Orissa High Court

Neelam Agrawal vs The Collector on 4 February, 2025

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                   W.P.(C) No.30520 of 2024

        Neelam Agrawal                      ....            Petitioner
                                                 Represented By Adv.
                                                  Mr. Budhiram Das
                                -versus-
        The Collector, Baragarh & Ors. ....          Opposite Parties
                                                 Represented By ASC
                                                   Ms. Gayatri Patra

                   CORAM:
                   DR. JUSTICE S.K. PANIGRAHI

                                ORDER

Order                          04.02.2025
No.

02. 1. This matter is taken up through hybrid arrangement.

2. The Petitioner has filed this Writ Petition seeking a

direction from this Court to the Opposite Party No.1 to

release the balance amount of Rs.13,79,680/-(Rupees

Thirteen Lakh Seventy Nine Thousand Six Hundred

Eighty Only) in her favour which is pending before the

Opposite Parties towards school dresses and house

dresses.

3. Learned counsel for the Petitioner submits that the

Petitioner is a Shop owner of Shree Shyamji Bastralaya,

Bargarh and she used to supply school uniform and

house dress materials to 54 schools of Bargarh District for

the students of the year 2022-23 and 2023-24 as per the

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resolution passed in presence of S.M.C. Chairman,

Cement Nagar Nodal High School, Bargarh and other

members. The Petitioner had supplied all necessary dress

materials for the students as per the order placed by their

respective Headmasters/Headmistress. The members

including Headmasters/Headmistress got satisfied with

her work and expressed their willingness to arrange

payment of money to the Supplier at Government Level

for the year 2022-23. The Opposite Parties made some

payment to the Petitioner towards dress materials but did

not pay the rest of the amount of Rs.13,79,680/-(Rupees

Thirteen Lakh Seventy Nine Thousand Six Hundred

Eighty Only) which is still remain outstanding to be

received by the present Petitioner.

4. Since the present Petitioner is a small entrepreneur, the

long pending outstanding dues in her favour should not

have been kept for such a long time. It would severely

affect the Petitioner's financial health and she will be

prejudicially affected by such pendency.

5. Learned counsel for the State questions the

maintainability of the Writ Petition.

6. Learned counsel for the Petitioner refers to the

judgment of the Supreme Court of India passed in the

case of Jaipur Vidyut Vitran Nigam Ltd., Vs. Mb Power

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(Madhya Pradesh) Limited1 to substantiate his

contention. The relevant portions of the said judgment

are extracted hereunder:-

"25. In this background, it becomes necessary for this Court, to dwell on the "rule of alternate remedy" and its judicial exposition. In Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] , a two-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. 9-10, paras 14-15) "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High 89 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

decided on 8th January, 2024 in Civil Appeal No.6503 of 2022

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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."

(emphasis supplied)

26. Following the dictum of this Court in Whirlpool [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] , in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , this Court noted that :

(Harbanslal Sahnia case [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , SCC p. 110, para 7) "7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative 90 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

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proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn.v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1].) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."

(emphasis supplied)

27. The principles of law which emerge are that:

27.1. 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.

27.2. 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.

27.3. 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. 27.4. 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

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when an efficacious alternate remedy is provided by law.

27.5. 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. 27.6. 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."