State of Maharashtra vs Maharashtra State Co-Op. Marketing Federation Ltd.

The State of Maharashtra through the Commissioner of Sales Tax seeks to challenge a judgment dated October 13, 2008 rendered by the Maharashtra Sales Tax Tribunal in a batch of second appeals. Against an order passed by the Tribunal the petitioner had a remedy open u/s 61 of the Bombay Sales Tax Act, 1959 of moving the Tribunal by an application to refer to this court any question of law arising from such order. That remedy has not been espoused. In fact, the period which has been reserved by the Legislature for taking recourse to the remedy of an application for reference u/s 61 has expired. The State moved the Tribunal in an application for rectification on March 26, 2009. That application was dismissed on July 27, 2009. The petition has been filed on August 5, 2011 well over two years thereafter. The challenge in the writ petition under article 226 is to the original order of the Tribunal. Such a challenge clearly would not be maintainable having regard to the fact that the Legislature has created an alternate remedy u/s 61 of the Bombay Sales Tax Act, 1959. Having failed to espouse that remedy, it is not open to the State to circumvent the legislative provision by moving this court directly under article 226 of the Constitution. For these reasons, we do not find any reason to entertain this petition. The petition is accordingly dismissed.