Writ Jurisdiction and Alternative Remedy in India

The Rule of Alternative Remedy and the Exercise of Writ Jurisdiction in India: A Comprehensive Analysis

Introduction

The Constitution of India, under Article 226, vests High Courts with extraordinary writ jurisdiction to issue directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of fundamental rights and for any other purpose.[1] This power is a cornerstone of judicial review, enabling the higher judiciary to ensure that public authorities act within the confines of the law. However, the exercise of this plenary power is often tempered by a self-imposed rule of judicial restraint: the doctrine of alternative remedy. This doctrine posits that a High Court should ordinarily refrain from exercising its writ jurisdiction if an aggrieved party has an adequate and efficacious alternative remedy provided by statute. This article undertakes a comprehensive analysis of the principles governing the maintainability of writ petitions in the presence of alternative remedies under Indian law, drawing upon seminal Supreme Court pronouncements and High Court decisions. It will explore the discretionary nature of this rule, the well-established exceptions, and the evolving judicial perspectives on its application.

The General Principle: Exhaustion of Alternative Remedies

The rule requiring exhaustion of statutory remedies before invoking writ jurisdiction is not a rule of law ousting the jurisdiction of the High Court, but rather a rule of policy, convenience, and discretion.[2] The primary rationale underpinning this principle is to prevent the High Courts from being inundated with cases that could be effectively resolved by specialized statutory forums, to uphold the legislative intent behind creating such alternative mechanisms, and to ensure that the hierarchy of dispute resolution is respected.[3] The Supreme Court in Assistant Collector Of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. And Others emphasized the need for judicial restraint, particularly in matters affecting public revenue, cautioning against the liberal grant of interim orders that bypass statutory remedies.[4] Similarly, in A. V. Venkateswaran, Collector Of Customs, Bombay v. Ramchand Sobhraj Wadhwani And Another, the Court acknowledged the general rule that a party must exhaust statutory remedies before approaching the High Court under Article 226.[5] The existence of an alternative remedy is a significant factor that the High Court considers in exercising its discretion.[6]

Discretionary Nature of the Rule

It is firmly established that the rule of exclusion of writ jurisdiction due to an available alternative remedy is a rule of discretion and not one of compulsion or a complete bar to the High Court's jurisdiction.[7] The Supreme Court in Harbanslal Sahnia And Another v. Indian Oil Corpn. Ltd. And Others explicitly stated that the High Court's power to issue prerogative writs under Article 226 is plenary and not fettered by the existence of an alternative remedy.[8] This position was reiterated in State Of H.P And Others v. Gujarat Ambuja Cement Ltd. And Another, where the Court observed that the rule is one of policy, convenience, and discretion rather than a rule of law.[9]

The decision in M/S. GODREJ SARA LEE LTD. v. THE EXCISE AND TAXATION OFFICER CUM ASSESSING AUTHORITY further clarified the distinction between "maintainability" and "entertainability" of a writ petition. The existence of an alternative remedy does not render a writ petition non-maintainable; rather, it is a factor that the High Court considers when deciding whether to entertain the petition.[10] The Madhya Pradesh High Court in Kowa Spinning Ltd. And Others v. Debt Recovery Tribunal And Others, citing Supreme Court precedent, affirmed that the availability of an alternative remedy does not oust the High Court's jurisdiction, and it is for the High Court to exercise its discretion.[11] The Allahabad High Court in Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties. summarized that the decision to entertain a writ petition despite a statutory remedy depends on the facts and circumstances of each case.[12]

Established Exceptions to the Rule of Alternative Remedy

Despite the general rule of exhaustion, the judiciary has carved out several well-recognized exceptions where a High Court may entertain a writ petition even if an alternative remedy is available. These exceptions typically arise in situations where the alternative remedy would not be adequate, efficacious, or where fundamental principles of justice are at stake. The Supreme Court in Whirlpool Corporation v. Registrar Of Trade Marks, Mumbai And Others laid down some of these key exceptions.[13]

Violation of Fundamental Rights

When the enforcement of any of the fundamental rights guaranteed by Part III of the Constitution is sought, the High Court may entertain a writ petition notwithstanding the availability of an alternative remedy.[14] This is because the protection of fundamental rights is a primary constitutional mandate of the High Courts under Article 226. The Supreme Court in Satwati Deswal v. State Of Haryana And Others reiterated that a writ petition is maintainable for the enforcement of a fundamental right even if an alternative remedy exists.[15]

Violation of Principles of Natural Justice

Where an order is passed or proceedings are conducted in violation of the principles of natural justice, such as the denial of a fair hearing (audi alteram partem) or bias (nemo judex in causa sua), a writ petition can be entertained.[16] In State Of U.P v. Mohammad Nooh, the Supreme Court quashed a dismissal order where the presiding officer in a departmental enquiry also acted as a witness, holding it to be a flagrant violation of natural justice.[17] The Delhi High Court in International Cargo Services v. Union Of India & Anr observed that a patent violation of principles of natural justice would vitiate the order, making it unnecessary to compel the petitioner to resort to an alternative remedy.[18] The Gujarat High Court in Bhavabhai Bhadabhai Maru v. N.M Patel, President, Dhandhuka Nagar Panchayat also held that where an authority acts in contravention of natural justice, an alternative remedy is no bar.[19] This principle was also affirmed in Sharath Jyothi M. v. Dharmadam Service Co-Operative Bank[20] and SRI. SHASHIKANT S/O PADEPPA HANCHINMANI v. THE STATE OF KARNATAKA.[21]

Order or Proceedings Without Jurisdiction

If the order or proceedings challenged are wholly without jurisdiction or where the authority has acted in excess of its statutory powers, a writ petition is maintainable.[22] In M/S. GODREJ SARA LEE LTD. v. THE EXCISE AND TAXATION OFFICER CUM ASSESSING AUTHORITY, the Supreme Court held that a writ petition raising a jurisdictional challenge, being a purely legal question, deserved consideration on merits despite an alternative remedy.[23] The Court in Whirlpool Corporation also identified an order passed without jurisdiction as a ground for invoking writ jurisdiction.[24]

Challenge to the Vires of a Statute

Where the vires (constitutional validity) of an Act or a statutory provision is challenged, a writ petition can be filed directly before the High Court, as statutory tribunals typically do not have the power to adjudicate upon the constitutionality of the very statute under which they operate.[25] This exception is crucial for upholding the supremacy of the Constitution.

Where the Alternative Remedy is Not Efficacious or Adequate

The mere existence of an alternative remedy is not sufficient; such a remedy must also be adequate and efficacious. If the alternative remedy is found to be illusory, too onerous, burdensome, or not capable of providing the relief sought, the High Court may exercise its writ jurisdiction.[26] In Radha Krishan Industries v. State Of Himachal Pradesh And Others, the Supreme Court held a writ petition maintainable against a provisional attachment order under the HPGST Act, finding that the statutory appeal was not an efficacious remedy in that specific context.[27] The Delhi High Court in International Cargo Services stated that the respondent raising the objection of alternative remedy must show that the remedy is not of an onerous character and is adequately effective.[28] The Gujarat High Court in Bhavabhai Bhadabhai Maru noted that remedies which are burdensome and cause undue delay and hardship cannot be said to be suitable or adequate.[29]

Pure Questions of Law / Jurisdictional Issues

As highlighted in M/S. GODREJ SARA LEE LTD. v. THE EXCISE AND TAXATION OFFICER CUM ASSESSING AUTHORITY, when the challenge involves a pure question of law, particularly a jurisdictional issue, without disputed factual elements, the High Court can directly address it via a writ petition.[30] This avoids unnecessary relegation to a statutory authority that may not be equipped or empowered to decide such fundamental legal questions.

The Impact of Entertaining a Writ Petition Despite Alternative Remedy

Once a High Court, in its discretion, entertains a writ petition and significant time elapses, or interim orders are passed, the approach towards the plea of alternative remedy may shift.

Pendency for a Long Duration

If a writ petition has been admitted and has remained pending for a considerable period, courts are generally reluctant to dismiss it solely on the ground of an alternative remedy, unless there are compelling reasons. In State Of U.P And Another v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti And Others, the Supreme Court, while noting that mere admission does not preclude dismissal on this ground, acknowledged that long pendency is a relevant consideration.[31] The Court in THE STATE OF RAJASTHAN AND ORS. v. LORD NOTHBOOK AND ORS. held that when a writ petition has been entertained and kept pending for years (in that case, three decades), it would not be appropriate to reject it only on the ground of existence of an alternative remedy.[32] The Allahabad High Court in Subodh Kumar Trivedi also observed that if a writ petition has remained pending for a considerable period after being entertained, there would be little justification for relegating the petitioner to the alternative remedy.[33]

Interim Orders Passed

The passing of interim orders is also a factor that may weigh with the court in deciding not to dismiss a petition on the ground of alternative remedy, though it is not an absolute bar. The Supreme Court in State Of U.P And Another v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti And Others clarified that it is not a proposition of law that once a petition is admitted and an interim order is passed, it can never be dismissed on the ground of alternative remedy. However, it is a relevant consideration.[34]

Specific Contexts and Nuances

Contractual Matters

While writ jurisdiction is generally not invoked to enforce contractual rights or resolve disputes arising purely from contracts, there are exceptions, particularly when the State or its instrumentalities are involved and their actions are alleged to be arbitrary, unreasonable, or in violation of public law principles. In Union Of India And Others v. Tantia Construction Private Limited, the Supreme Court upheld the maintainability of a writ petition challenging the termination of a contract by the Railways, despite an arbitration clause, where the termination was based on an erroneous interpretation of contractual provisions leading to injustice.[35] However, in Orissa Agro Industries Corpn. Ltd. And Others v. Bharati Industries And Others, where the dispute involved money claims and disputed facts arising from an alleged breach of contract, the Supreme Court indicated that a writ petition was not the appropriate remedy.[36] The Rajasthan High Court in Deepak Soni v. Rajasthan Finance Co. Corporation & Ors. acknowledged that writ jurisdiction can be invoked in contractual matters against arbitrary state action, but questioned if it should be entertained when a civil suit is an available remedy.[37]

Disputed Questions of Fact

High Courts are generally averse to adjudicating disputed questions of fact in writ proceedings under Article 226, as these are best resolved through evidence adduced in regular suits or statutory forums equipped for such inquiries. The Allahabad High Court in Subodh Kumar Trivedi noted that the High Court may not entertain a petition where disputed questions of fact have to be determined, relegating the petitioner to the statutory alternate forum.[38] The Supreme Court in Orissa Agro Industries Corpn. Ltd. also found that disputed facts could not be adjudicated in a writ petition.[39]

Judicial Caution and Policy Considerations

The exercise of writ jurisdiction in the face of alternative remedies requires careful judicial consideration. Courts have cautioned against practices that could undermine the efficacy of statutory dispute resolution mechanisms or lead to an abuse of the writ process.

The Madras High Court in AGARAMUTHU v. MANAGING DIRECTOR strongly deprecated "forum shopping," emphasizing that when a definite forum is contemplated under a statute, litigants are bound to approach it first. Allowing direct access to High Courts without exhausting statutory remedies would overburden them and potentially compromise the quality of justice.[40]

The Supreme Court in Assistant Collector Of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. And Others stressed the importance of judicial restraint and adherence to statutory remedies, especially in fiscal matters, to prevent disruption of public revenue and administrative functions.[41]

Furthermore, it has been held that when a High Court dismisses a writ petition on the ground of an available alternative remedy, it should refrain from expressing any opinion on the merits of the case, as this could prejudice the proceedings before the alternative forum. This principle was highlighted by the Supreme Court in Tin Plate Co. of India Ltd. Vs. State of Bihar and others, as referenced in NIDHI SEED CORPORATION v. STATE OF UTTARAKHAND AND ORS.[42] The recent Supreme Court decision in Magadh Sugar and Energy Limited v. State of Bihar, referenced in ANANTHA NARAYANAN v. MALABAR DEVASWOM BOARD[43] and K.C.U. RAJA v. THE COMMISSIONER, MALABAR DEVASWOM BOARD[44], also comprehensively reviewed the precedents and reiterated that a writ petition is generally not maintainable if an effective alternative remedy exists, unless specific exceptions are met.

Conclusion

The interplay between the High Courts' writ jurisdiction under Article 226 of the Constitution of India and the availability of alternative statutory remedies is a nuanced area of administrative law. The guiding principle remains that the rule of exhaustion of alternative remedies is a rule of discretion, policy, and convenience, not an absolute bar to jurisdiction. The judiciary has consistently affirmed that High Courts retain the power to intervene in exceptional circumstances, particularly where fundamental rights are violated, principles of natural justice are breached, orders are passed without jurisdiction, the vires of a statute is challenged, or the alternative remedy is demonstrably inefficacious or inadequate.

While encouraging adherence to statutory mechanisms, the courts also ensure that the writ jurisdiction remains a potent tool to correct grave injustices and uphold the rule of law. The decision to entertain a writ petition in the face of an alternative remedy is ultimately guided by the facts and circumstances of each case, the nature of the grievance, and the imperative to render substantial justice. The jurisprudence in this domain reflects a careful balancing act between respecting legislative schemes for dispute resolution and preserving the High Courts' vital role as sentinels of constitutional and legal propriety.

References

  1. Article 226, Constitution of India.
  2. State Of U.P v. Mohammad Nooh, AIR 1958 SC 86, (Supreme Court Of India, 1957).
  3. See generally, Assistant Collector Of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. And Others, (1985) 1 SCC 260, (Supreme Court Of India, 1984); AGARAMUTHU v. MANAGING DIRECTOR, (Madras High Court, 2022), W.P.Nos.2830 of 2019 and batch.
  4. Assistant Collector Of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. And Others, (1985) 1 SCC 260, (Supreme Court Of India, 1984).
  5. A. V. Venkateswaran, Collector Of Customs, Bombay v. Ramchand Sobhraj Wadhwani And Another, AIR 1961 SC 1506, (Supreme Court Of India, 1961).
  6. Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  7. Harbanslal Sahnia And Another v. Indian Oil Corpn. Ltd. And Others, (2003) 2 SCC 107, (Supreme Court Of India, 2002); State Of U.P v. Mohammad Nooh, AIR 1958 SC 86, (Supreme Court Of India, 1957).
  8. Harbanslal Sahnia And Another v. Indian Oil Corpn. Ltd. And Others, (2003) 2 SCC 107, (Supreme Court Of India, 2002).
  9. State Of H.P And Others v. Gujarat Ambuja Cement Ltd. And Another, (2005) 6 SCC 499, (Supreme Court Of India, 2005).
  10. M/S. GODREJ SARA LEE LTD. v. THE EXCISE AND TAXATION OFFICER CUM ASSESSING AUTHORITY, 2023 SCC OnLine SC 95, (Supreme Court Of India, 2023).
  11. Kowa Spinning Ltd. And Others v. Debt Recovery Tribunal And Others, AIR 2003 MP 159, (Madhya Pradesh High Court, 2003).
  12. Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  13. Whirlpool Corporation v. Registrar Of Trade Marks, Mumbai And Others, (1998) 8 SCC 1, (Supreme Court Of India, 1998); See also Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  14. Whirlpool Corporation v. Registrar Of Trade Marks, Mumbai And Others, (1998) 8 SCC 1, (Supreme Court Of India, 1998); Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  15. Satwati Deswal v. State Of Haryana And Others, (2010) 1 SCC 126, (Supreme Court Of India, 2009).
  16. Whirlpool Corporation v. Registrar Of Trade Marks, Mumbai And Others, (1998) 8 SCC 1, (Supreme Court Of India, 1998); Satwati Deswal v. State Of Haryana And Others, (2010) 1 SCC 126, (Supreme Court Of India, 2009); Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  17. State Of U.P v. Mohammad Nooh, AIR 1958 SC 86, (Supreme Court Of India, 1957).
  18. International Cargo Services v. Union Of India & Anr, 2005 (82) DRJ 308, (Delhi High Court, 2005).
  19. Bhavabhai Bhadabhai Maru v. N.M Patel, President, Dhandhuka Nagar Panchayat, (1991) 2 GLR 1135, (Gujarat High Court, 1991).
  20. Sharath Jyothi M. v. Dharmadam Service Co-Operative Bank, 2015 (2) KHC 467, (Kerala High Court, 2015).
  21. SRI. SHASHIKANT S/O PADEPPA HANCHINMANI v. THE STATE OF KARNATAKA, 2018 SCC OnLine Kar 2707, (Karnataka High Court, 2018).
  22. Whirlpool Corporation v. Registrar Of Trade Marks, Mumbai And Others, (1998) 8 SCC 1, (Supreme Court Of India, 1998); Satwati Deswal v. State Of Haryana And Others, (2010) 1 SCC 126, (Supreme Court Of India, 2009); Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  23. M/S. GODREJ SARA LEE LTD. v. THE EXCISE AND TAXATION OFFICER CUM ASSESSING AUTHORITY, 2023 SCC OnLine SC 95, (Supreme Court Of India, 2023).
  24. Whirlpool Corporation v. Registrar Of Trade Marks, Mumbai And Others, (1998) 8 SCC 1, (Supreme Court Of India, 1998).
  25. Whirlpool Corporation v. Registrar Of Trade Marks, Mumbai And Others, (1998) 8 SCC 1, (Supreme Court Of India, 1998); Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  26. Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  27. Radha Krishan Industries v. State Of Himachal Pradesh And Others, 2021 SCC OnLine SC 334, (Supreme Court Of India, 2021).
  28. International Cargo Services v. Union Of India & Anr, 2005 (82) DRJ 308, (Delhi High Court, 2005).
  29. Bhavabhai Bhadabhai Maru v. N.M Patel, President, Dhandhuka Nagar Panchayat, (1991) 2 GLR 1135, (Gujarat High Court, 1991).
  30. M/S. GODREJ SARA LEE LTD. v. THE EXCISE AND TAXATION OFFICER CUM ASSESSING AUTHORITY, 2023 SCC OnLine SC 95, (Supreme Court Of India, 2023).
  31. State Of Uttar Pradesh And Another v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti And Others, (2008) 12 SCC 675; (2009) 1 SCC (L&S) 237, (Supreme Court Of India, 2008).
  32. THE STATE OF RAJASTHAN AND ORS. v. LORD NOTHBOOK AND ORS., (2019) 10 SCC 456, (Supreme Court Of India, 2019).
  33. Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  34. State Of Uttar Pradesh And Another v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti And Others, (2008) 12 SCC 675; (2009) 1 SCC (L&S) 237, (Supreme Court Of India, 2008).
  35. Union Of India And Others v. Tantia Construction Private Limited, (2011) 5 SCC 697, (Supreme Court Of India, 2011).
  36. Orissa Agro Industries Corpn. Ltd. And Others v. Bharati Industries And Others, (2005) 12 SCC 725, (Supreme Court Of India, 2005).
  37. Deepak Soni v. Rajasthan Finance Co. Corporation & Ors., 2000 (3) WLN 264, (Rajasthan High Court, 2000).
  38. Subodh Kumar Trivedi v. State Of U.P And Others Opposite Parties., 2000 ALL CJ 1 545, (Allahabad High Court, 2000).
  39. Orissa Agro Industries Corpn. Ltd. And Others v. Bharati Industries And Others, (2005) 12 SCC 725, (Supreme Court Of India, 2005).
  40. AGARAMUTHU v. MANAGING DIRECTOR, (Madras High Court, 2022), W.P.Nos.2830 of 2019 and batch.
  41. Assistant Collector Of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. And Others, (1985) 1 SCC 260, (Supreme Court Of India, 1984).
  42. NIDHI SEED CORPORATION v. STATE OF UTTARAKHAND AND ORS, 2017 SCC OnLine Utt 436, (Uttarakhand High Court, 2017), citing Tin Plate Co. of India Ltd. Vs. State of Bihar and others, (1998) 8 SCC 272.
  43. ANANTHA NARAYANAN v. MALABAR DEVASWOM BOARD, 2023 SCC OnLine Ker 1269, (Kerala High Court, 2023), citing Magadh Sugar and Energy Limited v. State of Bihar, (2021) 5 KLT 667 (SC).
  44. K.C.U. RAJA v. THE COMMISSIONER, MALABAR DEVASWOM BOARD, 2022 SCC OnLine Ker 5304, (Kerala High Court, 2022), citing Magadh Sugar and Energy Limited v. State of Bihar, (2021) 5 KLT 667 (SC).