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TMI Blog2001 (1) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... if that is so, both the statutes are beneficial in nature with an underlying public purpose. Under the BRU Act what is suspended is the remedy against the right to enforce the liabilities which have already been incurred and in the event of notification prevailing over the DRT Act all that happens is that the undertaking is permitted to run and there is no question of public money being siphoned away in the interregnum. This petition is required to be entertained not only because the Tribunal lacks jurisdiction but also for any other purpose ; namely, to further the legislative intent instead of frustrating it. In view of what is stated hereinbefore, we reject the preliminary objection raised on behalf of the respondent caveators. No observations may be taken to be final on merits, because the said observations have been made only for the limited purpose of ascertaining whether we could entertain the petition or not in view of the preliminary objections - Rule returnable on 22.02.2001. - SPECIAL CIVIL APPLICATION No 131 of 2001 - - - Dated:- 23-1-2001 - MR.JUSTICE D.A.MEHTA FOR THE PETITIONER MR SN SOPARKAR WITH MR AMAR N BHATT FOR THE RESPONDENT MR MJ THAKORE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Pvt.Ltd.). 3. Mr.S.N.Soparkar appeared with Mr.Amar N.Bhatt for the petitioner and submitted that the Tribunal had no jurisdiction to take up the matter in light of the notification under the BRU Act and if that was so, any order passed by the Tribunal was illegal and bad in law. Elaborating on this, it was submitted that, there was no question of availability of any alternative remedy in such circumstances and it was only this Court which could exercise its jurisdiction and entertain this petition. He relied upon an unreported judgment of this Court (Coram : Mr.Justice M.S.Shah) in Special Civil Application No. 6324 of 2000 dated 08.12.2000 and stated that it was in no uncertain terms held by this Court that DRT Act and BRU Act operated in different fields. It was further contended taking support from this unreported decision that under the BRU Act only the remedy was suspended till notification was in force and hence, even though the rights of the creditors were not affected those rights could not be enforced. Mr.Soparkar relied upon the following three decisions in support of his contentions: [1] 15 G.L.R. 573 (Inderjit C.Parekh Ors Vs. V.K.Bhatt Anr.) [2] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, Tribunal, Officer or authority shall be stayed; (emphasis supplied). (b) the right, privilege, obligation or liability referred to in clause (a)(iv) shall, on the notification ceasing to have force, revive and be enforceable and the proceedings referred to therein shall be continued : Provided that in computing the period of limitation for the enforcement of such, privilege, obligation or liability, the period during which it was suspended under clause (a)(iv) shall be excluded notwithstanding anything contained in any law for the time being in force. 6. Preamble of DRT Act and other provisions which are reproduced hereunder for ready reference are also material for our purpose :- An act to provide for the establishment of Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions and for matters connected there with or incidental thereto . (emphasis supplied). Section 17 : Jurisdiction, powers and authority of Tribunals [1] A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting unemployment or of unemployment relief . Relief undertakings, so long as they continue as such, are given immunity from legal actions so as to render their working smooth and effective. Such undertakings can be run more effectively as a measure of unemployment relief, if the conduct of their affairs is unhampered by legal proceeding or the threat of such proceedings. That is the genesis and justification of Sec.4(1)(a)(iv) of the Act. 8. The Division Bench of this Court in the case of M/s. D.S.Patel Co. v The Gujarat State Textile Corporation Limited, reported in 13 GLR 33 has very succintly analysed the provisions of BRU Act and it is laid down in these terms : The main object of the Bombay Relief Undertaking (Special Provisions) Act, is to make temporary provision for industrial relations, to conduct or to provide loan, guarantee or financial assistance for the conduct of certain industrial undertakings and thereby to prevent unemployment or to provide for unemployment relief. The main burden of the different provisions of the State Act including its long title and preamble point out clearly that it is enacted with a view to relieve or to prevent unemployment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxx xxxx Chapter II Establishment of Tribunal and Appellate Tribunal. Chapter III Jurisdiction, Power and Authority of Tribunals. Chapter IV Procedure of Tribunals. Chapter V Recovery of Debt Determined by Tribunal. Chapter VI Miscellaneous. That, basically the Tribunal is to adjudicate the liability of the borrower and then issue a certificate u/s.19(22) of the DRT Act. Section 17 of the said Act gives jurisdiction, powers and authority of the Tribunal while sub-section (2) of the said section provides for jurisdiction and powers of the appellate forum under the said Act. However, the provisions of section 18 which oust the jurisdiction and powers of any other Court or authority in relation to any order passed under section 17 of the Act save the jurisdiction of Supreme Court and High Court exercising jurisdiction under Article 226/227 of the Constitution. Thus, it is not as if there is a complete bar against exercising jurisdiction by High Court in appropriate cases. It was in this context that Mr.Thakore, contended that though this Court could exercise its jurisdiction and that a writ petition was maintainable yet it should not be ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pended, the petitioners will not be entitled to claim any interest on their outstanding dues for the period during which notification under sec. 3 remains in force. It is undoubtedly true that sub-clause (iv) is so worded that on plain reading it gives an impression that what is suspended is not only the remedy for the enforcement of the right to hold but also the right itself. But we find that on true constructions of this sub-clause the right itself is not suspended , but only the remedy for the enforcement of the right is suspended. We find that the legislature has advisedly used the word 'suspended' and 'stayed' in sub-clause (iv) with reference to rights, remedies and proceedings. 'Suspension' is not tantamount to 'destruction' or 'annihilation'. Therefore, when the sub-clause speaks about 'suspension' of a right, it only means suspension of its execution on enforcement. The incidents of a right, except its executability, are therefore, not suspended by the sub-clause. Hence, the question of the provisions of the DRT Act overriding the provisions of the BRU Act does not arise. They operate in two different fields. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. This fact has not been disputed by the learned Counsel for the petitioners but the learned Counsel contended that the impugned order dated 30.12.1998 being not a final order , no appeal would lie against the said order .... 14. Now, we may usefully reproduce the extract from the Supreme Court decision in the case of Mafatlal Industries Ltd. Vs. Union of India reported in (1997) 5 SCC 536 which has been taken into consideration by Patna High Court : It is, however, equally obvious that while exercising the power under Art.226/Art.32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. (Emphasis supplied) xxx xxx xxx xxx This is for the reason that the power under Art.226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Art. 226 is conceived to serve the ends of law and not to transgress them . (Emphasis supplied). 15. Mr.Thakore relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n manifest injustice. It was further submitted that both the second and third factors would come into play in the present case. He further relied upon the decision rendered in the case of M/s. Pratap Ch.Dey Vs. Allahabad Bank reported in AIR 1997 Calcutta 96 wherein the Calcutta High Court has specifically stated thus : ........ Therefore, it can be safely said that even if an appeal lies against an order of the Bank Recovery Tribunal under the Act itself in an appropriate case, the High Court still retains its jurisdiction to entertain a petition either under Article 226 or 227 of the Constitution which is moved against an order of the Bank Recovery Tribunal. 17. Over and above the aforesaid case laws we have also taken into consideration two decisions of Apex Court - one in the case of Calcutta Discount Co.Ltd. Vs. Income Tax Officer reported in 41 ITR 191 = AIR 1961 SC 372 and Another in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, reported in (1998) 8 SCC 1 for the purpose of deciding whether it would be proper to exercise jurisdiction under Article 226/227 of the Constitution of India in the present case. The Apex Court in the case of Calcutta Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the matter of granting writs. This was followed by another Rashid case, namely K.S.Rashid Son V. Income Tax Investigation Commission which reiterated the above proposition and held that where alternative remedy existed, 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 aggrieved party had other adequate legal remedies'. 18. This proposition was considered by a Constitution Bench of this Court in A.V.Venkateswaran, Collector of Customs v Ramchand Sobhraj Wadhwani an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any legal foundation . 19. On a careful consideration and analysis of the various decisions cited before us we find that the following legal propositions emerge : [1] An interlocutory order is also an order which is appealable under section 20 of the DRT Act. [2] The power to issue a prerogative writ is plenary in nature. [3] Such power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition or certiorari to ensure fundamental rights but also for any other purpose . [4] The High Court having regard to the facts of the case has discretion to entertain or not to entertain the petition depending upon various facts and circumstances special to individual cases. [5] The High Court having imposed upon itself certain restrictive fetters one of which is availability of alternative and efficacious remedy, would not normally exercise jurisdiction. [6] However, availability of alternative remedy per se does not operate as a bar in all contingencies. [7] Rule requiring exercise of alternative remedy is a rule of policy, convenience and discretion. [8] The Court should exercise juri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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