Rule requiring the exhaustion of available statutory remedies before filing writ is a rule of discretion rather than a rule of law: Patna High Court.

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 105421 Saurav Kumar Sharma age about 49 yearsSon of Late Bipin Bihari Das Resident of Salona Kunj Near Paani Tanki Kidwaipuri Buddha Colony PS Kotwali District Patna 800001 presently residing at Flat no.604 Mani Orchid Apartment Above Amway Office Near Neelkanth Sweets RPS More Bailey Road Patna 801503 The State of Bihar through the Principal Secretary Urban Development Department Government of Bihar Patna The Adjudicating Officer Real Estate Regulatory AuthorityBihar ... Petitioner s 3. Om Prakash Son of unknown Resident of 306 SS Vihar ApartmentKarbigahia Patna 800001 Prashant Kumar Son of Unknown Resident of 201 SS Vihar Apartment South of Rly Super Speciality Hospital) Karbigahia Patna 800001 Rani Kumari Wife of Amarendra Kumar Srivastava Resident of 406 SS Vihar Apartment Karbigahia Raghwendra Kumar Singh Son of Unknown Resident of 304 SS Vihar Apartment Karbigahia Patna 7. M s Meridian Construction India Ltd. through its Chairman Cum Managing Director Mr. Abu Dojana having its registered office at Haroon Nagar Sector II PS Phulwari Sharif District Patna ... Respondent s For the Petitioner s For the State R1 : Ms. Shama Sinha Advocate Mr. Raj Kishore Roy GP 18 with Ms. Prerana Anand AC to GP 18 Mr. Vikash Kumar Advocate For the RERA R2 CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 17 06 2021 The matter has been heard via video conferencing 2. Heard Ms. Shama Sinha learned counsel for the petitioner Mr. Raj Kishore Roy learned Government Pleader 18 Patna High Court CWJC No.105421 dt.17 06 2021 along with Ms. Prerana Anand learned Assistant Counsel to Government Pleader 18 for the State Respondent No. 1 and Mr Vikash Kumar learned counsel for the Bihar Real Estate Regulatory Authority referred to as ‘RERA’) Respondent No. 2 3. The petitioner has moved the Court for the following “(i) For quashing of the part of the second direction passed in operating part of the order dated 29.04.2021by Real Estate Regulatory Authority Bihar whereby it has decided the question of title of land of the petitioner over which the Petitioner’s family had exclusive title and peaceful uninterrupted possession since the year 1970. The authority vide order dated 29.04.2021 has directed to demolish the Petitioner’s hotel and to handover the possession to the developer builder inspite of the statement made by the builder developer that the land belongs to the landowner and the developer cannot interfere with regard to the title of the said land. The Petitioner could not obtain certified copy of the impugned order as the authority is not functioning since 24.04.2021 and will not function till 16 May 2021 due to Covid 19 pandemic ii) For protection from the demolition order dated 29.04.2021 passed by Real Estate Regulatory Authority landowner during the period when neither the authority nor the appellate Tribunals are functioning and COVID 19 pandemic restrictions Bihar against iii) For any other relief(s) which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” Patna High Court CWJC No.105421 dt.17 06 2021 4. At the outset learned counsel for the RERA raised a preliminary objection. He submitted that in view of the Bihar Real Estate Appellate Tribunalbeing functional to which an appeal lies against the impugned order the present writ petition may not be entertained by the Court 5. Learned counsel for the petitioner submitted that at the time when the writ petition was filed the Appellate Tribunal was not fully functional and because of the urgency involved she had preferred the present writ petition. However in view of the stand of learned counsel for RERA that the Appellate Tribunal was functioning now it was submitted that the petitioner may be permitted to move before the Appellate Tribunal 6. Learned counsel also submitted that the Court may lay down a time frame where at least a first hearing be granted by the Appellate Tribunal inasmuch as the question of interim protection relief is concerned 7. Learned counsel for RERA does not object to the aforesaid request(s) by the petitioner 8. It is not out of place to note Sections 44 and 58 of the Real EstateAct 2016The appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal 2) Every appeal made under sub sectionOn receipt of an appeal under sub section 1) the Appellate Tribunal may after giving the parties an opportunity of being heard pass such orders including interim orders as it thinks fit 4) The Appellate Tribunal shall send a copy of every order made by it to the parties and to the Authority or the adjudicating officer as the case may be 5) The appeal preferred under sub section 1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within a period of sixty days from the date of receipt of appeal Provided that where any such appeal could not be disposed of within the said period of sixty days the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within that period 6) The Appellate Tribunal may for the purpose of examining the legality or propriety or correctness of any order or decision of the Authority or the adjudicating officer on its own motion or otherwise Patna High Court CWJC No.105421 dt.17 06 2021 call for the records relevant to deposing of such appeal and make such orders as it thinks fit 58. Appeal to High Court.—Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure 1908No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.’ 9. Thus a bare perusal of the afore extracted provisions of the Act make clear the Scheme of the Act that an appeal from an order of the RERA or the Adjudicating Officer as the case may be would lie to the Appellate Tribunal under Section 44 and an appeal from the Appellate Tribunal would lie to the High Court under Section 58 10. There is no cavil with the proposition that when a statutory remedy of appeal is provided under any enactment ordinarily the High Court ought to be circumspect in interfering under Article 226 of the Constitution of India. However it is no Patna High Court CWJC No.105421 dt.17 06 2021 res integra that any such circumspection and or restraint is merely self imposed and is not nor can it be construed as a total bar to exercise of powers in extraordinary writ jurisdiction 11. In M. P. State Agro Industries Development Corpn Ltd. v Jahan Khan 10 SCC 88 the Hon’ble Supreme ‘12. Before parting with the case we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent the High Court ought not to have entertained his petition filed under Articles 226 227 of the Constitution. There is no gainsaying that in a given case the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of the availability of an alternative remedy a writ court may still exercise its discretionary jurisdiction of judicial review in at least three contingencies namely where the writ petition seeks enforcement of any of the fundamental rights ii) where there is failure of principles of natural justice or iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances an alternative remedy does not operate as a Trade Marks8 SCC 1] Harbanslal Sahnia v. Indian Oil Corpn. Ltd.2 SCC 107] State of H.P. v. Gujarat Ambuja Cement Ltd.6 SCC 499] and Sanjana M Wig v. Hindustan Petroleum Corpn. Ltd.8 SCC Corpn. v. Registrar of 13 13. This Court had the occasion to consider the said issue and following the dicta in Mohammad Nooh and Maharashtra Chess Associationin Order dated 22.12.2020 in Lalit Narain Mithila University & Anr. v National Council for Teacher Education & Ors. CWJC No.9421 of 2020 opined ‘16.1. In this context it is appropriate to refer to the Constitution Bench judgment in State of Uttar Pradesh v. Mohammad Nooh MANU SC 0125 1957: 1958 SCR 595 the relevant paragraph reading 10. In the next place it must be borne in mind that there is no rule with regard to certiorari as there is with mandamus that it will lie only where there is no other equally effective remedy. It is well established that provided the requisite grounds exist certiorari will lie although a right of appeal has been conferred by statute Halsbury s Laws of England 3rd Edn. Vol. 11 p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should in exercise of its discretion issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to Patna High Court CWJC No.105421 dt.17 06 2021 interfere until the aggrieved party has exhausted his other statutory remedies if any. 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 16.2. The aforesaid paragraph from Mohammad Nooh has been approvingly referred to by the Hon ble Supreme Court in Maharashtra Chess Association v. Union of India 2019 SCC OnLine SC 932 in the 24. The principle that the writ jurisdiction of a High Court can be exercised where no adequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Pradesh v. Mohammad Nooh... 17. It is not required in present to cite further authorities of the Hon ble Supreme Court on this subject Suffice it will to state the following settled principles of being i) Powers under Article 226 discretionary may not be exercised if there exists an alternative efficacious remedy. However this is merely a self imposed restraint ii) In appropriate situations the High Court in its writ jurisdiction can entertain writ petitions even if there exists an alternative efficacious remedy. There is no nor can there be an absolute bar to such exercise of iii) A fortiori in the absence of an alternative efficacious remedy or where no remedy lies recourse to writ jurisdiction of the High Court would always be available to an aggrieved party.’ Patna High Court CWJC No.105421 dt.17 06 2021 underlining in original emphasis supplied 14. The reasoning in Lalit Narain Mithila University supra) has been followed by this Court in Judgement dated 04.03.2021 in Sonalika Rani v The Central Board of Secondary Education New Delhi & Ors. CWJC No. 88820 BLJ 699]. That apart while paragraph 21 of Maharashtra Chess Association supra) has been noticed in Lalit Narain Mithila University supra) the following paragraphs additionally from Maharashtra Chess Associationare instructive ‘11. Article 226(1) of the Constitution confers on High Courts the power to issue writs and consequently the jurisdiction to entertain actions for the issuance of writs. Notwithstanding anything in Article 32 every High Court shall have power throughout the ter ritories in relation to which it exercises jurisdiction to issue to any person or authority including in appropri ate cases any Government within those territories dir ections orders or writs including writs in the nature of habeas corpus mandamus prohibition quo war ranto and certiorari or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.”] The text of Article 226(1) provides that a High Court may issue writs for the enforcement of the fundamental rights in Part III of the Constitution or “for any other purpose”. A citizen may seek out the writ jurisdiction of the High Court not only in cases where her fundamental right may be infringed but a much wider array of situations. Lord Coke comment ing on the use of writs by courts in England stated Patna High Court CWJC No.105421 dt.17 06 2021 “The Court of King s Bench hath not only the authority to correct errors in judicial proceedings but other errors and misdemeanourstending to the breach of peace or oppression of the subjects or raising of faction controversy debate or any other manner of misgovernment so that no wrong or in jury public or private can be done but that this shall be reformed or punished by due course of law …”11 Co Rep 93b : 77 12. Echoing the sentiments of Lord Coke this Court in U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Ton don2 SCC 41 :1 SCC352 observed that:1 SCR 753 : AIR 1961 SC 1506] a Consti tution Bench of this Court held that the nature of power exercised by the High Court under its writ jurisdiction is inherently dependent on the threat to the rule of law arising in the case before it:3 SCC 625 L. Chandra Kumar v. Union of India 3 SCC 261 : 1997 SCC 15. These principles are set out in the decisions of this Court in numerous cases and we need only mention a few to demonstrate the consistent manner in which they have been reiterated. In State of U.P. v. Indian Hume Pipe Co. Ltd.2 SCC 724 : 1977 SCC335] this Court observed that the High Court s decision to exer cise its writ jurisdiction is essentially discretionary SCC p. 728 para 4 “4. … It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court.” 19. This argument of the second respondent is mis conceived. The existence of an alternate remedy whether adequate or not does not alter the fundament ally discretionary nature of the High Court s writ juris diction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an ac tion under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case 20. This understanding has been laid down in several decisions of this Court. In U.P. State Spg. Co Ltd. v. R.S. Pandey8 SCC 264 : 2006 SCC78] this Court held:Act 1976 the power relating to alternative remedy has been considered to be a rule of self im posed 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 or discretion of the High Court to grant relief under Article 226 of the Con stitution. At the same time it cannot be lost sight of that though the matter relating to an alternative rem edy has nothing to do with the jurisdiction of the Patna High Court CWJC No.105421 dt.17 06 2021 case normally the High Court should not interfere if there is an adequate efficacious alternative remedy.” 22. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdic tion. It is a factor to be taken into consideration by the High Court amongst several factors. Thus the mere fact that the High Court at Madras is capable of grant ing adequate relief to the appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter.’ 15. On a conspectus of the afore referred authorities it is clear that the principles culled out in Paragraph 17 of Lalit Narain Mithila Universityare in consonance with the law as expounded by the Hon’ble Supreme Court. As such it would be in the discretion of the Writ Court to entertain a petition even when there exists an alternative remedy regard being had to all relevant facts and circumstances peculiar to the concerned case. The position in law stands clarified 16. The present writ petition was filed when as per the petitioner the Appellate Tribunal was not fully functional. Further the impugned order insofar as it relates to demolition was one which could have caused the petitioner an irreparable injury. Such being the nature and facts of the case at the time of filing of this Patna High Court CWJC No.105421 dt.17 06 2021 writ petition the inescapable conclusion is that the present writ petition would be entertainable by this Court in its discretion. 17. However in view of the position of learned counsel for RERA which is agreeable to the petitioner the writ petition is disposed off granting liberty to the petitioner to move the Appellate Tribunal under Section 44 of the Act. Learned counsel for the petitioner undertakes that the same will be done within a week from today. Thereafter the Appellate Tribunal will take up the matter within a week from the date of filing of the statutory appeal and consider the prayer for interim protection if raised by 18. It is clarified that the Court has neither delved into nor examined the merits of the matter. (Ahsanuddin Amanullah J

Summary: On 17th of June, the Hon’ble Mr. Justice Ahsanuddin Amanullah decreed in a matter concerning powers of the High Court under Article 226 of the Indian Constitution saying, “it would be in the discretion of the Writ Court to entertain a petition even when there exists an alternative remedy, regard being had to all relevant facts and circumstances peculiar to the concerned case. The position in law stands clarified” in Saurav Kumar Sharma Vs. The State of Bihar through the Principal Secretary, Urban Development Department[Civil Writ Jurisdiction Case No. 10543 of 2021].   The Brief facts of the case are, the petitioner owned land whose title has not been disputed since 1970. He has a hotel constructed on this land. On 24.04.2021, the Real Estate Regulation Authority(RERA), Bihar, passed an order directing the demolition of the petitioner’s hotel and to handover the possession to the developer. The petitioner has filed a writ in the High court since neither the authority or the appellate tribunals were functioning due to the Covid-19 restrictions. The issue was whether the High court could interfere in this matter asper Article 226. 
The learned counsel for the respondent submitted that Appellate tribunal  was being functional and thus the writ may not be entertained by the court. However, the learned counsel for the petitioner submitted that since the situation was extremely urgent and the tribunal was not fully functional, they resorted to a writ before this court.
The Hon’ble judge Mr. Justice Ahsanuddin Amanullah, after listening to both the sides adjudged that such a restraint is merely self-imposed and cannot be a total bar to exercise powers in extraordinary writ jurisdiction. The court relied on Lalit Narain Mithila University &amp; Anr. v National Council for Teacher Education &amp; Ors.,[CWJC No.9421 of 2020] where the court held that, “While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court’s writ jurisdiction may be engaged. First, the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the court’s decision to exercise or refuse to exercise its writ jurisdiction are self-imposed. It is a well-settled principle that the writ jurisdiction of a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial juris- diction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution”. In the current case, the High Court disposed off the Writ Petition granting liberty to the petitioner to move it to the appellate tribunal which was directed to take up the matter within a week.
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 The learned counsel for the respondent submitted that Appellate tribunal  was being functional and thus the writ may not be entertained by the court. However, the learned counsel for the petitioner submitted that since the situation was extremely urgent and the tribunal was not fully functional, they resorted to a writ before this court.