Punjab-Haryana High Court
Sarita Devi vs State Of Haryana And Others on 12 January, 2024
Neutral Citation No:=2024:PHHC:008169
CWP-695-2024 -1-
2024:PHHC:008169
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
113
CWP-695-2024
Date of decision: 12.01.2024
SARITA DEVI .........Petitioner
VERSUS
STATE OF HARYANA AND OTHERS
........Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present:- Mr. Himanshu Sharma, Advocate
for the petitioner.
Mr. Vivek Saini, Advocate
for respondents No.2 and 3-UHBVN.
*****
VINOD S. BHARDWAJ, J. (Oral)
The present petition seeks quashing of the order dated 03.04.2023 (Annexure P-1) vide which, the electric connection file no. R33-922/407 of the petitioner was rejected on account of pending litigation with co- sharer and for direction to the respondent No. 3- SDO, Sub Urban, Rewari to release electric connection to the petitioner.
2. The counsel for the petitioner contends that the petitioner is owner in possession of Khewat No.453, Kitta 22 measuring 83 Kanals 17 Marlas to the extent of her 160/1677 share i.e. 8 Kanals (approx.) and being the owner in possession to the extent of her share, 1 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -2- she had constructed a house in Killa No. 25//10/2/2 and is residing in the said accommodation along with her family. The petitioner applied for an electric connection for a 6KW load vide application no. R- 33/922/407 on 27.09.2022 through online mode, and deposited an amount of Rs.6,000/- for the aforesaid load. Considering the request, the spot inspection was conducted by the office of respondent No.3 and an estimate of Rs. 2,73,374/- was initially conveyed for installing the electricity connection to the petitioner which was finally revised as Rs. 2,67,374/-. After deposit of the service connection charges by the petitioner, the work on the site was started and the electric poles, wires and other material were also brought at the spot by the respondent no.3 but was stopped later in point of time.
3. He further submits that on 29.11.2022, one memo no.5268 was issued by the office of respondent no.3, to the petitioner, for clarification on a status quo order mentioning therein about one application that was received online on 27.09.2022. The petitioner sent her reply to the memo clarifying that the civil suit for specific performance titled as "Dharmender Singh etc. V/s Sarita" bearing civil suit no. CS-773-2021 was pending in the court of Civil Judge (JD), Rewari and the interim status quo is only regarding alienation/transfer of property and not regarding laying or release of electricity connection. Despite submission of the reply, no connection has been released to the petitioner. It was further submitted that the petitioner has also filed a Civil Suit bearing No. 432 of 2023, instituted on 01.03.2023 titled as 'Sarita Devi Vs. Dakshin Haryana Bijli Vitran Nigam and Another' for declaration and mandatory injunction. Notice in the above suit has 2 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -3- already been issued but no reply to the application for interim injunction or written statement to the plaint has been filed by respondent No. 3, however, the amount deposited for release of the connection has been refunded and an order dated 03.04.2023 was passed refusing the connection to the petitioner during the pendency of the civil suit. Aggrieved by the abovesaid order the present petition has been filed.
4. He has further argued that Right to Electricity is a fundamental right and is inherent in Article 21 of the Constitution of India. He relies on a Division Bench judgment of the Hon'ble Calcutta High Court in the matter of "Manishi Maity versus West Bengal State Electricity Distribution Co. Ltd. and others" reported as 2012 (38) RCR (Civil) 281. Relevant extract of the same reads as under:-
"15. The judgement in the case of Abhimanyu (supra) which permitted the occupiers to enjoy the electricity was in fact a fulfilment of the derived fundamental right under Article 21 of the Constitution of India. The scope of which in very recent time through judicial pronouncements have been immensely widened.
The positive change in the realm of law has taken place over a long period of time and today the Court cannot put a seal of approval on the objections raised by an unwilling father to the electric connection to be provided to his son. If right of residence comes within the ambit of Article 21 of the Constitution of India and a citizen has a right to reside and settle in any portion of India as provided under Article 19(1)(e) of the Constitution, he has equally a right to enjoy the property in a most meaningful manner.
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16. In the case of Chameli Singh v. U.P., reported in AIR 1996 Supreme Court 1051, the Supreme Court had spelt out what was meant by "right to shelter" and had included electricity amongst others as a part of that right."
5. Reliance is also placed on a Single Bench judgment of the Delhi High Court in the matter of "Ashish Gupta versus Tata Power Delhi Distribution Ltd." in Writ Petition (Civil) 890 of 2022 decided on 14.01.2022 as well as Kerala High Court judgment in Writ Petition (Civil) No. 34061 of 2021 titled as "K.N. Raveendranadhan and another versus the Kerala State Electricity Board" decided on 15.03.2021 to support his argument.
6. I have heard learned counsel for the petitioner and have gone through the judgments as well as the documents relied upon by the petitioner.
7. In so far as the contention of the petitioner about electricity being a fundamental right is concerned, the said argument does not find favour as per law laid down by the Hon'ble Supreme Court in the matter of "K.C. Ninan versus Kerala State Electricity Board and others" in CA 2109-2110 of 2004 decided on 19.05.2023 wherein it was held that there is no absolute universal service obligation on the distribution licensee under Section 43 of the Electricity Act, 2003 and such right is circumscribed by various obligations to be discharged under the Electricity Act, 2003 and supply of Electricity is a statutory Right. Hence, an applicant cannot equate a statutory right to demand electricity under a presumption of Universal and absolute service obligation by equating it to a fundamental right. The argument is thus declined.
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8. The next issue which comes up before this Court is in relation to exercise of its writ jurisdiction in matters where a person has already approached the Civil Court and also has a statutory remedy under the law. While the proposition of law is well settled that statue cannot confine powers of the Writ Court and availability of an alternative remedy is not a bar to exercise a Writ jurisdiction, however, the precautions and judicial restraint require that such jurisdiction ought not to be exercised as a matter of course and should be exceptional. In cases where a person has already approached the Court for the same relief, the interference should be still more confined. The circumstances should reflect failure of justice to occasion in asking a litigant to exhaust his alternative remedies or circumstances must establish that the alternative remedy is unavailable or incapable of redressing the grievance. A Writ remedy is not a panacea for all grievances or a substitute to due process of law. It is more or a judicial review of acts and omission of the respondents. It is thus deemed prudent and expedient that the alternative remedies ought to be ordinarily exhausted.
9. It is not disputed by the counsel for the petitioner that the Electricity Act, 2003 scheme provides for an efficacious alternative remedy of an Electricity Ombudsman under Section 42(7) and Consumer Grievance Redressal Forum under Section 42 (5) of Electricity Act, 2003. The relevant provisions of Section 42 of the Electricity Act are reproduced hereinafter below:-
"Section 42. (Duties of distribution licensee and open access): --- (1) It shall be the duty of a distribution licensee to develop and maintain an efficient, co-ordinated 5 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -6- and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in this Act.
xx xx xx xx (5) Every distribution licensee shall, within six months from the appointed date or date of grant of licence, whichever is earlier, establish a forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission.
(6) Any consumer, who is aggrieved by non-
redressal of his grievances under sub-section (5), may make a representation for the redressal of his grievance to an authority to be known as Ombudsman to be appointed or designated by the State Commission.
(7) The Ombudsman shall settle the grievance of the consumer within such time and in such manner as may be specified by the State Commission."
10. The Haryana Electricity Regulatory Commission notified the Electricity Supply Code in exercise of the powers conferred upon it by Section 50 and Section 181(2)(x) of the Electricity Act, 2003 and notified the Haryana Electricity Regulatory Commission (Electricity Supply Code) Regulations 2014. Clause 15 of the aforesaid Electricity Supply Code deals with the complaint's redressal system. The relevant provision reads thus:-
" 15. Complaints redressal system
1) Any aggrieved person, electricity consumer, consumer association or legal heirs or authorized representatives (in case of death of a consumer) may file a complaint in the respective Consumer Grievances Redressal Forums (CGRF) established by the licensee, for settlement of their grievances in case:-
(i) there exits defect of deficiency in electricity 6 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -7- service provided by the distribution licensee;
(ii) an unfair or restrictive trade practice has been adopted by the distribution licensee in providing electricity services;
(iii) the distribution licensee has charged a rate in excess of that fixed by the Commission, for supply of electricity and related services;
(iv) the distribution licensee has recovered expenses, in excess of charges approved by the Commission, in providing any electric line or electric plant or electric meter;
(v) the electricity services provided by the distribution licensee is unsafe or hazardous to public life and is in contravention to the provisions of any law in force;
except the complaint pertaining to-
(i) Unauthorized use of electricity as defined under explanation to Section 126 of the Electricity Act 2003;
(ii) Offences and penalties as specified under Sections 135 to 139 of the Electricity Act 2003;
(iii) Accidents and inquiries as specified under Section 161 of the Electricity Act 2003 unless prescribed by the state govt. by general/special order.
The Forum shall pass order within a maximum period of 3 months from the date of receipt of complaint.
2) Any consumer aggrieved by the order of the Forum, non implementation of the order of the Forum by the distribution licensee and non-disposal of complaint by the Forum within the prescribed period may lodge his complaint with the Electricity Ombudsman within 30 days from the date of receipt of order of the Forum. The Electricity Ombudsman shall pass the award within 03 months from the date of receipt of the complaint."
11. Still further the Haryana Electricity Regulatory 7 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -8- Commission had vide Notification dated 29.03.2019, in exercise of the powers conferred on it by Section 181 read with sub-sections 5 to 8 of Section 42 of the Electricity Act, 2003, notified with the HERC (Guidelines for establishment of Forum for Redressal of Grievances of the Consumers, Electricity Ombudsman and Consumer Advocacy) Regulations 2019. The relevant provisions of the said Regulations are reproduced as under:-
"i) "Complainant" means and includes the following who have a grievance as defined in these Regulations:
(i) A consumer as defined under Clause (15) of Section 2 of the Act;
Provided that a member of the Group Housing Society having "Single Point Connection' from the licensee" is also a deemed consumer for the purpose of this Regulation.
j) Electricity Ombudsman" means an authority appointed or designated by the Commission, under sub- section (6) of Section 42 of the Act.
l) "Grievance" or complaint means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which has been undertaken to be performed by a distribution licensee in pursuance of a license, contract, agreement or under the Electricity Supply Code or in relation to standards of performance of distribution licensee as specified by the Commission and includes billing disputes of any nature and matters related to safety of the distribution system having potential of endangering of life or property by which the complainant is aggrieved.
m) "Forum" means the Forum for redressal of grievances of the consumers required to be established by distribution licensees, pursuant to sub-section (5) of Section 42 of the Act and these Regulations.
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p) "Representation or complaint" shall mean the representation/complaint made to the Ombudsman by the complainant or on behalf of such a complainant who is aggrieved by the outcome of the Forum's proceedings in respect of his/her grievance (including not issuing the order within the specified time-limit, dissatisfaction with the order issued, partial or full dismissal of the grievance). Classification of grievances "2.31 As far as is possible and practical, the grievance shall be prioritized for redressal based on the following priority order:-
a) Disconnection of supply/Re-connection of supply after Disconnection
b) Connection--Release of new Connection or modification in existing connection
c) Non-supply
d) Meter related issues
e) Billing and relates issues
f) Other issues Provided that it should be ensured that all grievances are disposed of within the time limit specified under these Regulations.
Process for submission of grievance 2.32 The Complainant can submit his/her grievance to the appropriate Forum under whose jurisdiction his/her connection exists or a connection has been applied for. The Complainant can also submit his/her grievance at the nearest complaint-receiving centre, already established by the licensee. The grievance may be submitted either in person or through post, or email or fax.
2.33 All complaint-receiving centers shall accept the grievances from Complainants falling within the jurisdiction of the Forum and forward the same, along with other supporting documents to the appropriate 9 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -10- Forum within the next two working days.
2.34 The grievance shall be submitted as per the format specified in Annexure-1 and Annexure-2 respectively for Dakshin Haryana Bijli Vitran Nigam Ltd. and Uttar Haryana Bijli Vitran Nigam Ltd. The complainant can nominate any person (not necessarily to be an Advocate) to present his case on the prescribed format which is at Annexure-3. Nomination can be filed at any time before or on the date of hearing."
12. Chapter 3 of the aforesaid Regulations deals with the office of the Ombudsman. It is significant to point out that both the aforesaid statutory Forums i.e. The Consumer Grievances Redressal Forum as well as the Electricity Ombudsman are duly constituted and are functional.
13. It is also relevant to point out that the Haryana Electricity Regulatory Commission notified the HERC (Forum and Ombudsman) Regulations, 2020 in supersession of the earlier Regulations on 24.01.2020. The relevant Clauses of the said Regulations read thus:-
"(d) "Complainant" means & includes any of the following who have a grievance as defined in these regulations and makes a complaint;
(i) a consumer as defined under sub-section 15 of section 2 of the Act;
(ii) any consumers association registered under any law for the time being in force;
(iii) any un-registered association or group of consumers where the consumers have common or similar interest;
(iv) in case of death of a consumer, his legal heirs or authorized representative;
(v) any other person claiming through or authorized by or acting as agent for the consumer and 10 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -11- affected by the service or business carried out by the distribution licensee;
(vi) an applicant for a new electricity connection.
(e) "complaint' means any grievance in writing made by a complainant that :
(i) an unfair trade practice or a restrictive trade practice has been adopted by the licensee in providing electricity service;
(ii) the electricity services hired or availed of or agreed to be hired or availed of by him suffer from defect or deficiency in any respect;
(iii) a licensee has charged for electricity services mentioned in the complaint, a price in excess of the price fixed by the Commission;
(iv) electricity services which are hazardous to life and safety when availed, are being offered for use to the public in contravention of the provisions of any law for the time being in force or of any licence;
(v) violation has occurred of any law or licence requiring the licensee to display the information in regard to the manner or effect of use of the electrical services; or
(vi) breach has occurred of any obligation by the licensee which adversely affects any consumer or which the Forum may consider appropriate to be treated as a complaint.
(g) "consumer grievance" means & includes any complaint relating to any fault, imperfection, short coming, defect or deficiency in the quality, nature and manner of service or performance in pursuance of a licence, contract, agreement or under Electricity Supply Code or in relation to Standards of Performance specified by the Commission including payment of compensation or billing disputes of any nature or recovery of charges by the licensee and matters relating to the safety of the distribution system having potential of endangering the 11 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -12- life or property. However, the matter pertaining to Open Access granted under the Act and Section 126, 127, 135 to 140, 142, 143, 146, 152 and 161 of the Act shall not form grievance under these regulations."
14. The aforesaid Regulations specify the consumer complaint handling procedure as well as the jurisdiction of the Commission. The Forum has also been given powers to issue interim directions pending for final disposal of such grievance under Regulation 2.46 thereof. The same is extracted herein-after-below:-
"Special Provision : Interim Order:
2.46 Upon request of the Complainant, the Forum may issue such interim orders pending final disposal of the grievance as it may consider necessary including but not restricted to grant of temporary injunction to stay or prevent or restrain such act as the Forum thinks fit.
Provided that the Forum shall have the powers to pass such an interim order in any proceeding, hearing or matter before it, as it may consider appropriate if the Complainant satisfies the Forum that prima facie, the Distribution Licensee has threatened or is likely to remove or disconnect the electricity connection, and has or is likely to contravene any provisions of the Act or any rules and regulations made thereunder or any order of the Commission, provided that the Forum has jurisdiction on such matter. Provided further that, except where it appears that the object of passing such the interim order would be defeated by delay, no such interim order shall be passed unless the opposite party has been given an opportunity of being heard.
Provided also that where any injunction has been granted by the Forum without notice to the opposite party, the Forum shall make efforts to finally dispose of the 12 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -13- application within 30 days from the date on which the injunction was granted.
Provided also that any interim order may be reviewed/set aside by the Forum on an application made by any party if it is found that the complainant has made a false or misleading statement."
15. A reasoned order is required to be passed by the Forum. Similar provisions for Ombudsman have also been prescribed therein. The aforesaid Regulations were amended vide Notification dated 06.04.2022, however, the same has in no way diluted the authority of the Consumer Grievances Redressal Forum and has merely prescribed that the Consumer Grievances Redressal Forum shall be established to cater to the needs of Circle(District/Zone and Company level) in accordance with the Regulations and would also establish one or more Corporate Consumer Grievances Redressal Forum.
16. A special mechanism for resolution of Corporate Consumer Grievances has been provided for under Regulation 2.4. Similar provisions of interim orders and monitoring of consumer grievances have also been retained therein. The said Regulations provided for redressal of monetary complaints on the basis of pecuniary jurisdiction as well in Regulation 2.8 thereof. The same is extracted as under:-
"2.8 Monetary Complaints Complaints relating to the supply of electricity by distribution licensee involving monetary disputes including but not limited to wrong billing, application of wrong tariff or difference of service connection charges/general charges or security (consumption), overhauling of account due to defective/inaccurate metering, levy of voltage surcharge, billing of 13 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -14- supplementary amount or any other charges except those arising on matters pertaining to Open Access granted under the Electricity Act, 2003 and Sections 126, 127, 135 to 140, 142, 143, 146, 152 and 161 of the Act shall be disposed of by the respective Forum in accordance with these Regulations as per the monetary limits specified in Regulations 2.8.1 and 2.8.2 hereunder;
2.8.1 Corporate Forum
(i) The Corporate Forum shall have the
jurisdiction to dispose of all the monetary disputes of an amount exceeding Rs. Three lakhs (Rs.3,00,000/-) in each case. Provided that the complaint/representation is made within two years from the date of cause of action.
(ii) Any complainant aggrieved by non-redressal of his grievance within the time period specified by the Commission or is not satisfied with the redressal of the complaint by the Zonal or Circle Forum may himself or through his authorized representative, approach the Corporate Forum in writing for the redressal of his grievance.
Provided that the Corporate Forum shall entertain only those complaints against the orders of Zonal or Circle Forum, as the case may be, where the representation is made within 2 months from the date of receipt of the orders of respective Zonal/Circle Forum, as the case may be.
Provided further that the Corporate Forum may, for reasons to be recorded in writing, entertain a complaint which does not meet the aforesaid requirements. 2.8.2 Zonal/Circle/Divisional Forum:
(i) Zonal Forum:
The Zonal Forum shall have the jurisdiction to dispose of the complaints involving monetary disputes of an amount exceeding Rs.One lakh (Rs.1,00,000/-) and up to Rs. Three lakh (Rs.3,00,000/-) in each case.
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(ii) Circle Forum:
The Circle Forum shall have the jurisdiction to dispose of the complaints involving monetary disputes of an amount up to Rs.One lakh (Rs.1,00,000/-) in each case."
17. A reference to the aforesaid Regulations shows that the statute has prescribed for Consumer Grievances Redressal mechanism for redressal of consumer issues. The above statutory authorities have been duly constituted and are required to decide the complaints in a time-bound manner. Even the powers of granting interim directions have been conferred upon the authorities under the statutory framework.
18. The Hon'ble Supreme Court has, in the matter of Whirlpool Corporation Versus Registrar of Trademarks Mumbai (1998) 8 SCC 1, and Harbanslal Sahnia Versus Indian Oil Corporation Limited (2003) 2 SCC 107 as well as in the matter of Radha Krishan Industries Versus State of Himachal Pradesh, 2021 SCC OnLine SC 334 and summarized the principles governing exercise of writ petition in the presence of alternative remedy. The same are extracted as under:-
26. Following the dictum of this Court in Whirlpool, in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. 12, this Court noted that: (Harbanslal Sahnia case 12, 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 15 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -16- 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 is challenged. (See Whirlpool Corpn.v. Registrar of Trade Marks.) 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 16 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -17- legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its d 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. 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."
"28. The principles of law which emerge are that:
(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;
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(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 of 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."
19 It is thus evident from the perusal of the above judicial precedents that even though writ jurisdiction of High Court under Article 226 is not ousted on a mere existence of an alternative remedy and the High Court may exercise its discretion to entertain the writ petitions in appropriate cases which seek enforcement of the fundamental rights protected by the Constitution of India or the proceedings are wholly without jurisdiction and/or in circumstances where there is a blatant violation of principal of natural justice. However, at the same time the Hon'ble Supreme Court states that when a right is created by a statute which also prescribes the remedy or procedure for enforcing the right, resort must be to that particular statutory remedy before invoking the discretionary remedy under Article 226.
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20. Undisputedly, the power of the Court to entertain a writ despite availability of an alternative remedy is not a rule but an exception. Ordinarily, the litigant must exhaust are the statutory remedies available to him and simply cannot knock the High Court at his discretion merely for the sake of his convenience. The object of providing statutory remedies would be defeated if convenience of the party is to be equated to a right and a writ Court takes upon itself the responsibility as a forum at the first instance only to obliviate the projected hardship by the petitioners or to give primacy to the convenience of a litigant. The Courts have always emphasized that the legislature should always provide for statutory remedies so that litigant is not forced to directly approach the High Court. The provision of the statutory remedies is thus in furtherance of the intent of the statute to provide efficacious and affordable remedy which is more convenient to a litigant and is within the object to ensure that the factual aspects of the dispute are looked into by those statutory authorities and the issues which require judicial pronouncement are then left for final adjudication of the High Court. By passing of the statutory remedy makes the High Court as the forum of first instance to adjudicate the factual aspect of a case which was neither desired nor required. This Court has no reasons to hold or to believe that the the grievances espoused by the petitioners in the present petition cannot be looked into or examined by the statutory forums and also fails to find any valid explanation for not approaching the said statutory forums.
21. Additionally, the petitioner herein has already chosen to approach the Civil Court against the respondents and the said Civil Suit 19 of 20 ::: Downloaded on - 02-02-2024 23:24:31 ::: Neutral Citation No:=2024:PHHC:008169 CWP-695-2024 -20- is already pending alongwith application under Order 39 Rule 1 and 2. There petitioner have exercised his option is required to exhaust his options in the said scheme. Switch from one forum to another forum without awaiting decisions or apprehending unfavourable orders is akin to a forum shopping, an attempt which should even otherwise be restricted and checked by the Courts.
22. No such compelling grounds arise as would necessitate the determination of the issues in exercise of the writ jurisdiction alone. The present petition is accordingly dismissed in limine. Liberty is, however, granted to the petitioners to take/pursue the alternative remedies available to the petitioner for seeking redressal of her grievances.
23. Nothing stated herein should be construed as an expression on the merits of the claim of the petitioner and the competent Court/forum shall take a decision after assessing the merits of the respective claim made by the concerned parties.
(VINOD S. BHARDWAJ)
JUDGE
JANUARY 12, 2024
Vishal sharma
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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