Maintainability of Writ Petition – Availability of alternate remedy cannot mechanically be construed as ground for the dismissal of writ petition
Supreme Court in the case of M/s. Godrej Sara Lee Ltd. v. Excise and Taxation Officer – cum Assessing Authority & Ors. [CIVIL Appeal No. 5393 of 2010, decided on 01.02.2023] endeavored to distinguish between the concept of “entertainability” of writ petition and “maintainability” of writ petition.
The ratio decidendi pronounced in the said judgment is as follows:
The mere availability of an alternative remedy of appeal or revision which the party invoking jurisdiction of High Court under Article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition not maintainable.
Availability of an alternative remedy does not operate as an absolute bar to the maintainability of a writ petition. The rule which requires a party to pursue the alternative remedy provided by a statute is a rule of policy, convenience and discretion rather than a rule of law.
The “entertainability” and “maintainability” of a writ petition are distinct concepts. The objection as to “maintainability” goes to the root of the matter and if such an objection were found to be of substance then the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the High Courts. A writ petition despite being maintainable may not be entertained by a High Court for very many reasons. The relief could even be refused to the Petitioner if grant of such relief would not further public interest.
Hence, dismissal of a writ petition by a High Court on the ground that the Petitioner has not availed the alternative remedy without examining whether an exceptional case has been made out for entertainment of writ petition would not be proper. Where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available.
The Copy of the order……..
