Andhra Pradesh High Court - Amravati

Shaik Nanne Saheb, vs The State Of A.P, on 19 July, 2021

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION NO.13261 of 2021
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"to issue a Writ, Order or direction more particularly one in the nature of Writ of Certiorari calling for the records relating to proceedings issued by the 3rd Respondent vide S.R.No.4/15(1)/97 dated 31.3.2021 where under the 3rd Respondent dismissed the claim application of the petitioners arbitrarily and in an perverse manner and in contravention of the directions issued by this Hon'ble Court in W.P.No.9294 of 2012 dated 1.7.2017 as well as W.A.No.1643 of 2017, dated 16.12.2019 as illegal, arbitrary, non-est, perverse and contrary to law and moreover against the orders passed by this Hon'ble Court in W.P.No.9294 of 2012 dated 1.7.2017 as well as W.A.No.1643 of 2017 dt.16.12.2019 and set aside the same in the interest of justice."

When this Court questioned about the maintainability of the

writ petition when alternative remedy is available under the Statute

itself, the learned counsel for the petitioners contended that the

impugned orders are passed contrary to the directions issued by this

Court in earlier W.P.No.9294 of 2012 dated 01.07.2017 as well as

W.A.No.1643 of 2017 dated 16.12.2019 and that the petitioners are

pursuing the litigation for the last 16 years. In spite of the directions

issued by this Court, the Settlement Officer did not even register the

claim of the petitioners, but ultimately recorded a perverse finding

with regard to the subject land.

Time and again, the Hon'ble Supreme Court reiterated the

principle about exercise of power under Article 226 of the

Constitution of India without availing statutory remedy by the

petitioners therein.

MSM,J WP_13261_2021

The Apex Court in "Union of India and others vs. Major

General Shri Kant Sharma and another1", wherein, the decisions

rendered by this Court are summarised as follows:

(i) The power of judicial review vested in the High Court Under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India. (vide L.Chandra Kumar Vs. Union of India2, S.N.Mukherjee Vs. Union of India3).

(ii) The jurisdiction of the High Court Under Article 226 and this Court Under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act. (vide Mafatlal Industries Ltd. and others vs. Union of India and others4).

(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Nivedita Sharma vs. Cellular Operators Association of India and others5).

(iv) The High Court will not entertain a petition Under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (vide Nivedita Sharma vs. Cellular Operators Association of India and others (referred supra))

The Apex Court while analysing the scope of jurisdiction of

Rent Controller, while dealing with the power of Revision under

Section 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act

1960, which is similar to the power of Section 14-A of Inams

Abolition Act. In Harshavardhan Chokkani v Bhupendra N.

1 2015 (3) SCALE 546 2 1997 (3) SCC 261 3 1990 (4) SCC 594 4 1997 (5) SCC 536

2011 (14) SCC 337 MSM,J WP_13261_2021

Patel6 the Supreme Court explained the scope of revisional

jurisdiction under Section 22 of the Rent Act as under.

"There can be no controversy about the position that the power of the High Court under Section 22 of the Act is wider than the power under Section 115 CPC. Nonetheless, the High Court is exercising the revisional power, which in its very nature is a truncated power. The width of the powers of the revisional court cannot be equated with the powers of the appellate court. In examining the legality and the property of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the interference drawn from the facts proved is such that no reasonable person could arrive at or the like. It is not in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power."

In view of the language employed in both Section 22 of the

Rent Control Act and Section 14-A of Inams Abolition Act, the

Revisional Authority can exercise similar power and when the

authorities under the Act misread the evidence, as pointed out by the

learned Senior Counsel for the petitioner, the statutory authority i.e.

Board of Revenue or Commissioner of Appeals can interfere by

exercising power under Section 14-A of Inams Abolition Act.

In Nivedita Sharma v. Cellular Operators Association of

India7, the Apex Court held that the petitioner must exhaust its

alternative remedy before the State Commission and should not

directly come to High Court for challenging judgment of District

forum.

In Commissioner of Income Tax v. Chhabil Dass Agrawal8,

the Supreme Court held that, when the statutory forum is created by

law for redressal of grievances, the writ petition should not be

(2002) 3 SCC 626

2011 (14) SCC 337

(2014) 1 SCC 603 MSM,J WP_13261_2021

entertained ignoring statutory dispensation subject to certain

exceptions. The Apex Court further opined that non-entertainment of

petitions under the writ jurisdiction by the High Courts where

efficacious or alternative remedy is available, is a rule of self-

imposed limitation. It is essentially a rule of policy, convenience and

discretion rather than a rule of law. The Apex Court has also opined

that undoubtedly, it is within the discretion of the High Court to

grant relief under Article 226 of the Constitution of India despite

existence of an alternative remedy. However, the High Court must

not interfere if there is an adequate efficacious alternative remedy

available to the petitioner and he has approached the High Court

without availing the same unless he has made out an exceptional

case warranting such interference or if there is sufficient grounds to

invoke the extraordinary jurisdiction under Article 226 of the

Constitution of India.

In Harbanslal Sahnia vs. Indian Oil Corpn. Ltd9, it was

held that the rule of exclusion of writ jurisdiction by availability of an

alternative remedy is a rule of discretion and not one of compulsion.

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 and

is challenged.

(2003) 2 SCC 107 MSM,J WP_13261_2021

Similar observation has been made by High Court of Calcutta

in Mina Perween vs The State Of West Bengal & Ors10. In the

facts of the said judgment, the Appellant had assailed High Court's

order, whereby the Single Judge of the Court had dismissed the

Appellant's writ petition holding, inter alia, that the same was not

maintainable before the writ Court and relegated the writ petitioner

to an appropriate statutory remedy which is available for a period of

thirty days from the date of declaration of the election results. In the

case, the appellant/petitioner had challenged the election process for

the post of a Gram Panchayat member. In appeal, the Court noted

that the statutory mechanism for raising any dispute after

participating in an election pertaining to Panchayats has been

enumerated under Section 79 of the West Bengal Panchayat

Elections Act, 2003.

In Authorized Officer, State Bank of Travancore and Ors.

Vs. Mathew K.C.11, the Supreme Court had an occasion to deal with

entertainment of a writ petition under Article 226 of the Constitution

of India, when an alternative remedy is available. The Apex Court

held that, discretionary jurisdiction under Article 226 of the

Constitution of India is not absolute, but it has to be exercised

judiciously in the given facts of the case and in accordance with law.

Normally, rule is that, a writ petition under Article 226 of the

Constitution of India ought not to be entertained if alternative

statutory remedies are available, except in cases falling within well

defined exceptions, as observed in Commissioner of Income Tax v.

Chhabil Dass Agrawal (referred supra) as follows:

MAT 515 of 2018 dated 25.06.2018 11 2018 (3) SCC 85 MSM,J WP_13261_2021

"15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

In U.P. State Spinning Co. Ltd vs R.S. Pandey And

Another12, though it pertains to service matter, i.e. terminating the

services of the petitioner therein and harassing the employee by the

employee; the Court considered the jurisdiction under Article 226 of

the Constitution of India. The Apex Court adverted to the principle

laid down in State of Himachal Pradesh and Ors. v. M/s Gujarat

Ambuja Cement Ltd. and Another13, wherein the Court held that,

except for a period when Article 226 was amended by the

Constitution (42nd Amendment) Act, 1976, the power relating to

alternative remedy has been considered to be a rule of self imposed

limitation. It is essentially a rule of policy, convenience and

discretion and never a rule of law. Despite the existence of an

alternative remedy it is within the jurisdiction of discretion of the

High Court to grant relief under Article 226 of the Constitution. At

the same time, it cannot be lost sight of that though the matter

relating to an alternative remedy has nothing to do with the

jurisdiction of the case, normally the High Court should not interfere

if there is an adequate efficacious alternative remedy. If somebody

approaches the High Court without availing the alternative remedy

provided the High Court should ensure that he has made out a

12 (2005) 8 SCC 264 13 [2005] 6 SCC 499 MSM,J WP_13261_2021

strong case or that there exist good grounds to invoke the extra-

ordinary jurisdiction.

After elaborate review of the entire law regarding entertainment

of writ petition under Article 226 of the Constitution of India, the

Apex Court in U.P. State Spinning Co. Ltd vs R.S. Pandey And

Another (referred supra), set-aside the judgment of both single

Judge and Division Bench, and held that, when the jurisdiction is

conferred on the tribunals and authorities under service law, the

remedy available to the parties is elsewhere and concluded that the

order of the learned Single Judge, as affirmed by the Division Bench

is set-aside and directed the authorities to complete the enquiry form

the stage where it was stopped within four months from the date of

order.

Constitution Benches of the Apex Court in K.S. Rashid and

Sons v. Income Tax Investigation Commission and

Others14; Sangram Singh v. Election Tribunal, Kotah and

Ors15; Union of India v. T.R. Varma16; State of U.P. and Ors. v.

Mohammad Nooh17 and M/s K.S. Venkataraman and Co. (P) Ltd.

v. State of Madras18, held that Article 226 of the Constitution

confers on all the High Courts a very wide power in the matter of

issuing writs. However, the remedy of writ is an absolutely

discretionary remedy and the High Court has always the discretion

to refuse to grant any writ if it is satisfied that the aggrieved party

can have an adequate or suitable relief elsewhere. The Court, in

extraordinary circumstances, may exercise the power if it comes to

AIR (1954) SC 207

AIR (1955) SC 425

AIR (1957) SC 882

AIR (1958) SC 86

AIR (1966) SC 1089 MSM,J WP_13261_2021

the conclusion that there has been a breach of principles of natural

justice or procedure required for decision has not been adopted.

Another Constitution Bench of the Apex Court in State of

Madhya Pradesh and Anr. v. Bhailal Bhai19 held that the remedy

provided in a writ jurisdiction is not intended to supersede

completely the modes of obtaining relief by an action in a civil court

or to deny defence legitimately open in such actions. The power to

give relief under Article 226 of the Constitution is a discretionary

power.

In Harbans Lal Sahnia v. Indian Oil Corporation Ltd20, this

Court held that the rule of exclusion of writ jurisdiction by

availability of alternative remedy is a rule of discretion and not one of

compulsion and the Court must consider the pros and cons of the

case and then may interfere if it comes to the conclusion that the

petitioner seeks enforcement of any of the fundamental rights; where

there is failure of principles of natural justice or where the orders or

proceedings are wholly without jurisdiction or the vires of an Act is

challenged.

In G. Veerappa Pillai v. Raman and Raman Ltd21;

and Punjab National Bank v. O.C. Krishnan22, the Apex Court

held that where hierarchy of appeals is provided by the statute, party

must exhaust the statutory remedies before resorting to writ

jurisdiction.

In M/s. Radhakrishnan Industries v. State of Himachal

Pradesh, (Civil Appeal No 1155 of 2021 (Arising out of SLP(C)

AIR (1964) SC 1006

[2003] 2 SCC 107

AIR (1952) SC 192

[2001] 6 SCC 569 MSM,J WP_13261_2021

No.1688 of 2021) the Division Bench of Supreme Court summarised

the principles related to the maintainability of a writ petition before

High Courts and held that, the power of High Courts is not taken

away by any provision by any special enactment. The Supreme Court

in the above judgment, summarized the principles as to when the

High Court can exercise such power by following six exceptions and

they are as follows:

(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 MSM,J WP_13261_2021

(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.

In Maharashtra Chess Association v. Union of India23 the

Division Bench of Apex Court was called upon to decide whether the

existence of an alternate remedy would create a bar on High Court to

exercise writ jurisdiction, it held, "The existence of an alternate

remedy, whether adequate or not, does not alter the fundamentally

discretionary nature of the High Court's writ jurisdiction and

therefore does not create an absolute legal bar on the exercise of the

writ jurisdiction by a High Court." Explaining that the court added

that courts had themselves imposed certain constraints on the

exercise of their writ jurisdiction to ensure that the jurisdiction did

not become an appellate mechanism for all disputes within a High

Court's territorial jurisdiction, the bench said, "The intention behind

this self-imposed rule is clear. If High Courts were to exercise their

writ jurisdiction so widely as to regularly override statutory appellate

procedures, they would themselves become inundated with a vast

number of cases to the detriment of the litigants in those cases." This

would also defeat the legislature's intention in enacting statutory

appeal mechanisms to ensure the speedy disposal of cases. The mere

existence of alternate forums where the aggrieved party may secure

relief does not create a legal bar on a High Court to exercise its writ

jurisdiction. It is a factor to be taken into consideration by the High

Court amongst several factors.

(2020) 13 SCC 285 MSM,J WP_13261_2021

In M/s.HCL Infosystems Limited v. State of Rajasthan24,

Division Bench of Jaipur considered the Doctrine of exhaustion of

remedies which prevents a litigant from seeking remedy or claims or

remedies exhausted observed as follows:

"Since remedy of appeals are provided to the assessee under the VAT Act, which are equally efficacious and speedy remedy, especially when after 2003, there is no bar for the High Court to grant appropriate interim order of stay in sales tax revision. In fact, in one of the cases, the Tax Board has decided the matter against the revenue not only on the question of penalty and interest, but also on the question of tax and subsequently the Board has itself made reference to its Larger Bench on the issues raised in these appeals, which is pending. It therefore cannot be said that alternate remedy available under the Act is not effective and efficacious."

In Whirlpool Corporation v Registrar of Trademarks,

Mumbai25, a two judge Bench of the Supreme Court after reviewing

the case law on the point of maintainability of writ petition, noted:

"Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

Thus, the law is well settled that the power of the High Court

under Article 226 of the Constitution of India to entertain a writ

petition without exhausting an effective, efficacious and statutory

remedy available under the special statute is purely discretion of the

W.P.No.491 of 2017 dated 17.09.2019

(1998) 8 SCC 1 MSM,J WP_13261_2021

Court. But, such discretion can be exercised only in the

circumstances enumerated in various judgments.

In view of the principles laid down in the judgments (referred

supra), I am unable to accept the request of the learned Counsel for

the writ petitioners to entertain the writ petition and the contention

of the petitioners is rejected; while holding that the writ petition is