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Holding that “entertainability” and “maintainability” of a writ petition are distinct concepts, the Supreme Court has held that the fine but real distinction between the two ought not to be lost sight of.
The Supreme Court has recently held that writ petitions cannot be termed as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction.
"The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself", a bench of Justices S Ravindra Bhat and Dipankar Datta has held.
The Top Court has further observed that Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs.
"While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal", the court has further observed.
The division bench has further opined that it is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not.
"One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition not maintainable", Court has added.
Availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that 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 Supreme Court has held.
Referring to the concepts of entertainability and maintainability as two distinct concepts, the court has held that a writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed 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, however, examining whether an exceptional case has been made out for such entertainment would not be proper, the bench has added.
Case Title: M/S GODREJ SARA LEE LTD vs. THE EXCISE AND TAXATION OFFICERCUM-ASSESSING AUTHORITY & ORS.