Case: Orissa Power Transmission Corp.Ltd Vs. Asian School Of Business Mgmt.Trust &amp;Ors

the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 [A.N. Venkateswaran v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 ]. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa (1964) 2 SCR 879 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 [Tilokchand Motichand v. H.B. Munshi (1969) 1 SCC 110 ]. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 [K.S. Rashid and Son v. Income Tax Investigation Commission AIR 1954 SC 207 ]. Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. In this case, admittedly, the appellant has withdrawn the suit two weeks after the suit had been filed. In other words, the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court?s reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable.? 27. The ratio of the above extracted observations is that the Court will not allow a party to pursue two remedies simultaneously. The proposition laid down by this Court does not help the cause of respondent No.1. Instead, the same can be relied upon for holding that the Division Bench of the High Court committed an error by setting aside the order of the learned Single Judge who had non-suited respondent No.1 on the ground that it had not only availed parallel remedies but pursued the same till the writ appeal filed against the order of the learned Single Judge was entertained.28. The finding recorded by the Division Bench of the High Court that the scheme was not in consonance with Sections 28 and 29 of the Act is also erroneous. In response to the observation made by the High Court on 25.3.2011, Shri Amar Nath Mohanty filed further affidavit dated 29.3.2011, paragraphs 3 to 6 of which are extracted below:?3. That the nomenclature of the schemes like Chandaka-Bidanasi- Mendhasal are only indicative in nature for internal project planning, while actual construction takes place after survey of the line and alignment and tower spotting are finalized in accordance with the notified scheme. These details are kept in the office. In the instant case, the land schedule etc., are not available but the profile of the said portion is available which is enclosed herewith as Annexure-M/l .4. That there are several examples where the name of sub-station is different from its specific site locations. For example the Chandaka Grid Sub-station is in Patia Mouza written in brackets as Chandaka Industrial Estate, the "Bargarh Grid Sub-station" in Bhubaneswar is in Kesura Village and Jharsuguda Grid Sub-station is in Village sarasmala.5. That the line work has been completed from both Mendhasal and Bidanasi end; except this small portion which is left out; the line alignment is already fixed with two remaining towers coming in the area of ASBM. So further change cannot be made.6. That the Appellants in course of arguments have also produced a Map before this Honble Court which has also been annexed by the Respondents as Annexure-H/1 to the Affidavit filed by the Respondents on 25.03.2011 and the said Map clearly discloses that two towers are to be erected on the land of ASBM.?29. In our view, the explanation given for not incorporating full details of the scheme in the notifications should have been accepted by the High Court and there was no justification to direct re-routing of the transmission line on the specious ground of non-compliance of the two provisions.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]27. The ratio of the above extracted observations is that the Court will not allow a party to pursue two remedies simultaneously. The proposition laid down by this Court does not help the cause of respondent No.1. Instead, the same can be relied upon for holding that the Division Bench of the High Court committed an error by setting aside the order of the learned Single Judge who hadrespondent No.1 on the ground that it had not only availed parallel remedies but pursued the same till the writ appeal filed against the order of the learned Single Judge was entertained.28. The finding recorded by the Division Bench of the High Court that the scheme was not in consonance with Sections 28 and 29 of the Act is also erroneous. In response to the observation made by the High Court on 25.3.2011, Shri Amar Nath Mohanty filed further affidavit dated 29.3.2011, paragraphs 3 to 6 of which are extracted below:?3. That the nomenclature of the schemes likeMendhasal are only indicative in nature for internal project planning, while actual construction takes place after survey of the line and alignment and tower spotting are finalized in accordance with the notified scheme. These details are kept in the office. In the instant case, the land schedule etc., are not available but the profile of the said portion is available which is enclosed herewith as.4. That there are several examples where the name ofis different from its specific site locations. For example the Chandaka Gridis in Patia Mouza written in brackets as Chandaka Industrial Estate, the "Bargarh Gridin Bhubaneswar is in Kesura Village and Jharsuguda Gridis in Village sarasmala.5. That the line work has been completed from both Mendhasal and Bidanasi end; except this small portion which is left out; the line alignment is already fixed with two remaining towers coming in the area of ASBM. So further change cannot be made.6. That the Appellants in course of arguments have also produced a Map before this Honble Court which has also been annexed by the Respondents asto the Affidavit filed by the Respondents on 25.03.2011 and the said Map clearly discloses that two towers are to be erected on the land of ASBM.?29. In our view, the explanation given for not incorporating full details of the scheme in the notifications should have been accepted by the High Court and there was no justification to directof the transmission line on the specious ground ofof the two provisions.