Can a writ petition be maintained under Article 226 of the Constitution of India when there is availability of alternative remedy?
The Answer (detailed)
Constitution is the lex loci i.e. the law of the land. All enactments having statutory effect made by the authority of the State must cope up with the provisions of the Constitution. The fundamental rights are guaranteed under Part III of the Constitution of India. Any law which is in violation with the Part III is void. The power of Constitution is so great.
Article 226 of the Constitution grants special extraordinary and discretionary powers to the High Courts to exercise jurisdiction. It is considered to be very vast. There was a tendency to approach the High Court in all matters due to its extraordinary jurisdiction. The matters which would have ended in lower courts are burdening the High Courts. So normally the stand of the Courts is that its extraordinary jurisdiction under Art.226 will not lie when there is alternative remedy. Thus unnecessary burden upon High Courts is limited. Whatever be the hue and cry about the burdening of upper Courts; they are something extraordinary. So an interesting question is whether a writ petition is maintainable when an alternative remedy is available.
Various High Courts and Supreme Court at many times clarified this point in single bench and full bench decisions. The latest in this point is reported in KLT journal. The nutshell is stated below:
Parties: Satwati Deswal v.State of Haryana
Present: Hon'ble Mr.Justice Tarun Chatterjee & Hon'ble Mr.Justice R.M.Lodha
Citation:2009(4) KLT SN 80(C.No.75)SC
In this case, an order of termination of passed without any show cause notice and without initiating any disciplinary proceedings and without an opportunity of hearing the party. It was held that the right under Article 226 can be exercised even if there is alternative remedy as in this case the natural justice was violated and there is a violation of fundamental rights.
In a case decided by the Kerala High Court in a Securitisation matter the power under Article 226 was discussed. The nutshell is as follows:
Parties: Betty v. Union Bank of India
Present:Hon'ble Mr.Justice Antony Dominic
Citation: 2007 (4) KLT SN 53 (C.No. 58)
In this case the Bank arbitrarily classified accounts as Non Performing Assets in violation of guidelines issued by Reserve Bank. It was held that writ petition is maintainable in spite of the alternative remedy of appeal.
Thus we can see that the availability of alternative remedy is not a bar, but a self-imposed restriction. When there is patent illegality or the court of tribunal lacks jurisdiction or it acted without jurisdiction arbitrarily violating the fundamental rights and natural justice the power under Art.226 can be invoked.