Case BriefsSupreme Court

Supreme Court: While adjudicating an appeal relating to arbitration, the Division Bench of M. R. Shah* and B.V. Nagarathna, JJ., held that by entertaining the petition under Article 226 for executing an arbitral award, the High Court had virtually converted itself into Executing Court.

Modifying the impugned judgment and order, the Court expressed,

“We disapprove the entertaining of such writ petitions under Article 226 of the Constitution to execute the award passed by the Arbitral Tribunal/Court, without relegating the judgment creditor in whose favour the award is passed to file an execution proceeding before the competent Executing Court.”

In a land acquisition matter, where the original land owners had approached the Bombay High Court with the writ petition under Article 299 for seeking a writ of mandamus against NHAI (National Highway Authority of India) for the execution of Arbitral award instead of filing an execution petition before the appropriate executing Court and the same was allowed by the High Court, the Court was posed with the question whether such a process can be resorted to when the appropriate alternate remedy is available?

The land in question was acquired by the NHAI under the provisions of the National Highway Authority of India Act, 1988 in connection of which the amount of compensation came to be enhanced by the Arbitrator.

The Court noted though the NHAI had challenged the said arbitration award under Section 34 of the Arbitration Act, 1996 to the extent of the enhanced amount, which is still pending, there was no stay on the award. Therefore, the Court opined that by passing the impugned order/directions the High Court had virtually converted itself into Executing Court. The Court remarked,

“The High Court ought not to have entertained the writ petition under Article 226 of the Constitution seeking the reliefs to execute the award passed by the Arbitral Tribunal/Court when the award is to be executed by initiating an execution proceeding before the Executing Court concerned.”

Considering that the original land owners had an efficacious, alternative remedy to execute the award by initiating an appropriate execution proceeding before the competent Executing Court, the Court opined that the High Court ought to have relegated the original writ petitioners to avail the said remedy instead of entertaining the writ petition under Article 226 of the Constitution.

Disapproving the procedure adopted by the High Court, the Court cautioned,

“If the High Courts convert itself to the Executing Court and entertain the writ petitions under Article 226 of the Constitution to execute the award passed by the Arbitral Tribunal/Court, the High Courts would be flooded with the writ petitions to execute awards passed by the Arbitral Tribunal.”

Hence, the Court opined that the impugned judgment and order should be set aside and quashed, however, considering the facts in particular, and relying on the similar order passed by this Court in the case of NHAI v. Saraswatibai Chandrakant Shinde (SLA No. 12409 of 2022), the Court disposed of the matter with the following directions:

  • “The NHAI shall deposit 50 percent of the compensation amount awarded by the Arbitral Court, with the Executing Court within a period of four weeks.
  • The said amount shall be released to the landowners unconditionally.
  • The District Court, before whom the proceedings under Section34 of the Arbitration Act are pending shall make an endeavour to decide such proceedings within a period of six months from the next date of hearing before the said court.
  • The balance amount of compensation as per the Award to be passed under Section 34 of the Arbitration Act, shall be deposited by the NHAI with the Executing Court within four weeks after such determination. The said amount shall also be released by the Executing Court in favour of the land owners subject to the rights and remedies available to the parties in law.”

With the above observations and directions, the Appeal was disposed of. The impugned order was modified in the above terms.

[NHAI v. Sheetal Jaidev Vade, 2022 SCC OnLine SC 1070, decided on 24-08-2022]


*Judgment by: Justice M R Shah


Appearance:

For the NHAI: ASG Aishwarya Bhati

For the Respondents: Advocate Shirish K. Deshpande


*Kamini Sharma, Editorial Assistant has put this report together.

Karnataka High Court
Case BriefsHigh Courts

   

Karnataka High Court: S G Pandit, J. declared the present writ petition filed by XIAOMI India under Article 226 of the Constitution of India as premature as Section 37 of Foreign Exchange Management Act (‘FEMA'), 1999 provides complete mechanism to decide the alleged contravention of Section 4 of FEMA, 1999.

XIAOMI Technology India Private Limited incorporated under the provisions of the Companies Act, 2013 engaged in the trading of mobile phones, electronic gadgets and other accessories under the brand name of Xiaomi. Petitioner is a beneficiary of Qualcomm Inc. and its proprietary and licensed intellectual property, particularly Standard Essential Patents (SEPs) which are patents essential for functioning of the mobile phone that are used in the mobile phones sold by it and therefore, pays royalty for it. Enforcement Directorate (‘ED') alleged that petitioner made certain foreign remittances in the name of royalty to foreign based entities in violation of the provisions of FEMA, 1999 and initiated investigation. Pursuant to which, the Authorized Officer passed seizure order under Section 37-A(1) of FEMA, 1999 which is impugned in the present writ petition.

Additional Solicitor General submitted that since the petitioner has not used any technology or IPR of the Qualcomm or Beijing Xiaomi Mobile Software Company Limited, petitioner could not have paid any royalty, thus violating provisions of Section 4 of FEMA, 1999.

The issue under consideration before the Court is with regard to its maintainability as Section 37 FEMA, 1999 has alternate remedy regarding the alleged violation.

Placing reliance on Raj Kumar Shivhare v. Directorate of Enforcement (2010) 4 SCC 772, the Court noted that FEMA, 1999 is a complete Code in itself and is an act to consolidate and maintain law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange management in India.

The Court observed that Section 37-A FEMA, 1999 provides special mechanism to determine the violation of Section 4 of FEMA, 1999. Thus, in light of the provision the moot question that whether the payments made by the petitioner to Qualcomm and Beijing Xiaomi Mobile Software Company Limited could be considered as royalty and attract Section 4 FEMA, 1999 is a question of fact which the Competent Authority has to decide appreciating or considering material placed by the petitioner as well as respondents. Thus, the Competent Authority could determine the same while passing order under Section 37-A (3) of FEMA, 1999.

The Court stayed the impugned order subject to operation of seized bank accounts only for the purpose of meeting daily expenses and held “At this stage, examining sufficiency of reason or otherwise under Article 226 of the Constitution of India would prejudice the case of either of the parties. It is best left to the Competent Authority to examine the same when it considers the entire issue under sub-Section (3) of Section 37-A of FEMA, 1999.”

The Court further directed the Competent Authority to dispose of the same expeditiously but not later than 60 days in light of halt of day to day activities of the petitioner due to seizure order.

[Xiaomi Technology India Private Limited v. Union of India, WP No. 9182 of 2022, decided on 05-07-2022]


Advocates who appeared in this case :

Senior Advocate Sajjan Poovaiah and Adv. Vikaram Bhat, Advocates, for the Petitioner;

ASG M B Nargund and CGC Madhukar Deshpande, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sujoy Paul and Prakash Chandra Gupta, JJ., disposed of a petition reserving liberty to the petitioner to avail alternative remedy of appeal.

Petitioner had  filed Writ Petition challenging impugned order which was an interlocutory order passed by the Debts Recovery Tribunal, Jabalpur, whereby the interim relief was denied to the Petitioner as he had failed to establish violation of the SARFAESI Act, 2002, in the proceedings initiated by the Respondent Bank under the Act.

Counsel for the petitioner submitted that the present writ petition was properly drafted and pregnant with the necessary specific pleadings. He further submitted that the DRT came to hold that under the provisions of SARFAESI Act, 2002 no interim relief was due to the petitioner. Hence, the only remedy to the petitioner is of filing of present petition.

Counsel for the respondent/Bank placed reliance on the recent order of Supreme Court wherein the Supreme Court had deprecated the practice of entertaining the writ petition despite availability of alternative remedy.

The Court reiterated Section 18(1) of the SARFAESI Act, 2002 and noted that the appellate provision made it clear that the legislature in its wisdom has used the words “any order” made by the Debts Recovery Tribunal against which the appeal lies. The Court was of the opinion that expression “any order” was wide enough to include an interlocutory order drawing support from various decisions given by the High Courts of India in this regard.

The Court considering the backdrop of the present case stated that there was nothing which made it obligatory for the Court to entertain this writ petition when efficacious alternative remedy is available to the petitioner. The Court considered the case of Kotak Mahindra Bank Ltd. v. Dilip Bhosale, Special Leave to Appeal (C) No.(s). 13241-13242/2019, decided on May 11, 2022 relied on by the Counsel  for the respondent/Bank and reiterated the relevant part which was:

“Before parting with the order, we would like to observe that this Court is consistent of the view and can be noticed from the judgment in United Bank of India Vs. Satyawati Tandon (2010) 8 SCC 110, that when a remedy under the statute is available and in the instant case which indeed was availed by the respondent/borrower, filing of a writ petition under Article 226 of the Constitution of India is to be discouraged by the High Court.”

The interference was declined in view of availability of alternative remedy.

[Devendra Kumar Rai v. State Bank of India, 2022 SCC OnLine MP 1295, decided on June 13, 2022]


For petitioner: Mr N.S. Ruprah

For respondent/Bank: Mr Prabhanshu Shukla


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Chandra Dhari Singh, J., expressed that it is settled law that the power to issue writ has its own well-defined limitations imposed by the High Courts, one of which was the availability of alternative efficacious remedy.

A petition was filed under Articles 226 and 227 of the Constitution of India seeking issuance of writ of certiorari for immediate arrest of accused persons and taking appropriate action against the investigation officer for the delay in lodging FIR and helping accused persons.

Petitioner’s counsel submitted that the police was not investigating the matter as per the mandate of the judgments of the Supreme Court and High Court.

Analysis, Law and Decision

High Court referred to the various cases with regard to the exercise of the writ jurisdiction by the High Court.

Recently, the Supreme Court in Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771, reiterated and summarized the principles governing the exercise of writ jurisdiction by the High Court in presence of an alternate remedy.

Hence,

“Extraordinary writ jurisdiction is to be exercised only in rare cases or certain contingencies in the interest of justice, including exceptional cases.”

Allahabad High Court’s decision in Waseem Haider v. State of U.P., Misc. Bench No. 24492 of 2020, held that the power to issue a writ of mandamus has its own well defined self-imposed limitations, one of which is the availability of alternative efficacious remedies. In the aforesaid judgment, the Division Bench has exhaustively dealt with the alternative remedies available to a person aggrieved by non-registration of FIR by the police.

Therefore, a writ to compel the police to conduct an investigation can be denied for not exhausting the alternative and efficacious remedy available under the provisions of the Code, unless the exceptions enumerated in the Supreme Court decision are satisfied.

In the instant case, it was noted that the petitioner was yet to exercise and exhaust his alternative remedies available under the provisions of the Code including approaching the Magistrate.

Bench expressed that it was the prerogative of the police/investigation agency to determine whether custodial interrogation was required.

Since the investigating agency was already investigating, the present stage was pre-mature for the writ petition to be entertained.

High Court opined that it should not ordinarily, as a matter of routine, exercise its extraordinary writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available.

In view of the above discussion, petition was dismissed. [Lalit Raj v. Union of India, 2022 SCC OnLine Del 799, decided on 16-3-2022]


Advocates before the Court:

For the Petitioner:

Mr. Shakti Narayan, Advocate

For the Respondents:

Ms. Monika Arora, Advocate for UOI

Mr. Rajesh Mahajan, ASC for State with Mr. Jyoti Babbar, Advocate with ACP Vijay Singh, P. S. Dwarka North

Case BriefsSupreme Court

Supreme Court: The Division Bench of R. Subhash Reddy* and Hrishikesh Roy, JJ., held that once the fresh notification is issued by the State for land acquisition, no cause of action survive on previous notification and actions taken therein, when that proceeding is declared lapsed. Quoting the case of R.N. Dey v. Bhagyabati Pramanik, (2000) 4 SCC 400, the Bench stated,

“Discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court.”

These contempt petitions were filed under Section 12 of the Contempt of Courts Act, 1971 alleging that the respondents had wilfully and deliberately violated directions issued by the Court in the order dated 17-08-2015, 29-08-2016 and 05-01-2017.

Background

The land admeasuring 29.38 acres belonging to the petitioner was acquired under provisions of the Land Acquisition Act, 1894; the notification was issued under Section 4(1) of the Act at the first instance on 25-03-1981. Pursuant to which the said land was subsequently declared as a protected forest under Section 29 of the Indian Forest Act, 1927. However, as no award was passed pursuant to the notification issued under Section 4(1) of the Act, a fresh notification under Section 4(1) of the Act was issued on 24-05-1995.

Litigation History

The subsequent notification was challenged before the Patna High Court, wherein the High Court held that notwithstanding the delay in passing the award, possession of the land as well as title vested in the respondent State. Noticeably, during the pendency of the said petition an award was passed on 27-09-2006, purportedly pursuant to 1981 notification. Consequently, the petitioners approached the Supreme Court with their grievance, wherein, the Court held that the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 would apply as much as State had not progressed beyond making a declaration under Section 6 of the Act, pursuant to subsequent notification. The land acquisition proceedings were declared lapsed by the Court, and the respondent State was directed to initiate fresh acquisition proceedings or to take any other action available under law.

Alleging wilful and deliberate violation of the directions issued in the aforesaid order, contempt petitions were filed, however, noticing that fresh notification was issued during the pendency of the contempt petitions and the possession of the land was already undertaken by authority, the petition was disposed of with the direction that the petitioner shall be paid the amount of compensation as per the provisions of Section 40 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Grievances of the Parties

The petitioners submitted that at first instance land was acquired by invoking urgency clause, and in spite of directions for payment of compensation by following the provisions under Section 40 of the 2013 Act, respondents had passed the award without adhering to the same and the acquired land was being used for construction of office and residential buildings, and contrary to various directions issued by the Court, land was treated as agricultural forest land, a concept unknown to law.

On the other hand, the State contended that the Court had directed that a fresh notification would be issued wherein; the Court had not expressed any opinion on the nature of the land etc. and left open all the issues. It was the case of the respondents that if the petitioner was aggrieved by the determination of compensation, it was always open to avail remedy under Section 64 of the 2013 Act, however, without availing such remedy under guise of contempt, the petitioner was trying to enlarge the scope of directions issued by the Court.

Factual Analysis

Noticeably, consequent to the Court orders, the respondents-State had issued a fresh notification under Section 11 of Act, 2013; pursuant to award inquiry was conducted. Therefore, rejecting the contention of the petitioners that the respondent-state had not granted the benefits as per Section 40 of the 2013 Act, the Bench expressed,

“It is to be noted that subsequent in the latest notification issued under Section 11 of the 2013 Act respondents have not invoked urgency clause at all. When the notification was issued under Section 11 of the 2013 Act, without invoking urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise.”

Reliance was placed by the Bench on J.S. Parihar v. Ganpat Duggar, (1996) 6 SCC 291, wherein it was that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Similarly, in R.N. Dey’s case it was held that a decree obtained under Land Acquisition Act, is an executable decree and no contempt can be maintained for noncompliance of such decree. In the same judgment it was observed that weapon of contempt is not to be used in abundance or misused.

Therefore, in view of the last notification issued under Section 11 of the 2013 Act on 14-02-2020 and the award passed by the respondent authorities, the Bench opined that it could not be said that respondents had deliberately and intentionally violated any directions issued by the Court, attracting the provisions of Contempt of Courts Act, 1971. On the submissions of the petitioner that land was wrongly categorized in the award for fixation of market value, the Bench opined that while it was open to the petitioner to avail the remedies available in the Act for proper determination of compensation,

Section 64 of the 2013 Act, makes it clear that any person interested, who has not accepted the award, by written application to the Collector may seek reference to the competent authority constituted under Section 66 of the 2013 Act. Even after adjudication made by such authority on reference, there is a further remedy available under Section 74 to the High Court.”

Conclusion

Consequently, the Bench held that while it was open for the petitioner to pursue remedies available in law, there was no contempt as alleged. Accordingly, the contempt petitions were dismissed. The Bench further clarified that it had not expressed any opinion either on the categorization of the land or on the determination of market value in the award.

[Soorajmull Nagarmull v. Brijesh Mehrotra, 2021 SCC OnLine SC 1252, decided on 14-12-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Petitioners:  A.M. Singhvi and Mr. Gopal Sankarnarayanan, Senior Advocates

For the Respodnents: Ranjit Kumar, Senior Advocate


*Judgment by: Justice R. Subhash Reddy

Case Briefs

Supreme Court: The 3-Judge Bench comprising of Dr Dhananjaya Y Chandrachud*, Vikram Nath and BV Nagarathna, JJ., has held that the question whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor is a question of law and existence of alternate remedy would not bar the High Court from entertaining the same. The Bench expressed,

“The issues raised by the appellant were questions of law which required, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor…”

The crux of the case was that the Patna High Court had declined to entertain writ petition challenging the validity of electricity duty and penalty imposed on the electricity supplied to Bihar State Electricity Board (BSEB) on the ground that the dispute between the parties was factual in nature and was suitable for adjudication in terms of the statutory remedy provided in the Bihar Electricity Duty Act 19481.

Factual Developments

The appellant, a sugar mill company was engaged in the business of manufacture and sale of white crystal sugar. The waste of sugarcane (bagasse) was used for the production of electricity for its own consumption by the appellant and the surplus energy was supplied to BSEB.

In pursuance of its power under Section 3(1) of the Act, the State had issued a notification dated 21-10-2002 which stipulated that the rate of duty applicable on the consumption or sale of electricity would be fixed at six per cent of the value of energy consumed or sold for any other purposes other than irrigation which was later amended on 04-03-2005 which provided that the rate of duty to be levied on consumption of electrical energy generated by captive power plants would be six per cent of the  value of energy, i.e. energy tariff as fixed by the BSEB. Noticeably on 14-01-2011 another notification was issued by the State, granting a blanket exemption from payment of electricity duty on electricity generated by captive plants for self-consumption.

In the above backdrop, the appellant had challenged the notifications dated 21-10-2002, which was struck down by the High Court on the ground that there were no guidelines in the statute or the notifications for construing the expression ‘value of energy’. Subsequently, the State amended the Act through the Bihar Finance Act 2012 with retrospective effect from 17-10-2002 for defining the term ‘value of energy’.

Once again, the appellant challenged the amendment in the High Court, however, while the petition was pending the State issued a notice to the appellant for its failure to file returns under Section 6B (1) of the Act, concealment of the sale of electricity of approximately Rs 56 crores and for raising a demand of electricity duty and penalty of about Rs 67 crores.

Grievance raised by the Appellant

On behalf of the appellant, the following submissions had been made to substantiate the claim that no tax can be levied on the supply of electricity by the appellant to BSEB for the following reasons:

  1. Under Section 3 of the Act, tax was levied on the ‘value of energy’ and Section 2(ee) only brought the sale to a consumer within the ambit of the phrase ‘value of energy’;
  2. BSEB was a ‘licensee’ and not a ‘consumer’ in view of the definition of ‘licensee’ provided under Section 2(d) of the Act; and the term ‘value of energy’ used in Section 3 for the levy of tax was not applicable to BSEB because the definition of ‘consumer’ excluded a licensee, Section 2 (b) states:

“‘Consumer’ means any person who is supplied with energy but does not include either a licensee or the distributing licensee…”

  1. BSEB was already paying electricity duty for the electricity sold by it to consumers, including the electricity supplied by the company to the Board. The levy of tax on the electricity supplied by the company would thus amount to double taxation;
  2. Even if it was conceded that the State had power to levy tax on the supply of electricity by the generator to the licensee, the Government had not exercised its power, since under Section 3, a notification must be issued for specifying the rate of charge. The notification issued on 21-10-2002 was only providing the rate of duty on ‘consumption or sale of electricity’.
  3. Since the power exercised by the State under Section 3 of the Act to levy electricity duty on sale of electricity by the appellant to BSEB was a jurisdictional issue, the rule of alternate remedy would not apply;

Analysis

In a similarly placed case, which was initially tagged with the instant petition but was later de-tagged, National Thermal Power Corporation Ltd. (NTPC) was supplying electricity exclusively to the Electricity Boards, which had challenged the same issue before the Court, the High Court had held that electricity duty could not be imposed under Section 3 (1) of the Act on a power generation company supplying electricity to a licensee like the Electricity Board, concluding that it was beyond the legislative competence of the State to impose a tax on the sale of electricity which was not a sale for consumption. Moreover, the High Court observed that in terms of the provisions of the Bihar Electricity Act, a power generation company is liable to pay duty only if it is selling electricity to the consumer, as defined in the legislation.

Noticeably, the High Court by its impugned order had declined to entertain the writ petition on two counts: (i) the appellant had an alternate statutory remedy under Section 9A of the Act; and (ii) the dispute involved questions of fact which are not amenable to the writ jurisdiction of the High Court. The Bench observed that it was not the case of the appellant that the respondents had miscalculated the duty and penalty imposed on it. The appellant contended that the State Government did not have power to levy tax on its sale of electricity to BSEB. Thus, the plea stroke at the exercise of jurisdiction by the Government; accordingly, the Bench held,

“The High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law.”

Relying on the decision in Sree Meenakshi Mills Ltd. v CIT, 1956 SCR 691, wherein a three judge Bench had explained succinctly the tests for the identification of questions of fact, questions of law and mixed questions of law and facts, the Bench stated that, “the test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario.”

Verdict

Hence, the Bench held that the issues raised by the appellant were questions of law which required, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the State had the legislative competence to levy duty on the sale of electricity to an intermediary distributor.

Resultantly, the Bench was of the view that the High Court made an error in declining to entertain the writ petition and it would be appropriate to restore the proceedings back to the High Court for a fresh disposal. Accordingly, the appeal was allowed and the impugned judgment was set aside.

[M/s Magadh Sugar & Energy Ltd. v. State of Bihar, 2021 SCC OnLine SC 801, decided on 24-09-2021]

___________________________________________________________________________
Kamini Sharma, Editorial Assistant has put this report together

___________________________________________________________________________

Appearance by:

For the Appellant: Advocate SK Bagaria

For the State of Bihar: Sr. Advocate Saket Singh


*Judgment by: Justice Dr Dhananjaya Y Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Indira Banerjee, JJ has held that the existence of an arbitration clause does not debar the court from entertaining a writ petition.

Stating that the availability of an alternative remedy does not prohibit the High Court from entertaining a writ petition in an appropriate case, the Court highlighted that the High Court may entertain a writ petition, notwithstanding the availability of an alternative remedy, particularly

(i) where the writ petition seeks enforcement of a fundamental right;

(ii) where there is failure of principles of natural justice or

(iii) where the impugned orders or proceedings are wholly without jurisdiction or

(iv) the vires of an Act is under challenge.

The Court was hearing a dispute between Uttar Pradesh Power Transmission Corporation Ltd. (UPPTCL) and CG Power and Industrial Solutions Limited arising out of a Framework Agreement with UPPTCL for construction of 765/400 KV Substations, at Unnao, Uttar Pradesh. UPPTCL had directed CG Power to remit Labour Cess amounting to Rs.2,60,68,814/-, computed at 1% of the contract value, under Sections 3 sub-section (1) and (2) of the Building and Other 1 Construction Workers’ Welfare Cess Act, 1996, hereinafter referred to as the “Cess Act”, read with Rules 3 and Rule 4 (1), (2) (3) and (4) of the Building and Other Construction Workers Welfare Cess Rules, 1998, hereinafter referred to as the “Cess Rules” and also Section 2 (1)(d), (g) and (i) of the Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act, 1996.

This direction had come after, in the Audit Report, the Accountant General pointed out the lapse on the part of UPPTCL, in not deducting labour cess from the bills of the contractor, that is Respondent No.1, in respect inter alia of the First Conract, observing that every employer was required to levy and collect cess at a rate not exceeding 2% and not less than 1% of the cost of construction incurred by an employer and to deposit the same with the Building and Other Construction Workers Welfare Board.

When CG Power filed a writ petition before the Allahabad High Court challenging the same, UPPTCL did not oppose the writ petition on the ground of existence of an arbitration clause. Nor was there any whisper of any arbitration agreement in the Counter Affidavit filed by UPPTCL to the writ petition in the High Court.

In such circumstances, the Supreme Court held that the existence of an arbitration clause does not debar the court from entertaining a writ petition and that relief under Article 226 of the Constitution of India may be granted in a case arising out of contract. However, the writ jurisdiction under Article 226, being discretionary, the High Courts usually refrain from entertaining a writ petition which involves adjudication of disputed questions of fact which may require analysis of evidence of witnesses.

[Uttar Pradesh Power Transmission Corporation Ltd v. CG Power and Industrial Solutions Limited, 2021 SCC OnLine SC 383, decided on 12.05.2021]


Judgment by: Justice Indira Banerjee

Know Thy Judge| Justice Indira Banerjee

Case BriefsSupreme Court

Supreme Court: In an appeal against the Himachal Pradesh High Court judgment which dismissed a petition after noticing that the appellant has an alternate remedy available, the bench of Dr. DY Chandrachud and MR Shah, JJ has summarised the principles related to the maintainability of a writ petition before High Courts.

Two important judgments on the “rule of alternate remedy”

Whirlpool Corporation v Registrar of Trademarks, Mumbai, (1998) 8 SCC 1

“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.”

Read full judgment

Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107

“In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Read full judgment

Principles summarised by the Court

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

Background

In the present case, the High Court had dismissed the writ petition instituted under Article 226 of the Constitution challenging orders of provisional attachment on the ground that an alternate remedy is available. The appellant challenged the orders issued on 28 October 2020 by the Joint Commissioner of State Taxes and Excise, Parwanoo provisionally attaching the appellant’s receivables from its customers. The provisional attachment was ordered while invoking Section 83 of the Himachal Pradesh Goods and Service Tax Act, 20172 and Rule 159 of Himachal Pradesh Goods and Service Tax Rules, 20173 . While dismissing the writ petition challenging orders of provisional attachment the High Court noted that although it can entertain a petition under Article 226 of the Constitution, it must not do so when the aggrieved person has an effective alternate remedy available in law.

[Radha Krishna Industries v. State of Himachal Pradesh, 2021 SCC OnLine SC 334, decided on 20.04.2021]


*Judgment by Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

For appellant: Senior Advocate Puneet Bali, learned senior counsel appearing on behalf of the appellant

For State of Himachal Pradesh: Advocate Akshay Amritanshu

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Vineet Saran, JJ has held that the Real Estate (Regulation and Development) Act, 2016 (RERA Act) does not bar the initiation of proceedings by allottees against the builders under the Consumer Protection Act, 1986.

“It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right “without prejudice to any other remedy available’, in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79.”


Background of the Case


The said decision of the Court came in the matter relating of delay in handing over the possession of flats to buyers by the developer. The apartments were booked by the Complainants in 2011-2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Even after four years there were no signs of the Project getting completed and hence, a complaint was filed by the Buyers.


RERA Act vis-à-vis CP Act: Statutory Analysis


The Court discussed the following provisions for the purpose of deciding the case at hand:

  • Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine.
  • Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law.
  • Section 89 provides that the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

The Court noticed that an allottee placed in circumstances similar to that of the Complainants, could have initiated following proceedings before the RERA Act came into force.

A) If he satisfied the requirements of being a “consumer” under the CP Act, he could have initiated proceedings under the CP Act in addition to normal civil remedies.

B) However, if he did not fulfil the requirements of being a “consumer”, he could initiate and avail only normal civil remedies.

C) If the agreement with the developer or the builder provided for arbitration:-

i) in cases covered under Clause ‘B’ hereinabove, he could initiate or could be called upon to invoke the remedies in arbitration.

ii) in cases covered under Clause ‘A’ hereinabove, in accordance with law laid down in Emaar MGF Ltd v. Aftab Singh, (2019) 12 SCC 751, he could still choose to proceed under the CP Act.

The Court noticed that on plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated hereinabove, would stand barred from invoking the jurisdiction of a Civil Court.

“The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a Civil Court and express saving under Section 88 of the RERA Act, make the position quite clear.”

To answer the question whether the Commission or Forum under the CP Act is a civil court or not, the Court referred to the decision in Malay Kumar Ganguli v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 , where it was held,

“The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court.”

Hence, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

The Court further discussed the proviso to Section 71(1) of the RERA Act which entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. It noticed,

“The proviso thus gives a right or an option to the concerned complainant but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.”

It was held that insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. Further, Section 18 itself specifies that the remedy under said Section is “without prejudice to any other remedy available”.

“Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.”

[Imperia Structures v. Anil Patni,  2020 SCC OnLine SC 894, decided on 02.11.2020]

Case BriefsHigh Courts

Delhi High Court: J.R. Midha, J., while addressing the present petition observed the principle laid down by the Supreme Court of India with regard to Industrial Disputes.

Challenge in the Present petition

Trade Union of PTI Employees and Federation of four PTI Employees’ Unions have challenged the retrenchment of 297 employees by the Press Trust of India.

Permanent and regular workmen have been retrenched while contractual workers have been retained. The principle of ‘last come first go’  has not been followed.

Reasons why retrenchment is violative of certain provisions of the Industrial Disputes Act

Further, it has been stated that retrenchment is violative of Section 25-N of the Industrial Disputes Act as PTI employs more than 100 employees and has not taken the prior permission from the State Government before retrenchment;

retrenchment is violative of Section 25-N of Industrial Disputes Act as three months notice/three months wages in lieu of notice has not been given;

retrenchment is violative of Sections 25-F and 25-G of the Industrial Disputes Act as one month notice indicating the reasons for retrenchment and the retrenchment compensation has not been given;

retrenchment is violative of Section 9A of the Industrial Disputes Act read with Clauses 10 and 11 of the Fourth Schedule as the service conditions of the employees relating to rationalization/technique were altered without notice;

the retrenchment is violative of Section 16A of the Working Journalists Act, 1955 as the reason for retrenchment was the liability for payment of wages and mandating promotional grades as per Clause 18(f) of Majithia Award;

the retrenchment is violative of Section 25-G of the Industrial Disputes Act as there is the substantial short payment of retrenchment compensation to the employees;

closure of Attendees, Transmission and Engineering departments is violative of Section 25-O of the Industrial Disputes Act as the closure was without permission and the retrenchment is illegal and mala fide to sabotage the continued disbursement of Majithia Award benefits and to discourage the employees to pursue their remedies under the Wage Board.

retrenchment constitutes an unfair trade practice as set out in clauses 5(a), (b) and (d) of the Fifth Schedule of the Industrial Disputes Act;

large number of employees have not yet received individual notice of their retrenchment; and the plea of “No work” of PTI is false and contrary to PTI work registers.

Analysis and Decision

Whether the writ petitions should be entertained in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act?

Bench while deciding the present matter observed that,

The law is well settled by the Supreme Court that a writ petition should not be entertained in respect of industrial disputes for which a statutory remedy is available under the Industrial Disputes Act unless ‘Exceptional circumstances’ are made out.

Writ jurisdiction is a discretionary jurisdiction and the discretion should not ordinarily be exercised if there is an alternative remedy available to the petitioner.

Sum and Substance:

  • If the writ petition discloses ‘Exceptional circumstances’ and does not involve disputed questions of fact, the writ petition in respect of an industrial dispute may be entertained.
  • If the writ petition discloses ‘Exceptional circumstances’ but the facts are disputed, the writ petition should not be entertained and the petitioner has to invoke the statutory remedies available as per law.
  • If the writ petition does not disclose ‘Exceptional circumstances’, the writ petition should not be entertained irrespective of whether the facts are disputed or not.
  • Writ jurisdiction is a discretionary jurisdiction and the discretion is ordinarily not exercised, if an alternative remedy is available to the petitioner. The powers conferred under Article 226 of the Court are very wide but these are extraordinary remedies subject to self-imposed restrictions.

With regard to ‘exceptional circumstances’ Court referred to the decision of Delhi High Court, Hajara v. Govt. of India, 2017 SCC OnLine Del 7982.

In the present matter, there are no exceptional circumstances for the exercise of the writ jurisdiction under Article 226 of the Constitution.

Bench stated that the present matter is squarely covered by the principles laid down by the Supreme Court in U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karamchari Sangh,2004 (2) L.L.N. 93 wherein the Court held that,

“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.”

High Court observed that,

“The principles of uniformity and predictability are very important principles of jurisprudence.”

Most of the retrenchment cases are simpler than the present case but the writ jurisdiction is not exercised as the law is clear and well settled that the rights under the Industrial Disputes Act have to be agitated before the Industrial Tribunal.

In the present matter, Court declines to exercise the writ jurisdiction in view of the statutory remedy available to the retrenched employees under the Industrial Disputes Act.

Court noted there is no averment in that in any of the retrenched employees authorized the petitioners to espouse their cause. There is no averment that shows the authority of the petitioners to file the petitions.

Held

Bench held that the petitions are being dismissed on the ground that the retrenched employees have a statutory remedy under the Industrial Disputes Act and no ‘Exceptional circumstances’ have been made out by the petitioners.

Post Script

In view of the well-settled law by the Supreme Court that the writ petition relating to an industrial dispute can be entertained only if there are ‘Exceptional circumstances’, it is mandatory for the writ petitioner to disclose the ‘Exceptional circumstances’ in the Synopsis as well as in the opening paras of the writ petition.

Hence, if the writ petitioner does not disclose the “Exceptional circumstances” in the writ petition, the Registry shall return the writ petition under objections to enable the writ petitioner to disclose the “Exceptional circumstances” in the Synopsis as well as in the opening paras of the writ petition.[PTI Employees Union v. Press Trust of India Ltd., 2020 SCC OnLine Del 1216, decided on 18-09-2020]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench of Dr S. Muralidhar and Avneesh Jhingan, JJ., dismissed the instant petition upon discovery of availability of alternate remedies to the petitioner.

In the present case, the petitioner has questioned the demand for concession fees to the tune of Rs 2,19,10,897 sought from the Petitioner by the Respondent/Airport Authority of India, through minutes of meeting dated 25-05-2020 and letter dated 01-07-2020.

During the course of the proceedings, Article 22.1 of the Concessionaire Agreement (CA) dated 11-12-2019, caught the attention of the Court which affirmed the liability of the petitioner to pay the respondent for actual advertisement area made available to it at Amritsar Airport. The Dispute Resolution clause is reproduced below for reference-

“22.1 – Dispute Resolution – Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Concession Agreement (including its interpretation) between the parties, shall be governed and regulated in accordance with the provisions contained at Clause 5.16 of the RFP and in accordance with the provisions of Arbitration and Conciliation Act, 1996 as amended from time to time.”

On perusal of the above stated Clause 22.1 along with Clause 5.16 of the Request For Proposal (RFP), the Court was successful in grasping that any grievance under the CA has to be resolved via a two-tier mechanism. The mechanism includes submission of a written application before the Dispute Resolution Committee (DRC) and later, resolution under the Arbitration and Conciliation Act, 1996, if the same remains unresolved.

The petitioner invoked the dispute resolution mechanism subsequent to which a meeting of DRC was held on 25-05-2020. Counsel for the respondent, Vivek Singla has asserted that the petitioner ought to have availed all the further remedies in terms of the CA.

When the counsel for the petitioner, Varun Singh was catechized over the maintainability of the present petition, he referred to a plethora of cases such as Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107, Hindustan Petroleum Corpn. Ltd. v. Super Highway Services, (2010) 3 SCC 321 and Union of India v. Tantia Construction (P) Ltd., (2011) 5 SCC 697. However, unfortunately, the Court found all of them to be of no assistance in the petitioner’s case. The Court was not content with the arguments advanced by the petitioner with respect to the maintainability of the present petition.

Thus, the Court declined to exercise its jurisdiction under Article 226 of the Constitution of India since an “efficacious and effective alternative remedy” is available to the petitioner in view of the CA. In the event of a dispute, the parties could also plead for interim relief under the Arbitration and Conciliation Act, 1996.

Given the circumstances, the Court declined to examine the factual dispute leaving it open for the parties to avail other remedies under the law.

In view of the above, the petition has been dismissed by the Court.[Proactive In and Out Advertising (P) Ltd. v. Airport Authority of India, 2020 SCC OnLine P&H 1172, decided on 11-08-2020]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J., disposed of this writ petition filed under Article 226 of the Constitution of India.

The petitioner here is the accused in the suit filed under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioner took a loan from the Co-operative Urban Bank Ltd (Respondent 1). The petitioner committed some default in the re-payment, hence the initial suit was filed under SARFAESI. The present petition is against the measures initiated under SARFAESI for recovery of the loan amount by the Bank. This Act enables the secured creditors to take possession of the securities of the defaulters, without any intervention of the Court and also alternatively to authorize any Securitization or Reconstruction Company to acquire financial assets of any Bank or Financial Institutions. 

The counsel for the petitioner, K.V. Anil Kumar, contended that default was committed because of some reasons beyond the control of the petitioner. The only prayer of the petitioner is that some time may be granted so that he can clear all the arrears and regularize his account in the bank.

The counsel for the respondent, Deepa Arun V., contended that the bank is only interested in realizing the arrears amounting to Rs 9,23,000, expeditiously. 

The Court referred to the judgments of the Supreme Court- Union Bank of India v. Stayawati Tandon, (2010) 8 SCC 110 and State Bank of Travancore v. Mathew K.C., 2018 (1) KLT 784. The judgment in the above-mentioned case was that, where any alternate remedy is available, the petition under Article 226  should not be entertained by the High Court. Section 17 of the SARFAESI Act provides for the right to appeal. It enumerates that any person who is aggrieved by the measures referred in Section 13(4) of the Act shall make an application to the Debt Recovery Tribunal within 45 days from the date on which measures have been taken. Though the rule of exhaustion of alternate remedy is a rule of discretion and not one of compulsion.

The Court held that it will be indulging for the last and final time as the respondents are also agreeable for an opportunity to salvage the property of the petitioner. Further, the Court directed the petitioner to deposit the total arrears in easy installments divided into 10 equal and monthly installments starting from 15-01-2020. Only after compliance with the said order, the bank account was supposed to be regularized. It was directed that the petitioner has to simultaneously pay regular EMIs without any default. In case of non- compliance on behalf of the petitioner, the benefit granted by this Court would stand vacated and the Bank will be entitled to proceed to recover the loan amount through the procedure stated in the SARFAESI Act. [Abdul Salam v. General Manager, Co-operative Urban Bank Ltd., 2019 SCC OnLine Ker 5762, decided on 27-12-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pankaj Naqvi and Suresh Kumar Gupta, JJ., while disposing of this petition directed the complainant to avail alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC.

The instant writ petition was filed for seeking a writ of mandamus commanding the respondent to conduct a fair investigation, under Sections 452, 376, 504, 506 IPC and 3(2)(v) SC/ST Act.

Counsels for the petitioner, Santosh Kumar Pandey and Rajnish Kumar Pandey submitted that petitioner is an informant and despite an application to the authorities concerned for a fair investigation, no action whatsoever was taken.

It was propounded in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and reiterated in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 that in the event of unsatisfactory investigation, remedy of the aggrieved person is not to approach the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) CrPC.

The Court observed that in this country, the High Courts are flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. If the High Courts entertain such writ petitions, there will be no work other than these. [Kamlesh Kumari v. State of U.P., 2019 SCC OnLine All 3873, decided on 18-10-2019]

Case BriefsSupreme Court

Supreme Court: In an appeal against the order where the Madras High Court had after giving detailed findings on merits, relegated to the statutory remedy of filing the appeal before Appellate Authority (Alternative Remedy) under section 45 IA (7) of Reserve Bank of India Act 1934, the bench of Arun Mishra and MR Shah, JJ ordered that the proceedings before the Appellate Authority will not be affected by the findings recorded by the High Court. It said,

“Since the petitioner has been relegated to the statutory remedy of filing the appeal, the observation made by the High Court shall not come in the way of the petitioner.”

The Court was hearing the case wherein the RBI had cancelled the registration of petitioner company Nahar Finance and Leasing Limited for non-compliance of the minimum criteria of net owned fund. Hence,

  • a Writ petition was filed by the said company challenging the order of the cancellation of registration on the ground of natural justice as the cancellation order showed that the RBI rejected the replies of the company in one line.
  • The single judge granted time for compliance.
  • RBI filed a Writ Petition against the order of the Single Judge.
  • Division bench set aside the judgment of the Single Judge after deciding the matter on merits and relegated the parties to Appellate Authority (Alternative Remedy) under section 45 IA (7) of Reserve Bank of India Act 1934.

Advocate Swarnendu Chatterjee, in his plea, had argued that the High Court has,

“put a full stop which is akin to civil death of the petitioner companies even when it was relegating the matter to the appellate authority.”

The Madras HC verdict in Viswapriya Financial Services and Securities Limited V. Executive Director, Reserve Bank of India, No 1932 of 2015 was also referred to wherein the Honourable Division Bench remitted the matter to the Appellate Authority but refrained from giving any finding on merit and especially on similar issue regarding opportunity of being heard prior to cancellation of registration under section 45 IA (6) of Reserve Bank of India Act, 1934 was also not given as the bench was remitting the matter to the Appellate Authority envisaged under subsection 7 to section 45 IA of Reserve Bank of India Act, 1934. Pertinently the honourable Division Bench therein had directed the Appellate Authority to consider the matter independently without being influenced by the judgments of learned Single Judge and Division Bench.

[Nahar Finance and Leasing Ltd v. Regional Director, RBI, Special Leave to Appeal (C) No(s).17243-17245/2019, order dated 29.07.2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: An application filed before a Bench of Sheel Nagu, J., by petitioner for grant of permit for the corridor route, i.e. Narsinghgarh to Barai via specified places was dismissed by respondent, i.e. Secretary, State Transport Authority. Hence, petitioner filed this petition under Article 227 of the Constitution invoking supervisory jurisdiction.

It was found that petitioner had an alternative statutory remedy of approaching the State Transport Appellate Authority at Gwalior. Petitioner had referred to the case of Waheed Khan v. Transport Department, WP No. 7703 of 2018, and submitted that there are no disputed questions of fact involved and since the order of the Secretary, STA, Gwalior is passed in violation of the statutory provision, the High Court can interfere.

High Court was of the view that the right interpretation of the Gazette is through the attending facts and circumstances of this case and the question to be decided which in the considered opinion of the Court involves disputed questions of fact, cannot be gone into under the writ jurisdiction. Since the statutory remedy was available the Court refused to exercise its writ jurisdiction and relegated the matter to the State Transport Appellate Authority at Gwalior. [Harish Kumar v. State of M.P., 2019 SCC OnLine MP 198, dated 24-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner had filed this petition before a Bench of Subodh Abhyankar, J., under Article 226 of the Constitution of India against the order passed by the respondent.

It was directed by the respondent that preference should be given to the warehouses of MP Warehousing and Logistic Corporation if allotment of warehouses occurs and after exhausting the same, other warehouses of private parties may be used, which were taken on rent. Petitioner submitted that he had taken a loan from SBI for construction of a warehouse and since the order of preference to the warehouses of MPWLC only was passed, petitioner could suffer undue loss despite entering into an agreement with the Warehousing Corporation. Thus, impugned order was not justified.

High Court found the arbitration clause in the agreement between petitioner and respondents according to which the validity of impugned order is a dispute and petitioner should have gone for arbitration. Accordingly, since there was an alternate remedy available, the present petition was dismissed as the Court could not invoke its jurisdiction under Article 226 of the Constitution of India. [Gupta Warehouse v. State of MP, 2019 SCC OnLine MP 98, dated 03-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before a Bench of Subodh Abhyankar, J., under Article 226 of the Constitution of India against the order passed by Election Officer, Barkatullah Vishwavidyalaya (Gair Shikshak) Karamchari Sangh, whereby an amended election notification for the election of Employees’ Union was published.

Facts of the case were that prior to the aforementioned notification there was another notification issued by respondent on the basis of which petitioners had submitted their form for post of Vice President and President respectively, where the only petitioner remained as contesting candidate and accordingly he should have been elected but the process was stayed by respondent as a result of State assembly elections. After this amended notification was released canceling the earlier election program. Thus, this amended notification was challenged before this Court by petitioner. Respondent University contended that matter relates to the election of Madhya Pradesh Society Registrikaran Adhiniyam, 1973 and petition against the order passed by office-bearer of the society is not maintainable due to the fact that another remedy was available with the petitioner under the said Adhiniyam.

High Court was of the view that respondent was right in stating that the petitioner could not have filed a case against the respondent as there were alternate remedies available with him. Therefore, this petition was dismissed. [Mohd. Layeek v. Election Officer, 2019 SCC OnLine MP 3, dated 02-01-2019]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of CJ Vijai Kumar Bist, disposed of a writ petition on carefully observing that an alternative remedy under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018 is available for claiming compensation by filing a claim petition thereunder.

In the present petition, the petitioner had started to construct his house on a plot at Karthok Block, Pakyong, East Sikkim. He had constructed a protective wall in order to withstand the natural calamities. Petitioner on completion of the construction of ground floor found that all the walls of the ground floor had developed many major and minor cracks.

The Counsel for the petitioner submitted that the damaged building was assessed by the Buildings and Housing Department, Government of Sikkim for Rs 65,41,062 and he was entitled to the same from the State Authority. High Court’s order for complying with same was not adhered to which led to the filing of the contempt petition before this Court.

An additional submission was that the respondents had paid compensation to other affected persons except for the petitioner.

Thus, the Court noted the submissions of the parties and reached a conclusion by stating that the petitioner is entitled to compensation for the loss and damage suffered by him, but same cannot be awarded to him by issuing direction in this petition due to the alternative remedy available to him under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018. The writ petition was accordingly disposed of. [Hantey Gyatso Kazi v. State of Sikkim,2018 SCC OnLine Sikk 233, dated 15-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rajiv Sahai Endlaw, J. rejected a petition filed a father against the order of Principal Judge (Family Courts) whereby he was directed to pay monthly maintenance to his daughter.

The petitioner was directed to pay a sum of Rs 11,000 as litigation expenses and Rs 10,000 as interim maintenance to his daughter every month. Aggrieved thereby, he preferred the present petition. The Court referred to Manish Aggarwal v. Seema Aggarwal2012 SCC OnLine Del 4816 wherein it was held that Section 24 to 27 of the Hindu Marriage Act, 1955 was appealable under Section 19(6) of the Family Courts Act, 1984.

It was held by the High Court that the reasons which prevailed in Manish Aggarwal for holding interim maintenance under Section 24 HMA to be appealable under Section 19(1) of the Family Courts Act equally apply to grant of interim maintenance under Section 20 of Hindu Adoption and Maintenance Act, 1956. Furthermore, once the legislature has prescribed a remedy of appeal, the principle that Writ Court should abstain from exercising jurisdiction when an alternative remedy is available comes into play. In light of the above, the petition was rejected. [Jayanti Prasad Gautam v. Pragya Gautam,2018 SCC OnLine Del 11535, decided on 19-09-2018]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court:If there be truth in what they allege, the long arm of the law will surely reach whatever recess the crime lurks in”, pronounced Dama Seshadri Naidu, J. while holding that if an efficacious alternate remedy is available under the code or statute concerned (CrPC in this case), the complainant cannot disregard such remedy and move the writ jurisdiction of the High Court. The learned Judge spoke for himself and Antony Dominc, CJ.

The matter related to the allegations of financial irregularities by the Arc Bishop, Financial Officer and Pro-Vicar General of Diocese (a district under the pastoral care of a bishop in the Christian Church). Some members of the Diocese complained to the police regarding the matter. However, the police refused to act on such complaint filed against the Arc Bishop and priests. Aggrieved by the inaction of the police, the members filed writ petition before the High Court. A learned Single Judge allowed the writ petition and directed the police to register a crime and start investigation. The appellants preferred the instant appeal contending inter alia that the petition was not maintainable as an alternate remedy was present to the complainants under CrPC.

The Division Bench speaking through Naidu, J. noted the elementary legal principle that for a writ of mandamus to be maintained, the suitor must establish before the Court: (a) that there existed a right; (b) that it has been infringed or threatened to be infringed; (c) that the person aggrieved complained to an authority; and (d) that the authority concerned refused to act. However on facts of the case, the Court noticed that the complainant rushed to the Court posthaste, before the ink dried on the paper, as if it were. The Court found it hard to believe that there was proper demand and refusal, the essential elements for a Mandamus. Moreover, in case the police refuse to register the complaint, the aggrieved person has a remedy under Sections 154 and 156 CrPC to approach the Superintendent of Police or a Magistrate empowered under Section 190 to order an investigation. The High Court held that the complainant faltered at the first hurdle – the alternative remedy. Therefore, the Court allowed the appeal and set aside the impugned order passed by the learned Single Judge. [Fr Sebestian Vadakkumpadan v. Shine Varghese,2018 SCC OnLine Ker 1785, order dated 22-5-2018]