Article 226| Writ Petition Should Not Be Dismissed On Ground Of Alternative Remedies When Only Questions Of Law Are Raised : Supreme Court

The Supreme Court observed that it is not proper to dismiss a writ petition on the ground of alternative remedy without examining whether an exceptional case has been made out for such entertainment."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", the bench of Justices S. Ravindra Bhat and Dipankar Datta observed.In this case, the High Court of Punjab and Haryana dismissed a writ petition relegating the petitioner to the remedy of an appeal under section 33 of the Haryana Value Added Tax Act, 2003. The writ petitioner had questioned the jurisdiction of the Deputy Excise and Taxation Commissioner (ST)-cum-Revisional Authority to reopen proceedings, in exercise of suo motu revisional power conferred by section 34 of the VAT Act.So one of the issues raised before the Apex Court was whether the High Court was justified in declining interference on the ground of availability of an alternative remedy of appeal to the appellant under section 33 of the VAT Act?While answering this issue, the bench noted that it has come across many orders of 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. In this regard, the court made the following observations::Mere availability of an alternative remedy would not oust the writ jurisdictionThe 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”. “Entertainability” and “maintainability” of a writ petition are distinct conceptsIn 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. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.The bench noted that, in this writ petition, a jurisdictional issue was raised questioning the very competence of the Revisional Authority to exercise suo motu power. It being a pure question of law, we are of the considered view that the plea raised in the writ petition did deserve a consideration on merits and the...

Article 226| Writ Petition Should Not Be Dismissed On Ground Of Alternative Remedies When Only Questions Of Law Are Raised : Supreme Court

Ashok KM

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