as section 39 which gives power to the VAT authority to withhold refund. This clearly shows that the legislative intent is that audit would be concluded by assessment or re-assessment. 18.6. Learned senior counsel submits that the lightening speed with which identical notices were issued on the same date to all the petitioners calling for details after nearly eight years and affording token formality of seven days to produce the same during the pandemic period followed by passing of identical orders in respect of the petitioner on the same date or on the next date makes it abundantly clear that the impugned notices and orders were passed with a pre-conceived notion; the notice was a mere formality. Such action is not only violative of the principles of natural justice but is also a serious miscarriage of justice. 18.7. Mr. Dada has placed reliance on the following decisions:- a. State of Punjab Vs. Shreyans Industries Limited, (2016) 4 SCC 769; b. Dhakeshwari Cot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of which the impugned notice dated 25.09.2020 was issued and consequential orders were passed. Thus, there is clear violation of the principles of natural justice which have rendered the impugned audit reports (orders) null and void. 19.2. Mr. Thorat submits that the audit contemplated under section 58 results into assessment, and if required, into re-assessment and confirmation of assessment already done. Therefore, sections 32 and 33 which deal with assessment and re-assessment will come into play for which limitation period is prescribed in section 34, which is four years. The impugned notice and orders of audit being beyond four years are clearly barred by limitation. Those are as such liable to be set aside and quashed. 20. Mr. Sridharan, learned senior counsel representing the petitioner in Writ Petition (St.) No.94113 of 2020 has referred to the scheme of assessment under the Income Tax Act, 1961 in order to understand assessment under the VAT Regulations. He has referred to sections 139, 142 and 143 of the Income Tax Act, 1961 (briefly "the Act" hereinafter) to contend that section 139 of the Act provides for furnishing of returns by the assessee. If the income tax of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 58 itself provides that after conducting the audit, the Commissioner may either confirm the assessment or serve a notice of assessment or re-assessment pursuant to sections 32 and 33. Therefore, section 58 is not a substantive power of assessment or re-assessment but it merely grants certain powers to the Commissioner for enforcing production of evidence. The resultant assessment / re-assessment, if any, has to be conducted pursuant to sections 32 and 33 of the VAT Regulations and such proceedings would be subject to the period of limitation prescribed under section 34 of the VAT Regulations. 20.3. Contending that the provisions contained in the Delhi Value Added Tax Act, 2004 pertaining to assessment and audit are pari materia to the VAT Regulations, learned senior counsel has placed reliance on the following decisions of the Delhi High Court and the Supreme Court:- a. ITD - ITD CEM JV Vs. Commissioner of Trade and Taxes, Writ Petition (Civil) No.5231 of 2014 decided on 14.05.2015; b. ITD - ITD CEM JV Vs. Commissioner of Trade and Taxes, (2016) 91 VST 218 (Delhi); c. H. G. International Vs. Commissioner of Trade and Taxes, (2018) 48 GSTR 220 (Delhi); d. S. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces issued under the said provision would have to be within the limitation period of five years as provided under section 35, however, another Division Bench subsequently in Samay Sales Vs. State of Gujarat, 2018 SCC Online Gujarat 3925 opined that applying the limitation prescribed under section 35 to the proceedings under section 34(8A) would be re-writing section 34(8A) and to provide a limitation which is not there in the said section. Matter has been referred to the Full Bench. 21.4. Lastly, Mr. Venegaonkar has also placed reliance on the decision of the Supreme Court on the point of fraud in Ram Chandra Singh Vs. Savitri Devi, (2003) 8 SCC 319. 22. Mr. Dada in his reply submissions submitted that it was only at the time of filing reply affidavit that the respondents for the first time alleged that there was a fraud committed by the petitioner which was presumed on the basis of certain information received from the refineries. He submits that any allegation of fraud has to be averred and proved. A perusal of the impugned notice would make it abundantly clear that it did not allege fraud or even remotely mention any ingredient of fraud practised by the petitioner. The impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , section 34 of the VAT Regulations itself provides for an extended period of limitation of six years for assessment or re-assessment which period had also expired in the present bunch of cases. 23.1. Mr. Thorat poses a question to himself as for what purpose the audit was made. If it was meant for assessment or re-assessment then the limitation period prescribed for assessment or re-assessment will per force apply. He submits that respondents have made a fundamental error in proceeding with the matter in as much as tax is on sale and not on purchase. 23.2. He asserts that section 58 is not a stand alone provision as is sought to be canvassed and has to be read with section 34 of the VAT Regulations. Therefore, the limitation provided in section 34 has to be read into section 58. 24. Mr. Sridharan, learned senior counsel summing up the submissions has contended that respondents want to put section 58 of the VAT Regulations on an exalted position which is not the intent and purport of the VAT legislation. Any such interpretation would be absurd. 25. Submissions made by learned counsel for the parties have received the due consideration of the Court. 26. On the basis of the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings and no limitation can be put up as a defence in a case of fraud. He has placed reliance on the decision of the Supreme Court in Kalvert Foods India Private Limited (supra) to contend that in a case of clandestine removal of excisable goods, the period of limitation would have to be computed from the date of knowledge. On the above premise, he submits that since it is a case of fraud, limitation will run from the date of knowledge of fraud. Relying upon Candid Enterprises (supra), he submits that section 17 of the Limitation Act lays down the cardinal principle that fraud nullifies everything. He also placed reliance on the decision of the Supreme Court in Ram Chandra Singh (supra) to contend that fraud vitiates every solemn act; misrepresentation itself amounts to fraud. Fraud and deception are synonymous. An act of fraud is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render a transaction void ab initio. Fraud is anathema to all equitable principles. Any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine. Writ jurisdiction is not available t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stake as to the substance of the thing which is the subject of the agreement. 17.4. In so far the Companies Act, 2013 is concerned, section 447 deals with punishment for fraud. It says that without prejudice to any liability including repayment of any debt under the Companies Act, 2013 or any other law for the time being in force, any person who is found to be guilty of fraud shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to ten years and shall also be liable to fine which shall not be less than the amount involved in the fraud but which may extend to three times the amount involved in the fraud. As per the first proviso, where the fraud in question involves public interest, the term of imprisonment shall not be less than three years. As per explanation (i), fraud in relation to affairs of a company or any body corporate includes any act, omission, concealment of any fact or abuse of position committed by any person or any other person with the connivance in any manner with intent to deceive, to gain undue advantage from, or to injure the interests of the company or its shareholders or its creditors or any other perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata." 20. It is a settled proposition of law that fraud vitiates every solemn act. An order or dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable opportunity of hearing to the party accused of committing fraud. Evidence must be led and thereafter fraud must be proved. No conclusion of fraud can be drawn on mere allegation and by way of inference." 31. In so far the present case is concerned, we find that in the notice dated 25.09.2020, Deputy Commissioner expressed the satisfaction that audit of the petitioner's business affairs as a dealer was required to be undertaken for the period 2010-11, 2011-12 and 2012-13. Therefore, petitioner was asked to attend the office and to produce the necessary documents and evidence. The said notice dated 25.09.2020 reads as under:- "File No. DC (VAT)/Petroleum/Audit/2020-21/832 Date:-25/09/2020 To M/s. SHUBHAM PETROLEUM Address:- SRY.NO.54/8/2/1, KHANVEL ROAD VILLAGE-KAHDOLI Tin:-26001000686 Notice for Audit of Business Affairs Whereas I am satisfied that an audit of your business affairs as a dealer is required to be undertaken for the period 2010-11, 2011-12 and 2012-13. You are hereby directed to attend at VAT department, 1st Floor, Udhyog Bhavan, Amli Silvassa on 03.10.2020 at 11.00 AM and produce / cause to be produced the books of accounts and all evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Rs. Sixty One Lakh Twenty Four Thousand Eight Hundred Ten only) for which Demand Notice in DVAT-24 is created and Penalty notice in DVAT-24A amounting to ₹ 25,25,695/- (Rs. Twenty Five Lakh Twenty Five Thousand Six Hundred Ninety Five only) is also created." 32.1. From a careful perusal of the audit report / order of audit, we find that though the Deputy Commissioner stated that there were differences in the data received from the refineries and returns filed by the retailers leading to tax deficiency, no allegation of fraud is discernible; not to speak of any finding that petitioner had committed fraud thereby causing loss to Government revenue. 32.2. When the impugned notice did not allege fraud and no such finding of fraud being discernible in the order of audit, it is not open to the respondents to make such sweeping allegation of fraud in the oral hearing which is not backed up by adequate pleadings. In Geo Tech Foundations and Construction (supra), Supreme Court held that when an allegation has not been made in the original notice, the same cannot be made in subsequent proceedings arising out of the notice. 33. In the circumstances, we are unable to accept the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail dated 11.08.2020. Therefore, it was imperative on the part of the Deputy Commissioner to have furnished copy of the said email to the petitioner or at least the material information which would have enabled the petitioner to have properly defended its case. Failure to do so has resulted in violation of the principles of natural justice. Limitation 40. We now take up the prime issue as to whether the impugned notices dated 25.09.2020 and the consequential orders of audit dated 12.10.2020 and 13.10.2020 are beyond limitation and thus without jurisdiction. For a proper adjudication of this issue, it would be apposite to briefly refer to the relevant provisions of the VAT Regulations. 41. The Dadra and Nagar Haveli Value Added Tax Regulation, 2005 (already referred to as the "VAT Regulations" hereinabove) has been promulgated to consolidate and amend the law relating to levy of tax on sales or purchases of goods in the Union Territory of Dadra and Nagar Haveli and to provide for matters connected therewith or incidental thereto. 42. Chapter V of the VAT Regulations deals with furnishing of returns. As per section 26, it is the duty of every registered dealer liable to pay tax u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 32 deals with default assessment or best judgment assessment. As per sub-section (1), if any person has not furnished returns under the VAT Regulations or has furnished incomplete or incorrect returns or has furnished a return which is not accompanied by the documents required to be filed along with the return, or has furnished a return which is not in conformity with the provisions of the VAT Regulations, the Commissioner may for the reasons to be recorded in writing, assess or re-assess to the best of his judgment the amount of net tax due for any tax period or tax periods. Sub-section (2) says that where the Commissioner has made an assessment under sub-section (1), he shall serve upon the concerned person, a notice of assessment of the amount of any additional tax due for that tax period. Sub-section (3) deals with a situation where the Commissioner has made an assessment under sub-section (1) and subsequently, further tax is assessed as due. In such an eventuality, the further tax so assessed shall be payable on the same date when the tax is payable. 45.1. Thus, what section 32 provides for is that in a case where there is default by a person in furnishing return, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd interest is dealt with in section 38. Sub-section (4) says that where the Commissioner has issued a notice to the person under section 58 informing him that an audit, investigation or enquiry into his business affairs shall be undertaken, the excess amount required to be refunded shall be carried forward to the next tax period as a tax credit in that period. 49. Section 39 empowers the Commissioner to withhold refund in certain cases. Sub-section (1) says that where a person is entitled to a refund and any proceeding under the VAT Regulations is pending against him or a notice under section 58 had been issued pursuant to which assessment or re-assessment is pending and the Commissioner is of the opinion that payment of refund may adversely affect the revenue which may not be possible to recover later, he may either withhold the refund or obtain a security equal to the amount to be refunded. However, for doing so, he must record his reasons in writing. 50. Chapter VIII deals with accounts and records. As per section 48(1) which forms part of Chapter VIII, every dealer and a person to whom a notice has been served to furnish returns under section 27 are under an obligation to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess premises. (4) The Commissioner shall, after considering the return, the evidence furnished along with the returns, if any, the evidence acquired in the course of the audit, if any, or any information otherwise available to him, either- (a) confirm the assessment; or (b) serve a notice of the assessment or re-assessment of the amount of tax, interest and penalty, if any, pursuant to sections 32 and 33. (5) Any assessment pursuant to an audit of the affairs of the business of the person referred to in subsection (1) shall be without prejudice to prosecution for any offence under this Regulation." 52.1. From a careful reading of section 58 of the VAT Regulations as extracted above, we find that as per sub-section (1), the Commissioner may serve on any person in the prescribed manner a notice informing him that an audit of the affairs of the business shall be conducted and in a case where an assessment had already been concluded, re-assessment may be made or the assessment already made may be confirmed. As per the explanation, it is clarified that a notice under sub-section (1) may be served notwithstanding the fact that the person may already have been assessed under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al's or organization's accounting records, financial situation or compliance with some other set of standards. As per Advanced Law Lexicon, 3rd Edition, 'audit' has been explained to mean to draw up or present an account; to make an official investigation and examination of accounts and vouchers; an examination of accounts in general; a formal or official examination and authentication of accounts; setting of accounts; the process of auditing accounts; the hearing and investigation had before an auditor; a systemic checking of account books, bills, vouchers and other relevant records in conformity with the norms set by an organization, whether business, social or charitable; the correctness of accounts and relevant reports is deemed to be authentic only after the completion of the audit. 52.5. Thus having regard to the meaning of the word 'audit' as is ordinarily understood since it is not a defined expression under the VAT Regulations and having regard to the scheme of section 58, it is quite evident that when a notice is issued to a person informing him that an audit of the affairs of his business shall be conducted, the same certainly has a legal signifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) and in Samay Sales (supra) on which much reliance was placed by Mr. Venegaonkar. Section 34 of the Gujarat Value Added Tax Act, 2003 deals with audit assessment. As per sub-section (8A), during the course of any proceedings under the said Act, if the prescribed authority is satisfied that tax has been evaded or sought to be evaded or the tax liability has not been disclosed correctly or excess tax credit has been claimed by any dealer in respect of any period or periods, in such a case notwithstanding the fact that any notice for assessment has been issued under any other provisions of the said Act, the prescribed authority may after giving such a dealer a reasonable opportunity of being heard, initiate assessment of the dealer in respect of such transaction or claim. However, no limitation period is prescribed for an action under subsection (8A). 55.1. Section 35 deals with turnover escaping assessment. As per subsection (1), where a dealer has been assessed under sections 32, 33 or 34 for any year or part thereof and the Commissioner has reason to believe that the whole or any part of the taxable turnover of the dealer in respect of any period has escaped assessment or ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable with respect to proceedings under section 34(8A). 56. From a comparison of section 58 of the VAT Regulations and section 34(8A) of the Gujarat Value Added Tax Act, 2003, we find that the two provisions are not identical. Section 34(8A) of the Gujarat Value Added Tax Act, 2003 is not pari materia with section 58 of the VAT Regulations. Therefore, decisions rendered by the Gujarat High Court in respect of section 34(8A) of the Gujarat Value Added Tax Act, 2003 cannot be pressed into service in support of the contention advanced by the respondents that section 58 of the VAT Regulations is a stand alone provision without providing for any limitation. That apart, there is a conflict of opinion within the Gujarat High Court as to whether the limitation prescribed in section 35 of the Gujarat Value Added Tax Act, 2003 can be read into section 34(8A) thereof. In any case, decisions of the Gujarat High Court at the most can have a persuasive value and are certainly not binding on this Court. For the reasons indicated above, we are of the view that be it the decision in H. Tribhovandas (supra) or Samay Sales (supra), none have any relevance to the issue before this Court. 57. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. * * * * * 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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