Existence Of An Alternate Remedy Cannot Exclude Writ Jurisdiction Of High Court : Supreme Court

The Supreme Court reiterated that the existence of an alternate remedy by itself cannot exclude the writ jurisdiction of the High Court. 

"A constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction.", the bench of Justices KM Joseph and Hrishikesh Roy observed while considering Maharashtra state Waqf Board's appeal against the 2011 decision of the Bombay High Court where the High Court had quashed the constitution of the Maharashtra state Board of Waqfs. The court however partly allowed the appeal filed by the Board.

Before the Apex Court, one of the contentions raised by the Board was that under the Act there is a remedy provided namely, a right to a person aggrieved to approach the Wakf Tribunal. In this context, the bench noted that the challenge was laid to the very incorporation of the Board and its constitution and that the proceedings of the Charity Commissioner was also challenged. In this context, the court said:

"Article 226 confers a jurisdiction or a power on the High Courts. It is a power under the Constitution. While it may be true that a statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case, the existence of an alternate remedy by itself cannot exclude the jurisdiction of the High Court under the Constitution. No doubt, it has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion. We find that there are dicta which has held that on the basis of an alternate remedy, a writ petition is not maintainable. We would understand that the position to be that a constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction. No doubt, when High Courts stray outside the limits with reference to certain principles as have been laid down in the decision which we have referred to, it can be corrected."

The court also took note of long pendency of the appeal filed against the HC judgment. 

"Where the High Court has entertained a matter and the matter comes for hearing in this Court in the jurisdiction under Article 136, our woes are compounded by the long passage of time as is demonstrated by the facts of this case. The judgment of the High Court was rendered in the year 2011. This Court is hearing the matter after more than a decade. It is nearly two decades after the filing of the writ petitions that this Court is hearing the matter.", the bench said.

The court also noted the following principles laid down in Radha Krishan Industries v. State of H.P. (2021) 6 SCC 771

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: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) 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.
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.

Case details

Maharashtra State Board of Waqfs vs Shaikh Yusuf Bhai Chawla | 2022 LiveLaw (SC) 1003 | CA 7812-7814 OF 2022 | 20 October 2022 | Justices KM Joseph and Hrishikesh Roy

Headnotes

Wakf Act, 1995 - Bombay Public Trust Act, 1950 - There is a distinction between a public charitable Trust and Wakf - A Muslim Public Trust registered under the 1950 Act need not be a Wakf under the Act - However, there are public Trusts registered under the 1950 Act which are in fact, Wakf which fall under Section 28 of the 1950 Act. They must undoubtedly come within the regime of the the Wakf Act, 1995 - What was once a Wakf before the 1950 Act, if it is registered under the 1950 Act, with the commencement of the Act, such a public Trust would necessarily come under the ambit of the Wakf Act, 1995. (Para 178, 183)

Constitution of India,1950 ; Article 226 - Writ Jurisdiction - Existence of an alternate remedy by itself cannot exclude the writ jurisdiction of the High Court -A constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction - Statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case- It has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion - Referred to Radha Krishan Industries v. State of H.P. (2021) 6 SCC 771. (Para 179)

Wakf Act, 1995 ; Section 4 - The making of survey is not a mere administrative act but it is to be informed by a quasi-judicial inquiry. It is also the law that the surveyor has the power to find whether a particular institution is a Wakf. (Para 145)

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