The availability of an alternative remedy does not always bar the maintainability of a petition under Art.226 of the Constitution. The rule of exhaustion of alternative remedy is a rule of policy, convenience, and discretion rather than a rule of law.

K. Narayana Kurup, J.

The petitioner is a registered dealer and an assessee to sales tax on the files of the second respondent, Additional Sales Tax Officer-II, 1st Circle, Palakkad. The challenge in this original petition is directed against Exts. P4 and P7 assessment orders passed by the second respondent rejecting the petitioner's claim for exemption of sugar candy from sales tax under the provisions of the Kerala General Sales Tax Act. The petitioner has an effective alternative remedy of appeal under the Kerala General Sales Tax Act.

2. The learned Single Judge doubted whether in a case where the assessee has a right of appeal against the orders impugned in the Original Petition, he is obliged to pursue the remedy provided by the statute and referred the original petition at the admission stage itself for consideration of that question by a Division Bench. The Division Bench in turn having regard to the "importance of the question on the

practical side" referred the matter for adjudication by a Full Bench. The matter has come before us thus.

3. Heard learned counsel for the petitioner and learned Government Pleader appearing for the Revenue.

4. The only question that arises for consideration is whether this court can entertain a petition under Art.226 of the Constitution of India notwithstanding the fact that the petitioner has an equally efficacious adequate alternate remedy by way of appeal etc. under the statute, namely, Kerala General Sales Tax Act. Ext. P4 and P7 are assessment orders passed by the second respondent rejecting the petitioner's claim for exemption in respect of sugar candy as already noticed. According to the petitioner, sugar candy and sugar are one and the same and accordingly he is entitled to exemption on the whole turnover of sugar candy as per Entry 5 of the Third Schedule to the Kerala General Sales Tax Act which reads:

"Sugar as defined in item 1 of the First Schedule to the central Excise and Salt Act, 1944." The central Act defines 'sugar' as follows:

"Sugar means any form of sugar in which the sucrose content, expressed as percentage on the material dried to constant weight at 105°C would be more than ninety."

Whereas according to the Revenue, sugar and sugar candy are entirely different commodities and the petitioner is not entitled to exemption.

5. Petitioner has an equally efficacious adequate alternative remedy by way of an appeal provided under the Kerala General Sales Tax Act. The normal rule is that the aggrieved party should be relegated to the statutory remedy and he should not be permitted to agitate the issue involved directly before the High Court under Art.226 of the Constitution. This rule of exhaustion of alternative remedy will be more strictly enforced in fiscal matters which involve revenue to the State. But that does not mean that the mere existence of alternative remedy is an absolute bar to the maintainability of a petition under Art.226 of the Constitution in all cases irrespective of factual matrix. There are situations in which despite the existence of alternative remedy this court may grant relief in deserving cases since the rule of exhaustion of alternative remedy is only. a rule of policy, convenience and discretion rather than a rule of law. That apart, it is not desirable to lay down a hard and fast rule that in all cases where alternative remedy exists judicial review by way of petition under Art.226 of the Constitution is shut out since judicial review is one of the basic features of the Constitution. In other words, whether a petition under Art.226 of the Constitution is entertainable or not despite the existence of alternative remedy may depend upon the facts of each case. It is a circumstance which the court has to take into consideration in exercising the extraordinary jurisdiction under Art.226 of the Constitution. Alternative remedy does not take away the jurisdiction of this court to grant relief under Art.226.

6. The Supreme Court in the decision re