Power Of Judicial Review Under Article 226 Is Basic Feature Of Constitution; Can't Be Curtailed By Any Legislation: Rajasthan High Court

Justice Pushpendra Bhati further held that High Courts, while exercising the power under Article 226, would 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.

Essentially, the petitioner- LNJ Power Ventures Ltd. had prayed to declare proposition laid down by the respondent-RERC in its Order dated 08 May, 2019 as ultra vires, in terms of Section 2(8) of the Electricity Act, 2003 read with Rule 3 of the Electricity Rules, 2005.

The petitioner further prayed for an ex-parte direction to respondents by restraining them from taking any steps against the petitioner. In addition to this, petitioner sought quashing of notice or order, if any, issued by any of the respondents in terms of the aforementioned Order, during the pendency of the case.

The court heard the counsels for petitioner on merits of the case and considered the preliminary objections raised on behalf of the respondents.

The court pursued that Section 125 of the Electricity Act of 2003, permits 'any person' aggrieved by a decision of the Tribunal may file an appeal before the Supreme Court, despite not being a party to the suit. It added that the present petition, filed in 2019, has now come up for consideration and any further judicial delay in deciding the matter, would not only be inappropriate, but also against the interest of justice.

The court observed that respondent-AVVNL has violated order dated 28.05.2019, by which a crystal clear direction was issued to the respondents to refrain from taking any coercive action against the petitioner, however, the respondents issued the impugned invoice and letter to the petitioner raising a claim of about Rs.55,47,354/-.

Relying on Tamil Nadu Power Producers Association Vs. Tamil Nadu Electricity Regulatory Commission and Ors., 2021 SCC Online APTEL 19, the court opined that the actions of respondent-AVVNL is not only illegal and in violation of the judicial order, but also unreasonable and arbitrary.

Further relying on Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1, the court considered that it is the constitutional duty of the Court to provide petitioners an opportunity to seek relief in the interest of justice

The court observed that it would be inappropriate to remand the matter back to Tribunal or dispose of the case on the ground of lack of jurisdiction. It added that arbitrariness is smack on the face of the action of the respondent No.4 in the present case.

While rejecting respondents' preliminary objections and before making any final adjudication on the merits of the case, the court granted some time to the Advocate General to make his detailed submissions on the merits of the case.

Additionally, the court pursued multiple Apex Court decisions and observed that the exercise of jurisdiction of the High Courts under Article 226 is no doubt discretionary, but the discretion must be exercised on sound judicial principles.

Furthermore, the court observed that High Courts, while exercising their jurisdiction under Article 226, are duty bound to consider whether a petitioner has any alternative or effective remedy. It added that while the existence of an alternate remedy is not a bar to entertaining a writ petition, the general rule is that the existence of an alternate remedy to the aggrieved person or under the statute in question which contains a mechanism for redressal of grievance, still holds the field.

The court also added that High Courts could entertain writ proceedings under Article 226, in exceptional cases, particularly where the cases involve a pure question of law or vires of an Act are challenged, and it would be on a case to case basis.

The court also observed that the interest of administration of justice shall be better sub-served, if such cases are heard by the High Courts only when they involve primary questions of jurisdiction or which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act.

The counsel for the petitioner, in summation, submitted that due to the following, the petitioner is entitled to seek a writ remedy before the High Court:

1. Since the petitioner is not a party to the TESCO judgment, therefore, it cannot file an appeal and does not possess any effective alternate remedy;
2. The judgment rendered in Whirlpool Corporation (supra), with respect to availability of an alternate remedy, enables the petitioner to seek relief before this Court.

In contrast, the Advocate General submitted that only in the case of a question arising as to the jurisdiction of a Tribunal, a writ petition before the High Court would be maintainable, and not otherwise.

In this regard, he relied on Cicily Kallarackal Vs. Vehicle Factory (2012) 8 SCC 524, wherein Supreme Court observed that when a statutory procedure for appeal is provided in the legislation, it would not be appropriate for High Courts to then entertain writ petitions under Article 226 of the Constitution of India, which would result in bypassing the procedure provided for a statutory appeal.

The matter is next listed on 24 Feb 2022 for final hearing on merits.

Adv. Parag Tripathi, Adv. Aniket Prasoon and Adv.Falgun Buch appeared on behalf of petitioners, whereas Advocate General Sr. Adv. M.S. Singhvi, assisted by Adv. Akhilesh Rajpurohit appeared on behalf of the respondents.

Case Title: LNJ Power Ventures Ltd. v. Rajasthan Electricity Regulatory Commission and Ors.

Citation: 2022 LiveLaw (Raj) 17

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