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2023 DIGILAW 398 (HP)

Brij Bala Rana v. State of H. P.

2023-07-11

SATYEN VAIDYA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. CMP (M) No. 241/2023 For the reasons stated in the application, delay of 57 days in filing of the appeal is ordered to be condoned. The application stands disposed of. LPA No.114/2023 Be registered. 2. The appellant is the writ petitioner, who, aggrieved by dismissal of her writ petition, has filed the instant appeal. 3. The appellant approached the learned writ court for grant of following substantive relief:- “that a writ in the nature of mandamus may very kindly be issued thereby directing respondent No.1 to respondent No.3 to oust respondent No.4 from the house of petitioner.” 4. In the writ petition, the appellant arrayed the State authorities as respondents No. 1 to 3, whereas her daughter-in-law as respondent No.4. 5. Learned writ court confronted the appellant with the issue of maintainability of the writ petition in terms of prayer made therein and the appellant in turn relied upon provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, the Act). 6. Learned writ court came to the conclusion that since the Act had not been made applicable to the State of Himachal Pradesh by issuance of necessary notification in the official gazette, therefore, the writ petition was not maintainable. 7. Learned counsel for the appellant would contend that the findings of the learned writ court were erroneous inasmuch as provisions of Article 21 of the Constitution of India have not been at all taken into consideration by the learned writ court. 8. We have heard the learned counsel for the appellant and the learned Advocate General. 9. It is more than settled law that the High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution of India, if an effective and efficacious alternative remedy is available, however existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This issue has been considered, in detail, by Three-Judge Bench of the Hon’ble Supreme Court in M/s Magadh Sugar & Energy Ltd. vs. The State of Bihar, 2021 (11) SCALE 350 . It shall be apt to reproduce necessary observations as contained in paras 19 and 20 of the judgment, which reads as under:- 19. This issue has been considered, in detail, by Three-Judge Bench of the Hon’ble Supreme Court in M/s Magadh Sugar & Energy Ltd. vs. The State of Bihar, 2021 (11) SCALE 350 . It shall be apt to reproduce necessary observations as contained in paras 19 and 20 of the judgment, which reads as under:- 19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai and Harbanslal Sahni v. Indian Oil Corporation Ltd. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors. a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed: “28. The principles of law which emerge are that: (i) 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; (ii) The High Court has the discretion not to entertain a writ petition. This Court has observed: “28. The principles of law which emerge are that: (i) 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; (ii) 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; (iii) 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 order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) 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 (vi) In cases where there are disputed questions of fact, 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 would not readily be interfered with.” (emphasis supplied) The principle of alternate remedies and its exceptions was also reiterated recently in the decision in Assistant Commissioner of State Tax v. M/s Commercial Steel Limited. In State of HP v. Gujarat Ambuja Cement Ltd. this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed: “23. In State of HP v. Gujarat Ambuja Cement Ltd. this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed: “23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [ (1970) 2 SCC 355 : AIR 1971 SC 33 ] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition.” 20. The above principle was reiterated by a three-judge Bench of this Court in Executive Engineer v. Seetaram Rice Mill 24. In that case, a show cause notice/provisional assessment order was issued to the assessee on the ground of Civil Appeal No. 5121 of 2021 an unauthorized use of electricity under Section 126 (1) of the Electricity Act 2003 and a demand for payment of electricity charges was raised. The assessee contended that Section 126 was not applicable to it and challenged the jurisdiction of the taxing authorities to issue such a notice, before the High Court in its writ jurisdiction. The High Court entertained the writ petition. When the judgement of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities. This Court made the following observations: “81. The High Court entertained the writ petition. When the judgement of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the revenue authorities. This Court made the following observations: “81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. 82. It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above stated class of cases. It is a settled principle that the courts/tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous—lex neminem cogit ad vana seu inutilia—the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail...” (emphasis supplied). 10. In view of aforesaid exposition of law, this Court has no difficulty in concluding that writ remedy is an extraordinary remedy without doubt, but does not the panacea of all evils. 10. In view of aforesaid exposition of law, this Court has no difficulty in concluding that writ remedy is an extraordinary remedy without doubt, but does not the panacea of all evils. The writ petition is not maintainable in respect of dispute between two private parties, which is the case at hand. The State has been impleaded as a party, but it has no role in the matter of adjudicating upon the issues that have been raised. In coming to such conclusion, we are duly fortified by judgment rendered by Hon’ble Supreme Court in Shalini Shaym Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329 . It shall be apt to reproduce para 51 of the judgment, which reads as under:- It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. 11. Perusal of the averments contained in the writ petition would clearly go to show that the dispute therein is clearly between the appellant and her daughter in law, who has been arrayed as respondent No.4. 12. As observed above, this is purely a private dispute, where the State or its authorities has no role to play. Therefore, we find no factual or legal error in the judgment before us. Consequently, the same is affirmed. 13. The instant appeal is dismissed, in the aforesaid terms, so also the pending application(s), if any.