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Necessary to Exhaust other Efficacious Remedy Before Filing Writ Petition

Efficacious remedy implies a form of relief that can be obtained at a different forum from the current forum. It is generally necessary to exhaust other efficacious remedy before filing writ petition because the inherent powers of the High Courts to issue prerogative writs or order in terms of Article 226 of the Constitution is discretionary and the High Court bars the claimant from invoking the extraordinary jurisdiction of the High Court in the instances where the claimant has a remedy available to him elsewhere (for example an appeal before a Tribunal or an appeal system within the organization). Thus, a Writ Petition can only be filed if the person who approached the High Court without availing such alternative remedy made a strong case or that there exist good grounds to invoke the extra ordinary writ jurisdiction. The writ petitioners must make out any exceptional case for the purpose of exercising the writ jurisdiction when there is an efficacious alternative remedy by way of statutory appeal before the statutory authority. However, where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedy before resorting to writ jurisdiction, except when a very strong case is made out for making a departure.

In State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. AIR 2005 SC 3856 it has been held that

“….power relating to alternative remedy has been considered to be a rule of self- imposed limitation. It is essentially a rule of policy, convenience &and discretion &and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction of description of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should not ensure that he has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction.”

“….normally the High Court should not interfere if there is an adequate efficacious alternative remedy…..”

“……..the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere.”

Further, the Apex Court stated that:

“There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.”

The High Court of Jharkhand in case of Managing Director, District Co-operative Milk Union Ltd. v. Presiding Officer State Consumer Disputes Redressal Commission &and Others AIR 2004 Jharkhand 101 observed in para 4 that existence of alternative remedy by way of revision to National Commission is no bar to maintainability of writ petition, &and submitted that the petition is maintainable despite efficacious alternative remedy available to the petitioner.

In Ram and Shyam Company v. State of Haryana 1985 AIR 1147 the Supreme Court specifically made is clear as under: “Where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Art. 226 &and such a petition cannot be rejected on the ground that an appeal lies to the higher officer of the State Government. An appeal in all cases cannot be said to provide in all situation an alternative effective remedy keeping aside the nice distinction between jurisdiction &and merits.

The Supreme Court in case of L.K. Verma v. HMT Ltd 2006 (2) SC 99 held that:

“The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the Act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar.”

Overall, the petitioner must be able to prove that the remedy available isn’t efficacious and it would lead to unnecessary inconvenience or delay so it is incumbent upon the High Court to hear the Writ Matter and pass a reasonable order, even if there is alternative remedy available.

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