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TMI Blog2024 (6) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ving it open for the petitioner to assail the impugned orders in terms of the appeal as provided in the statute. In case, if the petitioner files the appeal before the appellate authority within a period of three weeks from today then the same shall be considered on its own merits and the issue of limitation if involved shall be considered sympathetically by the appellate authority. It is made clear that Court has not examined the case of the petitioner on merits and the petition has been dismissed solely on the ground of availability of the statutory remedy. - Hon'ble Jaspreet Singh And Hon'ble Ram Manohar Narayan Mishra JJ. For the Petitioner : Tushar Mittal, Parth Anand For the Respondent : A.S.G.I.,C.S.C. ORDER 1. Heard Shri Chinmay Seth, learned counsel for the petitioner, Shri Rajesh Tiwari, learned Additional Chief Standing Counsel, who has put in appearance on behalf of respondent No.2 and Shri Saurabh Mishra, learned counsel for respondent No.1, who has filed his memo of appearance, which is taken on record. 2. At the very outset, learned Additional Chief Standing Counsel has raised a preliminary objection regarding the maintainability of the aforesaid petition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged in an appeal. 8. Shri Seth, learned counsel for the petitioner could not dispute the fact that the remedy of the appeal is available in law and though he has ably argued that despite the availability of alternative remedy, but where the orders are passed, which are patently illegal, the Court has the discretion to entertain the petition. 9. This Court is reminded of the decision of the Apex Court in Magadh Sugar Energy Ltd. Vs. State of Bihar, 2021 SCC Online SC 801 and the relevant portion thereof read as under:- 25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai19 and Harbanslal Sahni v. Indian Oil Corporation Ltd.20. Recently, in Radha Krishan Industries v. State of Himachal Pradesh21 a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al position of law that in such matters, the High Court should not entertain a petition under Article 226 of the Constitution particularly when an alternative statutory remedy is available. XXX------XXX-----XXX------XXX-----XXX------XXX 28. Insofar as the contention of the Borrower and its reliance on the judgment of this Court in the case of Mohammad Nooh (supra) is concerned, no doubt that non-exercise of jurisdiction under Article 226 of the Constitution on the ground of availability of an alternative remedy is a rule of self-restraint. There cannot be any doubt with that proposition. In this respect, it will be relevant to refer to the following observations of this Court in the case of Commissioner of Income Tax v. Chhabil Dass Agarwal 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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