Maintainability of Writ Petitions in the wake of availability of alternative remedy

Sustainability of Writ Petitions filed before the High Court in the wake of availability of statutory or an alternative remedy is a matter of great debate which has absorbed copious amount of judicial time of courts across the country. As a matter of principle, the High Court ought not to entertain a writ petition when an efficacious alternative remedy is available to the Petitioner and contemporaneously, we have seen, in a number of cases, the High Courts have refused to exercise their Writ Jurisdiction under Articles 226/227 of the Constitution of India and relegated the parties to exhaust their remedies available under the respective statute. However, noticing the aforementioned growing trend of the High Courts, declining to entertain Writ Petitions, on the ground of availability of alternative remedy, the Supreme Court clarified the position in the matter of Godrej Sara Lee Ltd. vs The Excise and Taxation Officer Cum- Assessing Authority & Ors.¹observing follows:

“Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The 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. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and 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.” (Emphasis Supplied)

In Godrej Sara lee (supra), the Hon’ble Supreme Court categorically observed that mere availability of an alternative remedy would not oust the jurisdiction of the High Court under a Writ Petition. Long before the aforementioned observations of the Hon’ble Supreme Court, a constitution bench of Supreme Court in State of Uttar Pradesh vs Mohd. Nooh² similarly observed as follows:

“10. …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.” (Emphasis Supplied)

The pathway to file Writ Petition in the wake of availability of alternative remedy, was laid down by the Supreme Court in the matter of Whirlpool vs Registrar of Trademarks, Mumbai³ , wherein the Hon’ble Supreme Court carved out various exceptions on the existence whereof a Writ Petition would be maintainable despite alternative remedy provided by the statute-

“15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has 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.” (emphasis Supplied)

The Supreme Court in the matter of Assistant Commissioner of Income Tax vs Commercial Steel Ltd.⁴ carved out another exception i.e. when the dispute between the parties is purely legal and does not involve a venture into the factual aspects of the case, then the High Courts should entertain the Writ Petition. The relevant paragraph is reproduced below:

“8…What follows from the said decisions is 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.”

It must also be borne in mind that Orders of Civil Court stand on a different footing from the orders of authorities/tribunals or courts other than judicial/civil courts as held by a bench of three judges of the Hon’ble Supreme Court in of Radhe Shyam vs Chhabi Nath⁵ wherein the Hon’ble Supreme Court inter alia held as follows:

“(i) Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.”

Therefore, there is an absolute bar in filing writ petition under article 226 of the Constitution against judicial orders of Civil Court. Insofar, petition under Article 227 against judicial order of Civil Court in the wake of availability of alternative remedy is concerned, the Supreme Court answered as follows in Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs Tuticorin Educational Society and Ors.⁶:

“12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar…”

Therefore wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself.” (emphasis supplied)

The aforementioned decision was followed by the Supreme Court in the matter of Muhamed Ali vs Jaya & Ors⁷, wherein the Supreme Court deprecated the High Court allowing Writ Petition filed under Article 227 when specific remedy under the Code of Civil Procedure was available to the Petitioner. However, it is pertinent to mention judgment rendered by a bench of three judges of the Supreme Court in Sadhana Lodh vs National Insurance Co. Ltd.⁸ which paved the way for a petition under Article 227 of the Constitution against order passed by Civil Court under the following special circumstances:

“6….Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution.” (emphasis supplied)

Therefore, from the legal principles as propounded by the Supreme Court in the aforementioned judgments, the following position of law emerge:

Existence of an alternative remedy cannot operate as an absolute bar to the maintainability of writ petition. Rule which requires a party to pursue alternative remedy is a rule of policy, convenience and discretion rather than a rule of law. Godrej Sara Lee and Whirlpool (supra)
A Writ Petition shall be maintainable in the wake of availability of alternative remedy if it falls within the exceptions laid down by the Supreme Court in Whirlpool (supra), namely-

The Writ Petition has been filed for the enforcement of a fundamental right;
There has been a violation of principles of natural justice;
The order or proceedings are wholly without jurisdiction; or
The vires of a legislation is challenged.

Writ petition would be maintainable despite existence of alternative remedy if the controversy does not involve disputed questions of fact but only question of law. Assistant Commissioner of Income Tax (Supra).
Judicial orders of Civil Court are not amenable to writ Jurisdiction under Article 226 of Constitution of India. Radhe Shyam (Supra)

There is near total bar on filing of petition under Article 227 of Constitution against orders passed by a Civil Court when there is a statutory remedy provided under the code of Civil Procedure. Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (Supra).

A petition under Article 227 of Constitution would be maintainable against order of District Judge if a state enactment has expressly barred the remedy of filing revision under Section 115 of Code of Civil Procedure. Sadhna Lodh (Supra).

It is a settled principle of law that a writ Court cannot substitute an appellate Court. One cannot bypass the legal remedy granted under a statute and seek the same relief by way of a writ petition as the same would give rise to an anomalous situation. A writ petition so filed must pass the rigorous carved out in Whirlpool (Supra)

By Daksh Pandit