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Gujarat High Court

Deceased Makwana Shnabhai Bhikhabhai ... vs State Of Gujarat on 21 December, 2020

Author: A. C. Rao

Bench: A.C. Rao

         C/SCA/9733/2020                                           ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 9733 of 2020

==========================================================
     DECEASED MAKWANA SHNABHAI BHIKHABHAI THROUGH LEGAL
                           HEIRS
                           Versus
                     STATE OF GUJARAT
==========================================================
Appearance:
MR HARNISH V DARJI(3705) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,2,2.1,2.2,2.3,2.4,2.5,2.6,2.7
MR TRUPESH KATHRIYA AGP for the Respondent(s) No.
1,2,3,4,5,5.1,5.2,5.3,5.4
==========================================================

 CORAM: HONOURABLE MR. JUSTICE A.C. RAO

                              Date : 21/12/2020
                               ORAL ORDER

By way of present petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 30.06.2020 passed by the respondent No.3 in Ganot Case No.132 of 2012 - Remand Case No.61 of 2018, IRCMS Case No.84C/161/2018.

2. The brief facts leading to the present petition are as under:­ 2.1 The petitioners are the legal heirs of deceased Makwana Sanabhai Bhikhabhai and deceased Prabhatbhai Bhikhabhai Makwana of village Sherkhi, Ta & Dist :

Vadodara. There is a dispute between the petitioners and respondent Nos.4 and 5 with regard to land Page 1 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER bearing Revenue Survey No.296 of the said village. It is the case of the petitioners that they are protected tenant and therefore, they had filed suit being Tenancy Suit No.1683 of 1957 against one Fulabhai Chandabhai under the provisions of Sections 29 and 31 of the Tenancy Act, 1948. The said suit was dismissed vide order dated 30.1.1958 by the Mamlatdar Krushipanch, Vadodara. Thereafter, there was a sale of 2 Acres and 2 Gunthas of land by way of oral sale and revenue entry was also posted in the revenue record. Thereafter, sale­deed came to be registered between Thakor Kanaksinh Bhagwansinh and Sanabhai Bhikhabhai on 26.06.1961. According to the petitioners, the said sale­deed was a conditional mortgage sale and another sale­deed was executed between the said party for the land admeasuring 1 Acre and 5 Gunthas of revenue survey No.296/1 on 31.7.1961 for sale consideration of Rs.1,300/­.
2.2 It is further the case of the petitioners that the respondent No.5 filed a Regular Civil Suit No.921 of 1966 before the court of learned Civil Judge, Vadodara against Makwana Sanabhai bhikhabhai whose heirs are the present petitioners. The said suit was for redumption of the mortgage created on suit land as per registered sale­deed dated 26.06.1961 and 31.07.1961. In the written statement, Sanabhai had taken defence that they were the tenant of the suit premises since 1959­60. So, the Civil court directed the Mamlatdar and Krushipanch to decide the issue of Page 2 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER tenancy and then only proceed further. The learned Joint Civil Judge (JD), Baroda had passed preliminary decree for redumption of the mortgage. The suit came to be decreed in favour of the plaintiff by way of judgment dated 19.10.1970. The said judgment was challenged by way of Regular Civil Appeal No.21 of 1971 in the court of learned Assistant Judge, Baroda challenging the preliminary decree. The learned Assistant Judge, Baroda dismissed the Regular Civil Appeal No.21 of 1971 and confirmed the order passed by the Civil Court, Baroda. The said judgment was challenged by way of preferring Second Appeal No.348 of 1973, which came to be allowed vide or dated 19.11.1977, wherein the case was remanded to the learned Trial Judge with direction that he shall refer the issue with regard to the tenancy to the Mamlatdar, Baroda for his determination and till the final decision with regard to the said issue, he should stay all further proceedings in the suit.
2.3 It is further the case of the petitioners that the original plaintiff had filed Civil Appeal No.1389 of 1979 challenging the order of this Court in Second Appeal No.348 of 1973. The said appeal also came to be dismissed by the Apex Court vide order dated 08.12.1994. As per the observation of the Apex Court in Second Appeal No.348 of 1973, the civil court, Vadodara had forwarded the reference to the Tenancy Mamlatdar, Vadodara to decide the issue of tenancy with regard to the suit land and the Mamlatdar and Page 3 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER Krushipanch, Vadodara had numbered reference forwarded by the Civil Court, Vadodara as Ganot Case No.132 of 2012, wherein the Mamlatdar had held that as Section 32(o) is deleted and therefore, he has no jurisdiction to decide the question of tenancy between the parties.

3. Being aggrieved and dissatisfied by the same, the petitioners are before this Court by way of present petition.

4. At the time of arguments, the learned senior counsel Mr.Mihir Joshi appearing with Mr.Harnish Darji, learned advocate for the petitioners, has vehemently contended that there is substantial question of law involved in this petition and therefore, self imposed restrictions of the High Court would not impede the petitioners from filing this petition. He has vehemently contended that the Hon'ble High Court and the Hon'ble Apex Court has ordered that the learned trial Judge referred the issue of tenancy to Mamlatdar for determination as to whether the petitioners are tenant or not, in the disputed land and the Mamlatdar was obliged to decide the said question. He has drawn my attention to Section 70(b) of the Gujarat Tenancy and Agricultural Lands Act, 1948, which lays that it is the duty of the Mamaltdar to decide as to whether any person is tenant or protected tenant or permanent tenant. Under the circumstances, the Mamlatdar has jurisdiction to Page 4 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER decide this question and he is not required to deal with Section 32(O), which lays right of tenant whose tenancy is created after tiller's day to purchase land. So, the Mamlatdar has to consider that it does not take away the rights of Mamaltdar and Krushipanch to declare any person as tenant and the provisions of Section 32(O) has nothing to do with Section 70(b).

4.1 According the learned senior counsel, the order is illegal and perverse and required to be quashed and set aside.

4.2 In support of his submissions, the learned senior counsel has relied upon the judgment of the Apex Court rendered in the case of Executive Engineer, Southern Electricity supply Company of Orissa Limited (SOUTHCO) vs. Sri Seetaram Rice Mill, reported in 2012 (2) SCC 108, wherein it is observed as under :

"80 It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, Page 5 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised. 82 It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the abovestated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous­lex neminem cogit ad vana seu inutilia­the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail. Suffice it to make a reference to the judgment of this Court in Whirlpool Corpn. v. Registrar of Trade Marks25 where this Court was concerned with the powers of the Registrar of Trade Marks and the Tribunal under the Trade and Merchandise Marks Act, 1958 and exercise of jurisdiction by the High Court in the face of availability of a remedy under the Act. 83 This Court while referring to various judgments of this Court and specifying the cases where the alternative remedy would not bar the exercise of jurisdiction by the Court, held as under: (Whirlpool Corpn. case25, SCC pp. 9­11, paras 14­15 & 19­21) "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'.
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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 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.
19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO laid down:
(AIR p. 373) '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 Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act.'
20. Much water has since flown under 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.
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21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show­cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the 'Tribunal'."

84 Even in Union of India v. State of Haryana21 this Court took the view that the question raised was a legal one which required determination as to whether provision of telephone connections and instruments amounted to sale and why the Union of India should not be exempted from payment of sales tax under the respective statutes. Holding that the question was fundamental in character and need not even be put through the mill of statutory appeals in hierarchy, this Court remitted the matter to the High Court for determination of the questions of law involved in that case.

85 Applying these principles to the facts of the present case, it is obvious that no statutory appeal lay against a provisional order of assessment and the respondents herein were required to file objections as contemplated under Section 126(3) of the 2003 Act. It was only when a final order of assessment was passed that the respondents could prefer a statutory appeal which admittedly was not done in the case in hand."

4.3 He has also relied on the judgment of the Apex Court rendered in the case of Dushyant Somal vs. Sushma Somal reported in 1981 (2) SCC 277, wherein it is observed as under:

"7 It was argued that the wife had alternate remedies under the Guardians and Wards Act and the Code of Criminal Procedure and so a writ should not have been issued. True, alternate remedy ordinarily inhibits a prerogative writ. But it is not an impassable hurdle........."

5. Per contra, the learned AGP Mr.Meet Thakkar has strongly objected the maintainability of this writ petition on the ground that there is an alternative Page 8 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER remedy available to the petitioners, and they can challenge the said order before the Deputy Collector, Vadodara District under the provisions of the Tenancy Act. He has contended that when there is an alternative remedy available, the High Court should not exercise its extra­ordinary jurisdiction.

5.1 In support of his submissions, the learned AGP has relied upon the judgment of the Apex Court rendered in the case of State of Madhya Pradesh vs. Nerbudda Valley Refrigerated Products company Pvt. Ltd. And Others, reported in 2010 (7) SCC 751, wherein it is held as under :

"20. A perusal of the order of the Nazul Officer shows that grant of NOC depends upon various factors and fulfilment of certain conditions. It is also not in dispute that the said officer is better equipped with to decide the application for grant of NOC. Undoubtedly, while deciding such an application, the Nazul Officer has to consider not only the circulars but also the rules and regulations framed by the State Government. Even otherwise, when the ultimate order of the Nazul Officer can be canvassed before the Collector, the High Court ought not to have exercised its extraordinary jurisdiction under Article 226 as an appellate court over the finding of fact arrived at by the Nazul Officer. In this context, it is useful to refer the following decisions.
21. In Punjab National Bank v. O.C Krishnan 2001 6 SCC 569, this Court held: (SCC p. 570, para 6)

"6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast­track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by Page 9 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."

22. In State of H.P v. Gujarat Ambuja Cement Ltd. 2005 6 SCC 499 this Court observed as under: (SCC p. 515, para

17) "17. We shall first deal with the plea regarding alternative remedy as raised by the appellant State. Except for a period when Article 226 was amended by the Constitution (Forty­second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self­imposed 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 strong case or that there exist good grounds to invoke the extraordinary jurisdiction."

23. There is broad separation of powers under the Constitution between three organs of the State i.e the legislature, the executive and the judiciary. It is also well­established principle that one organ of the State should not ordinarily encroach into the domain of another. Even if the order of the first authority, in the case on hand, the Nazul Officer, requires interference, it is for the appellate authority to look into it and take a decision one way or the other and it Page 10 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER is not an extraordinary case which warrants direct interference by the High Court under Article 226.

24. It is relevant to note that the Nazul Officer has adverted to a relevant fact that the Government, while renewing the lease of 3.13 acres of land from 14­3­1999 to 13­3­2029 in favour of the respondent Company, permitted it to change the use of the leased land from industrial purpose to commercial or residential purpose on payment of the lease rent, as payable on the land used or changed for commercial or residential purpose. In such circumstances, if the said direction is applicable, it is but proper on the part of the respondent to comply with it. Even if the stand of the respondent Company is acceptable and if they are aggrieved by the order of the Nazul Officer, they are free to challenge the same before the Collector as pointed above. In our opinion, interference by the High Court against the order of the original authority, which is based on factual details, is not warranted under writ jurisdiction.

25. Coming to the second submission, in view of our conclusion about the order of the High Court dated 26­9­ 2008, we are satisfied that the second issue is to be answered against the respondent. Here again, this Court, in a series of decisions, has held that when a matter is remitted to the original authority to decide the issue, the said authority must be allowed to take a decision one way or the other in accordance with the statutory provisions, the rules and regulations applicable to the same. There cannot be any restriction to pass an order in such a way dehors to the statutory provisions or regulations/instructions applicable to the case in particular. As pointed out earlier, even if there is any error, it is for the Collector/Government to set it right and the High Court is not justified in asking the officer to be personally present and explain his "misconduct". In our considered view, the High Court has exceeded its jurisdiction in issuing such a direction."

5.2 He has also relied upon the judgment of the Apex Court rendered in case of Ansal Housing and Construction Ltd. vs. State of Uttar Pradesh and Others, reported in 2016 (13) SCC 305, wherein it is held as under :

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"6. In that view of the matter, without expressing any further opinion, we set aside the judgment dated 16.8.2011 in Suleman v. State of U.P. The parties are relegated to the competent authority under the Stamp Act in the State of Uttar Pradesh for the adjudication of the dispute. We direct the Authority concerned to issue notice to the parties, hear them and pass final orders on merits on the dispute within a period of six months from today.

7. As far as Writ Petition 40656 of 2004 filed by the developer leading to the Judgment dated 4.8.2011 is concerned, we are informed that during the pendency of the special leave petition before this Court, the adjudicating authority has passed an order on 16.1.2015 and thereafter the matter was carried before the appellate authority and the appellate authority passed an order on 22.4.2015 and the issue is now before the High Court. It appears that the authorities have passed such orders on different dates and therefore, similar other matters are consequently before the High Court."

5.3 He has also relied upon the judgment of the Apex Court rendered in case of Nivedita Sharma vs. Cellular Operators Association of India and Others, reported in 2011 (14) SCC 337, wherein it is held as under :

"12. In Thansingh Nathmal v. Superintendent of Taxes 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:(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 Page 12 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER applying to it to seek resort to the machinery so set up."

13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, this court observed: (SCC pp. 440­41, 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 (1859) 6 CBNS 336 : 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 : (1918­19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd 1935 AC 532 and Secy. of State v. Mask and Co. (1939­40) 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."

14. In Mafatlal Industries Ltd. v. Union of India, 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 Page 13 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER 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."

15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar AIR 1969 SC 556, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.

16. It can, thus, be said that this Court has recognized some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Superintendent of Taxes (supra) 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 rederssal of grievance still holds the field.

17. In the light of the above, we shall now consider whether the Division Bench of the High Court committed an error by entertaining the writ petition filed by the respondents.

18. The 1986 Act was enacted for better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes. The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation.

19. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is a known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer forums at district, state and national level.

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20. In Fair Air Engineers Pvt. Ltd. v. N.K. Modi, this Court referred to the judgment in Lucknow Development Authority v. M.K. Gupta and observed: (SCC p. 393, para

15) "15. Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the Provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy."

21. In Charan Singh v. Healing Touch Hospital, this Court observed: (SCC p. 673, para 11­12) "11. Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act exercise quasi­judicial powers for redressal of consumer disputes and it is one of the postulates of such a body that it should arrive at a conclusion based on reason. The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes, the chances of arbitrariness and the higher forum can test the correctness of those reasons. Unfortunately we have not been able to find from the impugned order any reasons in support of the conclusion that the claim of the appellant Page 15 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER is 'unrealistic' or 'exaggerated' or 'excessive'. Loss of salary is not the sole factor which was required to be taken into consideration.

12. While quantifying damages, consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard­and­fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge."

6. Heard Mr. Mihir Joshi, learned Senior Counsel with Mr. Harnish Darji, learned advocate for the petitioners and Mr. Kathriya, learned AGP for the respondent­State at length and perused the documents on record.

7. The issues relating to entertaining the writ petitions when alternative remedy is available, were examined by the Apex Court in several cases and recently in the case between State of Himachal Pradesh and Ors. v. M/s Gujarat Ambuja Cement Ltd. and Anr. (2005 (6) SCC 499). 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 Page 16 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER 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 strong case or that there exist good grounds to invoke the extra­ordinary jurisdiction. Constitution Benches of Supreme Court in case between K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors. (AIR 1954 SC 207); Sangram Singh v. Election Tribunal, Kotah and Ors. (AIR 1955 SC 425); Union of India v. T.R. Varma (AIR 1957 SC 882); State of U.P. and Ors. v. Mohammad Nooh (AIR 1958 SC 86); and M/s K.S. Venkataraman and Co. (P) Ltd. v. State of Madras (AIR 1966 SC 1089), 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 Page 17 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER 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.

7.1 Another Constitution Bench of the Supreme Court in State of Madhya Pradesh and Anr. v. Bhailal Bhai etc. etc. (AIR 1964 SC 1006) 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. Similar view has been re­ iterated in N.T. Veluswami Thevar v. G. Raja Nainar and Ors. (AIR 1959 SC 422); Municipal Council, Khurai and Anr. v. Kamal Kumar and Anr. (AIR 1965 SC 1321); Siliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653); S.T. Muthusami v. K. Natarajan and Ors. (AIR 1988 SC 616); R.S.R.T.C. and Anr. v. Krishna Kant and Ors. (AIR 1995 SC 1715); Kerala State Electricity Board and Anr. v. Kurien E. Kalathil and Ors. (AIR 2000 SC 2573); A. Venkatasubbiah Naidu v. S. Chellappan and Ors. (2000 (7) SCC 695); and L.L. Sudhakar Reddy and Ors. v. State of Andhra Pradesh and Ors. (2001 (6) SCC 634); Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors. (2001 (8) SCC 509); Pratap Singh and Anr. v. State of Haryana (2002 (7) SCC 484) and G.K.N. Driveshafts (India) Ltd. v. Income Tax Officer Page 18 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER and Ors. (2003 (1) SCC 72).

7.2 In G. Veerappa Pillai v. Raman & Raman Ltd. (AIR 1952 SC 192); Assistant Collector of Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330); Ramendra Kishore Biswas v. State of Tripura (AIR 1999 SC 294); Shivgonda Anna Patil and Ors. v. State of Maharashtra and Ors. (AIR 1999 SC 2281); C.A. Abraham v. I.T.O. Kottayam and Ors. (AIR 1961 SC 609); Titaghur Paper Mills Co. Ltd. v. State of Orissa and Anr. (AIR 1983 SC 603); H.B. Gandhi v. M/s Gopinath and Sons (1992 (Suppl.) 2 SCC 312); Whirlpool Corporation v. Registrar of Trade Marks and ors. (AIR 1999 SC 22); Tin Plate Co. of India Ltd. v. State of Bihar and Ors. (AIR 1999 SC 74); Sheela Devi v. Jaspal Singh (1999 (1) SCC 209) and Punjab National Bank v. O.C. Krishnan and Ors. (2001 (6) SCC 569), the Supreme Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.

7.3 If, as was noted in Ram and Shyam Co. v. State of Haryana and Ors. (AIR 1985 SC 1147), the appeal is from "Caeser to Caeser's wife" the existence of alternative remedy would be a mirage and an exercise in futility. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, Page 19 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021 C/SCA/9733/2020 ORDER it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. The above position was recently highlighted in U.P. State Spinning Co. Ltd. v. R.S. Pandey & Another [(2005) 8 SCC 264]. This is not a case where no factual adjudication is necessary.

8. For the foregoing reasons, this writ petition is not required to be entertained as there is existence of alternative remedy and there is no allegation of authority acting ultra vires or breach of any principles of natural justice.

The present petition deserves to be dismissed and is hereby dismissed.

(A. C. RAO, J) MAYA S. CHAUHAN/kdc/dolly/bina/ekc Page 20 of 20 Downloaded on : Fri Feb 26 01:16:32 IST 2021