Introduction

In the realm of taxation, legal interpretations play a crucial role in shaping the rights and obligations of taxpayers. The recent judgment by the Delhi High Court in the case of Jagdish Bansal v. Union of India has brought significant clarity to the powers of the Revenue Department concerning the Seize of cash under GST laws. This article delves into the details of the case, the court’s decision, and its implications for taxpayers and tax authorities.

Background and Facts

The case of Jagdish Bansal v. Union of India stemmed from search and seizure proceedings conducted at the premises of Jagdish Bansal, where the Revenue Department seized cash. Feeling aggrieved by this action, Jagdish Bansal filed a writ petition before the Delhi High Court, challenging the legality of the cash seizure.

Legal Issue

The primary legal question before the court was whether the Revenue Department has the authority to seize cash under the provisions of GST laws.

Interpretation of GST Laws: Seize Cash under GST in Delhi High Court’s Ruling

The Delhi High Court, in its judgment dated February 26, 2024, carefully examined the relevant provisions of the Central Goods and Services Tax Act, 2017 (CGST Act). Drawing upon precedent cases and statutory provisions, the court analyzed the definition of “goods” and “money” under the CGST Act to determine the scope of the Revenue Department’s powers.

Court’s Decision: Cash Classification in Seize Cash under GST

Based on its interpretation of the law, the court concluded that cash does not fall within the definition of “goods” as per the CGST Act. Instead, it is classified as “money” under Section 2(75) of the Act. Therefore, the Revenue Department cannot seize cash under GST laws.

The court also emphasized that there was no legal justification for the retention of cash by the Revenue Department. Citing precedents and legal principles, the court held that the impugned order of the Revenue Department was liable to be set aside.

Implications for Taxpayers

The judgment in Jagdish Bansal v. Union of India has significant implications for taxpayers. It provides much-needed clarity and protection to taxpayers against arbitrary actions by tax authorities. Taxpayers can now have confidence that their cash holdings are safeguarded against unwarranted seizure under GST laws.

Implications for Tax Authorities

For tax authorities, the judgment underscores the importance of adhering to statutory provisions and exercising powers within the confines of the law. It serves as a reminder that arbitrary actions without legal basis can be challenged in court and set aside, leading to potential liabilities for the Revenue Department.

Judicial Oversight and Tax Administration

The judgment highlights the critical role of judicial oversight in ensuring compliance with tax laws. It reaffirms the judiciary’s commitment to upholding constitutional values and protecting the interests of citizens. By providing a check on the exercise of governmental powers, the judiciary ensures fairness, transparency, and accountability in tax administration.

Conclusion: Significance of Delhi High Court’s Ruling on Seize Cash under GST

In conclusion, the Delhi High Court’s ruling in Jagdish Bansal v. Union of India marks a significant development in the interpretation of GST laws. By clarifying the scope of the Revenue Department’s powers and affirming the rights of taxpayers, the court has strengthened the rule of law in the realm of taxation. This judgment serves as a beacon of justice, ensuring that the rights and obligations of taxpayers are upheld with fairness and integrity.

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Introduction: Kerala High Court’s Intervention in the Ban on ‘Ferocious & Dangerous’ Dog Breeds

The Kerala High Court’s recent decision to partially stay the ban on certain dog breeds categorized as “ferocious and dangerous” by the Union Ministry of Fisheries, Animal Husbandry, and Dairying Department has sparked significant legal and public interest. This article delves into the background of the case, analyzes the court’s decision, and explores the broader implications for dog owners and enthusiasts.

Background of the Case: The Circular and Legal Challenge

The controversy stems from a circular issued by the Union Ministry on March 12, 2024, which imposed a ban on the import, trading, and selling of approximately 23 breeds of dogs identified as ferocious. However, this blanket ban faced legal challenge through a writ petition filed by a group of dog lovers and owners. Their petition challenged the validity of the circular and raised concerns about its impact on responsible dog ownership.

Court’s Decision: Partial Stay and Legal Justification

In response to the writ petition, Justice T R Ravi of the Kerala High Court issued a partial stay on the operation of the circular. While recognizing the need for public safety measures, the court also acknowledged the rights of dog owners and enthusiasts. By partially staying the ban, the court aimed to strike a balance between safeguarding public safety and protecting individual liberties.

Comparison with Precedent: High Court Decisions on ‘Ferocious & Dangerous’ Dog Breed Ban

The Kerala High Court’s decision to partially stay the ban aligns with similar interim orders issued by the Karnataka High Court and Calcutta High Court. Both courts also intervened to partially suspend the operation of the circular, indicating a consistent judicial approach to the contentious issue of banning specific dog breeds. These decisions serve as legal precedents for future cases involving similar challenges to government regulations.

Controversy Surrounding the Circular: Breed Identification and Public Safety

One of the key points of contention surrounding the circular is the basis for identifying certain dog breeds as “ferocious and dangerous.” Critics argue that such classification lacks scientific validity and may unfairly stigmatize entire breeds based on isolated incidents or misconceptions. Additionally, there is debate over whether breed-specific legislation effectively addresses public safety concerns or if it disproportionately targets certain communities of dog owners.

List of Banned Dog Breeds: Understanding the Scope of the Ban

The circular issued by the Union Ministry includes a comprehensive list of banned dog breeds, ranging from Pitbull Terriers to Mastiffs and Wolf Dogs. Each breed is categorized as potentially hazardous to human life, prompting the government to impose strict regulations, including sterilization mandates for existing pets. However, the inclusion of certain breeds in this list has sparked controversy and raised questions about the criteria used for classification.

Implications of the Court’s Decision: Balancing Rights and Responsibilities

The Kerala High Court’s decision to partially stay the ban has significant implications for both dog owners and government authorities. On one hand, it provides temporary relief to dog owners who may have been adversely affected by the ban. On the other hand, it underscores the importance of addressing public safety concerns without infringing disproportionately on individual rights. The court’s decision reflects a nuanced understanding of the complex issues at stake and highlights the need for a balanced approach to policy implementation.

Future Course of Action: Legal Proceedings and Administrative Response

Following the court’s directive, both the Union and State Governments are required to submit their statements regarding the validity of the circular. This sets the stage for further legal proceedings and administrative action. It remains to be seen how the government authorities will respond to the court’s decision and whether any revisions or amendments will be made to the ban on specific dog breeds. Additionally, stakeholders await clarity on the future regulation of these contentious dog breeds and the broader implications for responsible pet ownership.

Conclusion: Balancing Ban on ‘Ferocious & Dangerous’ Dog Breeds

In conclusion, the Kerala High Court’s intervention in the ban on “ferocious and dangerous” dog breeds exemplifies the judiciary’s role in safeguarding individual liberties while promoting public safety. By issuing a partial stay on the ban, the court has demonstrated a commitment to upholding constitutional principles and ensuring a fair and balanced approach to policy implementation. As legal proceedings continue and stakeholders engage in dialogue, it is essential to consider the diverse perspectives and interests involved in regulating pet ownership and animal welfare. Ultimately, achieving a harmonious balance between public safety measures and individual rights is paramount in addressing the complex challenges posed by breed-specific legislation and promoting responsible pet ownership in society.

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Background

NEET-MDS aspirants are once again knocking on the doors of the Supreme Court, expressing concerns over the Union Government’s alleged indecision regarding the postponement of the NEET-MDS 2024 exam scheduled for March 18. The Union, as per a previous order on February 21, was expected to make a decision on the postponement of the exam and the extension of the internship completion cut-off date. In light of the perceived lack of action, the petitioners have filed a Miscellaneous Application (MA), urging the restoration of the writ petition that was disposed of by the Court on February 21 based on the Union’s assurances. The aspirants claim that the Union has not provided a final decision within a week of receiving representations from the students.

Scheduled Exam and Internship Deadline: NEET-MDS Aspirants’ Conundrum

The entrance test is slated to take place on March 18, with candidates deemed eligible only upon the completion of their internships on or before March 31. The petitioners’ counsel brought this pressing matter before Chief Justice of India (CJI) DY Chandrachud, who instructed them to send an email request. The CJI assured them that a date for listing the case would be promptly fixed.

Union’s Undertaking and the Ongoing Non-Compliance Dilemma

On February 21, the Union informed the Supreme Court that it was actively considering the grievances of NEET-MDS candidates concerning the extension of the internship deadline. The Court refrained from issuing an order on the plea to postpone NEET-MDS 2024, giving the Union a week to decide on the matter. However, the recent application highlights that the Union has not made a decision on the postponement despite the impending examination date. According to the application, the petitioners state, “However, despite the order and despite the examination date looming in, the respondents have not taken any decision in this regard till Date.” The application further notes, “A number of emails and representations were submitted to the respondents both through email and in physical form wherein the dental students have set out their grievances and reiterated their request to postpone the exam and increase the cutoff date. However, the respondents have not acted upon any such representations till date.”

Prayer for Intervention and Parity with NEET PG

Seeking the Court’s intervention for the restoration of the writ petition, the petitioners urge the Union to comply with the order dated February 21, 2024. Additionally, they request the Court to order the rescheduling of NEET-MDS 2024 exams, emphasizing parity with the common counseling for NEET PG and NEET MDS. The application also seeks an extension of the eligibility cut-off date, considering the delayed completion of internships by BDS students. The foundation for filing the current petition stems from the rescheduling of NEET PG 2024 by the National Board of Examinations (NBE), which shifted the exam from March 3rd to July 7th, 2024, with a cutoff date of August 15, 2024. In contrast, NEET MDS, notified on January 20, 2024, is scheduled for March 18th, 2024, with an internship completion cutoff date of March 31, 2024. The petitioners argue that the cutoff date is arbitrary and underscores the need for uniformity.

The Prayer of the Application Seeks the Following for NEET-MDS Aspirants:

A). Pass an order allowing the application for the restoration of the above-captioned writ petition and direct the respondents to comply with the order dated 21.02.2024 passed by this Hon’ble Court in the present writ petition.

B). Pass an order thereby directing the Respondents to reschedule NEET MDS 2024 in furtherance of the consistent practice and policy to conduct entrance exams and common counseling for NEET PG and NEET MDS, ensuring parity.

C). Pass an order thereby directing the Respondents to extend the last date of the cut-off for eligibility suitably:

1. after ascertaining the internship completion date from universities offering MDS Course across India;
2. in accordance with the existing policy to conduct entrance exams and common counseling for NEET PG and NEET MDS and/or;

Discrimination in Cut-off Date – Putting Lives of 8000 NEET-MDS Aspirants at Stake

The application underscores the discriminatory nature of fixing the eligibility cut-off date as March 31, 2024, highlighting that 40% of the 2018 BDS batch interns won’t complete their internships by then. The argument emphasizes the overlap in the UG course curriculum for BDS and MBBS students, both facing delays due to the COVID-19 period. The application stresses the need for a uniform approach, questioning the discrepancy in the cut-off dates for MBBS and BDS students. “Roughly 8000 students all across India including Kerala, Orissa, MP, UP, J&K, AP & Rajasthan will be excluded.” The application highlights the challenges NEET-MDS aspirants face and their plea for a fair and equitable resolution in light of the unique circumstances surrounding their internships and examinations. Both the BDS as well as the MBBS students went through the Covid period together and suffered the same delays in the holding of the yearly examinations and training. Therefore, it is discriminatory for the cutoff date to be pushed back from 31 March 2024 to 15th August 2024 for the 2018 batch of MBBS interns, and not for the BDS students. Counselling for the MBBS students and BDS students after the internship period is over has always been held at the same time.”

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Introduction

The Indian judicial system operates on fundamental principles that balance accessibility to justice with procedural efficiency. One such principle concerns the entertainment of writ petitions under Article 226 of the Constitution of India when alternative statutory remedies exist. This issue has been the subject of extensive judicial discourse, with courts attempting to reconcile the plenary power of writ jurisdiction with the need to respect statutory appeal mechanisms. The Supreme Court’s judgment dated February 1, 2023, in the matter involving Godrej Sara Lee Ltd. provides significant insights into how courts should approach this delicate balance, particularly when pure questions of law are involved. The case arose from a tax dispute concerning the classification of mosquito repellents under the Value Added Tax (VAT) regime in Haryana. While the factual matrix involved tax assessment, the legal principles established by the Supreme Court have far-reaching implications for administrative law, constitutional law, and the proper exercise of writ jurisdiction across various domains. This article examines the judgment in detail, analyzing the legal framework, judicial observations, and the principles that emerge for entertaining writ petitions despite the availability of alternative remedies.

Background and Factual Matrix

Godrej Sara Lee Ltd., a prominent manufacturer and seller of insecticides and pesticides, filed its tax returns for Assessment Years 2003-04 and 2004-05, declaring its gross turnover from the manufacturing and sales of these products. The company had classified its products under Entry 1 of Schedule C of the Haryana VAT Act, which attracted a tax rate of 4 percent. The Assessing Authority initially accepted these returns and the classification adopted by the appellant.

However, the landscape changed following an amendment to Entry 67 of Schedule C introduced through a notification dated June 30, 2005. Based on this amendment, the Assessing Authority issued notices questioning why the tax liability should not be imposed at 10 percent instead of the 4 percent rate that had been applied. Despite these notices, the Assessing Authority ultimately passed orders accepting the classification of goods and the rate of tax as stated by the appellant in its returns, thereby confirming the 4 percent tax rate.

The matter took a turn when the Deputy Excise and Taxation Commissioner (ST)-cum-Revisional Authority in Kurukshetra exercised suo motu revisional power under Section 34 of the VAT Act. The Revisional Authority reopened the proceedings and passed final orders holding that the two assessment orders dated February 28, 2007, suffered from illegality and impropriety. The Revisional Authority concluded that the Assessing Authority had erred in levying tax on mosquito repellent at 4 percent instead of 10 percent, thereby effectively reversing the earlier assessment orders.

Aggrieved by this exercise of revisional power, Godrej Sara Lee Ltd. approached the High Court through a writ petition under Article 226 of the Constitution, challenging the jurisdiction of the Revisional Authority to reopen concluded proceedings. The company argued that the assessment orders were legally correct and that the impugned orders passed by the Revisional Authority were wholly without jurisdiction. However, the High Court dismissed the writ petition on the ground that the appellant had not exhausted the remedy of appeal provided under Section 33 of the VAT Act, thereby relegating the appellant to pursue the statutory appellate remedy.

Legal Framework Governing Writ Jurisdiction

Article 226 of the Constitution of India confers upon High Courts the extraordinary power to issue writs for the enforcement of fundamental rights guaranteed under Part III of the Constitution or for any other purpose [1]. This provision states that every High Court shall have the power to issue to any person or authority, including in appropriate cases, any Government, within its territorial jurisdiction 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 fundamental rights and for any other purpose. The power under Article 226 is described as plenary in nature, meaning it is complete and unqualified in itself, subject only to the limitations prescribed in the Constitution itself.

The scope and amplitude of this power have been the subject of extensive judicial interpretation. The Supreme Court has consistently held that the power to issue prerogative writs is discretionary and must be exercised keeping in mind the principles of equity, justice, and good conscience. However, this discretion is not arbitrary and must be guided by settled legal principles and precedents.

In contrast to the writ jurisdiction, statutory remedies are created by specific legislation to provide a structured mechanism for addressing grievances within the framework of that particular statute. Section 33 of the Haryana VAT Act provides for an appeal mechanism against orders passed by assessing authorities. Such statutory remedies are designed to create a hierarchical system of review, allowing specialized authorities or tribunals to examine matters within their domain of expertise before they reach the constitutional courts.

The interplay between writ jurisdiction and alternative statutory remedies has generated considerable jurisprudence. While the existence of an alternative remedy is generally a ground for not entertaining a writ petition, this principle is not absolute. Courts have recognized several exceptions where writ petitions may be entertained despite the availability of alternative remedies, particularly when the challenge goes to the jurisdiction of the authority, when there is a violation of principles of natural justice, or when the matter involves a pure question of law requiring constitutional interpretation.

Arguments Advanced by the Parties

The appellant, Godrej Sara Lee Ltd., constructed its case on the fundamental principle that the Revisional Authority lacked jurisdiction to exercise suo motu revisional power in the circumstances of the case. The company contended that the assessment orders passed by the Assessing Authority were legally sound and based on the correct interpretation of the relevant provisions of the VAT Act. The appellant emphasized that the classification of mosquito repellents under Schedule C, attracting a tax rate of 4 percent, was in accordance with law and had been accepted by the Assessing Authority after due consideration.

The core of the appellant’s argument was jurisdictional in nature. It was submitted that the Revisional Authority could not invoke suo motu revisional powers to reopen assessments that were legally valid and proper. The appellant argued that allowing such reopening would create uncertainty in tax administration and undermine the finality of assessment orders. By framing the challenge as one going to the root of jurisdiction, the appellant sought to bring the case within the recognized exceptions to the rule requiring exhaustion of alternative remedies.

The respondent authorities, on the other hand, placed primary reliance on the principle that parties must exhaust alternative statutory remedies before approaching the constitutional courts. They cited the decision in Titagarh Paper Mills vs. Orissa State Electricity Board & Anr. [2], wherein the Supreme Court had held that where any right or liberty arises under a particular Act, the remedy available under that Act must be availed. The respondents contended that Section 33 of the VAT Act provided a complete and efficacious remedy through the appellate mechanism, and there was no reason why the appellant should be permitted to bypass this remedy and directly invoke writ jurisdiction.

The respondents further argued that there could be no presumption that the appellate authority would be unable to grant the relief sought in the writ petition. They maintained that the appellate authority was competent to examine all questions, including jurisdictional questions, and therefore the appellant should be relegated to the statutory remedy. The High Court accepted this contention and dismissed the writ petition on the ground of availability of alternative remedy, without examining the merits of the jurisdictional challenge raised by the appellant.

Supreme Court’s Analysis and Key Observations

The Supreme Court commenced its analysis by expressing concern about a trend observed in certain High Court orders that mechanically held writ petitions as “not maintainable” merely because alternative remedies provided by relevant statutes had not been pursued. The Court emphasized that the power to issue prerogative writs under Article 226 is plenary in nature, and any limitation on the exercise of such power must be traceable in the Constitution itself. This foundational observation set the tone for the Court’s subsequent analysis and highlighted the importance of understanding the true nature and scope of writ jurisdiction.

The Court made a crucial distinction between “entertainability” and “maintainability” of a writ petition, noting that these are distinct concepts and the fine but real distinction between them ought not to be lost sight of. According to the Supreme Court, an objection as to maintainability goes to the root of the matter, and if such objection is found to be of substance, the courts would be rendered incapable of even receiving the litigation for adjudication. On the other hand, the question of entertainability is entirely within the realm of discretion of the High Courts. This distinction is significant because it means that while a writ petition may be maintainable in law, the court may still decline to entertain it in the exercise of its discretion, considering factors such as the availability of alternative remedies.

The Supreme Court then addressed the principle requiring parties to pursue alternative statutory remedies. The Court observed that this rule is a rule of policy, convenience and discretion rather than a rule of law. This characterization is important because it establishes that the principle is not an absolute bar but a guideline that must be applied with flexibility and wisdom, taking into account the facts and circumstances of each case. The Court noted that instances are numerous where writs of certiorari have been issued despite the fact that aggrieved parties had other adequate legal remedies available to them.

In examining the specific circumstances of the case, the Supreme Court referred to its earlier decisions in State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd. [3] and Union of India vs. State of Haryana [4]. From the former decision, the Court drew the principle that whether a certain item falls within an entry in a sales tax statute 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. The Court further noted that unless the exercise of discretion is shown to be unreasonable or perverse, the Supreme Court would not interfere with the High Court’s decision.

The latter decision in Union of India vs. State of Haryana established that where an issue raised by the appellant is pristinely legal, requiring determination by the High Court without putting the appellant through the mill of statutory appeals in the hierarchy, the writ petition should be entertained. The Supreme Court synthesized these principles to conclude that where the controversy is purely legal and does not involve disputed questions of fact but only questions of law, it should be decided by the High Court instead of dismissing the writ petition on the ground of alternative remedy being available.

Applying these principles to the facts of the case, the Supreme Court found that the appellant had raised a jurisdictional challenge to the exercise of suo motu revisional power by the Revisional Authority. This was essentially a question of law that required interpretation of the scope and ambit of Section 34 of the VAT Act and determination of whether the circumstances of the case warranted the exercise of such power. The Court concluded that such a plea deserved consideration on merits and the appellant’s writ petition ought not to have been thrown out at the threshold merely on the ground of availability of alternative remedy.

Implications for Writ Jurisdiction

The judgment has significant implications for the exercise of writ jurisdiction under Article 226 of the Constitution. First and foremost, it clarifies that High Courts should not mechanically reject writ petitions on the ground of availability of alternative remedies without examining whether the case falls within recognized exceptions to this principle. The mere existence of a statutory appeal mechanism does not automatically render a writ petition non-maintainable or non-entertainable.

Second, the judgment reinforces the distinction between maintainability and entertainability of writ petitions. This distinction is crucial for proper adjudication because it recognizes that even if a writ petition is technically maintainable, the court must still exercise its discretion judiciously in deciding whether to entertain it. This discretion must be exercised based on relevant factors, including the nature of the question raised, the adequacy of alternative remedies, the need to avoid multiplicity of proceedings, and the interests of justice.

Third, the judgment provides clear guidance on when writ petitions should be entertained despite the availability of alternative remedies. Pure questions of law that do not require investigation of disputed facts constitute a well-recognized exception. Similarly, jurisdictional challenges that go to the root of the matter and question the very authority of an officer or tribunal to exercise power should ordinarily be examined by High Courts in writ jurisdiction, rather than relegating parties to pursue appellate remedies.

Fourth, the judgment emphasizes that the rule requiring exhaustion of alternative remedies is a rule of policy, convenience and discretion, not a rule of law. This characterization gives flexibility to courts to examine the substance of each case and make appropriate decisions based on the peculiar facts and circumstances. It prevents the mechanical application of rigid rules and promotes justice-oriented outcomes.

Principles Governing Pure Questions of Law

The judgment places considerable emphasis on the concept of “pure questions of law” as a basis for entertaining writ petitions despite the availability of alternative remedies. A pure question of law is one that requires interpretation of statutory provisions, constitutional principles, or legal doctrines, without necessitating investigation into disputed facts. Such questions typically involve the determination of the legal meaning and effect of statutory language, the scope of powers conferred by legislation, or the applicability of legal principles to undisputed facts.

In the context of tax law, classification of goods under different entries of a tax statute often involves pure questions of law. For instance, determining whether a particular product falls within a specific entry based on its characteristics and the language of the entry requires legal interpretation rather than factual investigation. Similarly, questions about the jurisdiction of authorities, the scope of revisional powers, and the interpretation of exemption provisions are typically pure questions of law.

The Supreme Court’s reasoning in this regard is grounded in principles of judicial efficiency and access to justice. Requiring parties to go through the entire hierarchy of statutory appeals when the matter involves only a pure question of law would result in unnecessary delay, expense, and multiplicity of proceedings. Moreover, appellate authorities within the statutory framework may not always have the same expertise in constitutional and legal interpretation as High Courts. Therefore, allowing direct access to High Courts for pure questions of law serves the interests of both efficiency and justice.

However, the judgment also recognizes that not every question that has a legal component qualifies as a pure question of law. If the determination of the legal question depends on contested facts or requires appreciation of evidence, it would not be appropriate to bypass the statutory appellate mechanism. The appellate authorities are better equipped to examine factual disputes and appreciate evidence in the first instance. Only after factual findings have been rendered by appropriate authorities should legal questions arising from those findings come before the High Court in writ jurisdiction.

Jurisdictional Challenges and Writ Jurisdiction

Another significant aspect of the judgment concerns jurisdictional challenges. The appellant in this case had specifically questioned the jurisdiction of the Revisional Authority to reopen concluded proceedings using suo motu revisional power under Section 34 of the VAT Act. The Supreme Court recognized this as a challenge going to the root of the matter, deserving examination on merits rather than dismissal at the threshold.

Jurisdictional questions occupy a special place in administrative law jurisprudence. When an authority exercises power without jurisdiction, its actions are void ab initio, meaning they are invalid from the beginning and of no legal effect. Principles of natural justice and rule of law demand that jurisdictional challenges be examined promptly and effectively. Relegating parties to pursue appellate remedies when the very jurisdiction of the original authority is in question would be contrary to these principles.

The distinction between jurisdictional errors and errors within jurisdiction is crucial in this context. An error within jurisdiction occurs when an authority having jurisdiction makes a mistake in the exercise of that jurisdiction. Such errors can ordinarily be corrected through the appellate process. However, a jurisdictional error occurs when an authority acts without jurisdiction or exceeds the limits of its jurisdiction. Such errors vitiate the entire proceeding and justify intervention by constitutional courts in writ jurisdiction.

In the present case, the appellant’s contention was that the Revisional Authority had no jurisdiction to exercise suo motu revisional power in the given circumstances. This was not merely a claim that the Revisional Authority had exercised its jurisdiction incorrectly, but that it lacked jurisdiction altogether. The Supreme Court recognized this distinction and held that such a jurisdictional challenge deserved to be examined on merits by the High Court, rather than being rejected at the threshold on the ground of availability of alternative remedy.

Comparative Analysis with Precedents

The Supreme Court’s judgment builds upon and synthesizes principles established in earlier decisions. In Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others [5], the Court had examined the circumstances under which writ jurisdiction may be invoked despite the availability of alternative remedies. The decision emphasized that the availability of alternative remedy is not an absolute bar, and courts must exercise their discretion based on the nature of the case.

Similarly, in Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limited [6], the Supreme Court had dealt with the interplay between writ jurisdiction and statutory remedies in tax matters. The Court held that when a pure question of law is involved, High Courts should not decline to exercise writ jurisdiction merely on the ground that an alternative remedy exists. These precedents formed the foundation upon which the present judgment was constructed.

The judgment also draws support from the principles laid down in State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd., where the Court specifically dealt with classification disputes in sales tax matters. The Court had held that classification of goods under sales tax statutes raises pure questions of law, and if factual investigation is not required, High Courts may entertain writ petitions even if alternative remedies have not been exhausted. This principle was directly applicable to the facts of the present case, where the dispute concerned the classification of mosquito repellents.

In Union of India vs. State of Haryana, the Supreme Court had emphasized that parties should not be put through the “mill of statutory appeals” when the issue is pristinely legal in nature. This expression captures the court’s concern about unnecessary procedural hurdles that delay justice without serving any useful purpose. The present judgment reaffirms this principle and applies it to the context of tax disputes involving jurisdictional challenges.

Practical Guidelines for Litigants and Courts

The judgment provides practical guidance for both litigants and courts in determining when writ petitions may be entertained despite the availability of alternative remedies. For litigants, the key takeaway is that they should carefully frame their challenges to highlight the legal nature of the questions raised. If the challenge involves pure questions of law or jurisdictional issues, these should be prominently articulated in the pleadings to enable courts to appreciate that the case falls within recognized exceptions to the rule requiring exhaustion of alternative remedies.

For courts, the judgment emphasizes the need for careful analysis rather than mechanical rejection of writ petitions. High Courts should examine whether the challenge raises pure questions of law, whether factual investigation is required, whether the challenge goes to jurisdiction, and whether the alternative remedy is adequate and efficacious. The decision to entertain or refuse a writ petition should be based on a balanced consideration of these factors, keeping in mind the interests of justice and the need for efficient resolution of disputes.

The judgment also underscores the importance of distinguishing between maintainability and entertainability. A writ petition may be maintainable in law but may still be rejected as not entertainable if the circumstances warrant relegation to alternative remedies. Conversely, even if there are technical objections to maintainability, courts should examine the substance of the matter to ensure that justice is not defeated by procedural technicalities.

Conclusion

The Supreme Court’s judgment in the Godrej Sara Lee Ltd. case represents a significant contribution to the jurisprudence on writ jurisdiction and alternative remedies. By clarifying the principles governing the entertainment of writ petitions when pure questions of law are involved, the Court has provided much-needed guidance to High Courts across the country. The judgment reinforces the plenary nature of writ jurisdiction under Article 226 while acknowledging the importance of statutory appellate mechanisms.

The distinction between maintainability and entertainability, the recognition that the rule requiring exhaustion of alternative remedies is one of policy rather than law, and the emphasis on examining pure questions of law without relegating parties to appellate remedies are all important contributions of this judgment. These principles strike a balance between respecting statutory frameworks and ensuring that constitutional courts remain accessible for addressing fundamental questions of jurisdiction and law.

The judgment also serves as a reminder to High Courts to avoid mechanical rejection of writ petitions without proper examination of whether the case falls within recognized exceptions. The power under Article 226 is a constitutional power that must be exercised judiciously and purposefully to advance the cause of justice. When parties raise genuine jurisdictional challenges or pure questions of law, courts should not hesitate to examine these matters on merits, even if alternative remedies technically exist.

Looking forward, this judgment is likely to influence how courts approach the intersection of writ jurisdiction and alternative remedies across various areas of law, including taxation, administrative law, and regulatory matters. It provides a framework for analysis that respects both constitutional principles and statutory schemes, while ensuring that justice is not delayed or denied through excessive procedural formalism. The principles established in this case will continue to guide judicial decision-making and contribute to the evolution of administrative law jurisprudence in India.

References

[1] Constitution of India, Article 226. 

[2] Titagarh Paper Mills vs. Orissa State Electricity Board & Anr., (1975) 2 SCC 436. 

[3] State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd., (1977) 2 SCC 724. 

[4] Union of India vs. State of Haryana, (2000) 10 SCC 482. 

[5] Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1. 

[6] Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limited, (2021) SC 884. 

[7] Haryana Value Added Tax Act, 2003, Section 33 and Section 34. 

[8] Ibid.

[9] Ibid.

Author: Parthvi Patel, United World School of Law 

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The National Institute of Open Schooling (NIOS), formerly National Open School (name changed in 2002), is the board of education under the Union Government of India. It was established by the Ministry of Human Resource Development of the Government of India in 1989 to provide education to all segments of society with the motive to increase literacy and aimed forward for flexible learning. The NIOS is a national board that administers examinations for Secondary and Senior Secondary examinations similar to the CBSE and the CISCE. provide education up to the pre-degree level to those who for one or the other reason could not make use of the formal education system. N.I.O.S. has also been vested with the authority to conduct and certify examinations for Secondary levels by the Government of India.

Open schooling serves as a wellspring for education for the ignored and disadvantaged group of the society,and works as a helping hand for those who due to some reasons are unable to access the formal form of education be it due to financial burden on them or the distant factor that restricts them from accessing the formal form of education.The concept of open schooling comes in very handy in the Indian scenario as India is a country with vast differences be it economic, educational, cultural etc.

The Government of India from its Department of Education, Ministry of Human Resources Development, New Delhi, framed a policy known as `National Policy on Education 1986′.Which was adopted by the parliament of India in 1986.

The sole motive of the establishment of NIOS was to provide education in all corners of the society and to increase the overall literacy of the country. The establishment of NIOS was done with a bigger picture in mind for the betterment of the society and the country and for a civilized existence of the citizens and to make it certain that the ray of education makes its way to each and every mind of the country. 

In the eyes of the government and legally it is valid to pursue any form of education but in the eyes of the Indian society, the picture of NIOS is not very clear the Indian society is of the opinion that imparting education from an open schooling platform is just a way to waste time and its value is not as much when compared to other boards like the CBSE or the education boards of various states.

The efficacy of NIOS can be made very clear with the way of its establishment it is very necessary to note down that NIOS was established by the Union Government Of India under the Ministry of Human Resource Development way back in 1989. 

There have been many instances in which Hon’ble courts have made it very much clear that there is no issue due to which the validity of  NIOS should be questioned through various judicial precedents that NIOS is a recognized institution and shares the same status as CBSE or any other education board of the states 

It is very pertinent to mention that the main essence of the establishment of NIOS or open schooling is to impart education through an informal approach ie taking the road that is not meant for all but for those who fall under some special situations or circumstances that resist them from taking the normal course. 

Further in this article, the reader would get to know about various legal precedents and official documents of the government that would further make it clear that there is no reason that the efficacy of NIOS should be questioned and that it is a recognized board run by the MHRD ( Ministry Of Human Resource Development).

PARA 2(9) OF THE GAZETTE OF INDIA DECEMBER 1989

Following are the relevant paragraph from various judicial precedents: 

Yuvraj Choudhary vs. Union of India and Ors. (22.12.2020 – PHHC) : MANU/PH/2201/2020 

” Para 4: In their written statement respondents No. 2 and 3 have made preliminary submissions that NIOS was set up in 1989 by the Ministry of Human Resource Development, Government of India to provide educational opportunities to persons unable to get regular schooling who wish to study further. The NIOS supplies the study material through post and arranges contact programmes for a limited number of days in a year through accredited institutes. There is a system of internal assessment through TMAs in the Secondary of Senior Secondary Course. The internal assessment carries 20% weightage of Theory and the marks are shown in the mark-sheet along with the marks of external examination which carries 80% weightage. TMAs are to be submitted before appearing in the public examination before the last date as provided in the prospectus and notified on the website. The students are given 9 opportunities to pass the examination twice in a year and unlimited chance in On Demand Exam with liberty to pass any number of subjects at a time. Respondents No. 2 and 3 have taken preliminary objection that the petitioner has not impleaded Shishu Niketan Senior Secondary School, Sector-22-D, Chandigarh which was the accredited institute. No TMA was submitted by the petitioner. Identical case Writ Petition (Civil) 904 of 2020 titled as Sonia Singh v. National Institute of Open Schooling (NIOS) and another and connected writ petitions have been dismissed by Hon’ble Supreme Court. Further, an option was given to the students to apply for the On Demand Exam. Despite the option to apply for On Demand Exam from 01.09.2020 to 10.09.2020 the petitioner did not apply for the same. The petitioner was aware that the last date for submission of TMAs was 31.01.2020. All other students submitted their TMAs within time. The students who submitted TMAs were declared to have passed the examination. The petitioner was declared to have failed as he did not submit TMAs and was marked absent for the three subjects. The case of the petitioner is governed by sub-clause (d) of Clause 5 of notification No. 19 of 2020 dated 10.07.2020 whereas the case of Jitesh Kumar whose result card has been appended with the petition was governed by sub-clause (c) of Clause 5. The representations made by the petitioner were baseless. Respondents No. 2 and 3 have accordingly prayed for dismissal of the writ petition.

for the petitioner seeks permission to withdraw this Writ Petition. Permission is granted. The Writ Petition is allowed to be withdrawn. Pending applications, if any, stand disposed”

It was observed by the Hon’ble High court of Gujarat in the case of Siddharth Jagdishbhai Panchal vs Admission committee for professional diploma courses that all the three boards ie: CBSE, CISCE, and NIOS have been established by the education department of the government of India and therefore all the 3 are recognized and equivalent in nature.

Thus, it can be concluded that the recognition and equivalency of the National Institution of Open Schooling are at par with CBSE,& other educational boards by various judicial precedents and various notifications by the government. Therefore, it becomes very obvious that since the Union Of India is directly involved in the establishment of NIOS the question of the challenges to the efficacy of NIOS vanishes also, NIOS which is India’s largest open schooling platform, in the year 2021 more than 1.90 million candidates had enrolled themself in the exams offered by the NIOS

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BAR TO WRIT PETITIONS IN CONTEXT OF AVAILABILITY OF ALTERNATE REMEDIES

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. However, there are bar to writ petitions when alternative remedies are available;

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.

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 42^nd  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, 3^rd 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.
18. 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.
17. 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 DivisionBench 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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Introduction: The Foundation of Constitutional Remedies in India

The Indian Constitution represents one of the most elaborate frameworks for protecting fundamental and legal rights through judicial mechanisms. Among these protective instruments, the writ jurisdiction Under Article 226 stands as a powerful tool that enables citizens to seek direct relief from higher courts when their rights are violated or when governmental authorities act beyond their legal mandate. This article examines the writ jurisdiction exercised by the Gujarat High Court under Article 226 of the Indian Constitution, exploring its scope, types, procedural aspects, and the judicial principles that govern its application.

The framers of the Indian Constitution, drawing inspiration from both Anglo-Saxon legal traditions and the need for robust constitutional safeguards, incorporated provisions that allow High Courts to issue various types of writs for the enforcement of fundamental rights guaranteed under Part III of the Constitution, as well as for other legal purposes. Unlike the Supreme Court’s jurisdiction under Article 32, which is limited to fundamental rights violations, High Courts possess broader powers under Article 226 to address both fundamental and ordinary legal rights.[1]

The Constitutional Framework: Article 226 and Its Scope

Article 226 of the Indian Constitution confers upon every High Court the power to issue directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of fundamental rights and for any other purpose. This provision creates a constitutional court of first instance for citizens seeking protection against executive excesses or judicial errors by subordinate authorities. The territorial jurisdiction of each High Court extends to the entire state or states under its purview, which in the case of the Gujarat High Court, encompasses the entire state of Gujarat.[2]

The scope of Article 226 is significantly wider than that of Article 32, which exclusively deals with fundamental rights enforcement through the Supreme Court. While Article 32 itself is a fundamental right and the Supreme Court cannot refuse to exercise this jurisdiction when fundamental rights are violated, the exercise of power under Article 226 is discretionary. Courts have consistently held that High Courts may refuse to entertain writ petitions on various grounds, including the availability of alternative remedies, delay and laches, or when the petitioner has not approached the court with clean hands.

The landmark judgment in Dwarka Prasad Agarwal vs B.D. Agarwal established that while Article 226 confers wide powers on High Courts, this power must be exercised in accordance with well-established principles. The court cannot issue writs merely because jurisdiction exists; there must be a legal right that has been infringed, and the petitioner must demonstrate that no other equally efficacious remedy is available.[3]

Types of Writs: The Five Prerogative Remedies

Habeas Corpus: The Writ of Personal Liberty

The writ of habeas corpus, derived from Latin meaning “to have the body,” serves as the most fundamental protection against unlawful detention. This writ operates as a command from the High Court to the person or authority detaining another individual to produce the detained person before the court and justify the legal basis for such detention. If the detention is found to be unlawful or without proper authority, the court orders the immediate release of the detained person.

The scope of habeas corpus has evolved considerably through judicial interpretation. In the seminal case of Kanu Sanyal vs District Magistrate, Darjeeling, the Supreme Court expanded the traditional understanding by holding that the court may examine the legality of detention without necessarily requiring the physical production of the detained person before it. This interpretation recognizes practical difficulties and focuses on the substantive issue of lawful detention rather than mere procedural formalities.

Another significant expansion came through Sheela Barse vs State of Maharashtra, where the Supreme Court recognized that if a detained person is unable to file a petition for habeas corpus due to their circumstances, any other person may file such a petition on their behalf. This principle has been particularly important in cases involving vulnerable persons, including children, mentally challenged individuals, or those held incommunicado.[4]

The compensatory aspect of habeas corpus was established in the landmark case of Nilabati Behera vs State of Orissa, where the Supreme Court awarded compensation to the mother of a deceased person who died in police custody. The court held that the award of compensation for established infringement of fundamental rights under Article 21 is a remedy available in public law, distinct from private law remedies for torts. In this case, the petitioner was awarded compensation of one lakh fifty thousand rupees, establishing an important precedent for monetary relief in constitutional matters.[5]

Mandamus: Compelling Performance of Public Duty

The writ of mandamus, meaning “we command,” is issued to compel a public authority, tribunal, or subordinate court to perform a duty that it is legally obligated to perform but has failed or refused to do so. This writ cannot be issued against private individuals or organizations unless they are discharging public functions or statutory duties. The essential requirement for issuing mandamus is the existence of a clear legal right in the petitioner and a corresponding legal duty on the respondent.

The Supreme Court in State of Uttar Pradesh vs Jokhu laid down comprehensive guidelines for the issuance of mandamus. The court must be satisfied that the petitioner has a legal right, the respondent has a legal duty to perform, the respondent has failed to perform that duty, and no other equally efficacious alternative remedy is available. Additionally, mandamus will not be issued if it would be inequitable or contrary to public policy.[6]

In Hemendra Kumar Roy vs State of Assam, the court issued a writ of mandamus directing Gauhati University to declare that the petitioner had passed his examination when the university refused to do so despite the petitioner obtaining the pass marks required by the statutory rules of the university. This case demonstrates how mandamus serves as a powerful tool to ensure that public institutions adhere to their own rules and statutory obligations.

The limitations on mandamus were clearly articulated in Barada Kanta Sarma vs State of West Bengal, where the court held that a writ of mandamus cannot be issued against a private person or organization because they are not entrusted with any public duty or statutory obligation. This principle ensures that constitutional remedies remain focused on state action and public functions rather than extending to purely private disputes.

Certiorari: Quashing Excess of Jurisdiction

The writ of certiorari, meaning “to be certified” or “to be informed,” is issued primarily to quash the order or decision of an inferior court, tribunal, or quasi-judicial body when such authority has acted in excess of jurisdiction, with an error apparent on the face of the record, or in violation of principles of natural justice. Unlike prohibition, which is preventive in nature, certiorari is both curative and corrective, as it operates after the decision has been made.

In the foundational case of Hari Vishnu Kamath vs Ahmad Ishaque, the Supreme Court laid down several propositions governing the issuance of certiorari. The writ may be issued to correct errors of jurisdiction, when a court or tribunal acts illegally within its jurisdiction, when an order is passed in violation of principles of natural justice, or when the court acts in exercise of its supervisory rather than appellate jurisdiction. Significantly, the court held that even an error in the decision or determination itself may be amenable to certiorari if it goes to the root of jurisdiction.[7]

The principles of natural justice form a crucial component of certiorari jurisdiction. In Maneka Gandhi vs Union of India, the Supreme Court expanded the concept of natural justice to include not just audi alteram partem (right to be heard) and nemo judex in causa sua (no one should be a judge in their own cause), but also the requirement that the procedure followed must be just, fair, and reasonable. This landmark judgment fundamentally altered administrative law in India by reading Article 14 (equality) into Article 21 (life and liberty).

Prohibition: Preventing Excess of Jurisdiction

The writ of prohibition is issued to prevent an inferior court, tribunal, or quasi-judicial authority from exceeding its jurisdiction or acting contrary to the rules of natural justice. Unlike certiorari, which is issued after an order has been passed, prohibition is preventive in nature and is issued during the pendency of proceedings before the inferior authority. The primary purpose is to ensure that authorities do not travel beyond their legitimate jurisdictional boundaries.

In Nagendra Nath Bora vs Commissioner of Hills Division and Appeals, the Supreme Court outlined the parameters for exercising jurisdiction through prohibition. The court must examine whether the inferior court or tribunal has exceeded its jurisdiction or is acting without jurisdiction. However, the court clarified that mere formal or technical errors that do not affect jurisdiction do not attract the writ of prohibition. The focus must be on jurisdictional errors rather than errors within jurisdiction.[8]

The distinction between prohibition and certiorari lies primarily in timing and purpose. Prohibition prevents an authority from continuing proceedings or making a decision when it lacks jurisdiction, while certiorari corrects decisions already made. Both writs, however, are supervisory in nature and form part of the High Court’s constitutional obligation to ensure that subordinate authorities function within their legitimate spheres of authority.

Quo Warranto: Challenging Unauthorized Assumption of Public Office

The writ of quo warranto, meaning “by what authority” or “what is your warrant,” is issued to prevent a person from holding a public office to which they are not entitled. This writ serves to protect public offices from being usurped by unauthorized persons and ensures that only qualified individuals occupy positions of public trust. The remedy is available not only to the person directly affected but also to any member of the public, as the integrity of public offices is a matter of public interest.

For the issuance of quo warranto, certain conditions must be satisfied. The office in question must be a public office created by statute or the Constitution, the appointment must be made under a statute or statutory instrument, and the person holding the office must lack the requisite qualification or eligibility. The writ cannot be issued in respect of private offices or ministerial positions.

In Manohar Reddy vs Union of India, two advocates filed a petition challenging the appointment of a judge to the High Court of Andhra Pradesh. The petition sought a writ in the nature of mandamus commanding the Bar Council of Andhra Pradesh to cancel the enrollment of the concerned person as an advocate. This case illustrates how quo warranto serves as a mechanism for ensuring that constitutional and statutory requirements for public appointments are strictly followed.[9]

The public interest litigation filed by Subramanian Swamy regarding certain appointments demonstrates another dimension of quo warranto jurisdiction. The court held that when a person holds a public office without proper authority or qualification, it affects not only the immediate parties but also the broader public interest in good governance and rule of law. Therefore, standing requirements for quo warranto are more liberal than for other remedies, recognizing the collective interest in preventing unauthorized occupation of public offices.

Judicial Review: The Broader Constitutional Context

Beyond the specific writ remedies, the concept of judicial review forms the constitutional backbone of judicial oversight over executive and legislative actions. Judicial review represents the power of courts to examine the constitutionality of legislative enactments and executive orders, ensuring that they conform to constitutional principles and do not exceed constitutional limitations. This power flows from the basic structure doctrine and the supremacy of the Constitution over all other legal instruments.

Articles 13, 32, and 226 of the Constitution collectively establish the framework for judicial review in India. Article 13 declares that any law inconsistent with fundamental rights shall be void to the extent of such inconsistency, creating a substantive limitation on legislative power. Articles 32 and 226 provide the procedural mechanisms through which this substantive guarantee can be enforced through the Supreme Court and High Courts respectively.

The doctrine of judicial review finds its philosophical foundation in the separation of powers and the system of checks and balances that characterize constitutional democracies. While India does not follow a strict separation of powers doctrine like the United States, the Constitution creates distinct institutions with defined powers and builds in mechanisms for each institution to check potential excesses by others. The judiciary’s power of judicial review represents its contribution to this system of mutual accountability.

In Kesavananda Bharati vs State of Kerala, the Supreme Court articulated the basic structure doctrine, holding that while Parliament possesses wide powers to amend the Constitution under Article 368, it cannot alter the basic structure or essential features of the Constitution. This landmark judgment established that judicial review itself forms part of the Constitution’s basic structure and cannot be taken away even through constitutional amendment. The decision fundamentally shaped Indian constitutional jurisprudence and reinforced the judiciary’s role as the ultimate interpreter and guardian of the Constitution.

Procedural Aspects and Limitations

While Article 226 confers extensive powers on High Courts, several procedural and substantive limitations govern the exercise of this jurisdiction. Courts have developed these limitations through decades of jurisprudence to balance the need for constitutional remedies with principles of judicial restraint and respect for other branches of government.

The availability of alternative remedies constitutes a significant limitation on writ jurisdiction Under Article 226. Courts generally refrain from entertaining writ petitions when adequate alternative remedies exist, such as statutory appeals or revision mechanisms. However, this principle is not absolute. In Whirlpool Corporation vs Registrar of Trade Marks, the Supreme Court held that the existence of an alternative remedy is a matter of discretion rather than an absolute bar, and courts may entertain writ petitions if the case involves questions of jurisdiction, violation of principles of natural justice, or if the alternative remedy would be inadequate or ineffective.

The doctrine of laches, or unexplained delay, also limits the exercise of writ jurisdiction Under Article 226. Since writ remedies are discretionary and equitable in nature, courts may refuse relief to petitioners who approach the court after unreasonable delay without satisfactory explanation. The rationale is that constitutional remedies should be sought promptly, and administrative decisions should not remain under a cloud of uncertainty indefinitely.

The principle of clean hands requires that a petitioner approaching the court for equitable relief must not have engaged in any wrongdoing or illegality in relation to the matter in dispute. If a petitioner has contributed to the situation of which they complain, or has acted in bad faith, courts may refuse to grant discretionary relief under Article 226.

Conclusion: The Continuing Relevance of Writ Jurisdiction Under Article 226

The writ jurisdiction exercised by High Courts under Article 226 remains a vital constitutional mechanism for protecting rights and ensuring governmental accountability in India. Through the five prerogative writs and the broader power of judicial review, High Courts serve as constitutional sentinels, vigilantly guarding against excesses of power and violations of legal and fundamental rights. The Gujarat High Court, like all High Courts in India, exercises this jurisdiction as part of its constitutional mandate to uphold the rule of law and ensure that all authorities function within their legitimate spheres of power. As administrative structures become more complex and the scope of state action expands, the writ jurisdiction Under Article 226 continues to evolve through judicial interpretation, adapting to new challenges while remaining rooted in fundamental constitutional principles of justice, liberty, and equality. For citizens of Gujarat and throughout India, access to constitutional remedies through writ petitions represents an essential safeguard against arbitrary state action and a concrete manifestation of the Constitution’s promise to protect individual dignity and rights against all encroachments.

References

[1] Constitutional Law of India, https://legislative.gov.in/constitution-of-india/ 

[2] Gujarat High Court Official Website, https://gujarathighcourt.nic.in/ 

[3] AIR Online, https://www.scconline.com/ 

[4] Supreme Court Cases Database, https://main.sci.gov.in/ 

[5] Indian Kanoon Legal Database, https://indiankanoon.org/ 

[6] Manupatra Legal Database, https://www.manupastra.com/ 

[7] SCC Online Legal Resources, https://www.scconline.com/ 

[8] Supreme Court of India Judgments, https://main.sci.gov.in/judgments 

[9] Legal Services India, https://www.legalservicesindia.com/ 

Author : Vishal Davda

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