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TMI Blog2008 (1) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... ement Act ('the Act'), and list it before the appropriate Bench. 2. The order of court, of which recall is sought, reads as follows : "ORDER Mr. Malhotra, learned Additional Solicitor General, points out that the petition is not maintainable in view of the Section 35 of the Foreign Exchange Management Act; it provides for an appeal in such cases. In these circumstances, Mr. Rohtagi, learned senior counsel for the petitioner states that the present petition may be converted into an appeal and considered on its merits. Accordingly, the prayer is granted. The Registry is directed to register the present petition as an appeal. The petitioner shall file an appropriate affidavit in this regard within two days. List before the appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petitioner cannot be allowed to resile from the statement of his counsel, as a result of which the petition under Article 226 of the Constitution was converted into an appeal. It was submitted that the remedy under Section 35 of the Act was the exclusive remedy available to the applicant, and the existence of an explicit provision rules out the jurisdiction of the High Court under Article 226, from exercising its power of judicial review. Relying on a number of judicial precedents, he contended that Article 226 can be availed of only in the absence of an alternative remedy. 6. The relevant part of Section 35 of the Act is extracted below: "35. Appeal to the High Court. - Any person aggrieved by any decision or order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the said decisions, we hold that the impugned provisions are valid. It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has." (emphasis s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, unless there are good grounds therefor, which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh as under: '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 aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construction placed on it by the court, and not any random concession made by the counsel. It would not be inappropriate to extract the following passage from Union of India v. Mohanlal Likumal Punjabi - 2004 (166) E.L.T. 296 (S.C.) = (2004) 3 SCC 628 : "In Uptron India Ltd. v. Shammi Bhan it was held that a case decided on the basis of wrong concession of a counsel has no precedent value. That apart, the applicability of the statute or otherwise to a given situation or the question of statutory liability of a person/institution under any provision of law would invariably depend upon the scope and meaning of the provisions concerned and has got to be adjudged not on any concession made. Any such concessions would have no acceptability or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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