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By
Justice Ashok Bhushan
Judge
Allahabad High
Court
Article 226 of the
Constitution of India refers to power of High Court's to issue
certain writs throughout the territory in relation to which it
exercises jurisdiction.
Article 226 of the Constitution sub clause 1
and 2 are as below:
1.
Notwithstanding
anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government within those territories
directions, orders or writs, including writs in the nature of
Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and
Certiorari, or any of them, for the enforcement of any of the
rights conferred by part – III and for any other purpose.
2.
The power conferred
by Clause (1) to issue directions, orders or writs to any
Government, authority or any person also be exercised by any
High Court exercising jurisdiction in relating to the
territories within which the cause of action, wholly or in part,
arises for the exercise of the such power, notwithstanding that
the seat of the such government or authority or the residence of
such person is not within those territories.
Subject of discussion is confined to bar to
writ petitions in context of availability of alternate remedies.
Before we proceed further with the discussion, it is necessary
to elaborate the concept of bar to writ petitions.
Article 226 of the Constitution of India
reserves original jurisdiction to the High Court to issue writs.
The first thought which is to be pondered is as to whether the
writ petition can be barred or whether there are any
circumstances in which jurisdiction of High Court to entertain a
writ petition is barred. The bar of entertaining the cases as
you all well know can be expressly provided or can be read by
necessary implication. Can there be any circumstances in which
the writ jurisdiction can be barred by any Parliamentary
legislation or by any State Act is the moot question. This
aspect of the matter is now well settled and it has been held by
the Hon’ble Supreme Court that the jurisdiction of the High
Court to entertain a writ petition under Article 226 of the
Constitution of India cannot be barred by any Act of Parliament
or even by any constitutional amendment.
The right of judicial review granted under
Article 226 of the Constitution of India is a basic feature of
the Constitution and cannot be amended by even a constitutional
amendment. When by any constitutional amendment, remedy of writ
before a High Court cannot be barred, same cannot be done by any
Parliamentary legislation or by State enactment. There is one
Supreme Court judgement in this context which is relevant to be
referred to that is the judgement of Apex Court in 1997 (3) SCC
261., L. Chandra Kumar Vs. Union of India and Others.
The above judgement of L. Chandra Kumar
(supra) has been delivered by the Constitution Bench of seven
Judges. The matter arose in context of creation of Tribunal in
exercise of power under Articles 323-A and 323-B of the
Constitution of India, by 42nd Amendment part XIV
(a) has been added in the Constitution which provides for
adjudication or trial by Administrative Tribunal created by
Parliament. Article 323-A (2) (d) provides that law made by the
Parliament may exclude the jurisdiction of “all courts” except
the jurisdiction of the Hon’ble Supreme Court under Article 136
of the Constitution of India.
In L. Chandra Kumar (supra) the
Apex Court considered the validity of the above Article by which
the jurisdiction of the High Court was excluded. The Apex Court
after considering the earlier judgements of the Apex Court
including the celebrity judgement of Kesavananda Bharati Vs.
State of Kerala, 1973 (4) SCC 225 held that the jurisdiction of
the High Court under Article 226 of the Constitution of India
cannot be barred and any law barring the jurisdiction of the
High Court under Article 226 of the Constitution of India
offends the basic structure of the Constitution and hence not
permissible.
Following was laid down in paragraphs
90. “We may first address the issue of
exclusion of the power of judicial review of the High Courts. We
have already held that in respect of the power of judicial
review, the jurisdiction of the High Courts under Articles
226/227 cannot wholly be excluded. It has been contended before
us that the Tribunals should not be allowed to adjudicate upon
matters where the vires of legislations is questioned, and that
they should restrict themselves to handling matters where
constitutional issues are not raised. We cannot bring ourselves
to agree to this proposition as that may result in splitting up
proceedings and may cause avoidable delay. If such a view were
to be adopted, it would be open for litigants to raise
constitutional issues, many of which may be quite frivolous, to
directly approach the High Courts and thus subvert the
jurisdiction of the Tribunals. Moreover, even in these special
branches of law, some areas do involve the consideration of
constitutional questions on a regular basis; for instance, in
service law matters, a large majority of cases involve an
interpretation of Articles 14, 15 and 16 of the Constitution. To
hold that the Tribunals have no power to handle matters
involving constitutional issues would not serve the purpose for
which they were constituted. On the other hand, to hold that all
such decisions will be subject to the jurisdiction of the High
Courts under Articles 226/227 of the Constitution before a
Division Bench of the High Court within whose territorial
jurisdiction the Tribunal concerned falls will serve two
purposes. While saving the power of judicial review of
legislative action vested in the High Courts under Articles
226/227 of the Constitution, it will ensure that frivolous
claims are filtered out through the process of adjudication in
the Tribunal. The High Court will also have the benefit of a
reasoned decision on merits which will be of use to it in
finally deciding the matter.”
91. “It has also been contended before
us that even in dealing with cases which are properly before the
Tribunals, the manner in which justice is dispensed by them
leaves much to be desired. Moreover, the remedy provided in the
parent statutes, by way of an appeal by special leave under
Article 136 of the Constitution, is too costly and inaccessible
for it to be real and effective. Furthermore, the result of
providing such a remedy is that the docket of the Supreme Court
is crowded with decisions of Tribunals that are challenged on
relatively trivial grounds and it is forced to perform the role
of a first appellate court. We have already emphasized the
necessity for ensuring that the High Courts are able to exercise
judicial superintendence over the decisions of the Tribunals
under Article 227 of the Constitution. In R.K. Jain case, after
taking note of these facts, it was suggested that the
possibility of an appeal from the Tribunal on questions of law
to a Division Bench of a High Court within whose territorial
jurisdiction the Tribunal falls, be pursued. It appears that no
follow-up action has been taken pursuant to the suggestion. Such
a measure would have improved matters considerably. Having
regard to both the aforestated contentions, we hold that all
decisions of Tribunals, whether created pursuant to Article
323-A or Article 323-B of the Constitution, will be subject to
the High Court’s writ jurisdiction under Articles 226/227 of the
Constitution, before a Division Bench of the High Court within
whose territorial jurisdiction the particular Tribunal falls.”
The Apex Court, however in the said judgement
further laid down that against the judgement of a Tribunal writ
petition under Articles 226/227 of the Constitution of India is
entertainable before a Division Bench of the High Court. The
Apex Court further laid down that Tribunal created under Article
323-A and 323-B however shall entertain the matters falling in
their jurisdiction and it will not be open for the litigants to
directly approach the High Court and the remedy is to be first
availed in the Tribunal.
Following was laid down in paragraph
99. “In view of the reasoning adopted
by us, we hold that clause 2(d) of Article 323-A and clause 3(d)
of Article 323-B, to the extent they exclude the jurisdiction of
the High Courts and the Supreme Court under Articles 226/227 and
32 of the Constitution, are unconstitutional. Section 28 of the
Act and the “exclusion of jurisdiction” clauses in all other
legislations enacted under the aegis of Articles 323-A and 323-B
would, to the same extent, be unconstitutional. The jurisdiction
conferred upon the High Courts under Articles 226/227 and upon
the Supreme Court under Article 32 of the Constitution is a part
of the inviolable basic structure of our Constitution. While
this jurisdiction cannot be ousted, other courts and Tribunals
may perform a supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the Constitution. The
Tribunals created under Article 323-A and Article 323-B of the
Constitution are possessed of the competence to test the
constitutional validity of statutory provisions and rules. All
decisions of these Tribunals will, however, be subject to
scrutiny before a Division Bench of the High Court within whose
jurisdiction the Tribunal concerned falls. The Tribunals will,
nevertheless, continue to act like courts of first instance in
respect of the areas of law for which they have been
constituted. It will not, therefore, be open for litigants to
directly approach the High Courts even in cases where they
question the vires of statutory legislations (except where the
legislation which creates the particular Tribunal is challenged)
by overlooking the jurisdiction of the Tribunal concerned.
Section 5(6) of the Act is valid and constitutional and is to be
interpreted in the manner we have indicated.”
Thus, from the above, it is clear that the
jurisdiction under Article 226 of the Constitution of India
cannot be barred by any constitutional amendment or by any
Parliamentary or State Act, but while interpreting the power
under Articles 226/227 of the Constitution of India the High
Court and the Supreme Court have laid down a self-imposed rule
of restriction i.e. jurisdiction under Articles 226/227 of the
Constitution of India shall not be exercised if alternate remedy
is available to a litigants. Now, it is well settled by catena
of decisions that whenever there is alternate remedy available
to a litigant, jurisdiction under Articles 226/227 of the
Constitution of India which is a discretionary jurisdiction
shall not be exercised by the High Court. The alternate remedy
may be by way of normal forum of hierarchy of Courts or forum
provided in a statutory provision or may otherwise exists.
Various facets of this aspect has been examined time and again
by the Apex Court which can be illustrated by giving reference
to some decided cases of the Hon'ble Supreme Court. Various
propositions have been laid by the Apex Court in this context.
AIR, 1958 SC 86, State of U.P. Vs.
Mohammad Nooh.
Facts:
The matter arose before the Hon'ble Supreme
Court against the judgement of the High Court passed in a writ
petition quashing the departmental proceedings against a police
constable. A police constable was departmentally proceeded and a
dismissal order was passed. The most important feature of the
case was that the Deputy Superintendent of Police who conducted
the enquiry recorded his own statement in the proceeding. The
High Court held that there was a violation of principle of
natural justice since the Deputy Superintendent of Police who
conducted the proceedings himself appeared as witness in the
inquiry which makes a case of strong bias resulting in violation
of principle of natural justice. Before the Supreme Court an
argument was raised that there being an alternate remedy, the
High Court ought not to have entertained the writ petition. In
this context, the Apex Court laid down the principle which
provides for exception to the rule of non-entertainability of
writ petition when there is an alternate remedy.
Paragraphs 10 and 11 are relevant which are
to the following effects:
10.
“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 be 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
Edn., Vol. 11, 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 KB 291 (E), a
certiorari was issued although the aggrieved party had an
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. Wands-worth Justices;
Ex parte Read, 1942-1 KB 281 (F) 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. At p. 284 Viscount Caldecote, C.J., observed:
“It remains to consider the argument that the
remedy of certiorari is not open to the applicant because others
were available. It would be ludicrous in such a case as the
present for the convicted person to ask for a case to be stated.
It would mean asking this Court to consider as a question of law
whether justices were right in convicting a man without hearing
his evidence. That is so extravagant an argument as not to merit
a moment’s consideration. As to the right of appeal to quarter
sessions, it may be that the applicant could have had his remedy
if he had pursued that course, but I am not aware of any reason
why, if in such circumstances as these, he preferred to apply
for an order of certiorari to quash his conviction, the Court
should be debarred from granting his application.”
Likewise in Khurshed Modi v. Rent Controller,
Bombay; AIR 1947 Bom 46 (G), it was held that the High Court
would not refuse to issue a writ of certiorari merely because
there was a right of appeal. It was recognized that ordinarily
the High Court would require the petitioner to have recourse to
his ordinary remedies, but if it found that there had been a
breach of fundamental principles of justice, the High Court
would certainly not hesitate to issue the writ of certiorari. To
the same effect are the following observations of Harries, C.J.,
in 56 Cal WN 453: (AIR 1952 Cal 656) (D) at p. 470 (of Cal WN):
(at p. 665 of AIR):
“There can, I think, be no doubt that Court
can refuse to issue a certiorari if the petitioner has other
remedies equally convenient and effective. But it appears to me
that there can be cases where the Court can and should issue a
certiorari even where such alternative remedies are available.
Where a Court or tribunal, which is called upon to exercise
judicial or quasi-judicial functions discards all rules of
natural justice and arrives at a decision contrary to all
accepted principles of justice then it appears to me that the
Court can and must interfere.”
It has also been
held that a litigant who has lost his right of appeal or has
failed to perfect an appeal by no fault of his own may in a
proper case obtain a review by certiorari. (See Corpus Juris
Secundum Vol. 14, Art. 40, p. 189). If, therefore, the existence
of other adequate legal remedies is not per se a bar to the
issue of certiorari and if in a proper case it may be the duty
of the superior court to issue a writ of certiorari to correct
the errors of an inferior Court or tribunal called upon to
exercise judicial or quasi-judicial functions and not to
relegate the petitioner to other legal remedies available to him
and if the superior Court can in a proper case exercise its
jurisdiction in favour of a petitioner who has allowed the time
to appeal to expire or has not perfected his appeal e.g., by
furnishing security required by the statute, should it then be
laid down as an inflexible rule of law that the superior Court
must deny the writ when an inferior Court or tribunal by
discarding all principles of natural justice and all accepted
rules of procedure arrived at a conclusion which shocks the
sense of justice and fair play merely because such decision has
been upheld by another inferior Court or tribunal on appeal or
revision? The case of 1889-22 QBD 345 (C) referred to in 1951
SCR 344: (AIR 1951 SC 217) (B) furnishes the answer. There the
manager of a club was convicted under a certain statute for
selling beer by retail without an excise retail license.
Subsequently he was convicted of selling intoxicating liquor,
namely, beer without a license under another statute. Upon
hearing of the later charge the Magistrate treated it as a
second offence and imposed a full penalty authorized in the case
of a second offence by the latter statute. His appeal to the
quarter sessions having been dismissed, he applied for a writ of
habeas corpus and it was granted by the King’s Bench Division on
the ground that the Magistrate could not treat the later offence
as a second offence, because it was not a second offence under
the Act under which he was convicted for the second time.
Evidently the point was taken that if there had been any error,
irregularity or illegality committed by the Magistrate, the
quarter sessions could have on appeal corrected the same and
that the quarter sessions having dismissed the appeal the Court
of Queen’s Bench Division could not issue the writ of habeas
corpus. This was repelled by the following observation of
Hawkins, J.:
“This is true as a fact, but it puts the
prosecution in no better position, for if the Magistrate had no
power to give himself jurisdiction by finding that there had
been a first offence where there had been none, the justices
could not give it to him.”
11. On the
authorities referred to above it appears to us that there may
conceivably be cases – and the instant case is in point – where
the error, irregularity or illegality touching jurisdiction or
procedure committed by an inferior court or tribunal of first
instance is so patent and loudly obtrusive that it leaves on its
decision an indelible stamp of infirmity or vice which cannot be
obliterated or cured on appeal or revision. If an inferior Court
or tribunal of first instance acts wholly without jurisdiction
or patently in excess of jurisdiction or manifestly conducts the
proceedings before it in a manner which is contrary to the rules
of natural justice and all accepted rules of procedure and which
offends the superior court’s sense of fair play the superior
Court may, we think, quite properly exercise its power to issue
the prerogative writ of certiorari to correct the error of the
Court or tribunal of first instance, even if an appeal to
another inferior Court or tribunal was available and recourse
was not had to it or if recourse was had to it, it confirmed
what ex facie was a nullity for reasons aforementioned. This
would be so all the more if the tribunals holding the original
trial and the tribunals hearing the appeal or revision were
merely departmental tribunals composed of persons belonging to
the departmental hierarchy without adequate legal training and
background and whose glaring lapses occasionally come to our
notice. The superior Court will ordinarily decline to interfere
by issuing certiorari and all we say is that in a proper case of
the kind mentioned above it has the power to do so and may and
should exercise it. We say no more than that.”
Labour and Industrial Disputes
Large number of cases come to the High Court
in the writ petition challenging the violation of provisions of
Industrial Disputes, Act, 1947 and other statutory enactment.
The Apex Court laid down the principle that whenever a writ
petition is filed for enforcement of right flowing from any
statutory enactment, forum of which is provided to be a specific
forum, the High Court should decline to entertain the writ
petition under Articles 226/227 of the Constitution of India.
Some important cases of the Apex Court are:
(2004) 4
SCC 268., U.P. State Bridge Corporation Ltd And Others. Vs. U.P.
Rajya Setu Nigam S. Karamchari Sangh.
Facts:
The Corporation had undertaken a work at Betwa Bridge Jhansi.
Certain workmen did not report for duty. A notice was published
by the Corporation that those workmen who continuously absents
for more than 10 days of their service be terminated according
to certified Standing Orders of the Corporation. Services of one
workman was terminated. He filed writ petition in this High
Court. The writ petition was dismissed that the workman could
raise an industrial dispute if he so desired.
Another writ petition was filed by the Union
of the workman which was allowed by the High Court against which
order the Corporation went to the Supreme Court. The Supreme
Court in the said judgement again reiterated and laid down
principle. It is relevant to refer to paragraphs 11 and 12 of
the said judgement.
11. “We are of the firm opinion that
the High Court erred in entertaining the writ petition of the
respondent Union at all. The dispute was an industrial dispute
both within the meaning of the Industrial Disputes Act, 1947 as
well as U.P. IDA, 1947. The rights and obligations sought to be
enforced by the respondent Union in the writ petition are those
created by the Industrial Disputes Act. In Premier Automobiles
Ltd. v. Kamlekar Shantaram Wadke [(1976) 1 SCC 496] it was held
that when the dispute relates to the enforcement of a right or
an obligation created under the Act, then the only remedy
available to the claimant is to get adjudication under the Act.
This was because the Industrial Disputes Act was made to provide
“a speedy, inexpensive and effective forum
for resolution of disputes arising between workmen and their
employers. The idea has been to ensure that the workmen do not
get caught in the labyrinth of civil courts with their layers
upon layers of appeals and revisions and the elaborate
procedural laws, which the workmen can ill-afford. The
procedurers followed by civil courts, it was thought, would not
facilitate a prompt and effective disposal of these disputes. As
against this, the courts and tribunals created by the Industrial
Disputes Act are not shackled by these procedural laws nor is
their award subject to any appeals or revisions. Because of
their informality, the workmen and their representatives can
themselves prosecute or defend their cases. These forums are
empowered to grant such relief as they think just and
appropriate. They can even substitute the punishment in many
cases. They can make and remake the contracts, settlements, wage
structures and what not. Their awards are no doubt amenable to
jurisdiction of the High Court under Article 226 as also to the
jurisdiction of this Court under Article 32, but they are
extraordinary remedies subject to several self-imposed
constraints. It is, therefore, always in the interest of the
workmen that disputes concerning them are adjudicated in the
forums created by the Act and not in a civil court. That is the
entire policy underlying the vast array of enactments concerning
workmen. This legislative policy and intendment should
necessarily weigh with the courts in interpreting these
enactments and the disputes arising under them.”[Ed.: So held in
Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75 at p. 91 to 92b
in para 28 after quoting the principles enunciated in Premier
Automobiles; as explained in (2002) 2 SCC 542 at 547]
12. Although these observations were
made in the context of the jurisdiction of the civil court to
entertain the proceedings relating to an industrial dispute and
may not be read as a limitation on the Court’s powers under
Article 226, nevertheless it would need a very strong case
indeed for the High Court to deviate from the principle that
where a specific remedy is given by the statute, the person who
insists upon such remedy can avail of the process as provided in
that statute and in no other manner.”
(2005) 6 SCC, 725., Hindustan Steel Works
Construction Ltd. And Another Vs. Hindustan Steel Works
Construction Ltd. Employees Union.
Facts:
Appeal was filed by the Company challenging
the judgement of the Andhra Pradesh High Court by which the writ
petition was allowed challenging the withdrawal of construction
allowances to the workmen. The employer raised objection that
the writ petition could not have been entertained, since remedy
of the workmen was to raise an industrial dispute.
Following was said in paragraphs 8 and 9 of
the said judgement:
8. “In U.P. State Bridge Corpn. Ltd.
v. U.P. Rajya Setu Nigam S. Karamchari Sangh [(2004) 4 SCC 268:
2004 SCC (L & S) 637] it was held that when the dispute relates
to enforcement of a right or obligation under the statute and
specific remedy is, therefore, provided under the statute, the
High Court should not deviate from the general view and
interfere under Article 226 except when a very strong case is
made out for making a departure. The person who insists upon
such remedy can avail of the process as provided under the
statute. To same effect are the decisions in Premier Automobiles
Ltd. v. Kamlekar Shantaram Wadke [(1976) 1 SCC 496: 1976 SCC (L
& S) 70], Rajasthan SRTC v. Krishna Kant [(1995) 5 SCC 75: 1995
SCC ( L & S) 1207: (1995) 31 ATC 110], Chandrakant Tukaram Nikam
v. Municipal Corpn. of Ahmedabad [(2002) 2 SCC 542: 2002 SCC (L
& S) 317 and in Scooters India v. Vijai E.V. Eldred [(1998) 6
SCC 549: 1998 SCC (L & S) 1611].
9. In Rajasthan SRTC case [(1995) 5
SCC 75: 1995 SCC ( L & S) 1207: (1995) 31 ATC 110] it was
observed as follows:
“[A] speedy, inexpensive and effective forum
for resolution of disputes arising between workmen and their
employers. The idea has been to ensure that the workmen do not
get caught in the labyrinth of civil courts with their layers
upon layers of appeals and revisions and the elaborate
procedural laws, which the workmen can ill afford. The
procedures followed by civil courts, it was thought, would not
facilitate a prompt and effective disposal of these disputes. As
against this, the courts and tribunals created by the Industrial
Disputes Act are not shackled by these procedural laws nor is
their award subject to any appeals or revisions. Because of
their informality, the workmen and their representatives can
themselves prosecute or defend their cases. These forums are
empowered to grant such relief as they think just and
appropriate. They can even substitute the punishment in many
cases. They can make and remake the contracts, settlements, wage
structures and what not. Their awards are no doubt amendable to
jurisdiction of the High Court under Article 226 as also to the
jurisdiction of this Court under Article 32, but they are
extraordinary remedies subject to several self-imposed
constraints. It is, therefore, always in the interest of the
workmen that disputes concerning them are adjudicated in the
forums created by the Act and not in a civil court. That is the
entire policy underlying the vast array of enactments concerning
workmen. This legislative policy and intendment should
necessarily weigh with the courts in interpreting these
enactments and the disputes arising under them.”
(2005) 8 SCC 264., U.P. State Spinning
Company Ltd. Vs. R.S. Pandey and Another.
Facts:
A workmen filed a writ petition challenging
the termination order. The writ petition was allowed on the
ground that services were terminated in violation of the
principles of natural justice. Before the Apex Court the Company
submitted that the High Court ought not to have entertained the
writ petition when there being alternate remedy available.
Following was laid down in paragraphs 16,17,
and 20 of the said judgement:
16. “If, as was noted in Ram and Shyam
Co. v. State of Haryana [(1985) 3 SCC 267: AIR 1985 SC 1147] the
appeal is from “Caesar to Caesar’s wife” the existence of
alternative remedy would be a mirage and an exercise in
futility. In the instant case the writ petitioners had indicated
the reasons as to why they thought that the alternative remedy
would not be efficacious. Though the High Court did not go into
that plea relating to bias in detail, yet it felt that
alternative remedy would not be a bar to entertain the writ
petition. Since the High Court has elaborately dealt with the
question as to why the statutory remedy available was not
efficacious, it would not be proper for this Court to consider
the question again. When the High Court had entertained a writ
petition notwithstanding existence of an alternative remedy this
Court while dealing with the matter in an appeal should not
permit the question to be raised unless the High Court’s
reasoning for entertaining the writ petition is found to be
palpably unsound and irrational. Similar view was expressed by
this Court in First ITO v. Short Bros. (P) Ltd. [(1966) 3 SCR
84: AIR 1967 SC 81] and State of U.P. v. Indian Hume Pipe Co.
Ltd. [(1977) 2 SCC 724: 1977 SCC (Tax) 335].That being the
position, we do not consider the High Court’s judgment to be
vulnerable on the ground that alternative remedy was not
availed. /There are two well-recognized exceptions to the
doctrine of exhaustion of statutory remedies. First is when the
proceedings are taken before the forum under a provision of law
which is ultra vires, it is open to a party aggrieved thereby to
move the High Court for quashing the proceedings on the ground
that they are incompetent without a party being obliged to wait
until those proceedings run their full course. Secondly, the
doctrine has no application when the impugned order has been
made in violation of the principles of natural justice. We may
add that where the proceedings themselves are an abuse of
process of law the High Court in an appropriate case can
entertain a writ petition.
17. 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 desirable to deal with them in a writ
petition.
20. In a catena of decisions it has
been held that writ petition under Article 226 of the
Constitution should not be entertained when the statutory remedy
is available under the Act, unless exceptional circumstances are
made out.”
Cases pertaining to election.
With regard to cases pertaining to election,
the Apex Court has clearly laid down that when the remedy of
challenging an election is provided in an enactment, the writ
petition challenging an election of an office be not
entertained.
In Harnek Singh Vs. Charanjit Singh and
Others, (2005) 8 SCC 383.
Facts:
In the election for
the post of Chairman, Panchayat Samiti the Returning Officer
adjourned the poll and thereafter a date was fixed and election
was completed. The High Court entertained the writ petition
under Article 226 of the Constitution of India and set-aside the
election.
Relevant paragraphs are 15, 16 and 18.
15. “Prayers (b) and (c)
aforementioned, evidently, could not have been granted in
favoaur of the petitioner by the High Court in exercise of its
jurisdiction under Article 226 of the Constitution. It is true
that the High Court exercises a plenary jurisdiction under
Article 226 of the Constitution. Such jurisdiction being
discretionary in nature may not be exercised inter alia keeping
in view the fact that an efficacious alternative remedy is
available therefore. (See Sanjana M. Wig v. Hindustan Petroleum
Corpn. Ltd. (2005) 8 SCC 242: (2005) 7 Scale 290)
16. Article 243-O of the Constitution
mandates that all election disputes must be determined only by
way of an election petition. This by itself may not per se bar
judicial review which is the basic structure of the
Constitution, but ordinarily such jurisdiction would not be
exercised. There may be some cases where a writ petition would
be entertained but in this case we are not concerned with the
said question.
18. Yet again in Jaspal Singh Arora
[(1998) 9 SCC 594] this Court opined:
“3. These appeals must be allowed on a short
ground. In view of the mode of challenging the election by an
election petition being prescribed by the M.P. Municipalities
Act, it is clear that the election could not be called in
question except by an election petition as provided under that
Act. The bar to interference by courts in electoral matters
contained in Article 243-ZG of the Constitution was apparently
overlooked by the High Court in allowing the writ petition.
Apart from the bar under Article 243-ZG, on settled principles
interference under Article 226 of the Constitution for the
purpose of setting aside election to a municipality was not
called for because of the statutory provision for election
petition and also the fact that an earlier writ petition for the
same purpose by a defeated candidate had been dismissed by the
High Court.”
Writ petition challenging Assessment
Proceedings/Recovery of Tax.
The Apex Court in several cases has held that
in assessment proceedings when there are specific statutory
remedy available, High Court should not entertain the writ
petition.
AIR 1983 SC, 603, Titagurh Paper Mills
Co., Ltd., and Another Vs. State of Orissa and Another.
Facts:
The appellant had
challenged two assessment orders of Assistant Sales Tax Officer
in writ petition under Article 226 of the Constitution of India.
The High Court dismissed the writ petition. Against which a
S.L.P. was filed.
Relevant paragraphs are 4, 6 and 11
4. “The only contention raised before
the High Court was that the impugned orders of assessment being
a nullity, the petitioners were entitled to invoke the
extraordinary jurisdiction of the High Court under Art. 226 of
the Constitution, but the High Court was not satisfied that this
was a case of inherent lack of jurisdiction. The High Court
while dismissing the writ petitions observed:
“Having heard the learned counsel for both
the parties and having gone through the records, we are not
inclined to interfere with the impugned order(s) in exercise
with our extraordinary jurisdiction since there is a right of
appeal against the same. It is contended on behalf of the
petitioner that the impugned order being a nullity is entitled
to invoke our extraordinary jurisdiction. We are not satisfied
that this is a case of inherent lack of jurisdiction. There is
no violation of principles of natural justice.”
6. We are constrained to dismiss
these petitions on the short ground that the petitioners have an
equally efficacious alternative remedy by way of an appeal to
the prescribed authority under sub-s. (1) of Section 23 of the
Act, them a second appeal to the Tribunal under sub-s. (3)(a)
thereof, and thereafter in the event the petitioners get no
relief, to have the case stated to the High Court under Section
24 of the Act. In Raleigh Investment Co. Ltd. v. Governor
General in Council; (1947) 74 Ind. App. 50: (AIR 1947 PC 78)
Lord Uthwatt, J. in delivering the judgment of the Board
observed that in the provenance of tax where the Act provided
for a complete machinery which enabled an assessee to
effectively raise in the courts the question of the validity of
an assessment denied an alternative jurisdiction to the High
Court to interfere. It is true that the decision of the Privy
Council in Raleigh Investment Company’s case, (supra) was in
relation to a suit brought for a declaration that an assessment
made by the Income-tax Officer was a nullity, and it was held by
the Privy Council that an assessment made under the machinery
provided by the Act, even if based on a provision subsequently
held to be ultra vires, was not a nullity like an order of a
court lacking jurisdiction and that S. 67 of the Income-tax,
1922 operated as a bar to the maintainability of such a suit. In
dealing with the question whether S. 67 operated as a bar to a
suit to set aside or modify an assessment made under a provision
of the Act which is ultra vires, the Privy Council observed:
“In construing the section it is pertinent in
their Lordships opinion to ascertain whether the Act contains
machinery which enables an assessee effectively to raise in the
courts the question whether a particular provision of the
Income-tax Act bearing on the assessment made is or is not ultra
vires. The presence of such machinery, though by no means
conclusive, marches with a construction of the section which
denies an alternative jurisdiction to inquire into the same
subject-matter.”
11. Under the scheme of the Act, there
is a hierarchy of authorities before which the petitioners can
get adequate redress against the wrongful acts complained of.
The petitioners have the right to prefer an appeal before the
prescribed authority under sub-s. (1) of S. 23 of the Act. If
the petitioners are dissatisfied with the decision in the
appeal, they can prefer a further appeal to the Tribunal under
sub-s. (3) of S. 23 of the Act, and then ask for a case to be
stated upon a question of law for the opinion of the High Court
under S. 24 of the Act. The Act provides for a complete
machinery to challenge an order of assessment, and the impugned
orders of assessment can only be challenged by the mode
prescribed by the Act and not by a petition under Art. 226 of
the Constitution. It is now well recognized that where a right
or liability is created by a statute which gives a special
remedy for enforcing it, the remedy provided by that statute
only must be availed of. This rule was stated with great clarity
by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford;
(1859) 6 CBNS 336 at p. 356 in the following passage:
“There are three classes of cases in which a
liability may be established founded upon statute * * * * * * *
* * * * * * * * But there is a third class, viz., where a
liability not existing at common law is created by a statute
which at the same time gives a special and particular remedy for
enforcing it * * * * * * * * * * * * * * * * the remedy
provided by the statute must be followed, and it is not
competent to the party to pursue the course applicable to cases
of the second class. The form given by the statute must be
adopted and adhered to”
The rule laid down in this passage was
approved by the House of Lords in Neville v. London Express
Newspaper Ltd.; 1919 AC 368 and has been reaffirmed by the Privy
Council in Attorney-General of Trinidad and Tobago v. Gordon
Grant & Co.; 1935 AC 532 and Secretary of State v. Mask & Co.;
AIR 1940 PC 105. It has also been held to be equally applicable
to enforcement of rights, and has been followed by this Court
throughout. The High Court was therefore justified in dismissing
the writ petitions in limine.”
AIR 1985 SC 330., Assistant Collector of
Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd
and Others.
Facts:
Central Excise
Department filed a S.L.P. challenging an interim order granted
by the Calcutta High Court challenging the proceedings under
Central Excise.
The Apex Court in the said judgement also
deprecated the practice of granting interim order by the
Calcutta High Court on an oral application. The Apex Court
further held that in such matters whether the High Court ought
not to have entertained the writ petition under Article 226 of
the Constitution of India.
Relevant paragraphs 3 and 4:
3. “In Titaghur Paper Mills Co. Ltd.
v. State of Orissa (AIR 1983 SC 603) A.P. Sen, E.S.
Venkataramiah and R.B. Misra, JJ, held that where the statute
itself provided the petitioners with an efficacious alternative
remedy by way of an appeal to the Prescribed Authority, a second
appeal to the Tribunal and thereafter to have the case stated to
the High Curt, it was not for the High Court to exercise its
extraordinary jurisdiction under Art. 226 of the Constitution
ignoring as it were, the complete statutory machinery. That it
has become necessary, even now, for us to repeat this admonition
is indeed a matter of tragic concern to us. Art. 226 is not
meant to short circuit or circumvent statutory procedures. It is
only where statutory remedies are entirely ill suited to meet
the demands of extraordinary situations, as for instance where
the very vires of the statute is in question or where private or
public wrongs are so inextricably mixed up and the prevention of
public injury and the vindication of public justice require it
that recourse may be had to Art. 226 of the Constitution. But
then the Court must have good and sufficient reason to by pass
the alternative remedy provided by statute. Surely matters
involving the revenue where statutory remedies are available are
not such matters. We can also take judicial notice of the fact
that the vast majority of the petitions under Art. 226 of the
Constitution are filed solely for the purpose of obtaining
interim orders and thereafter prolong the proceedings by one
device or the other. The practice certainly needs to be strongly
discouraged.
4. In Union of India v. Oswal Woollen
Mills Ltd. (AIR 1984 SC 1264), we had occasion to consider an
interim order passed by the Calcutta High Court in regard to a
matter no part of the cause of action relating to which appeared
to arise within the jurisdiction of the Calcutta High Court. In
that case the interim order practically granted the very prayers
in the writ petition. We were forced to observe:
“It is obvious that the interim order is of a
drastic character with a great potential for mischief. The
principal prayer in the writ petition is the challenge to the
order made or proposed to be made under Cl. 8-B of the Import
Control Orders. The interim order in terms of prayers (j) and
(k) has the effect of practically allowing the writ petition as
the stage of admission without hearing the opposite parties.
While we do not wish to say that a drastic interim order may
never be passed without hearing the opposite parties even if the
circumstances justify it, we are very firmly of the opinion that
a statutory order such as the one made in the present case under
Cl. 8-B of the Import Control Order ought not to have been
stayed without at least hearing those that made the order. Such
a stay may lead to devastating consequences leaving no way of
undoing the mischief. Where a plentitude of power is given under
a statute, designed to meet a dire situation, it is no answer to
say that the very nature of the power and the consequences which
may ensure is itself a sufficient justification for the grant of
a stay of that order, unless, of course, there are sufficient
circumstances to justify a strong prima facie inference that the
order was made in abuse of the power conferred by the statute. A
statutory order such as the one under Cl. 8-B purports to be
made in the public interest and unless there are even stronger
grounds of public interest an ex parte interim order will not be
justified. The only appropriate order to make in such cases is
to issue notice to the respondents and make it returnable within
a short period. This should particularly be so where the offices
of the principal respondents and relevant records lie outside
the ordinary jurisdiction of the court. To grant interim relief
straightway and leave it to the respondents to move the court to
vacate the interim order may jeopardize the public interest. It
is notorious how if an interim order is once made by a court,
parties employ every device and tactic to ward off the final
hearing of the application. It is, therefore, necessary for the
courts to be circumspect in the matter of granting interim
relief, more particularly so where the interim relief is
directed against orders or actions of public officials acting in
discharge of their public duty and in exercise of statutory
powers. On the facts and circumstances of the present case, we
are satisfied that no interim relief should have been granted by
the High Court in the terms in which it was done.” ”
(2002) 5 SCC 521., Secretary Minor
Irrigation & Rural Engineering Services, U.P. And Others Vs.
Sahngoo Ram Arya and Others.
Facts:
In this case the
Apex Court held that even if the U.P. Public Services Tribunal
has no jurisdiction to pass an interim order that cannot be a
ground for bypassing the alternate remedy.
Relevant paragraphs 11 and 12:
11. “These appeals are preferred against the order made by
the High Court of Judicature at Allahabad in Civil Misc. WP No.
47130 of 2000 etc. on 1.2.2001. A Division
Bench of the High Court of Allahabad by the impugned judgment
has held that the petitioner in the said writ petitions has an
alternate remedy by way of petitions before the U.P. Public
Services Tribunal (the Tribunal), and had permitted the writ
petitioner therein to approach the Tribunal and directed the
Tribunal to entertain any such petition to be filed by the writ
petitioner without raising any objection as to limitation. There
was a further direction to the Tribunal to decide the matter
expeditiously.
12. Mr. Sunil Gupta, learned counsel
appearing for the petitioner contended that the remedy before
the Tribunal under the U.P. Public Services (Tribunals) Act is
wholly illusory inasmuch as the Tribunal has no power to grant
an interim order. Therefore, he contends that the High Court
ought not to have relegated the petitioner to a fresh proceeding
before the said Tribunal. We do not agree with these arguments
of the learned counsel. When the statute has provided for the
constitution of a Tribunal for adjudicating the disputes of a
government servant, the fact that the Tribunal has no authority
to grant an interim order is no ground to bypass the said
Tribunal. In an appropriate case after entertaining the
petitions by an aggrieved party if the Tribunal declines an
interim order on the ground that it has no such power then it is
possible that such aggrieved party can seek remedy under Article
226 of the Constitution but that is no ground to bypass the said
Tribunal in the first instance itself. Having perused the
impugned order, we find no infirmity whatsoever in the said
order and the High Court was justified in directing the
petitioner to approach the Tribunal. In the said view of the
matter, the appeals are dismissed. No costs.”
(1981) 4 SCC., 247, V. Vellaswamy Vs.
Inspector General of Police, Tamil Nadu, Madras and Another.
Facts:
In this case the
Apex Court held that even though there is a power of review
under a statutory enactment that cannot be a ground for not
entertaining the writ petition under Article 226 of the
Constitution of India.
Now, before closing the discussion on this
topic, it will be useful to recollect again the exceptions to
the principles of not entertaining the writ petition when
alternate remedy is available.
The Apex Court in (1998) (8) SCC 1.,
Whirlpoorl Corporation Vs. Registrar of Trade Marks, Mumbai,
considered the said aspect and reiterated the principles and
also noticed the exception to the rule.
Relevant paragraphs are 15, 16, 17, 18, 19,
20 and 21:
15. “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. 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.
16. Rashid Ahmed v. Municipal Board,
Kairana [AIR 1950 SC 163: 1950 SCR 566] laid down that existence
of an adequate legal remedy was a factor to be taken into
consideration in the matter of granting writs. This was followed
by another Rashid case, namely, K.S. Rashid & Son v. Income Tax
Investigation Commission [AIR 1954 SC 207: (1954) 25 ITR 167]
which reiterated the above proposition and held that where
alternative remedy existed, it would be a sound exercise of
discretion to refuse to interfere in a petition under Article
226. This proposition was, however, qualified by the significant
words, “unless there are good grounds therefore”, which
indicated that alternative remedy would not operate as an
absolute bar and that writ petition under Article 226 could
still be entertained in exceptional circumstances
17. A specific and clear rule was laid
down in State of U.P. v. Mohd. Nooh [AIR 1958 SC 86: 1958 SCR
595] as under:
“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.”
18. This proposition was considered by
a Constitution Bench of this Court in A.V. Venkateswaran,
Collector of Customs v. Ramchand Sobhraj Wadhwani [AIR 1961 SC
1506: (1962) 1 SCR 753] and was affirmed and followed in the
following words:
“The passages in the judgments of this Court
we have extracted would indicate (1) that the two exceptions
which the learned Solicitor General formulated to the normal
rule as to the effect of the existence of an adequate
alternative remedy were by no means exhaustive, and (2) that
even beyond them a discretion vested in the High Court to have
entertained the petition and granted the petitioner relief
notwithstanding the existence of an alternative remedy. We need
only add that the broad lines of the general principles on which
the Court should act having been clearly laid down, their
application to the facts of each particular case must
necessarily be dependent on a variety of individual facts which
must govern the proper exercise of the discretion of the Court,
and that in a matter which is thus pre-eminently one of
discretion, it is not possible or even if it were, it would not
be desirable to lay down inflexible rules which should be
applied with rigidity in every case which comes up before the
Court.”
19. Another Constitution Bench decision
in Calcutta Discount Co. Ltd. v. ITO, Companies Distt. [AIR 1961
SC 372: (1961) 41 ITR 191] laid down:
Though the writ of prohibition or certiorari
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 will issue
appropriate orders or directions to prevent such consequences.
Writ of certiorari and prohibition can issue against the Income
Tax Officer acting without jurisdiction under Section 34, Income
Tax Act.”
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, in spite of the alternative statutory remedies, is
not affected, specially in a case where the authority against
whom the writ is filed is shown to have had no jurisdiction or
had purported to usurp jurisdiction without any legal
foundation.
21. That being so, the High Court was
not justified in dismissing the writ petition at the initial
stage without examining the contention that the show-cause
notice issued to the appellant was wholly without jurisdiction
and that the Registrar, in the circumstances of the case, was
not justified in acting as the “Tribunal”.
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