Supreme court in case of Radha krishna industries fixed the important issue of attachment

Judgement- M/s Radha Krishan Industries Vs State of Himachal Pradesh & Ors.

Court- Supreme Court of India

This judgement is cited in many judgements later on. Three important issues were addressed in this judgement.

C.1 Maintainability of the writ petition before the High Court

C.2 Provisional Attachment

C.3 Delegation of authority under the CGST Act

1- Maintainability of a writ petition before the High Court

The maintainability of writ when an alternate remedy is available. The appellant in this case approached the court. The high court already rejected their writ citing the following reason.”The High Court held that it would not entertain a petition under Article 226 of the Constitution, if an efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken contains a mechanism for redressal of grievances. The High Court held that when a statutory forum of appeal exists, an appeal should “not be entertained ignoring the statutory dispensation”. Noting that the appellant has an alternative and efficacious remedy of appeal under Section 107 of the HPGST Act, the High Court refused to entertain the writ petition.

On analysis, the court found that the Writ is maintainable where-

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are whole without jurisdiction; or (d) the vires of legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, a resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

2- Provisional Attachment

It is evident from the facts noted above that the order of provisional attachment was passed before the proceedings against the appellant were It is evident from the facts noted above that the order of provisional attachment was passed before the proceedings against the appellant were initiated under Section 74 of the HPGST Act

3- Jurisdiction-

The court find that the proceedings are within the jurisdiction

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