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]

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]

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]

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]

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Gauhati High Court: A Single Judge Bench comprising of Michael Zothankhuma, J. declined to grant relief to the petitioner under the writ petition, in light of the facts that he had an alternate remedy to approach the Educational Tribunal for settling the dispute.

The petitioner was aggrieved by non-provincialisation of his services as an Assistant Teacher in the Raisen ME School. Petitioner’s grievance was that his services were not provincialised in spite of vacant post of science teacher; whereas, Respondent 7 who was not eligible for the post, was provincialised as an Assistant Teacher. The petitioner challenged such provincialisation of the respondent as well as his non-provincialisation. Learned counsel for the respondents, on the other hand, submitted that the Government of Assam had established Educational Tribunals to adjudicate disputes between teaching and non-teaching staff of provincialised schools; therefore, the present matter should be referred to the said Tribunal.

The High Court considered the submissions made on behalf of the parties and held that the present case relates to a claim for provincialisation of the service of the petitioner vis-a-vis Respondent 7 and it was liable to be sent to the Educational Tribunal concerned. Since there was an alternative remedy present to the petitioner for resolution of the dispute, the High Court held that no relief could be granted to the petitioner under the instant writ proceedings. [Sushil Namasudra v. State of Assam, 2018 SCC OnLine Gau 308, order dated 10-04-2018]

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Karnataka High Court: While passing the order in a writ petition filed under Articles 226 and 227 of the Constitution praying to quash the order passed by the III Additional Senior Civil Judge, rejecting the application filed by the petitioner, a Single Judge Bench of BV Nagarathna, J. held that the present writ petition was not maintainable.

The petitioner assailed the abovesaid order whereby the learned Judge rejected the application filed by the petitioner under Order VII Rule 11 of CPC, 1908 in OS No. 28/11. The Court was of the opinion that as against the rejection of the said application, the petitioner had an alternative remedy of filing a Civil Revision Petition under Section 115 of CPC. In such circumstances, the petition was dismissed as not maintainable. However, liberty was given to the petitioner to file a Civil Revision Petition. [S.M. Rajasekharappa v. State of Karnataka, Writ Petition No. 49449/2013 (GM-CPC), dated 29.08.2017]