Can SC Interfere With HC's Discretion Entertaining Writ Petition In Spite Of There Being Alternative Remedy? SC Bench Delivers Split Judgment [Read Judgment]

Can the Supreme Court interfere under Article 136 of the Constitution to quash the order of the High Court, merely on the ground of existence of an alternative remedy? A two judge bench comprising of Justice R. Banumathi and Justice Indira Banerjee recently delivered a split judgment on the issue.

Disagreeing with Justice Banumathi's order setting aside a judgment of the High Court on the ground of alternative remedy, Justice Banerjee observed that it is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is settled practice of this Court not to interfere with the exercise of discretion by the High Court.

In State of Rajasthan vs. Lord Northbrook, the Rajasthan High Court had quashed the orders of authorities in the matter of taking over the properties of Sh. Raja Sardar Singh by the State under the Rajasthan Escheats Regulation Act, 1956.

In appeal, Justice Banumathi observed that the High Court ignored the subsequent events that the agnates have withdrawn their objections in the probate petition and dismissal of the probate petition and the appeals pending before the Delhi High Court and appeal pending before the Board of Revenue erred in quashing the three communications/orders and directing the State to hand over the possession of the properties to the respondents. The judge observed:

Under Article 226 of the Constitution of India, 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 an effective and efficacious remedy available. When efficacious alternative remedy is available, the High Court would not normally exercise the jurisdiction. However, alternative remedy will not be a bar at least in three instances:- (i) where writ petition is filed for enforcement of any of the fundamental rights; (ii) where there is a violation of the fundamental right or principles of natural justice; and (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged;

On the other hand, Justice Banerjee noted that the writ petition filed in 1987 had been pending in the High Court for about three decades and once the writ petition had been entertained and kept pending, it should not be rejected on the ground of existence of alternative remedy of appeal before the Board of Revenue. The judge further said:

"Moreover, as held by this Court in Municipal Council, Khurai and Anr. vs. Kamal Kumar & Anr. reported in AIR 1965 SC 1321, M.G. Abrol, Addl. Collector of Customs, Bombay & Anr. vs. Shantilal Chhotelal & Co. reported in AIR 1966 SC 197 and in State of U.P and Others vs. Indian Hume Pipe Co. Ltd reported in (1977) 2 SCC 724, there is no rule of law that the High Court should not entertain a writ petition when an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or  perversely, it is settled practice of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case has entertained the writ petition and decided the question of law arising in it and in my opinion rightly. In my view, we would not be justified in interfering in our jurisdiction under Article 136 of the Constitution to quash the order of the High Court, merely on the ground of existence of an alternative remedy. As held by this Court, inter alia, in Kanak vs. U.P. Avas Evam Vikas Parishad & Ors. reported in (2003) 7 SCC 693 (701), once a writ petition is entertained, and the matter is argued at length on merit, it would be too late in the day to contend that the writ petitioner should avail the alternative remedy." 

Following these divergent views, the case will be now considered by a larger bench.

Click here to Read/Download Judgment