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Introduction:

There may be situations in a dispute wherein the litigant may face the conundrum as to whether it should proceed with the available alternate statutory remedy or exercise its right by filing a judicial review/writ petition. In the realm of commercial contracts bearing arbitration clauses a litigant while considering the available options is often hit by the debate wherein it has to opt for either arbitration or writ remedies under Article 226 of the Constitution of India. This conundrum is exacerbated in view of the settled principle that existence of alternate remedies is not an absolute bar to exercise writ jurisdiction (Magadh Sugar & Energy Ltd., v. State of Bihar and Ors., 2021 SCC Online SC 801). The Constitution of India empowers the High Courts in India to issue appropriate writs for the protection of the fundamental rights and other legal rights. The writ jurisdiction of the High Courts is discretionary and is limited by the principle of exhaustion of equal and efficacious alternate statutory remedies. While as a general principle, exhaustion of equal and efficacious alternate statutory remedies is mandatory, there are certain exceptions and the High Courts do entertain writs and adjudicate matters basis principles which are mentioned hereinbelow.

Present position in India

The Supreme Court of India (“SC”) in its recent judgment of 1st February 2023 while holding that the order passed by the revisional authority suffers from patent illegality also held that a writ petition under Article 226 cannot be dismissed merely on the ground of existence of alternate remedy without putting the same through the rigours of the exceptions which exist pursuant to several judicial precedents (M/s Godrej Sara Lee Ltd., v. The Excise and Taxation Officer Cum-Assessing Authority & Ors., Civil Appeal No. 5393 of 2010). The SC while holding that alternative remedy does not operate as an absolute bar to the maintainability of a writ petition also provided distinction between “maintainability” and “entertainability”. The SC made reference to and discussed the cases which previously set out the grounds basis which a writ court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1) (“Whirlpool Case”). The SC made reference to the exceptions provided in the Whirlpool Case wherein, the following principles were laid down (i) whether or not the writ petition seeks enforcement of any fundamental rights, (ii) whether or not there is violation of principles of natural justice, (iii) whether or not the order or the proceedings are wholly without jurisdiction and (iv) whether or not the vires of an Act is challenged.

Other precedents and recent cases

Similarly, the SC in another recent judgment summarized the principles governing the exercise of writ jurisdiction by the High Court while there exists an alternate remedy. (Radha Krishan Industries v. State of Himachal Pradesh., 2021 SCC Online SC 334) These principles were based on the previous precedents and state that:

1. the power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

2. the High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

3. exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution, (b) there has been a violation of the principles of natural justice, (c) the vires of a legislation is challenged, and (d) the order or proceedings are wholly without jurisdiction;

4. when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

5. in cases where there are disputed questions of facts, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view not readily be interfered with.