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CASE NO.: Appeal (civil)  2595-2596 of 2000

PETITIONER: Star Paper Mills Ltd.                                            

RESPONDENT: State of U.P. & Ors.                                             

DATE OF JUDGMENT: 19/09/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T With

[Civil Appeal nos. 2597-2598 of 2000]

ARIJIT PASAYAT, J.

       Challenge 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 review.  

       The 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’).  Appellants stand in essence was as follows:

Appellant 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.   It was 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

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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.

       In 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.

       In 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  (supra).

       The 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).

       Except 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.

       Constitution 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.

       Another 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

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legitimately open in such actions. The power to give relief  under Article 226 of the Constitution is a discretionary power.  Similar 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 challenged.  

       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.         If, as 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.  

       The above position was recently highlighted in U.P. State

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Spinning Co. Ltd. v. R.S. Pandey & Another [(2005) 8 SCC  264].

       This is not a case where no factual adjudication is  necessary.

       Therefore, 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.  

In the 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.

       The appeals are disposed of accordingly. No costs.