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Alternative Remedy Not An Absolute Bar To Admissibility Of Writ Petition

It is a common notion that Writs under Article 226 of the Constitution are not maintainable where an Alternative Statutory Remedy is available. Most of the writs are denied hearing/relief at the very outset on the preliminary ground that Alternative Remedy is available. The moment the respondent's counsel argues that an alternative remedy is available; the writ is virtually thrown out on this preliminary ground alone.

The Apex Court and the High Court consistently deprecate the practice of filing writ petitions in the High Court where an alternative remedy has been provided under the relevant statute. But it is not an 'Absolute' Rule of Law and there are Valid Exceptions where the writ petitions are maintainable in the High Court and in such cases, the petitioner ought not to be relegated to alternative remedy.

The Apex Court has consistently held that the High Courts should exercise their discretionary jurisdiction in-spite of availability of alternative remedy, where the authority has acted without jurisdiction or in violation of the principles of natural justice or where vires of the Act has been challenged or for enforcement of a fundamental right. Let us examine some important judgments of the Apex Court wherein the exceptions to this rule have been categorically carved out.

It would be trite to refer to Whirlpool Corporation vs. Registrar of Trade marks, Mumbai & Ors.(1998) 8 SCC 1, wherein the Apex Court held as under:

Under Article 226 of the Constitution, the High Court, having regard to the facts 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.

It would be relevant to refer to Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107, wherein the Apex Court carved out the exceptions thus:

In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

In CIT vs. Chhabil Dass Agarwal (2014) 1 SCC 603, the Apex Court reiterated this proposition and struck a balance between admission and rejection of writ under Article 226 of the Constitution in case of availability of alternative remedy and held as under:

19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field.

This judgment clearly manifests that if the exceptions carved out consistently by the Apex Court exist, the High Courts should entertain writ although statutory alternative remedy is available.

It would be befitting to refer to the 3 member bench of the Apex Court in Bar Council of Delhi v. Surjeet Singh AIR 1980 SC 1612 which reiterated the aforesaid principle and observed thus:

If the alternative remedy fully covers the challenge ..... then that remedy and that remedy alone must be resorted to ....if the nature of the grounds of the challenge ...... are such that the alternative remedy is no remedy in the eye of law to cover the challenge, or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition ..... is still available ....

It would be apropos to refer to a recent judgment of the Apex Court in M/S. Magadh Sugar And Energy Ltd. vs The State of Bihar in Civil Appeal No. 5728 of 2021 decided on 24 September, 2021, the Court reiterated the hypothesis and categorically held as under:

19.While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahni v. Indian Oil Corporation Ltd (2003) 2 SCC 107......

It is necessary to refer to Radha Krishan Industries v. State of Himachal Pradesh & Ors 2021 SCC OnLine SC 334 wherein the Apex Court summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. The Court observed thus:

28. The principles of law which emerge are that:
  1. 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;
  2. 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;
  3. Exceptions to the rule of alternate remedy arise where:
    1. the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution
    2. there has been a violation of the principles of natural justice;
    3. the order or proceedings are wholly without jurisdiction; or
    4. the vires of a legislation is challenged;
  4. 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;
  5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, 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
  6. 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.

The principle of alternate remedies and its exceptions was also recently reiterated in the case of Assistant Commissioner of State Tax v. M/s Commercial Steel Limited in Civil Appeal No. 5121 of 2021decided on 6th May, 2020.

The Apex Court in State of HP v. Gujarat Ambuja Cement Ltd (2005) 6 SCC 499 held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction and observed thus:

23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.

It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition.

The above principle was also reiterated by a three-judge Bench of the Apex Court in Executive Engineer v. Seetaram Rice Mill (2012) 2 SCC 108. In that case, a show cause notice/provisional assessment order was issued to the assessee on the ground of an unauthorized use of electricity under Section 126 (1) of the Electricity Act 2003 and a demand for payment of electricity charges was raised. The assessee filed a writ in the High Court challenging the jurisdiction of the taxing authorities to issue such a notice. The Apex Court held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities and held thus:

81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction.

It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act.

82. It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above stated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility.

The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous-lex neminem cogit ad vana seu inutilia-the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail...

It would be trite to refer to the landmark Constitution Bench judgment in Calcutta Discount Co. vs. ITO-1961 (2) SCR 241wherein the Court observed thus:

Mr. Sastri next pointed out that at the stage when the Income-tax Officer issued the notices he was not acting judicially or quasi-judicially and so a writ of certiorari or prohibition cannot issue. It is well settled however that though the writ of prohibition or certiorary will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction.

Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. Mr. Sastri mentioned more than once the fact that the company would have sufficient opportunity to raise this question, viz., whether the Income-tax Officer had reason to believe that under assessment had resulted from non- disclosure of material facts, before the Income-tax Officer himself in the assessment proceedings and, if unsuccessful there, before the appellate officer or the appellate tribunal or in the High Court under section 66(2) of the Indian Income-tax Act. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action.

It would be relevant to cite the case of State of West Bengal vs. North Adjai Coal Co. Ltd.-1971 (1) SCC 309 wherein it was held as under:

It is true that normally before a petition under Article 226 of the Constitution is entertained, the High Court would insist that the party aggrieved by the order of a quasi-judicial tribunal should have recourse to the statutory authorities, which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities.

In Raza Textiles vs. ITO-1973 (1) SCC 633, the Apex Court reiterated that writ is maintainable if the officer had assumed jurisdiction erroneously. The Court held thus:

If the High Court comes to the conclusion, as the learned single Judge has done in this case, that the Income-tax Officer had clutched at the jurisdiction by deciding a jurisdictional fact erroneously, then the assesses was entitled for the writ of certiorari prayed for by him.

Reference is necessary to the case of Jeans Knit Pvt. Ltd. vs. DCIT Bangalore-(2017) 77 Taxmann.com 176 SC wherein it was observed thus:

We have heard learned counsel for the parties at length and all these matters can be disposed of by a short order. We find that the High Courts in all these cases have dismissed the writ petitions preferred by the appellant/assessee herein challenging the issuance of notice under Section 148 of the Income Tax Act, 1961 and the reasons which were recorded by the Assessing Officer for reopening the assessment.

These writ petitions are dismissed by the High Courts as not maintainable. The aforesaid view taken is contrary to the law laid down by this Court in Calcutta Discount Limited Company vs. Income Tax Officer, Companies District I, Calcutta & Anr. [(1961) 41 ITR 191 (SC)]. We, thus, set aside the impugned judgments and remit the cases to the respective High Courts to decide the writ petitions on merits.

The Apex Court in Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapura & Ors.1987 AIR 2186(SC) dealt with the issue in hand and observed thus:

The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy. It is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor under section 68 of the U.P. State Universities Act. It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy.

Similarly in Baburam Prakash Chandra v. Antarim Zila Parished now Zila Parished, Muzaffarnagar 1969 AIR 556, the Apex Court dealt with the proposition in hand and held thus:

It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. The Municipal Board, Kairana [1950] S.C.R. 566 the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefore.

But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. In The State of Uttar Pradesh v. Mohammad Nooh (1958] S.C.R. 595, 605, S.R. Das, C.J., speaking for the Court, observed:

In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol. II, p. 130 and the cases cited there).

The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in 'arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any.

But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party. had other adequate legal remedies.

In the King v. Postmaster-. General Ex parte Carmichael [1928 (1) K.B. 291] a certiorari was issued although the aggrieved party had and alternative remedy by way of appeal. It has been held' that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction.

The case of Rex v. Wandsworth Justices Ex parte Read [1942 (1) K.B. 281] is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction.

Thus, concluding the discussion, it is imperative that the Courts ought to consider while hearing for admission of a writ petition, that relegating the petitioner to alternative remedy might subject the petitioner to lengthy proceedings, unnecessary harassment and the delay, expenditure in terms of time & money and may frustrate the very purpose of the petitioner and result in abuse of the process of law. Moreover, it is exigent to understand the expression 'efficacious remedy'. The word 'efficacious' means able to produce the intended effect or result without much effort, energy, expenditure & time.

If relief is obtained after a long time, subjects the petitioner to unnecessary & frivolous multi-tiered process, then such remedy cannot by any stretch of imagination be termed as an ' efficacious remedy'. The High Court should therefore exercise its extra-ordinary jurisdiction under Art. 226 of the Constitution judicially. It cannot be denied that if the petition makes a claim which is frivolous, vexatious, or prima facie unjust, or may not appropriately be tried in a petition invoking extra-ordinary jurisdiction, the Court may decline to entertain the petition.

But a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high-handed, arbitrary or unjust and such action lacks jurisdiction or exceeds jurisdiction then the petitioner is entitled to a hearing of its petition on the merits.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021

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