# Smt. Manju Mittal & Anr v. The State of U.P. & Anr

- **Citation:** (2020) 9 ILRA 756
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-28
- **Case number:** WRIT - C No. 46379 of 2006
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manju-mittal-anr-v-the-state-of-u-p-anr-46076
- **Pages:** 14

## Headnote

(A) Civil Law - Motor Vehicles Act, 1988 -
Section 166 -Application for compensation,
Section
173-Appeals,
Section
174
-
Recovery of money from insurer as arrear of
land revenue - statutory forum created by
law for redressal of grievances - writ
petition should not be entertained ignoring
the statutory dispensation i.e. without first
relegating the petitioner to exhaust the
remedies available under the statute - a
self-imposed restriction; a rule of policy
convenience and discretion rather than a
rule of law - In at least three contingencies:
(i) Violation/infringement of fundamental
rights; (ii) Violation of the principles of
natural justice; (iii) the order or proceedings
being wholly without jurisdiction or the
vires of an Act being under challenge, this
Court
may
still
exercise
its
writ
jurisdiction.(Para-27)

Petitioner No.1 is the owner of the offending
vehicle/bus bearing registration No. PB-13E-9775 -
purchased from Petitioner No.2, on 6.5.2002 -
causing the accident dated 16.5.2002 - resulting
into death of one Sri Mahipal Singh - legal heirs of
late Mahipal Singh filed Motor Accident Claim for
grant of compensation under Section 166 of the
Motor Vehicles Act, 1988. (Para - 4)

HELD:- Petitioners have statutory alternative
remedy of appeal against the award dated
5.11.2004 passed by the Motor Accident Claims
9 All. Smt. Manju Mittal & Anr. Vs. The State of U.P. & Anr.
757
Tribunal, under Section 173 of the Motor
Vehicles Act. (Para-29)

Petition dismissed. (E-7)

List of Cases cited: -

## Text

_Characters 0–39,814 of 46,933. This is a partial read: ask again with offset=39814 for what follows._

756 INDIAN LAW REPORTS ALLAHABAD SERIES
money clause contained therein, any relief
of refund of the security amount cannot be
granted to the petitioner, inasmuch as the
manner in which we have read the aforesaid
Government Orders and Brochure, make the
provisions relating to security money, its
refund/forfeiture, equitable and reasonable.
On the other hand, if we read the above
provisions in the manner suggested by the
learned counsel for respondent-2, i.e. in
isolation from the schedules prescribed for
declaration of result and taking of admission
in the allotted college, that would confer
arbitrary powers on the authorities to forfeit
the security money in all the cases, including
those cases where the fault does not lie on the
part of the candidate but lies on the
authorities. This would be inequitable and
would render the provision arbitrary as well
as conferring arbitrary power on the
authorities. It is settled in law that
arbitrariness in State action is negation of rule
of law and violates the right of equality as
enshrined in Article 14 of the Constitution of
India.

31. In view of the above reading of
the Government Orders relating to security
money clause, the same does not require
any challenge by the petitioner for the relief
of refund of the security amount.

32. We, therefore, allow this petition
in part and direct the respondents to refund
the
amount
of
security
money
of
Rs.2,00,000/-, deposited with respondent-2,
within a period of two weeks from the date
of production of a certified copy of this
judgment before the said authority.

33. No orders as to costs.
----------
(2020)09ILR A756
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

WRIT - C No. 46379 of 2006

Smt. Manju Mittal & Anr. ...Petitioners
Versus
The State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri M.A. Mishra

Counsel for the Respondents:
C.S.C.

(A) Civil Law - Motor Vehicles Act, 1988 -
Section 166 -Application for compensation,
Section
173-Appeals,
Section
174
-
Recovery of money from insurer as arrear of
land revenue - statutory forum created by
law for redressal of grievances - writ
petition should not be entertained ignoring
the statutory dispensation i.e. without first
relegating the petitioner to exhaust the
remedies available under the statute - a
self-imposed restriction; a rule of policy
convenience and discretion rather than a
rule of law - In at least three contingencies:
(i) Violation/infringement of fundamental
rights; (ii) Violation of the principles of
natural justice; (iii) the order or proceedings
being wholly without jurisdiction or the
vires of an Act being under challenge, this
Court
may
still
exercise
its
writ
jurisdiction.(Para-27)

Petitioner No.1 is the owner of the offending
vehicle/bus bearing registration No. PB-13E-9775 -
purchased from Petitioner No.2, on 6.5.2002 -
causing the accident dated 16.5.2002 - resulting
into death of one Sri Mahipal Singh - legal heirs of
late Mahipal Singh filed Motor Accident Claim for
grant of compensation under Section 166 of the
Motor Vehicles Act, 1988. (Para - 4)

HELD:- Petitioners have statutory alternative
remedy of appeal against the award dated
5.11.2004 passed by the Motor Accident Claims
9 All. Smt. Manju Mittal & Anr. Vs. The State of U.P. & Anr.
757
Tribunal, under Section 173 of the Motor
Vehicles Act. (Para-29)

Petition dismissed. (E-7)

List of Cases cited: -

1. V. Subbulakshmi & ors. Vs Lakshmi & anr.,
AIR 2008 SC 1256

2. Narendra Kumar & anr. Vs Yarenissa & ors.,
(1998) 9 SCC 202

3. Smt. Surinder Kaur Vs Motor Accident Claims
Tribunal/Special Judge AC Act, Bareily & anr.,
2009 (4) ALJ 613

4. Ghanshyam Gupta Vs United India Insurance
Co. Ltd & ors., 2012 (2) ALJ 406

5. Nivedita Sharma Vs Cellular Operators Assn.
Of India & ors., (2011) 14 SCC 337

6. Commissioner of Income Tax & ors. Vs
Chhabil Das Agarwal, (2014) 1 SCC603

7. Agarwal Tracom Pvt. Ltd. Vs Punjab National
Bank & ors., (2018) 1 SCC 626

8. Authorized Officer, State Bank of Travancore
& anr. Vs Mathew K.C. (2018) 3 SCC 85

9. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors., (1998) 8 SCC 1

10. Commissioner of Income Tax & ors.Vs
Chabil Das Agarwal, (2014) 1 SCC 603

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. I have heard Sri M.A. Mishra,
learned counsel for the petitioners and
learned Standing Counsel for Respondent
No.1 and perused the record.

2. As per office report dated
5.12.2019 the petitioners have not taken
steps to serve the Respondent No.2, The
New India Insurance Co. Ltd., in pursuance
of the order of this Court dated 29.8.2006.
The writ petition is listed for admission.

3. I proceed to consider the admission
of the writ petition.

4. The facts of the case are that the
petitioner No.1 is the owner of the
offending vehicle/bus bearing registration
No. PB-13E-9775 which she had purchased
from Petitioner No.2, on 6.5.2002, causing
the accident dated 16.5.2002 resulting into
death of one Sri Mahipal Singh. The legal
heirs of late Mahipal Singh filed Motor
Accident Claim No. 857 of 2002 (Smt.
Savitri Devi and others Vs. Sudha Singh
and others) for grant of compensation
under Section 166 of the Motor Vehicles
Act, 1988.

5. After contest the claim was allowed
by the Motor Accident Claims Tribunal,
Meerut (Special Judge/Anti Corruption)
vide judgment and award dated 5.11.2004
awarding compensation of Rs. 1,90,000/-
against opposite party No.2 and 3 in the
claim petition ( present petitioners) jointly
and severally with interest @ 6% and cost,
with further direction that the compensation
amount shall be indemnified by the New
India Insurance Company Ltd./Respondent
No.2 (in short the ''Insurance Company')
and it will be open to the Insurance
Company to recover the said amount either
from the insured (petitioner No.2) or from
the transferee of the vehicle.

6. It appears from the record that the
Insurance Company deposited an amount
of Rs. 2,15,455.00/- before the claims
tribunal on 21.12.2004 and thereafter filed
an application for recovery of that amount
from the petitioners in terms of the award
dated
5.11.2004
which
application,
registered as Misc. Case No.1 of 2005
(New India Insurance Company Ltd. Vs.
Sudha Singh and another)was allowed by
the Claims Tribunal by order dated
758 INDIAN LAW REPORTS ALLAHABAD SERIES
20.1.2006.
There
after
a
recovery
certificate dated 22.2.2006 under Section
174 of the Motor Vehicles Act, 1988 was
sent to the Collector/District Magistrate,
Muzaffar Nagar to recover the amount
from the petitioners as arrears of land
revenue and to pay the same to the
Insurance Company. In pursuance of the
recovery certificate dated 22.2.2006 the
District Magistrate, Muazffar Nagar on
17.3.2006 directed for necessary action
being taken as per law.

7. The petitioners have filed the
present writ petition challenging the award
dated 5.11.2004 and the order dated
22.2.2006 (Annexure Nos. 2 and 3
respectively) as well as for a direction to
the Claims Tribunal not to proceed further
in Misc. Case No. 1 of 2005, making
following prayers:-

"(1) issue a writ, order or
direction in the nature of writ of certiorari
for quashing the impugned judgment and
award dated 05.11.2004 and order dated
22.02.2006 passed by the Motor Accident
Claim Tribunal-1 Meerut Special Judge
Anti Corruption Act as contained in
Annexure Nos. 2 and 3 respectively to the
writ petition.

(2) issue a writ, order or
direction in the nature of writ of mandamus
commanding the Motor Accident Claim
Tribunal not to proceed further in Misc.
Case No. 1 of 2005"

(3) issue any suitable writ, order
or direction which this Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case.

(4) award the cost of the writ
petition in favour of the petitioners."

8. The learned Standing Counsel has
raised a preliminary objection that the
petitioners
have
equally
efficacious
alternative remedy to challenge the award
dated 5.11.2004 under Section 173 of The
Motor Vehicles Act, 1988 by filing appeal
and in view thereof the writ petition
deserves to be dismissed.

9. Learned counsel for the petitioners
has submitted that as the awarded amount
has been deposited by the Insurance
Company, the remedy of appeal is not
available under Section 173 of the Motor
Vehicles Act to the petitioners. He has next
submitted that the petitioners have no
remedy of appeal against the order dated
22.2.2006 also under challenge.

10. I have considered the submissions
advanced by the learned counsel for the
petitioners
and
the
learned
Standing
counsel and have perused the material on
record.

11. Section 173 of the Motor
Accident Act, 1988 provides as under:

"(1) Subject to the provisions of
sub-section (2) any person aggrieved by an
award of a Claims Tribunal may, within
ninety days from the date of the award,
prefer an appeal to the High Court:

Provided that no appeal by the
person who is required to pay any amount
in terms of such award shall be entertained
by the High Court unless he has deposited
with it twenty-five thousand rupees or fifty
per cent. of the amount so awarded,
whichever is less, in the manner directed by
the High Court:

Provided further that the High
Court may entertain the appeal after the
expiry of the said period of ninety days, if it
is satisfied that the appellant was prevented
by sufficient cause from preferring the
appeal in time.
9 All. Smt. Manju Mittal & Anr. Vs. The State of U.P. & Anr.
759

(2) No appeal shall lie against
any award of a Claims Tribunal if the
amount in dispute in the appeal is less than
ten thousand rupees."

12. A bare reading of Section 173 (1)
of the Motor Vehicle Act, 1988 shows that
any "person aggrieved" by the award of the
Claims Tribunal may within 90 days prefer
an appeal to the High Court, subject to the
provisions of sub Section (2) which
provides that no appeal shall lie against any
award of the Claims Tribunal if the amount
in dispute is less than ten thousand rupees.

13. In the case of V. Subbulakshmi &
Others Vs. Lakshmi & Anr. AIR 2008 SC
1256, where facts were that against the award of
the claims tribunal appeal was filed under
Section 173 (1) of the Motor Vehicles Act before
the High Court jointly by the Insurer and the
insured and the High Court held that no appeal
would be maintainable at the instance of the
Insurance Company unless permission was
obtained by it in terms of Section 170 of the Act
but observed that the owner of the vehicle being
the appellant, the appeal would be maintainable
at his instance, the Hon'ble Supreme Court
referring to the case of Narendra Kumar and
Another Vs. Yarenissa and others [(1998) 9
SCC 202] held that an appeal by the owner of
the vehicle is maintainable as he was an
aggrieved person, despite the fact that in terms of
an award, he was to be reimbursed by the
Insurance Company. Paragraph 13 of the said
judgment is being reproduced as under:

"13. In the instant case, the
owner of the bus was an aggrieved person.
He could maintain an appeal of his own.
Section 173 of the Act confers a right on
any aggrieved person to prefer an appeal
from an award."

Though this judgment is with
respect to the maintainability of the appeal
by the owner where in terms of the award
the owner was to be reimbursed by the
Insurance Company but the same principle
would apply with greater force in the
present case, in as much as here also the
liability for payment of compensation has
been fixed on the owner/petitioners and the
Insurance Company has been given the
right to recover the awarded amount from
the owner/petitioners after making its
payment to the claimants. The petitioners,
as such, are the persons aggrieved by the
award of the claims Tribunal which fixed
their liability for payment of compensation.

14. Section 174 of the Motor Vehicles
Act, 1988 provides as under:

"174. Recovery of money from
insurer as arrear of land revenue.--Where
any amount is due from any person under
an award, the Claims Tribunal may, on an
application made to it by the person
entitled to the amount, issue a certificate
for the amount to the Collector and the
Collector shall proceed to recover the same
in the same manner as an arrear of land
revenue."

15. In the case of Smt. Surinder
Kaur
Vs.
Motor
Accident
Claims
Tribunal/Special Judge AC Act, Bareily
& Another 2009 (4) ALJ 613 this Court in
paragraph nos. 8 and 12 held as under:

"8. From the simple reading of
the language of Section 174, it is
apparently clear that it confers a right
upon the person (named under the award
by the Tribunal) to recover the amount in
terms of the award from a person against
whom such an order has been passed. The
word ''any person' so used in the Section
would include the owner of the vehicle
provided in the award a direction against
760 INDIAN LAW REPORTS ALLAHABAD SERIES
the owner has been made. Similarly the
words ''the person entitled' would include
the
insurance
company
provided
a
direction in its favour has been made in the
award.

12. In view of the aforesaid, the
Tribunal is justified in recording a finding
that since the petitioner has not challenged
the main award, he cannot be permitted to
question
the
order
passed
on
the
application of the Insurance company
under Section 174 of the Act, 1988 qua
recovery of the amount in terms of the
award made by the Tribunal earlier."

16. In Ghanshyam Gupta Vs. United
India Insurance Co. Ltd and others 2012
(2) ALJ 406 this Court held that as in the
award the claimant was the person entitled to
recover the amount from the opposite party in
the claim petition in the manner it was directed
by the Tribunal it included the Insurance
Company as well as the petitioner. The
Insurance Company discharged its burden and
paid the amount to the claimant. Thereafter as
per direction in the award of the Tribunal, the
Insurance Company was entitled to recover the
amount from the petitioner, i.e. owner of the
vehicle. The application of the Insurance
company would also be covered by Section
174 of the Act. The relevant paragraphs 6 and
7 are being reproduced as under:

"6. Section 174 clearly provides,
when an amount is due to any person under
the award, if such a person moves an
application, the Claims Tribunal may issue
a certificate to the Collector for recovery of
the said amount from the person liable to
pay. The term 'person' used in section 174
has been defined in General Clauses Act as
under:

'Person'
shall
include
any
company or association or body of
individuals, whether incorporated or not.'

7. It includes natural and legal
person both. In the award, the claimant
was person entitled to recover the amount
from the opposite parties in the claim
petition in the manner it was directed by
the Tribunal. It included the insurance
company as well as the petitioner. The
insurance company discharged its burden
and paid the amount to the claimant.
Thereafter as per direction in the award of
the
Claims
Tribunal,
the
insurance
company was entitled to recover the
amount from petitioner, i.e., owner of the
vehicle,
Therefore,
the
insurance
company's application would also be
covered by section 174 of 1988 Act."

17. Thus in the present case the
Tribunal having provided that the Insurance
Company after indemnifying the claimants
of the awarded amount, for which the
petitioners were held liable, may recover
the same from the petitioners. The
application of the insurance company to
recover the amount from the petitioners
was competent under Section 174 of the
Motor Vehicles Act in terms of the award.
As such, unless there is a challenge to the
award dated 5.11.2004 the petitioners
cannot challenge the order dated 22.2.2006
on the same ground as taken to challenge
the award. The petitioners have not
challenged this order dated 22.2.2006 on
independent grounds. The petitioners have
challenged the award dated 5.11.2004 and
have raised the dispute that the claims
tribunal had no jurisdiction to direct
recovery of the awarded amount from the
petitioners by the insurance company, after
its payment to the claimants by the
insurance company. The challenge is that
such an award could not legally be passed.
The challenge to the order dated 22.2.2006
thus rests on challenge to the award dated
5.11.2004 and unless such challenge is
9 All. Smt. Manju Mittal & Anr. Vs. The State of U.P. & Anr.
761
successful
against
the
award
dated
5.11.2004
the
petitioner
cannot
be
successful in challenging the order dated
22.2.2006. The main grievance of the
petitioners, therefore, is against the award
dated 5.11.2004 and they are the persons
aggrieved against the award.

18. The submission of the petitioners'
counsel that the Insurance Company having
deposited the awarded amount before the
claims tribunal, the petitioners have no
remedy of appeal under Section 173,
deserves rejection being without substance.
The deposit has been made by the
insurance company pursuant to the liability
fixed upon the petitioners by the award and
the
petitioners
feel
aggrieved
from
imposition of such liability. The statute
does no where provide that if the insurance
company indemnifies the claimants the
appeal would not be maintainable at the
instance of the owners. The only exception
to the remedy of appeal under Section 173
is
that
the
awarded
amount
of
compensation is less than 10,000/- rupees.

19. Thus, I am of the considered view
that Section 173(1) of the Motor Vehicles
Act, 1988 is clearly attracted and as the
amount awarded is not less than Rs.
10,000/-, sub Section (2) of Section 173 is
not attracted. The petitioners, thus, have a
statutory remedy to file appeal under
Section 173(1) against the award dated
5.11.2004.

20. In the case of Nivedita Sharma
Vs. Cellular Operators Assn. Of India
and others reported in (2011) 14 SCC
337 the Hon'ble Apex Court has held that it
is settled in law that when a statutory forum
is created by law for redressal of grievances
a writ petition should not be entertained
ignoring
the
statutory
dispensation.
Paragraph Nos. 12,13 and 14 of the said
judgment are being reproduced as under:

12. We have considered the
respective arguments/submissions. There
cannot be any dispute that the power of the
High Courts to issue directions, orders or
writs including writs in the nature of
habeas corpus, certiorari, mandamus, quo
warranto and prohibition under Article 226
of the Constitution is a basic feature of the
Constitution and cannot be curtailed by
parliamentary
legislation
L.
Chandra
Kumar
v.
Union
of
India
MANU/SC/0261/1997MANU/SC/0261/199
7 : (1997) 3 SCC 261. However, it is one
thing to say that in exercise of the power
vested in it under Article 226 of the
Constitution, the High Court can entertain
a writ petition against any order passed by
or action taken by the State and/or its
agency/instrumentality
or
any
public
authority or order passed by a quasijudicial body/authority, and it is an
altogether different thing to say that each
and every petition filed under Article 226 of
the Constitution must be entertained by the
High Court as a matter of course ignoring
the fact that the aggrieved person has an
effective alternative remedy. Rather, it is
settled law that when a statutory forum is
created by law for redressal of grievances,
a writ petition should not be entertained
ignoring the statutory dispensation.

"13. In Thansingh Nathmal v.
Superintendent
of
Taxes
MANU/SC
/0255/1964MANU/SC/0255/1964
:
AIR
1964 SC 1419, this Court adverted to the
rule of self-imposed restraint that writ
petition will not be entertained if an
effective remedy is available to the
aggrieved person and observed:

The
High
Court
does
not
therefore act as a court of appeal against
the decision of a court or tribunal, to
762 INDIAN LAW REPORTS ALLAHABAD SERIES
correct errors of fact, and does not by
assuming jurisdiction under Article 226
trench
upon
an
alternative
remedy
provided by statute for obtaining relief.
Where it is open to the aggrieved Petitioner
to move another tribunal, or even itself in
another jurisdiction for obtaining redress
in the manner provided by a statute, the
High Court normally will not permit by
entertaining a petition under Article 226 of
the Constitution the machinery created
under the statute to be bypassed, and will
leave the party applying to it to seek resort
to the machinery so set up.

14. In Titaghur Paper Mills
Company Ltd. v. State of Orissa MANU/SC
/0317/1983MANU/SC/0317/1983 : (1983)
2 SCC 433. this Court observed:

It is now well recognised that
where a right or liability is created by a
statute which gives a special remedy for
enforcing it, the remedy provided by that
statute only must be availed of. This rule
was stated with great clarity by Willes, J. in
Wolverhampton New Waterworks Company
v. Hawkesford (1859) 6 CBNS 336: 141 ER
486 in the following passage:

... There are three classes of cases in
which a liability may be established founded
upon a statute.......Hut there is a third class, viz.,
where a liability not existing at common law is
created by a statute which at the same time
gives a special and particular remedy for
enforcing it.....The remedy provided by the
statute must be followed, and it is not competent
to the party to pursue the course applicable to
cases of the second class. The form given by the
statute must be adopted and adhered to.

The rule laid down in this
passage was approved by the House of
Lords in Neville v. London Express
Newspapers Ltd. 1919 AC 368: (1918-19)

All ER Rep. 61 (HL) and has been
reaffirmed by the Privy Council in Attorney
General of Trinidad and Tobago v. Gordon
Grant and Company Ltd 1935 AC 532 and
Secy, of State v. Mask and Company
MANU/PR/0022/1940MANU/PR/0022/194
0 : (1939-40) 67 IA 222: AIR 1940 PC 105.
It has also been held to be equally
applicable to enforcement of rights, and
has
been
followed
by
this
Court
throughout. The High Court was therefore
justified in dismissing the writ petitions in
limine."

21. In the case of Commissioner of
Income Tax and others Vs. Chhabil Das
Agarwal (2014) 1SCC603 the Hon'ble
Apex Court reiterated that it is now well
settled that where a right or liability is
created by a statute which gives a special
remedy for enforcing it, the remedy
provided by that statute only must be
availed of. Paragraph Nos. 14,15,16 and 17
of this judgment are being reproduced as
under:

"14. In the instant case, the only
question which arises for our consideration
and decision is whether the High Court was
justified in interfering with the order
passed by the assessing authority under
Section 148 of the Act in exercise of its
jurisdiction under Article 226 when an
equally efficacious alternate remedy was
available to the Assessee under the Act.

15. Before discussing the fact
proposition, we would notice the principle
of law as laid down by this Court. It is
settled law that non-entertainment of
petitions under writ jurisdiction by the
High Court when an efficacious alternative
remedy is available is a rule of selfimposed limitation. It is essentially a rule
of policy, convenience and discretion
rather than a rule of law. Undoubtedly, it is
within the discretion of the High Court to
grant relief under Article 226 despite the
existence
of
an
alternative
remedy.
9 All. Smt. Manju Mittal & Anr. Vs. The State of U.P. & Anr.
763
However, the High Court must not interfere
if
there
is
an
adequate
efficacious
alternative
remedy
available
to
the
Petitioner and he has approached the High
Court without availing the same unless he
has
made
out
an
exceptional
case
warranting such interference or there exist
sufficient
grounds
to
invoke
the
extraordinary jurisdiction under Article
226. (See: State of U.P. v. Mohammad
Nooh
MANU/SC/0125/1957MANU/SC/0125/195
7 : AIR 1958 SC 86; Titaghur Paper Mills
Co.
Ltd.
v.
State
of
Orissa
MANU/SC/0317/1983MANU/SC/0317/198
3 : (1983) 2 SCC 433; Harbanslal Sahnia
v. Indian Oil Corporation Ltd.

MANU/SC/1199/2002MANU/SC/1199
/2002 : (2003) 2 SCC 107; State of H.P. v.
Gujarat
Ambuja
Cement
Ltd.
MANU/SC/0421/2005MANU/SC/0421/200
5 : (2005) 6 SCC 499).

16. The Constitution Benches of
this Court in K.S. Rashid and Sons v.
Income Tax Investigation Commission
MANU/SC/0123/1954MANU/SC/0123/195
4 : AIR 1954 SC 207; Sangram Singh v.
Election
Tribunal,
Kotah
MANU/SC/0044/1955MANU/SC/0044/195
5 : AIR 1955 SC 425; Union of India v.
T.R.
Varma
MANU/SC/0121/1957MANU/SC/0121/195
7 : AIR 1957 SC 882; State of U.P. v.
Mohd.
Nooh
MANU/SC/0125/1957MANU/SC/0125/195
7
:
AIR
1958
SC
86
and
K.S.
Venkataraman and Co. (P) Ltd. v. State of
Madras
MANU/SC/0293/1965MANU/SC/0293/196
5 : AIR 1966 SC 1089 have held that
though Article 226 confers a very wide
powers in the matter of issuing writs on the
High Court, the remedy of writ absolutely
discretionary in character. If the High
Court is satisfied that the aggrieved party
can have an adequate or suitable relief
elsewhere, it can refuse to exercise its
jurisdiction. The Court, in extraordinary
circumstances, may exercise the power if it
comes to the conclusion that there has been
a breach of principles of natural justice or
procedure required for decision has not
been adopted.

(See: N.T. Veluswami Thevar v.
G.
Raja
Nainar
MANU/SC/
0094/1958MANU/SC/0094/1958
:
AIR
1959 SC 422; Municipal Council, Khurai v.
Kamal
Kumar
MANU/SC/
0227/1964MANU/SC/0227/1964 : (1965) 2
SCR
653;
Siliguri
Municipality
v.
Amalendu
Das
MANU/SC/0017/1984MANU/SC/0017/198
4 : (1984) 2 SCC 436; S.T. Muthusami v. K.
Natarajan
MANU/SC/0426/1988MANU/SC/0426/198
8 : (1988) 1 SCC 572; Rajasthan SRTC v.
Krishna
Kant
MANU/SC/0786/1995MANU/SC/0786/199
5 : (1995) 5 SCC 75; Kerala SEB v. Kurien
E.
Kalathil
MANU/S
C/0435/2000MANU/SC/0435/2000 : (2000)
6 SCC 293; A. Venkatasubbiah Naidu v. S.
Chellappan
MANU/SC/0581/2000MANU/SC/0581/200
0 : (2000) 7 SCC 695; L.L. Sudhakar
Reddy
v.
State
of
A.P.
MANU/SC/0445/2001MANU/SC/0445/200
1 : (2001) 6 SCC 634; Shri Sant Sadguru
Janardan
Swami
(Moingiri
Maharaj)
Sahakari Dugdha Utpadak Sanstha v. State
of
Maharashtra
MANU/
SC/0602/2001MANU/SC/0602/2001
:
(2001) 8 SCC 509; Pratap Singh v. State of
Haryana
MANU/SC/0832/2002MANU/SC/0832/200
2 : (2002) 7 SCC 484 and GKN Driveshafts
(India)
Ltd.
v.
ITO
MANU/SC/1053/2002MANU/SC/1053/200
2 : (2003) 1 SCC 72).
764 INDIAN LAW REPORTS ALLAHABAD SERIES

17.
In
Nivedita
Sharma
v.
Cellular Operators Assn. of India MANU/
SC/1538/2011MANU/SC/1538/2011
:
(2011) 14 SCC 337, this Court has held
that where hierarchy of appeals is provided
by the statute, party must exhaust the
statutory remedies before resorting to writ
jurisdiction for relief and observed as
follows:

12. In Thansingh Nathmal v.
Supdt.
of
Taxes
MANU/
SC/0255/1964MANU/SC/0255/1964 : AIR
1964 SC 1419 this Court adverted to the
rule of self-imposed restraint that the writ
petition will not be entertained if an
effective remedy is available to the
aggrieved person and observed: (AIR p.
1423, para 7).

7. ... The High Court does not
therefore act as a court of appeal against
the decision of a court or tribunal, to
correct errors of fact, and does not by
assuming jurisdiction under Article 226
trench
upon
an
alternative
remedy
provided by statute for obtaining relief.
Where it is open to the aggrieved Petitioner
to move another tribunal, or even itself in
another jurisdiction for obtaining redress
in the manner provided by a statute, the
High Court normally will not permit by
entertaining a petition under Article 226 of
the Constitution the machinery created
under the statute to be bypassed, and will
leave the party applying to it to seek resort
to the machinery so set up.

13. In Titaghur Paper Mills Co.
Ltd.
v.
State
of
Orissa
MANU/
SC/0317/1983MANU/SC/0317/1983
:
(1983) 2 SCC 433 this Court observed:
(SCC pp. 440-41, para 11)

11. ... It is now well recognised
that where a right or liability is created by
a statute which gives a special remedy for
enforcing it, the remedy provided by that
statute only must be availed of. This rule
was stated with great clarity by Willes, J. in
Wolverhampton New Waterworks Co. v.
Hawkesford 141 ER 486 in the following
passage: (ER p. 495)

... There are three classes of
cases in which a liability may be
established founded upon a statute. ... But
there is a third class viz. where a liability
not existing at common law is created by a
statute which at the same time gives a
special and particular remedy for enforcing
it.

The remedy provided by the
statute must be followed, and it is not
competent to the party to pursue the course
applicable to cases of the second class. The
form given by the statute must be adopted
and adhered to.

The rule laid down in this
passage was approved by the House of
Lords in Neville v. London Express
Newspapers Ltd. 1919 AC 368 and has
been reaffirmed by the Privy Council in
Attorney General of Trinidad and Tobago
v. Gordon Grant and Co. Ltd. 1935 AC 532
(PC) and Secy. of State v. Mask and Co.
MANU/PR/0022/1940MANU/PR/0022/194
0 : AIR 1940 PC 105 It has also been held
to be equally applicable to enforcement of
rights, and has been followed by this Court
throughout. The High Court was therefore
justified in dismissing the writ petitions in
limine.

14. In Mafatlal Industries Ltd. v.
Union
of
India
MANU/SC
/1203/1997MANU/SC/1203/1997 : (1997)
5 SCC 536 B.P. Jeevan Reddy, J. (speaking
for the majority of the larger Bench)
observed: (SCC p. 607, para 77)

77. ... So far as the jurisdiction of
the High Court under Article 226--or for
that matter, the jurisdiction of this Court
under Article 32--is concerned, it is
obvious that the provisions of the Act
cannot bar and curtail these remedies. It is,
9 All. Smt. Manju Mittal & Anr. Vs. The State of U.P. & Anr.
765
however,
equally
obvious
that
while
exercising
the
power
under
Article
226/Article 32, the Court would certainly
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."

22. In the case of Agarwal Tracom
Pvt. Ltd. Vs. Punjab National Bank and
others (2018) 1SCC 626 the Hon'ble Apex
Court reiterated the same principle once
again. Paragraph Nos. 33 and 34 are being
reproduced as under:-

33. In United Bank of India v.
Satyawati
Tondon
and
Ors.,
MANU/SC/0541/
2010MANU/SC/0541/2010 : (2010) 8 SCC
110, this Court had the occasion to
examine in detail the provisions of the
SARFAESI Act and the question regarding
invocation of the extraordinary power
Under Article 226/227 in challenging the
actions taken under the SARFAESI Act.
Their Lordships gave a note of caution
while dealing with the writ filed to
challenge the actions taken under the
SARFAESI
Act
and
made
following
pertinent observations which, in our view,
squarely apply to the case on hand:

42. There is another reason why
the impugned order should be set aside. If
Respondent 1 had any tangible grievance
against the notice issued Under Section
13(4) or action taken Under Section 14,
then she could have availed remedy by
filing an application Under Section 17(1).
The expression "any person" used in
Section 17(1) is of wide import. It takes
within its fold, not only the borrower but
also the guarantor or any other person who
may be affected by the action taken Under
Section 13(4) or Section 14. Both, the
Tribunal and the Appellate Tribunal are
empowered to pass interim orders Under
Sections 17 and 18 and are required to
decide the matters within a fixed time
schedule. It is thus evident that the
remedies available to an aggrieved person
under
the
SARFAESI Act
are
both
expeditious and effective.

43. Unfortunately, the High Court
overlooked the settled law that the High
Court will ordinarily not entertain a
petition
Under
Article
226
of
the
Constitution if an effective remedy is
available to the aggrieved person and that
this Rule applies with greater rigour in
matters involving recovery of taxes, cess,
fees, other types of public money and the
dues
of
banks
and
other
financial
institutions. In our view, while dealing with
the petitions involving challenge to the
action taken for recovery of the public
dues, etc. the High Court must keep in mind
that the legislations enacted by Parliament
and State Legislatures for recovery of such
dues are a code unto themselves inasmuch
as they not only contain comprehensive
procedure for recovery of the dues but also
envisage constitution of quasi-judicial
bodies for redressal of the grievance of any
aggrieved person. Therefore, in all such
cases, the High Court must insist that
before availing remedy Under Article 226
of the Constitution, a person must exhaust
the remedies available under the relevant
statute.

44.
While
expressing
the
aforesaid view, we are conscious that the
powers conferred upon the High Court
Under Article 226 of the Constitution to
issue to any person or authority, including
in appropriate cases, any Government,
directions, orders or writs including the
five prerogative writs for the enforcement
of any of the rights conferred by Part III or
for any other purpose are very wide and
there is no express limitation on exercise of
766 INDIAN LAW REPORTS ALLAHABAD SERIES
that power but, at the same time, we cannot
be oblivious of the Rules of self-imposed
restraint evolved by this Court, which every
High Court is bound to keep in view while
exercising power Under Article 226 of the
Constitution.

45. It is true that the Rule of
exhaustion of alternative remedy is a Rule
of discretion and not one of compulsion,
but it is difficult to fathom any reason why
the High Court should entertain a petition
filed Under Article 226 of the Constitution
and pass interim order ignoring the fact
that the Petitioner can avail effective
alternative remedy by filing application,
appeal, revision, etc. and the particular
legislation contains a detailed mechanism
for redressal of his grievance.

34. In the light of foregoing
discussion, we are of the considered
opinion that the Writ Court as also the
Appellate Court were justified in dismissing
the Appellant's writ petition on the ground
of availability of alternative statutory
remedy of filing an application Under
Section 17(1) of SARFAESI Act before the
concerned Tribunal to challenge the action
of the PNB in forfeiting the Appellant's
deposit under Rule 9(5). We find no ground
to interfere with the impugned judgment of
the High Court."

23. In the case of Authorized
Officer, State Bank of Travancore and
another Vs. Mathew K.C. (2018)3 SCC
85 the Hon'ble Apex Court has held as
under in paragraph No.6:

"6. We have considered the
submissions on behalf of the parties.
Normally
this
Court
in
exercise
of
jurisdiction Under Article 136 of the
Constitution is loathe to interfere with an
interim
order
passed
in
a
pending
proceeding before the High Court, except
in
special
circumstances,
to
prevent
manifest injustice or abuse of the process of
the court. In the present case, the facts are
not in dispute. The discretionary jurisdiction
Under Article 226 is not absolute but has to
be exercised judiciously in the given facts of a
case and in accordance with law. The normal
Rule is that a writ petition Under Article 226
of the Constitution ought not to be
entertained if alternate statutory remedies
are available, except in cases falling within
the well defined exceptions as observed in
Commissioner of Income Tax and Ors. v.
Chhabil
Dass
Agarwal,
MANU/SC/0
802/2013MANU/SC/0802/2013 : 2014 (1)
SCC 603, as follows:

15. Thus, while it can be said that
this Court has recognised some exceptions
to the Rule of alternative remedy i.e. where
the statutory authority has not acted in
accordance with the provisions of the
enactment in question, or in defiance of the
fundamental
principles
of
judicial
procedure, or has resorted to invoke the
provisions which are repealed, or when an
order has been passed in total violation of
the principles of natural justice, the
proposition
laid
down
in
Thansingh
Nathmal case, Titaghur Paper Mills case
and other similar judgments that the High
Court will not entertain a petition Under
Article 226 of the Constitution if an
effective alternative remedy is available to
the aggrieved person or the statute under
which the action complained of has been
taken itself contains a mechanism for
redressal of grievance still holds the field.
Therefore, when a statutory forum is
created by law for redressal of grievances,
a writ petition should not be entertained
ignoring the statutory dispensation."

24. There are also well defined
exceptions to the rule of exhaustion of
alternative statutory remedies.
9 All. Smt. Manju Mittal & Anr. Vs. The State of U.P. & Anr.
767

25. In the case of Whirlpool
Corporation Vs. Registrar of Trade Marks,
Mumbai and others (1998) 8 SCC 1 the
Hon'ble Apex Court held as under in
paragraph Nos. 15 to 20 which are being
quoted as under:-

15. Under Article 226 of the
Constitution, the High Court, having
regard to the facts of the case, has
discretion to entertain or not to entertain a
writ petition. But the High Court has
imposed upon itself certain restrictions one
of which is that if an effective and
efficacious remedy is available, the High
Court would not normally exercise its
jurisdiction.

But the alternative remedy has
been consistently held by this court not to
operate as a bar in at least three
contingencies, namely, where the Writ
Petition has been filed for the enforcement
of any of the Fundamental rights or where
there has been a violation of the principle
of natural justice or where the order or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged.

There is a plethora of case law on
this point but to cut down this circle of
forensic whirlpool we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the
field.

16. Rashid Ahmad v. Municipal
Board,
kairana,
MANU/SC/0005/
1950MANU/SC/0005/1950
:
[1950]1SCR566 , laid down that existence
of an adequate legal remedy was a factor
to be taken into consideration in the matter
of granting Writs. This was followed by
another Rashid case, namely, K.S. Rashid
& Son v. The Income Tax Investigation
Commissioner,
MANU/SC/0123/1954MANU/SC/0123/195
4 : [1954] 25ITR167 (SC) which reiterated
the above proposition and held that where
alternative remedy existed, it would be a
sound exercise of discretion to refuse to
interfere in a petition under Article 226.
This proposition was, however, qualified by
the significant words, "unless there are
good grounds therefor", which indicated
that alternative remedy would not operate
as an absolute bar and that Writ Petition
under Article 226 could still be entertained
in exceptional circumstances.

17. Specific and clear rule was
laid down in State of U.P. v. Mohd. Nooh,
MANU/SC/
0125/1957MANU/SC/
0125/1957:[1958]1SCR595, as under :

"But this rule requiring the
exhaustion of statutory remedies before the
Writ will be granted is a rule of policy
convenience and discretion rather than a
rule of law and instances are numerous
where a writ of certiorari has been issued
in spite of the fact that the aggrieved party
had other adequate legal remedies."

18.
This
proposition
was
considered by a Constitution Bench of this
Court in A. V. Venkateswaran, Collector of
Customs. Bombay v. Ramchand Sobhraj
Wadhwani and Anr., MANU/ SC/ 0158/
1961
MANU/
SC/
0158/
1961:1983ECR2151D(SC)
and
was
affirmed and followed in the following
words: