Prerogative Writs can be issued under Article 32 of the Constitution of India by the Supreme Court of India and under Article 226 of the Constitution of India by the High Courts of various States. The power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. There are five kinds of writs that can be issued by the Courts. These are Mandamus, Certiorari, Prohibition, Habeas Corpus, and Quo Warranto. These writs are invoked generally against the State.
It is pertinent to state that the High Courts while bearing in mind the facts of each particular case have a discretion whether to entertain a writ petition or not. Maintainability is different from entertainability and therefore, the discretion is not upon the maintainability, but only on entertainability.
It is also pertinent to note that the availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience, and discretion rather than a rule of law. Hence, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal.
In the case of Whirlpool Corporation v. Registrar of Trademarks, Mumbai and others, the Supreme Court has carved out exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. These are as follows:
(i) where the writ petition seeks enforcement of any of the fundamental rights;
(ii) where there is violation of principles of natural justice;
(iii) where the order or the proceedings are wholly without jurisdiction;
(iv) where the vires of an Act is challenged.
In a recent judgment of M/s Godrej Sara Lee Ltd. v. The Excise and Taxation Officer-cum-Assessing Authority & ors., the Supreme Court carved out 5th exception also and held that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available.
Hence, a fifth exception has been added by the Supreme Court when a writ court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute.
These exceptions are invoked after a detailed presentation of the facts of the case accompanied by an astute application of legal principles and provisions. Moreover, a careful reading and an in-depth understanding of the statute and its provisions are required while preparing the writ petition where the alternative remedy has not been invoked.
Vagish Yadav
Advocate, High Court,
Allahabad.