Allahabad High Court
Smt. Manju Mittal And Another vs State Of U.P. And Another on 28 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 2614
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 23 Case :- WRIT - C No. - 46379 of 2006 Petitioner :- Smt. Manju Mittal And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- M.A. Mishra Counsel for Respondent :- C.S.C. Hon'ble Ravi Nath Tilhari,J.
1. I have heard Sri M.A. Mishra, learned counsel for the petitioners and learned Standing Counsel for Respondent No.1 and perused the record.
2. As per office report dated 5.12.2019 the petitioners have not taken steps to serve the Respondent No.2, The New India Insurance Co. Ltd., in pursuance of the order of this Court dated 29.8.2006. The writ petition is listed for admission.
3. I proceed to consider the admission of the writ petition.
4. The facts of the case are that the petitioner No.1 is the owner of the offending vehicle/bus bearing registration No. PB-13E-9775 which she had purchased from Petitioner No.2, on 6.5.2002, causing the accident dated 16.5.2002 resulting into death of one Sri Mahipal Singh. The legal heirs of late Mahipal Singh filed Motor Accident Claim No. 857 of 2002 (Smt. Savitri Devi and others Vs. Sudha Singh and others) for grant of compensation under Section 166 of the Motor Vehicles Act, 1988.
5. After contest the claim was allowed by the Motor Accident Claims Tribunal, Meerut (Special Judge/Anti Corruption) vide judgment and award dated 5.11.2004 awarding compensation of Rs. 1,90,000/- against opposite party No.2 and 3 in the claim petition ( present petitioners) jointly and severally with interest @ 6% and cost, with further direction that the compensation amount shall be indemnified by the New India Insurance Company Ltd./Respondent No.2 (in short the ''Insurance Company') and it will be open to the Insurance Company to recover the said amount either from the insured (petitioner No.2) or from the transferee of the vehicle.
6. It appears from the record that the Insurance Company deposited an amount of Rs. 2,15,455.00/- before the claims tribunal on 21.12.2004 and thereafter filed an application for recovery of that amount from the petitioners in terms of the award dated 5.11.2004 which application, registered as Misc. Case No.1 of 2005 (New India Insurance Company Ltd. Vs. Sudha Singh and another)was allowed by the Claims Tribunal by order dated 20.1.2006. There after a recovery certificate dated 22.2.2006 under Section 174 of the Motor Vehicles Act, 1988 was sent to the Collector/District Magistrate, Muzaffar Nagar to recover the amount from the petitioners as arrears of land revenue and to pay the same to the Insurance Company. In pursuance of the recovery certificate dated 22.2.2006 the District Magistrate, Muazffar Nagar on 17.3.2006 directed for necessary action being taken as per law.
7. The petitioners have filed the present writ petition challenging the award dated 5.11.2004 and the order dated 22.2.2006 (Annexure Nos. 2 and 3 respectively) as well as for a direction to the Claims Tribunal not to proceed further in Misc. Case No. 1 of 2005, making following prayers:-
"(1) issue a writ, order or direction in the nature of writ of certiorari for quashing the impugned judgment and award dated 05.11.2004 and order dated 22.02.2006 passed by the Motor Accident Claim Tribunal-1 Meerut Special Judge Anti Corruption Act as contained in Annexure Nos. 2 and 3 respectively to the writ petition.
(2) issue a writ, order or direction in the nature of writ of mandamus commanding the Motor Accident Claim Tribunal not to proceed further in Misc. Case No. 1 of 2005"
(3) issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(4) award the cost of the writ petition in favour of the petitioners."
8. The learned Standing Counsel has raised a preliminary objection that the petitioners have equally efficacious alternative remedy to challenge the award dated 5.11.2004 under Section 173 of The Motor Vehicles Act, 1988 by filing appeal and in view thereof the writ petition deserves to be dismissed.
9. Learned counsel for the petitioners has submitted that as the awarded amount has been deposited by the Insurance Company, the remedy of appeal is not available under Section 173 of the Motor Vehicles Act to the petitioners. He has next submitted that the petitioners have no remedy of appeal against the order dated 22.2.2006 also under challenge.
10. I have considered the submissions advanced by the learned counsel for the petitioners and the learned Standing counsel and have perused the material on record.
11. Section 173 of the Motor Accident Act, 1988 provides as under:
"(1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees."
12. A bare reading of Section 173 (1) of the Motor Vehicle Act, 1988 shows that any "person aggrieved" by the award of the Claims Tribunal may within 90 days prefer an appeal to the High Court, subject to the provisions of sub Section (2) which provides that no appeal shall lie against any award of the Claims Tribunal if the amount in dispute is less than ten thousand rupees.
13. In the case of V. Subbulakshmi & Others Vs. Lakshmi & Anr. AIR 2008 SC 1256, where facts were that against the award of the claims tribunal appeal was filed under Section 173 (1) of the Motor Vehicles Act before the High Court jointly by the Insurer and the insured and the High Court held that no appeal would be maintainable at the instance of the Insurance Company unless permission was obtained by it in terms of Section 170 of the Act but observed that the owner of the vehicle being the appellant, the appeal would be maintainable at his instance, the Hon'ble Supreme Court referring to the case of Narendra Kumar and Another Vs. Yarenissa and others [(1998) 9 SCC 202] held that an appeal by the owner of the vehicle is maintainable as he was an aggrieved person, despite the fact that in terms of an award, he was to be reimbursed by the Insurance Company. Paragraph 13 of the said judgment is being reproduced as under:
"13. In the instant case, the owner of the bus was an aggrieved person. He could maintain an appeal of his own. Section 173 of the Act confers a right on any aggrieved person to prefer an appeal from an award."
Though this judgment is with respect to the maintainability of the appeal by the owner where in terms of the award the owner was to be reimbursed by the Insurance Company but the same principle would apply with greater force in the present case, in as much as here also the liability for payment of compensation has been fixed on the owner/petitioners and the Insurance Company has been given the right to recover the awarded amount from the owner/petitioners after making its payment to the claimants. The petitioners, as such, are the persons aggrieved by the award of the claims Tribunal which fixed their liability for payment of compensation.
14. Section 174 of the Motor Vehicles Act, 1988 provides as under:
"174. Recovery of money from insurer as arrear of land revenue.--Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue."
15. In the case of Smt. Surinder Kaur Vs. Motor Accident Claims Tribunal/Special Judge AC Act, Bareily & Another 2009 (4) ALJ 613 this Court in paragraph nos. 8 and 12 held as under:
"8. From the simple reading of the language of Section 174, it is apparently clear that it confers a right upon the person (named under the award by the Tribunal) to recover the amount in terms of the award from a person against whom such an order has been passed. The word ''any person' so used in the Section would include the owner of the vehicle provided in the award a direction against the owner has been made. Similarly the words ''the person entitled' would include the insurance company provided a direction in its favour has been made in the award.
12. In view of the aforesaid, the Tribunal is justified in recording a finding that since the petitioner has not challenged the main award, he cannot be permitted to question the order passed on the application of the Insurance company under Section 174 of the Act, 1988 qua recovery of the amount in terms of the award made by the Tribunal earlier."
16. In Ghanshyam Gupta Vs. United India Insurance Co. Ltd and others 2012 (2) ALJ 406 this Court held that as in the award the claimant was the person entitled to recover the amount from the opposite party in the claim petition in the manner it was directed by the Tribunal it included the Insurance Company as well as the petitioner. The Insurance Company discharged its burden and paid the amount to the claimant. Thereafter as per direction in the award of the Tribunal, the Insurance Company was entitled to recover the amount from the petitioner, i.e. owner of the vehicle. The application of the Insurance company would also be covered by Section 174 of the Act. The relevant paragraphs 6 and 7 are being reproduced as under:
"6. Section 174 clearly provides, when an amount is due to any person under the award, if such a person moves an application, the Claims Tribunal may issue a certificate to the Collector for recovery of the said amount from the person liable to pay. The term 'person' used in section 174 has been defined in General Clauses Act as under:
'Person' shall include any company or association or body of individuals, whether incorporated or not.'
7. It includes natural and legal person both. In the award, the claimant was person entitled to recover the amount from the opposite parties in the claim petition in the manner it was directed by the Tribunal. It included the insurance company as well as the petitioner. The insurance company discharged its burden and paid the amount to the claimant. Thereafter as per direction in the award of the Claims Tribunal, the insurance company was entitled to recover the amount from petitioner, i.e., owner of the vehicle, Therefore, the insurance company's application would also be covered by section 174 of 1988 Act."
17. Thus in the present case the Tribunal having provided that the Insurance Company after indemnifying the claimants of the awarded amount, for which the petitioners were held liable, may recover the same from the petitioners. The application of the insurance company to recover the amount from the petitioners was competent under Section 174 of the Motor Vehicles Act in terms of the award. As such, unless there is a challenge to the award dated 5.11.2004 the petitioners cannot challenge the order dated 22.2.2006 on the same ground as taken to challenge the award. The petitioners have not challenged this order dated 22.2.2006 on independent grounds. The petitioners have challenged the award dated 5.11.2004 and have raised the dispute that the claims tribunal had no jurisdiction to direct recovery of the awarded amount from the petitioners by the insurance company, after its payment to the claimants by the insurance company. The challenge is that such an award could not legally be passed. The challenge to the order dated 22.2.2006 thus rests on challenge to the award dated 5.11.2004 and unless such challenge is successful against the award dated 5.11.2004 the petitioner cannot be successful in challenging the order dated 22.2.2006. The main grievance of the petitioners, therefore, is against the award dated 5.11.2004 and they are the persons aggrieved against the award.
18. The submission of the petitioners' counsel that the Insurance Company having deposited the awarded amount before the claims tribunal, the petitioners have no remedy of appeal under Section 173, deserves rejection being without substance. The deposit has been made by the insurance company pursuant to the liability fixed upon the petitioners by the award and the petitioners feel aggrieved from imposition of such liability. The statute does no where provide that if the insurance company indemnifies the claimants the appeal would not be maintainable at the instance of the owners. The only exception to the remedy of appeal under Section 173 is that the awarded amount of compensation is less than 10,000/- rupees.
19. Thus, I am of the considered view that Section 173(1) of the Motor Vehicles Act, 1988 is clearly attracted and as the amount awarded is not less than Rs. 10,000/-, sub Section (2) of Section 173 is not attracted. The petitioners, thus, have a statutory remedy to file appeal under Section 173(1) against the award dated 5.11.2004.
20. In the case of Nivedita Sharma Vs. Cellular Operators Assn. Of India and others reported in (2011) 14 SCC 337 the Hon'ble Apex Court has held that it is settled in law that when a statutory forum is created by law for redressal of grievances a writ petition should not be entertained ignoring the statutory dispensation. Paragraph Nos. 12,13 and 14 of the said judgment are being reproduced as under:
12. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation L. Chandra Kumar v. Union of India MANU/SC/0261/1997MANU/SC/0261/1997 : (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
"13. In Thansingh Nathmal v. Superintendent of Taxes MANU/SC /0255/1964MANU/SC/0255/1964 : AIR 1964 SC 1419, this Court adverted to the rule of self-imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:
The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved Petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
14. In Titaghur Paper Mills Company Ltd. v. State of Orissa MANU/SC /0317/1983MANU/SC/0317/1983 : (1983) 2 SCC 433. this Court observed:
It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Company v. Hawkesford (1859) 6 CBNS 336: 141 ER 486 in the following passage:
... There are three classes of cases in which a liability may be established founded upon a statute.......Hut there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.....The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368: (1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Company Ltd 1935 AC 532 and Secy, of State v. Mask and Company MANU/PR/0022/1940MANU/PR/0022/1940 : (1939-40) 67 IA 222: AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
21. In the case of Commissioner of Income Tax and others Vs. Chhabil Das Agarwal (2014) 1SCC603 the Hon'ble Apex Court reiterated that it is now well settled that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Paragraph Nos. 14,15,16 and 17 of this judgment are being reproduced as under:
"14. In the instant case, the only question which arises for our consideration and decision is whether the High Court was justified in interfering with the order passed by the assessing authority under Section 148 of the Act in exercise of its jurisdiction under Article 226 when an equally efficacious alternate remedy was available to the Assessee under the Act.
15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious 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. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the 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 there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. v. Mohammad Nooh MANU/SC/0125/1957MANU/SC/0125/1957 : AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. v. State of Orissa MANU/SC/0317/1983MANU/SC/0317/1983 : (1983) 2 SCC 433; Harbanslal Sahnia v. Indian Oil Corporation Ltd.
MANU/SC/1199/2002MANU/SC/1199/2002 : (2003) 2 SCC 107; State of H.P. v. Gujarat Ambuja Cement Ltd. MANU/SC/0421/2005MANU/SC/0421/2005 : (2005) 6 SCC 499).
16. The Constitution Benches of this Court in K.S. Rashid and Sons v. Income Tax Investigation Commission MANU/SC/0123/1954MANU/SC/0123/1954 : AIR 1954 SC 207; Sangram Singh v. Election Tribunal, Kotah MANU/SC/0044/1955MANU/SC/0044/1955 : AIR 1955 SC 425; Union of India v. T.R. Varma MANU/SC/0121/1957MANU/SC/0121/1957 : AIR 1957 SC 882; State of U.P. v. Mohd. Nooh MANU/SC/0125/1957MANU/SC/0125/1957 : AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras MANU/SC/0293/1965MANU/SC/0293/1965 : AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
(See: N.T. Veluswami Thevar v. G. Raja Nainar MANU/SC/ 0094/1958MANU/SC/0094/1958 : AIR 1959 SC 422; Municipal Council, Khurai v. Kamal Kumar MANU/SC/ 0227/1964MANU/SC/0227/1964 : (1965) 2 SCR 653; Siliguri Municipality v. Amalendu Das MANU/SC/0017/1984MANU/SC/0017/1984 : (1984) 2 SCC 436; S.T. Muthusami v. K. Natarajan MANU/SC/0426/1988MANU/SC/0426/1988 : (1988) 1 SCC 572; Rajasthan SRTC v. Krishna Kant MANU/SC/0786/1995MANU/SC/0786/1995 : (1995) 5 SCC 75; Kerala SEB v. Kurien E. Kalathil MANU/S C/0435/2000MANU/SC/0435/2000 : (2000) 6 SCC 293; A. Venkatasubbiah Naidu v. S. Chellappan MANU/SC/0581/2000MANU/SC/0581/2000 : (2000) 7 SCC 695; L.L. Sudhakar Reddy v. State of A.P. MANU/SC/0445/2001MANU/SC/0445/2001 : (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra MANU/ SC/0602/2001MANU/SC/0602/2001 : (2001) 8 SCC 509; Pratap Singh v. State of Haryana MANU/SC/0832/2002MANU/SC/0832/2002 : (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. v. ITO MANU/SC/1053/2002MANU/SC/1053/2002 : (2003) 1 SCC 72).
17. In Nivedita Sharma v. Cellular Operators Assn. of India MANU/ SC/1538/2011MANU/SC/1538/2011 : (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows:
12. In Thansingh Nathmal v. Supdt. of Taxes MANU/ SC/0255/1964MANU/SC/0255/1964 : AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7).
7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved Petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa MANU/ SC/0317/1983MANU/SC/0317/1983 : (1983) 2 SCC 433 this Court observed: (SCC pp. 440-41, para 11)
11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford 141 ER 486 in the following passage: (ER p. 495) ... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.
The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. 1935 AC 532 (PC) and Secy. of State v. Mask and Co. MANU/PR/0022/1940MANU/PR/0022/1940 : AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.
14. In Mafatlal Industries Ltd. v. Union of India MANU/SC /1203/1997MANU/SC/1203/1997 : (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77)
77. ... So far as the jurisdiction of the High Court under Article 226--or for that matter, the jurisdiction of this Court under Article 32--is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."
22. In the case of Agarwal Tracom Pvt. Ltd. Vs. Punjab National Bank and others (2018) 1SCC 626 the Hon'ble Apex Court reiterated the same principle once again. Paragraph Nos. 33 and 34 are being reproduced as under:-
33. In United Bank of India v. Satyawati Tondon and Ors., MANU/SC/0541/ 2010MANU/SC/0541/2010 : (2010) 8 SCC 110, this Court had the occasion to examine in detail the provisions of the SARFAESI Act and the question regarding invocation of the extraordinary power Under Article 226/227 in challenging the actions taken under the SARFAESI Act. Their Lordships gave a note of caution while dealing with the writ filed to challenge the actions taken under the SARFAESI Act and made following pertinent observations which, in our view, squarely apply to the case on hand:
42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued Under Section 13(4) or action taken Under Section 14, then she could have availed remedy by filing an application Under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken Under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders Under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.
43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition Under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy Under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court Under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the Rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power Under Article 226 of the Constitution.
45. It is true that the Rule of exhaustion of alternative remedy is a Rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed Under Article 226 of the Constitution and pass interim order ignoring the fact that the Petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance.
34. In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the Appellant's writ petition on the ground of availability of alternative statutory remedy of filing an application Under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the Appellant's deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court."
23. In the case of Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. (2018)3 SCC 85 the Hon'ble Apex Court has held as under in paragraph No.6:
"6. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction Under Article 136 of the Constitution is loathe to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction Under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal Rule is that a writ petition Under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Ors. v. Chhabil Dass Agarwal, MANU/SC/0 802/2013MANU/SC/0802/2013 : 2014 (1) SCC 603, as follows:
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."
24. There are also well defined exceptions to the rule of exhaustion of alternative statutory remedies.
25. In the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1 the Hon'ble Apex Court held as under in paragraph Nos. 15 to 20 which are being quoted as under:-
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has 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.
16. Rashid Ahmad v. Municipal Board, kairana, MANU/SC/0005/ 1950MANU/SC/0005/1950 : [1950]1SCR566 , laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. The Income Tax Investigation Commissioner, MANU/SC/0123/1954MANU/SC/0123/1954 : [1954] 25ITR167 (SC) which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances.
17. Specific and clear rule was laid down in State of U.P. v. Mohd. Nooh, MANU/SC/ 0125/1957MANU/SC/ 0125/1957:[1958]1SCR595, as under :
"But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
18. This proposition was considered by a Constitution Bench of this Court in A. V. Venkateswaran, Collector of Customs. Bombay v. Ramchand Sobhraj Wadhwani and Anr., MANU/ SC/ 0158/ 1961 MANU/ SC/ 0158/ 1961:1983ECR2151D(SC) and was affirmed and followed in the following words:
"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court".
19. Another Constitution Bench decision in Calcutta Discount co. Ltd. v. Income Tax Officer Companies Distt, I MANU/SC/0113/1960MANU/SC/0113/1960 : [1961]41ITR191(SC) laid down :
"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction Under Section 34 I.T. Act".
20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
26. In the case of Commissioner of Income Tax and others Vs. Chabil Das Agarwal (2014) 1SCC 603 the Hon'ble Apex Court has reiterated the same principles.
27. Thus it is settled in law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation i.e. without first relegating the petitioner to exhaust the remedies available under the statute. This is a self imposed restriction; a rule of policy convenience and discretion rather than a rule of law. In at least three contingencies: (i) Violation/infringement of fundamental rights; (ii) Violation of the principles of natural justice; (iii) the order or proceedings being wholly without jurisdiction or the vires of an Act being under challenge, this Court may still exercise its writ jurisdiction.
28. It has not been argued by the petitioner's counsel that any of the exceptions to the rule of exhaustion of alternative remedy as aforesaid is attracted in the present case.
29. Thus considered the petitioners have statutory alternative remedy of appeal against the award dated 5.11.2004 passed by the Motor Accident Claims Tribunal, Meerut under Section 173 of the Motor Vehicles Act. The challenge to the order dated 22.2.2006, being dependent on the challenge to the award dated 5.11.2004, can also not be made in the present writ petition.
30. The writ petition is dismissed on the ground of availability of statutory alternative remedy of appeal.
Order Date:-28.2.2020/Manish Tripathi