Search Results Page
Search Results
1 - 10 of 11 (0.29 seconds)Babu Ram Prakash Chandra Maheshwari vs Antarim Zila Parishad Muzaffar Nagar on 2 August, 1968
6.2 The question of the power of the High Court to
issue directions, orders or writs in exercise of its
jurisdiction under Article 226 of the Constitution of
India, the same is no more res integra. It cannot be
denied that the Education Tribunal has jurisdiction
to decide the issue raised by the petitioner. The
petitioner could have described as to how an
aggrieved person could not resort to the alternative
statute remedy of appeal and why they could not
obtain suitable orders from the Tribunal under the
Act. The writ of mandamus is an extraordinary remedy
Page 7 of 11
Downloaded on : Wed Feb 24 22:03:48 IST 2021
C/SCA/6579/2017 JUDGMENT
and is intended to apply deficiency in law and is
thus, discretionary in nature. The issuance of a writ
of mandamus persupposes a clear writ of application
and justify failure of a duty imposed on the
authority, otherwise obliged in a law to imperatively
discharge the same. Even though the High Court can
entertain a Writ petition against any order or
direction passed/action taken by the State under
Article 226 of the Constitution, it ought not to do
so as a matter of course when the aggrieved person
could have availed of an effective alternative remedy
in the manner prescribed by law (see Baburam Prakash
Chandra Maheshwari vs. Antarim Zila Parishad now Zila
Parishad, Muzaffarnagar, AIR 1969 SC 556 and also
Nivedita Sharma vs. Cellular Operators Association of
India & Ors., (2011) 14 SCC 337).
Thansingh Nathmal And Ors vs A. Mazid, Superintendent Of Taxes on 3 February, 1964
In Thansingh
Nathmal & Ors. vs. Superintendent of Taxes, Dhubri &
Ors., AIR 1964 SC 1419 the Constitution Bench of
Supreme Court made it amply clear that although the
power of the High Court under Article 226 of the
Constitution is very wide, the Court must exercise
self imposed restraint and not entertain the Writ
petition, if an alternative effective remedy is
available to the aggrieved person. In paragraph 7,
the Court observed thus:
"7. Against the order of the Commissioner an order for
reference could have been claimed if the appellants
satisfied the Commissioner or the High Court that a
question of law arose out of the order. But the
procedure provided by the Act to invoke the
Jurisdiction of the High Court was bypassed, the
appellants moved the High Court challenging the
competence of the Provincial Legislature to extend the
Page 8 of 11
Downloaded on : Wed Feb 24 22:03:48 IST 2021
C/SCA/6579/2017 JUDGMENT
concept of sale, and invoked the extraordinary
Jurisdiction of the High Court under Article 226 and
sought to reopen the decision of the Taxing
Authorities on question of fact. The Jurisdiction of
the High Court under Article 226 of the Constitution
is couched in wide terms and the exercise thereof is
not subject to any restrictions except the territorial
restrictions which are expressly provided in the
Articles. But the exercise of the Jurisdiction is
discretionary: it is not exercised merely because it
is lawful to do so. The very amplitude of the
Jurisdiction demands that it will ordinarily be
exercised subject to certain selfimposed limitations.
Resort that Jurisdiction is not intended as an
alternative remedy for relief which may be obtained in
a suit or other mode prescribed by statute. Ordinarily
the Court will not entertain a petition for a Writ
under Article 226, where the petitioner has an
alternative remedy, which without being unduly
onerous, provides an equally efficacious remedy. Again
the High Court does not generally enter upon a
determination of questions which demand an elaborate
examination of evidence to establish the right to
enforce which the Writ is claimed. 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. (emphasis supplied)"
Titaghur Paper Mills Co. Ltd vs State Of Orissa on 13 April, 1983
6.3 The Supreme Court in Titaghur Paper Mills Co.
Ltd. & Anr. Vs. State of Orissa & Ors., 1983 2 SCC
433 wherein it is observed 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 must only be availed of. In paragraph
11, the Supreme Court observed thus:
Page 9 of 11
Downloaded on : Wed Feb 24 22:03:48 IST 2021
C/SCA/6579/2017 JUDGMENT
"11. Under the scheme of the Act, there is a hierarchy
of authorities before which the petitioners can get
adequate redress against the wrongful acts complained
of. The petitioners have the right to prefer an appeal
before the Prescribed Authority under subsection (1)
of Section 23 of the Act. If the petitioners are
dissatisfied with the decision in the appeal, they can
prefer a further appeal to the Tribunal under sub
section (3) of Section 23 of the Act, and then ask for
a case to be stated upon a question of law for the
opinion of the High Court under Section 24 of the Act.
The Act provides for a complete machinery to challenge
an order of assessment, and the impugned orders of
assessment can only be challenged by the mode
prescribed by the Act and not by a petition under
Article 226 of the Constitution.
The Secretary Of State vs Mask And Co. on 15 March, 1940
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 AttorneyGeneral of Trinidad and
Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and
Secretary of State v. Mask & Co. (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.
Mafatlal Industries Ltd. And Ors. vs Union Of India (Uoi) And Ors. on 19 December, 1996
(emphasis supplied) In the subsequent decision in
Mafatlal Industries Ltd. & Ors. vs. Union of India &
Ors., 1997 5 SCC 536 this Court went on to observe
that an Act cannot bar and curtail remedy under
Article 226 or 32 of the Constitution. The Court,
however, added a word of caution and expounded that
the constitutional Court would certainly take note of
the legislative intent manifested in the provisions of
Page 10 of 11
Downloaded on : Wed Feb 24 22:03:48 IST 2021
C/SCA/6579/2017 JUDGMENT
the Act and would exercise its Jurisdiction
consistent with the provisions of the enactment. To
put it differently, the fact that the High Court has
wide Jurisdiction under Article 226 of the
Constitution, does not mean that it can disregard the
substantive provisions of a statute and pass orders
which can be settled only through a mechanism
prescribed by the statute."
Itc Ltd. And Anr. vs Union Of India (Uoi) And Ors. on 22 August, 1990
6.4 The FullBench of Supreme Court decision in ITC
Ltd. & Anr. Vs. Union of India, (1998) 8 SCC 610,
wherein, the High Court had dismissed the Writ
petition on the ground that the petitioner therein
had an adequate alternative remedy by way of an
appeal under Section 35 of the Central Excise Act.
Concededly, the Supreme Court was pleased to uphold
that opinion of the High Court.
Article 311 in Constitution of India [Constitution]
State Of Gujarat vs Umedbhai M. Patel on 27 February, 2001
"21.In the case of State of Gujarat vs. Umedbhai
M.Patel (supra), the same principles were reiterated
in the following words :