Availability Of An Alternative Remedy Of Appeal Or Revision Alone Would Not Oust The Jurisdiction Of The High Court
In the matter before the Hon’ble Supreme Court recently[1], an order of the High Court declining to exercise its jurisdiction under Article 226 of the Constitution of India in the light of availability of alternative remedy of appeal provided under section 33 of the VAT Act came to be challenged. In order to set the premise, the Court observed that “[t]he power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself… Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs….” The Court further opined that although the exercise of writ jurisdiction may not be made in a routine matter, however it is also not the right approach to mechanically dismiss the petition merely on the ground that the petitioner has not pursued the alternative remedy available to him/it. Therefore, a mere availability an alternative remedy of appeal or revision, not pursued by the party invoking the jurisdiction of the high court under Article 226, would not oust the jurisdiction of the High Court. The Court clarified that “the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law”.
The Court then went on to explain the fine line distinction between “maintainability” of a writ on one hand which goes to the root of the matter which if lacking, may render the court “incapable of even receiving the lis for adjudication” and “entertainability” on the other hand, which is within the realm of discretion of the High Courts. A writ that is maintainable may still not be entertained by the High Court in its discretion for want of public interest. The Court went on to quote from State of Uttar Pradesh vs. Mohd. Nooh 1958 SCR 595 wherein it was held 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…”
The Court then referred to the judgment in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1 wherein the Court had carved out four exceptions whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The principle set out in Whirlpool Corporation was reiterated recently in Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limited 2021 SCC OnLine SC 884 . The exceptions set out were where the writ petition seeks enforcement of any of the fundamental rights, where there is violation of principles of natural justice, where the order or the proceedings are wholly without jurisdiction, and where the vires of a legislation challenged.
In the case of State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd. (1977) 2 SCC 724 it was held that if the issue at hand raises a pure question of law and if investigation into facts is unnecessary, the High Court could entertain a writ petition in its discretion even though the alternative remedy was not availed of. Similarly in the case of Union of India vs. State of Haryana (2000) 10 SCC 482 it was held that where the court finds the issue raised by the appellant to be “pristinely legal” an exercise of jurisdiction under Article 226 is maintainable. The Court therefore appllied the law as established that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available. In the case at hand, the Court found that it was jurisdictional issue raised by the appellant in the writ petition questioning the competence of the Revisional Authority to exercise suo motu power. The Court found it to be a pure question of law and that the writ petition ought not to have been thrown out at the threshold. The Court, therefore, held that the High Court by dismissing the writ petition committed a manifest error of law and the order under challenge is unsustainable and liable to be set aside.
[1] M/s Godrej Sara Lee Ltd. v. The Excise And Taxation Officer cum-Assessing Authority & Ors. [CIVIL APPEAL NO.5393 OF 2010 decided on 01.02.2023]
