Paper Mills Ltd. Vs. State of U.P. & Ors  Insc 599 (19 September 2006)
Pasayat & S.H. Kapadia
[Civil Appeal nos. 2597-2598 of 2000] ARIJIT PASAYAT, J.
in these appeals is to the judgment rendered by a Division Bench of the Allahabad
High Court. Two of the appeals i.e. Civil Appeal Nos. 2595-96 of 2000 relate to
the order requiring the appellant to avail statutory remedy and other two
appeals i.e. Civil Appeal nos. 2597-98 of 2000 relate to the order passed in
the a review application filed by the appellant, rejecting the prayer for
basic prayer in the writ petition was to restrain the respondents Rajya Krishi Utpadan
Mandi Parishad and several Krishi Utpadan Mandi Samitis from levying and/or
collecting any market fee on the purchases made by the appellant from Uttar
Pradesh Forest Corporation, Lucknow (in short the 'Corporation').
stand in essence was as follows:
purchases paper for its own consumption and therefore it is not liable to pay
any market fee in terms of Rule 70 of the Uttar Pradesh Krishi Utpadan Mandi Niyamavali,
1965 ( in short the 'Niyamavali'). It was submitted that a person who purchases
agricultural produces for his domestic consumption does not come within the
ambit of the said rule.
also pointed out that it being not a seller within the meaning of Rule 2 (xiii)
of the Niyamavali, no tax can be realized from it under the provisions of the Niyamavali
framed under Section 40 of the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam,
1964 (in short the 'Adhiniyam'). Though it is presently urged that several
other pleas in addition to the plea relating to captive consumption were
raised, the same was not considered and therefore the review petition was
filed. The High Court noted that there factual disputes were involved, and,
therefore, it would be appropriate for the appellant to appear before the
concerned authority after paying the provisional assessment of mandi fee, so
that its objections, if any, can be heard. A review petition was filed wherein
it was stated that several points other than those relating to captive
consumptions were raised and, therefore, the matter should be heard afresh. The
High Court dismissed the review petition on the ground that the points raised
in the review petition were neither raised in writ petition nor were contended
before the Court when the matter was heard.
support of the appeal learned counsel for the appellant submitted that the High
Court was clearly in error by directing the appellant to avail the statutory
remedy. According to him, the decision of this Court in Krishi Utpadan Mandi Samiti
& Ors. v. Shree Mahalaxmi Sugar Works & Ors. [(1995) Suppl.3 SCC 433]
clearly supports the stand taken by the appellant.
response, learned counsel for the respondents submitted that on factual
adjudication it was to be established by the appellant that its case is covered
by the ratio of this Court's decision in Krishi Utpadan Mandi Samiti's case
issues relating to entertaining writ petitions when alternative remedy is available,
were examined by this Court in several cases and recently in State of Himachal Pradesh and Ors. v. M/s Gujarat Ambuja
Cement Ltd. and Anr. (2005 (6) SCC 499).
for a period when Article 226 was amended by the Constitution (42nd Amendment)
Act, 1976, the 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 discretion 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 ensure that he has made out a strong case
or that there exist good grounds to invoke the extra-ordinary jurisdiction.
Benches of this Court in K.S. Rashid and Sons v. Income Tax Investigation
Commission and Ors. (AIR 1954 SC 207); Sangram Singh v. Election Tribunal, Kotah
and Ors. (AIR 1955 SC 425); Union of India v. T.R. Varma (AIR 1957 SC 882);
State of U.P. and Ors. v. Mohammad Nooh (AIR 1958
SC 86); and M/s K.S. Venkataraman and Co. (P) Ltd. v. State of Madras (AIR 1966
SC 1089), held that Article 226 of the Constitution confers on all the High
Courts a very wide power in the matter of issuing writs. However, 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. The Court, in
extraordinary circumstances, may exercise the power if it comes to the
conclusion that there has been a breach of principles of natural justice or
procedure required for decision has not been adopted.
Constitution Bench of this Court in State of Madhya Pradesh and Anr. v. Bhailal Bhai etc. etc. (AIR 1964 SC 1006) held
that the remedy provided in a writ jurisdiction is not intended to supersede
completely the modes of obtaining relief by an action in a civil court or to
deny defence legitimately open in such actions. The power to give relief under
Article 226 of the Constitution is a discretionary power.
view has been re-iterated in N.T. Veluswami Thevar v. G. Raja Nainar and Ors. (AIR
1959 SC 422); Municipal Council, Khurai and Anr. v. Kamal Kumar and Anr. (AIR
1965 SC 1321); Siliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653); S.T. Muthusami
v. K. Natarajan and Ors. (AIR 1988 SC 616); R.S.R.T.C. and Anr. v. Krishna Kant and Ors. (AIR 1995 SC 1715); Kerala State Electricity Board and Anr. v. Kurien E. Kalathil and Ors. (AIR
2000 SC 2573); A. Venkatasubbiah Naidu v. S. Chellappan and Ors. (2000 (7) SCC
695); and L.L. Sudhakar Reddy and Ors. v. State of Andhra Pradesh and Ors. (2001 (6) SCC 634); Shri Sant
Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Anr.
v. State of Maharashtra and Ors. (2001 (8) SCC 509); Pratap
Singh and Anr. v. State of Haryana (2002
(7) SCC 484) and G.K.N. Driveshafts (India) Ltd. v. Income Tax Officer and Ors. (2003 (1) SCC 72). In Harbans Lal Sahnia
v. Indian Oil Corporation Ltd. (2003 (2) SCC 107), this Court held that the
rule of exclusion of writ jurisdiction by availability of alternative remedy is
a rule of discretion and not one of compulsion and the Court must consider the
pros and cons of the case and then may interfere if it comes to the conclusion
that the petitioner seeks enforcement of any of the fundamental rights; where
there is failure of principles of natural justice or where the orders or
proceedings are wholly without jurisdiction or the vires of an Act is
In G. Veerappa
Pillai v. Raman & Raman Ltd. (AIR 1952 SC 192); Assistant Collector of
Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330); Ramendra Kishore Biswas
v. State of Tripura (AIR 1999 SC 294); Shivgonda Anna Patil and Ors. v. State
of Maharashtra and Ors. (AIR 1999 SC 2281); C.A. Abraham v. I.T.O. Kottayam and Ors. (AIR 1961 SC
609); Titaghur Paper Mills Co. Ltd. v. State of Orissa and Anr. (AIR 1983 SC 603); H.B. Gandhi v. M/s Gopinath and
Sons (1992 (Suppl.) 2 SCC 312); Whirlpool Corporation v. Registrar of Trade
Marks and ors. (AIR 1999 SC 22); Tin Plate Co. of India Ltd. v. State of Bihar and Ors. (AIR 1999 SC 74); Sheela Devi
v. Jaspal Singh (1999 (1) SCC 209) and Punjab National Bank v. O.C. Krishnan
and Ors. (2001 (6) SCC 569), this Court held that where hierarchy of appeals is
provided by the statute, party must exhaust the statutory remedies before
resorting to writ jurisdiction.
was noted in Ram and Shyam Co. v. State of Haryana and Ors. (AIR 1985 SC 1147) the appeal is from "Caeser to Caeser's
wife" the existence of alternative remedy would be a mirage and an
exercise in futility. 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.
above position was recently highlighted in U.P. State Spinning Co. Ltd. v. R.S.
Pandey & Another [(2005) 8 SCC 264].
is not a case where no factual adjudication is necessary.
the High Court was justified in view that the statutory remedy is to be
availed. Let the appellant file the necessary details as required under the Niyamavali
within three weeks from today and place its stand before the concerned
authority for consideration. The said authority shall consider the stand of the
appellant and dispose of the same as expeditiously as practicable preferably
within six weeks from the date when the necessary details and/or objections are
filed before the authority.
peculiar circumstances of the case let no coercive steps be taken for recovery
of any amount claimed by respondents as payable by the appellant till the final
adjudication by the concerned authority.
appeals are disposed of accordingly. No costs.