Writ Jurisdiction Of High Courts

Updated: Aug 5 2002, 05:30am hrs
The Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purpose. It is well established that the remedy provided for in Article 226 of the Constitution of India is a discretionary remedy and the High Court has always the discretion to refuse to grant such a relief in certain circumstances even though a legal right might have been infringed. Availability of an alternative remedy is one of such considerations which the High Court may take into account to refuse to exercise its jurisdiction, but this principle does not apply to the enforcement of fundamental rights either under Article 32 or under Article 226 of the Constitution.

The Supreme Court in Mohd. Yasin v Town Area Committee (AIR 1952 SC 115) held that an alternative remedy is not a bar to move a writ petition in the High Court to enforce a fundamental right. This is the only exception.

In all other cases where no fundamental right is involved, it has been ruled that the High Court would not exercise its jurisdiction under Article 226 when an alternative, adequate, and efficacious legal remedy is available and the petitioner has not availed of the same before coming to the High Court. Of course, Article 226 is silent on this point; it does not say in so many words anything about this matter, but the Courts have themselves evolved this rule as a kind of self imposed restriction on their jurisdiction under Article 226.

The rule of exhaustion of a remedy before invoking jurisdiction under Article 226 has been characterised as a rule of policy, convenience and discretion rather than a rule of law, as per decision of the Supreme Court in State of Uttar Pradesh v Md. Nooh (AIR 1958 SC 86) and Baburam Prakash Chandra Maheshwari v Antarim Zila Parishad (AIR 1969 SC 556). The rule has been justified on the ground that persons should not be encouraged to circumvent the provisions made by a statute, providing for a mechanism and procedure to challenge administrative or quasi-judicial actions taken thereunder (Union of India v TR Varma (AIR 1957 SC 882)).

The Income-tax Act is a code in itself as regards legal remedies too. Against impugned orders, petitioners have effective and comprehensive legal remedies by way of appeal under section 246(1)(i) of the Act, further second appeal to the Income-tax Appellate Tribunal, a reference to the High Court and further appeal to the Supreme Court. Article 226 is not meant to circumvent statutory legal remedies. It is quite often held and reiterated by Courts that ordinarily the High Court should not entertain writ applications filed, bypassing the statutory legal remedies, where violation of fundamental rights is not involved.

At times it becomes necessary for the Court to remind itself about the self-imposed restraints and limitations in exercise of the power granted to the Court by the Constitution under Article 226. The Court can take judicial notice of the fact that large numbers of writ petitions are filed in the High Court by persons without exhausting statutory alternative remedies or other remedies available to them.

Further, what can be gathered from the decisions of the Supreme Court in U P Jal Nigam v Nareshwar Sahai Mathur (1 SCC 21); Titaghur Paper Mills Co. Ltd. v State of Orissa (142 ITR 663) and HB Gandhi v Gopi Nath and Sons ((1990) 77 STC 1) is that where statutory remedies are available or a statutory Tribunal has been set up, a petition under Article 226 should not be entertained, unless the statutory remedies are ill-suited to meet the demands of any extraordinary situation, for example, where the very vires of the statute is in question, or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require that recourse should be had to Article 226; or where the alternative remedy is onerous or burdensome or inadequate; or where it involves inordinate delay or is illusory in nature; where the impugned action is palpably wrong or goes to the root of the jurisdiction or where there is total lack of jurisdiction in the authority.

The Andhra Pradesh High Court in Institute of Chartered Financial Analysts of India v Asst CIT (256 I.T.R. 115) held that remedies by way of judicial review under Article 226 are fundamentally different from other remedies. Instead of substituting its own decision for that of some other body, as happens when an appeal is allowed, the High Court on review under Article 226 is concerned only with the question whether the act or order under attack should be allowed to stand or not.

It is quite often stressed by Courts that judicial review is not against a decision under attack but against the decision-making process.

After considering the commentary by HWR Wade in “Treatise on Administrative Law”, the High Court held that the underlying object of the rule is that High Courts are the apex judicial institutions in the States, and it is but natural that if an alternative suitable equally efficacious remedy is available to the party, they may refuse to exercise the extraordinary jurisdiction under Article 226 and direct the aggrieved party to first avail of the said alternative remedy before approaching the High Court. The extraordinary jurisdiction of the High Court under Article 226 cannot be reduced to an ordinary jurisdiction of the High Court.

A writ will not ordinarily be issued by the Court where the impugned order, not patently erroneous, is made by an authority within his jurisdiction. However, where the defect of jurisdiction is apparent on the face of the proceedings, or there is an abuse of power, a writ of prohibition or other appropriate writ or order will be issued despite some delay in filing the petition or the existence of an alternative remedy, eg the right of appeal.

Likewise, the existence of an alternative remedy is not an absolute bar to the issue of a writ of certiorari; and a writ of mandamus would not be refused merely because the assessee could have filed a suit. A writ of prohibition or mandamus may be issued to restrain recovery proceedings in pursuance of an assessment order made without or in excess of jurisdiction, even if such a plea as to jurisdiction was not raised in the assessment proceedings.