Kiran Raj

The Supreme Court of India Division Bench of Justice Dipankar Datta and Justice Aravind Kumar held that a writ petition cannot be invoked when an effective alternate statutory remedy is available before the High Court in different jurisdiction and therefore affirmed the refusal to entertain a challenge to the confiscation of alleged smuggled silver and the imposed penalty. The Court found that the petitioner bypassed the prescribed appellate mechanism and approached the High Court after substantial delay without adequate justification. Concluding that the statutory forum was sufficient and the writ petition lacked essential pleadings, the Court dismissed the appeal.

The matter arose from the seizure of silver weighing 252.177 kilograms on 27 September 1992, alleged to have been smuggled. Following the seizure, the customs authority passed an order on 7 May 1996 directing confiscation of the silver and imposing a monetary penalty on the individual from whom the silver had been recovered. The affected party challenged this order before the appellate tribunal under the Customs Act, 1962. The tribunal upheld the confiscation while reducing the penalty through its order dated 23 June 2000.

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Although a further statutory remedy was available before the High Court in its reference jurisdiction, no application was filed within the prescribed limitation period. Instead, nearly three years later, the concerned party approached the High Court by filing a writ petition seeking to contest both the confiscation order and the tribunal’s decision. The writ petition also referred to criminal court proceedings in which a direction for return of the seized silver had been set aside by a revisional court.

The High Court considered the pleadings, including the grounds urged regarding the challenge to confiscation, and examined whether the availability of an alternate statutory remedy before the High Court itself affected the maintainability of the writ petition.

The Court recorded that the key issue was “whether the High Court was justified in refusing to entertain the writ petition of the appellant seeking a writ of certiorari.” It stated that the recognised exceptions to the rule of alternate remedies arise in cases involving “breach of a Fundamental Right; (ii) violation of natural justice principles; (iii) lack of jurisdiction; and (iv) unconstitutionality of a statute.”

The Bench observed that “if the statutorily designated alternative forum happens to be the high court itself… refusal to entertain the petition should be the rule and entertaining it an exception.” Referring to the Constitution Bench judgment in Thansingh Nathmal v. A. Mazid, Superintendent of Taxes, AIR 1964 SC 1419, the Court quoted the principle that the High Court should not allow “the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up.” It further recorded that “The principle, plainly, is that, if a remedy is available to a party before the high court in another jurisdiction, the writ jurisdiction should not normally be exercised on a petition under Article 226…” and that “while deciding whether to entertain a petition under Article 226… a writ court ought to additionally notice the forum designated by the statute… which can dispense speedy and efficacious relief.”

The Court referred to the Constitution Bench decision in A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506, quoting that “If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the Court… to exercise its discretion in his favour.”

On limitation, the Court stated that “the period of limitation prescribed by an enactment… does provide indication as to what should be the ‘reasonable period.’” It noted that the challenge to the tribunal’s order had been brought “well after the prescribed period of limitation.”

Addressing the alternative remedy, the Court stated: “Since the appellant had a remedy by way of a reference before the High Court against the order dated 23rd June, 2000 of the CEGAT, we do not consider refusal to exercise discretion in favour of the appellant to be so fundamentally incorrect that interference is warranted.” It pointed out that “the appellant having had a remedy before the High Court in a separate jurisdiction which was equally efficacious, he indulged in the (mis)adventure of invoking its writ jurisdiction which was rightly not entertained.”

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The Court addressed the insufficiency of pleadings, stating that “(having full knowledge of the proceedings before the CEGAT and knowing precisely the points raised) taking responsibility of making a statement on oath by verifying it as true to his knowledge that a point was raised but not dealt with, would not be sufficient to persuade us to entertain any grievance on this score.” It added: “Drawing from our judicial experience, we may observe that not all points raised or grounds urged in a petition are advanced in course of hearing.” It further stated that “In order to have the court examine the objection of non-consideration raised as well as to succeed, there has to be a direct challenge that the authority whose order is being questioned did not deal with the point/ground much to the detriment of the party raising it.” Concluding this aspect, the Court recorded that “The writ petition lacked the basic pleadings and hence, the High Court did not fall in error in dismissing it even on merits.”

Accordingly the impugned order of the High Court was upheld and the appeal was dismissed.

Advocates Representing the Parties

For the Petitioners: Ms. Chitrangda Rastravara, AOR; Mr. Anirudh Singh, Adv.; Mr. Abhijeet Singh, Adv.; Mr. Aishwary Mishra, Adv.; Mr. Dhananjai Shekhwat, Adv.; Ms. Sakshi Aggarwal, Adv.; Mr. Yuvraj Singh, Adv.; Ms. Pearl Pundir, Adv.; Mr. Dashrath Singh, Adv.

For the Respondents: Mr. Raghavendra P. Shankar, A.S.G.; Mr. Amit Sharma-II, Adv.; Mr. Raman Yadav, Adv.; Mr. Arvind Kumar Sharma, AOR.

Case Title: Rikhab Chand Jain v. Union of India & Ors.
Case Number: Civil Appeal No. 6719 of 2012
Bench: Justice Dipankar Datta, Justice Aravind Kumar