This Court Had Elaborately Discussed The Legal Issues Inrespect Of Exhausting The Alternate Remedies In The Case Ofm/S.hyundai Motor India Limited v. The Deputy Commissioner Ofincome Tax Passed In W.p

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.29073 of 2018andW.M.P.No.34003 of 2018 S.Arumugam ..Petitionervs 1.The Assistant Engineer, (O&M) Tamil Nadu Generation and Electricity Distribution Corporation Limited., Tamil Nadu Electricity Board, Anumandhai – 604 303, Marakkanam Taluk, Villupuram District. 2.The Executive Engineer, (O&M) Tamil Nadu Generation and Electricity Distribution Corporation Limited., Tamil Nadu Electricity Board, TDMRB Revenue Branch, Villupuram Electricity Distribution Circle, Villupuram. ..RespondentsPrayer: Writ Petition filed under Article 226 of theConstitution of India praying to issue a Writ of Certiorari,calling for the entire records relating to the impugned letterissuedbythe1[st]respondentinhisLetterNo.AE/O&M/Anumandhai/Ko.III-B/A.NO.14-A/18-19, dated 30.04.2018and quash the same. The relief sought for in this writ petition is to call forthe entire records relating to the impugned letter issued by the1[st]respondent in his Letter No.AE/O&M/Anumandhai/Ko.III-B/A.NO.14-A/18-19, dated 30.04.2018 and quash the same. 2.The writ petitioner is running a prawn culture farm atVandipalayam Village, Marakkanam Taluk, Villupuram District. For https://hcservices.ecourts.gov.in/hcservices/ the purpose of running prawn culture farm, the petitioner hadobtained electricity service connection in S.C.No.477.007.438.The petitioner claims that he is paying electricity consumptioncharges regularly without any arrears till 2017. However, thewrit petitioner was directed to pay a sum of Rs.3,08,680/- asarrears. The first respondent directed the writ petitioner topay the said amount within a period of 15 days. Thus, the writpetitioner is constrained to move the present writ petition. 3.Though the petitioner has narrated certain facts andcircumstances and the grounds, this Court is of an opinion thatthe Tamil Nadu Electricity Supply Code provides ConsumerGrievances Redressal Forum. Clause 18 of the Tamil NaduElectricity Supply Code stipulates that “All grievances of theconsumers, relating to the provisions under regulations (3) to(17) of this Code shall be referred by the consumer to therespective Consumer Grievance Redressal Forum constituted underthe Act.” 4.In view of the above provisions, the writ petitioner hasto approach the Consumer Grievances Redressal Forum for thepurpose of redressing their grievances. The Consumer GrievancesRedressal Forum is empowered to adjudicate all the groundsraised in the present writ petition by the writ petitioner andpass orders on merits and in accordance with law. When analternate remedy is very well available under the provisions ofthe Tamil Nadu Electricity Supply Code, this Court would notentertain a writ petition in a routine manner. 5.A writ petition can be entertained without exhausting thealternate remedy provided under the statute, if there is anextraordinary circumstances and the same is established by thewrit petitioner. In all other circumstances, the aggrievedperson is bound to exhaust the statutory remedies provided underthe rules or any Act. Writ petitions cannot be entertained in aroutine manner. Bypassing the statutory provisions without anyvalid reason. When the Consumer Grievances Redressal Forum isconstituted for a specific purpose of redressing the grievancesof the consumers of the Electricity, the Forum is entitled toadjudicate all the grounds including the legal grounds and theprinciples of violations of natural justice, if any. The Forumis a quasi judicial body and therefore, they are empowered toadjudicate all the legal grounds. Thus, the writ petitioner hasto approach the Consumer Grievances Redressal Forum constitutedunder Clause 18 of the Tamil Nadu Electricity Supply Code. 6.This Court had elaborately discussed the legal issues inrespect of exhausting the alternate remedies in the case ofM/s.Hyundai Motor India Limited Vs. The Deputy Commissioner ofIncome Tax passed in W.P.No.22508 of 2017 dated 16.07.2018 and the following paragraphs are extracted hereunder: “19.Unnecessary or routine invasion into thestatutory powers of the competent authorities under astatute should be restrained by the ConstitutionalCourts. Frequent or unnecessary invasions in theexecutive power will defeat the constitutionalperspectives enshrined under the Constitution of India.Undoubtedly, the separation of powers under the IndianConstitution has been narrated and settled in umpteennumber of judgments. Separation of powers demarcated inthe Constitution of India is also to be considered,while exercising the powers of judicial review in thematter of dispensing with the appeal remedy providedfor an aggrieved person under a statute. If the HighCourts started interfering with such Appellate powerswithout any valid and substantiated reasons, then thevery purpose and object of the statute and provision ofappeal under the statute became an empty formality andthe High Courts also should see that the provisions ofappeal contemplated under the statutes are implementedin its real spirit and in accordance with theprocedures contemplated under the rules constitutedthereon. While entertaining a writ petition as narratedby the Apex Court, the provision of efficaciousalternative remedy under the statute also to beconsidered. If the writ petitions are entertained in aroutine manner, by not allowing the competent Appellateauthority to exercise their powers under the provisionsof the statute, then this Court is of an opinion thatthe power of judicial review has not exercised in aproper manner. Thus, it is necessary for this Court toelaborate the legal principle settled in respect of theseparation of powers under the Constitution of India. 1. Madras Bar Association vs. Union of India (UOI)(25.09.2014 - SC) : MANU/SC/0875/2014 If the historical background, the preamble, theentire scheme of the Constitution, relevant provisionsthereof including Article 368 are kept in mind therecan be no difficulty in discerning that the followingcan be regarded as the basic elements of theconstitutional structure. (These cannot be cataloguedbut can only be illustrated): (1) The supremacy of the Constitution. (2) Republican and Democratic form of government andsovereignty of the country. (3) Secular and federal character of the Constitution. (4) Demarcation of power between the Legislature, theexecutive and the judiciary. (5) The dignity of the individual secured by thevarious freedoms and basic rights in Part III and themandate to build a welfare State contained in Part IV.(6) The unity and the integrity of the Nation. 2. Holiness Kesavananda Bharati Sripadagalvaru v.State of Kerala and Anr.[MANU/SC/0445/1973: (1973) 4SCC 225]. That separation of powers between the legislature,theexecutiveand the judiciary is the basic structureof the Constitution is expressly stated by Sikri, C.J. 3. P. Kannadasan and Ors. v. State of T.N. and Ors.[MANU/SC/0650/1996 : (1996) 5 SCC 670] the SupremeCourt noted that the Constitution of India recognisedthe doctrine of separation of powers between the threeorgans of the State, namely, the legislature, theexecutive and the judiciary. The Court said: It must be remembered that our Constitution recognisesand incorporates the doctrine of separation of powersbetween the three organs of the State, viz., theLegislature, the Executive and the Judiciary. Eventhough the Constitution has adopted the parliamentaryform of government where the dividing line between thelegislature and the executive becomes thin, the theoryof separation of powers is still valid. 4. State of Tamil Nadu and Ors. vs. State of Kerala andOrs. (07.05.2014 - SC) : MANU/SC/0425/2014 It must be remembered that our Constitution recognisesand incorporates the doctrine of separation of powersbetween the three organs of the State, viz., theLegislature, the Executive and the Judiciary. Eventhough the Constitution has adopted the parliamentaryform of government where the dividing line between thelegislature and the executive becomes thin, the theoryof separation of powers is still valid. 4. State of Tamil Nadu and Ors. vs. State of Kerala andOrs. (07.05.2014 - SC) : MANU/SC/0425/2014 121. On deep reflection of the above discussion, in ouropinion, the constitutional principles in the contextof Indian Constitution relating to separation of powersbetween legislature, executive and judiciary may, inbrief, be summarized thus: (i) Even without express provision of the separation ofpowers,the doctrine of separation of powers is anentrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indianconstitutional structure and it is an essentialconstituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, itssweep, operation and visibility are apparent from thescheme of Indian Constitution. Constitution has madedemarcation, without drawing formal lines between thethree organs- legislature, executive and judiciary. Inthat sense, even in the absence of express provisionfor separation of power, the separation of powerbetween legislature, executive and judiciary is notdifferent from the constitutions of the countries whichcontain express provision for separation of powers. (ii) Independence of courts from the executive andlegislature is fundamental to the rule of law and oneof the basic tenets of Indian Constitution. Separation of judicial power is a significantconstitutional principle under the Constitution ofIndia. (iii) Separation of powers between three organs--legislature, executive and judiciary--is also nothingbut a consequence of principles of equality enshrinedin Article 14 of the Constitution of India.Accordingly, breach of separation of judicial power mayamount to negation of equality Under Article 14. Statedthus, a legislation can be invalidated on the basis ofbreach of the separation of powers since such breach isnegation of equality Under Article 14 of theConstitution. (iv) The superior judiciary (High Courts and SupremeCourt) is empowered by the Constitution to declare alaw made by the legislature (Parliament and Statelegislatures) void if it is found to have transgressedthe constitutional limitations or if it infringed therights enshrined in Part III of the Constitution. (v) The doctrine of separation of powers applies to thefinal judgments of the courts. Legislature cannotdeclare any decision of a court of law to be void or ofno effect. It can, however, pass an amending Act toremedy the defects pointed out by a court of law or oncoming to know of it aligned. In other words, a court's decision must always bindunless the conditions on which it is based are sofundamentally altered that the decision could not havebeen given in the altered circumstances. (vi) If the legislature has the power over the subject-matter and competence to make a validating law, it canat any time make such a validating law and make itretrospective. The validity of a validating law,therefore, depends upon whether the legislature possesses the competence which it claims over thesubject-matter and whether in making the validation lawit removes the defect which the courts had found in theexisting law.” In other words, a court's decision must always bindunless the conditions on which it is based are sofundamentally altered that the decision could not havebeen given in the altered circumstances. (vi) If the legislature has the power over the subject-matter and competence to make a validating law, it canat any time make such a validating law and make itretrospective. The validity of a validating law,therefore, depends upon whether the legislature possesses the competence which it claims over thesubject-matter and whether in making the validation lawit removes the defect which the courts had found in theexisting law.” 20.This Court is of a strong opinion thatinstitutional respects are to be maintained by theconstitutional Courts. Whenever there is a provisionfor an appeal under the statute, without exhausting theremedies available under the statute, no writ petitioncan be entertained in a routine manner. Only onexceptional circumstances, the remedy of appeal can bewaived, if there is a gross injustice or if there is aviolation of fundamental rights ensured under theConstitution of India. Otherwise, all the aggrievedpersons from and out of the order passed by theoriginal authority is bound to approach the AppellateAuthority. The Constitutional Courts cannot make anappeal provision as an empty formality. Every AppellateAuthority created under the statute to be trusted innormal circumstances unless there is a specificallegation, which is substantiated in a writproceedings. Thus, the institutional functions andexhausting the appeal remedies by the aggrievedpersons, are to be enforced in all circumstances andwrit proceedings can be entertained only on exceptionalcircumstances. Rule is to prefer an appeal andentertaining a writ is only an exception. This beingthe legal principles to be followed, this Court cannotentertain the writ petitions in a routine manner bywaiving the remedy of appeal provided under thestatute.21.Now, let us look into the legal principlessettled by the Apex Court for exhausting theefficacious alternative remedy provided under thestatute. 22.When an effective alternative remedy isavailable, a writ petition cannot be maintained 1. In City and Industrial Development Corporation v.DosuAardeshirBhiwandiwala and Ors. MANU/SC/8250/2008 :(2009) 1 SCC 168, this Court had observed that: The Court while exercising its jurisdiction underArticle 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complexand disputed questions of facts and whether they can besatisfactorily resolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effectiveremedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty ofunexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barredby any valid law; and host of other factors. 2. KanaiyalalLalchand Sachdev and Ors. vs. State ofMaharashtra and Ors. (07.02.2011 - SC) :MANU/SC/0103/2011 It is well settled that ordinarily relief UnderArticles 226/227 of the Constitution of India is notavailable if an efficacious alternative remedy isavailable to any aggrieved person. (See Sadhana Lodh v.National Insurance Co. Ltd.; Surya Dev Rai v. RamChander Rai and SBI v. Allied Chemical Laboratories.) 3. Commissioner of Income Tax and Ors. v. ChhabilDassAgarwal, MANU/SC/0802/2013 : 2014 (1) SCC 603, asfollows: (d) person invoking the jurisdiction is guilty ofunexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barredby any valid law; and host of other factors. 2. KanaiyalalLalchand Sachdev and Ors. vs. State ofMaharashtra and Ors. (07.02.2011 - SC) :MANU/SC/0103/2011 It is well settled that ordinarily relief UnderArticles 226/227 of the Constitution of India is notavailable if an efficacious alternative remedy isavailable to any aggrieved person. (See Sadhana Lodh v.National Insurance Co. Ltd.; Surya Dev Rai v. RamChander Rai and SBI v. Allied Chemical Laboratories.) 3. Commissioner of Income Tax and Ors. v. ChhabilDassAgarwal, MANU/SC/0802/2013 : 2014 (1) SCC 603, asfollows: Para 15. while it can be said that this Court hasrecognised some exceptions to the Rule of alternativeremedy i.e. where the statutory authority has not actedin accordance with the provisions of the enactment inquestion, or in defiance of the fundamental principlesof judicial procedure, or has resorted to invoke theprovisions which are repealed, or when an order hasbeen passed in total violation of the principles ofnatural justice, the proposition laid down inThansinghNathmal case, Titaghur Paper Mills case andother similar judgments that the High Court will notentertain a petition Under Article 226 of theConstitution if an effective alternative remedy isavailable to the aggrieved person or the statute underwhich the action complained of has been taken itselfcontains a mechanism for redressal of grievance stillholds the field. Therefore, when a statutory forum iscreated by law for redressal of grievances, a writpetition should not be entertained ignoring thestatutory dispensation. 4. Authorized Officer, State Bank of Travancore andOrs. vs. Mathew K.C. (30.01.2018 - SC) :MANU/SC/0054/2018 The petitioner argued that the SARFAESI Act is acomplete code by itself, providing for expeditiousrecovery of dues arising out of loans granted byfinancial institutions, the remedy of appeal by theaggrieved under Section 17 before the Debt RecoveryTribunal, followed by a right to appeal before theAppellate Tribunal under Section 18. The High Courtought not to have entertained the writ petition in viewof the adequate alternate statutory remedies availableto the Respondent. The interim order was passed on thevery first date, without an opportunity to theAppellant to file a reply. Reliance was placedon United Bank of India vs. Satyawati Tandon andothers, 2010 (8) SCC 110, and General Manager, SriSiddeshwara Cooperative Bank Limited and another vs.Ikbal and others, 2013 (10) SCC 83. The writ petitionought to have been dismissed at the threshold on theground of maintainability. The Division Bench erred indeclining to interfere with the same. The Supreme Courtagreed to the arguments and held the same also notedthat the writ petition ought not to have beenentertained and the interim order granted for the mereasking without assigning special reasons, and that toowithout even granting opportunity to the Appellant tocontest the maintainability of the writ petition andfailure to notice the subsequent developments in theinterregnum. 5. State of Himachal Pradesh v. Gujarat Ambuja CementLtd. reported at AIR 2005 SC 3856, the Supreme Courtexplained the rule of 'alternate remedy' in thefollowing terms 5. State of Himachal Pradesh v. Gujarat Ambuja CementLtd. reported at AIR 2005 SC 3856, the Supreme Courtexplained the rule of 'alternate remedy' in thefollowing terms Considering the plea regarding alternative remedy asraised by the appellant-State. Except for a period whenArticle 226 was amended by the Constitution (42ndAmendment) Act, 1976, the power relating to alternativeremedy has been considered to be a rule of self imposedlimitation. It is essentially a rule of policy,convenience and discretion and never a rule of law.Despite the existence of an alternative remedy itis within the jurisdiction of discretion of the HighCourt to grant relief under Article 226 of theConstitution. At the same time, it cannot be lost sightof that though the matter relating to an alternativeremedy has nothing to do with the jurisdiction of thecase, normally the High Court should not interfere ifthere is an adequate efficacious alternative remedy. Ifsomebody approaches the High Court without availing thealternative remedy provided the High Court should ensure that he has made out a strong case or that thereexist good grounds to invoke the extraordinaryjurisdiction. 6. K.S. Rashid and Sons v. Income Tax InvestigationCommission and Ors., AIR (1954) SC 207; Sangram Singhv. Election Tribunal, Kotah and Ors., AIR (1955) SC425; Union of India v. T.R. Varma, AIR (1957) SC 882;State of U.P. and Ors. v. Mohammad Nooh, AIR (1958) SC86 and M/s K.S. Venkataraman and Co. (P) Ltd. v. Stateof Madras, AIR (1966) SC 1089, Constitution Benches of the Supreme Court held thatArticle 226 of the Constitution confers on all the HighCourts a very wide power in the matter of issuingwrits. However, the remedy of writ is an absolutelydiscretionary remedy and the High Court has always thediscretion to refuse to grant any writ if it issatisfied that the aggrieved party can have an adequateor suitable relief elsewhere. The Court, inextraordinary circumstances, may exercise the power ifit comes to the conclusion that there has been a breachof principles of natural justice or procedure requiredfor decision has not been adopted. 7. First Income-Tax Officer, Salem v. M/s. ShortBrothers (P) Ltd., [1966] 3 SCR 84 and State of U.P.and Ors. v. M/s. Indian Hume Pipe Co. Ltd., [1977] 2SCC 724. There are two well recognized exceptions to thedoctrine of exhaustion of statutory remedies. First iswhen the proceedings are taken before the forum under aprovision of law which is ultra vires, it is open to aparty aggrieved thereby to move the High Court forquashing the proceedings on the ground that they areincompetent without a party being obliged to wait untilthose proceedings run their full course. Secondly, thedoctrine has no application when the impugned order hasbeen made in violation of the principles of naturaljustice. We may add that where the proceedings itselfare an abuse of process of law the High Court in anappropriate case can entertain a writ petition. 7.In view of the legal principles settled in the matter ofexhausting the alternate remedy both by this Court as well as bythe Apex Court, the writ petitioner is at liberty to approachthe Consumer Grievances Redressal Forum constituted under Clause18 of the Tamil Nadu Electricity Supply Code and in the event of submitting any such appeal before the Forum, the Forum shalladjudicate the same by affording an opportunity to the writpetitioner and decide the matter on merits and in accordancewith law and by following the procedures as contemplated. 8.With these observations, the writ petition standsdisposed of. However, there shall be no order as to costs.Consequently, connected miscellaneous petition is closed. 7.In view of the legal principles settled in the matter ofexhausting the alternate remedy both by this Court as well as bythe Apex Court, the writ petitioner is at liberty to approachthe Consumer Grievances Redressal Forum constituted under Clause18 of the Tamil Nadu Electricity Supply Code and in the event of submitting any such appeal before the Forum, the Forum shalladjudicate the same by affording an opportunity to the writpetitioner and decide the matter on merits and in accordancewith law and by following the procedures as contemplated. 8.With these observations, the writ petition standsdisposed of. However, there shall be no order as to costs.Consequently, connected miscellaneous petition is closed. Sd/-Assistant Registrar(CS-IV)//True copy//Sub Assistant RegistrarkakTo1.The Assistant Engineer, (O&M) Tamil Nadu Generation and Electricity Distribution Corporation Limited., Tamil Nadu Electricity Board, Anumandhai – 604 303, Marakkanam Taluk, Villupuram District.2.The Executive Engineer, (O&M) Tamil Nadu Generation and Electricity Distribution Corporation Limited., Tamil Nadu Electricity Board, TDMRB Revenue Branch, Villupuram Electricity Distribution Circle, Villupuram. +1cc to Mr.C.Prakasam, Advocate SR.No.86456 +1cc to Mr.M.Varunkumar, Advocate SR.No.85630 W.P.No.29073 of 2018RSI(CO)GMY(04/01/2019)