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Rule requiring the exhaustion of available statutory remedies before filing writ is a rule of discretion rather than a rule of law: Patna High Court.

On 17th of June, the Hon’ble Mr. Justice Ahsanuddin Amanullah decreed in a matter concerning powers of the High Court under Article 226 of the Indian Constitution saying, “it would be in the discretion of the Writ Court to entertain a petition even when there exists an alternative remedy, regard being had to all relevant facts and circumstances peculiar to the concerned case. The position in law stands clarified” in Saurav Kumar Sharma Vs. The State of Bihar through the Principal Secretary, Urban Development Department[Civil Writ Jurisdiction Case No. 10543 of 2021].

 

The Brief facts of the case are, the petitioner owned land whose title has not been disputed since 1970. He has a hotel constructed on this land. On 24.04.2021, the Real Estate Regulation Authority(RERA), Bihar, passed an order directing the demolition of the petitioner’s hotel and to handover the possession to the developer. The petitioner has filed a writ in the High court since neither the authority or the appellate tribunals were functioning due to the Covid-19 restrictions. The issue was whether the High court could interfere in this matter asper Article 226.

The learned counsel for the respondent submitted that Appellate tribunal  was being functional and thus the writ may not be entertained by the court. However, the learned counsel for the petitioner submitted that since the situation was extremely urgent and the tribunal was not fully functional, they resorted to a writ before this court.

The Hon’ble judge Mr. Justice Ahsanuddin Amanullah, after listening to both the sides adjudged that such a restraint is merely self-imposed and cannot be a total bar to exercise powers in extraordinary writ jurisdiction. The court relied on Lalit Narain Mithila University & Anr. v National Council for Teacher Education & Ors.,[CWJC No.9421 of 2020] where the court held that, “While the powers the High Court may exercise under its writ jurisdiction are not subject to strict legal principles, two clear principles emerge with respect to when a High Court’s writ jurisdiction may be engaged. First, the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary. Secondly, limitations placed on the court’s decision to exercise or refuse to exercise its writ jurisdiction are self-imposed. It is a well-settled principle that the writ jurisdiction of a High Court cannot be completely excluded by statute. If a High Court is tasked with being the final recourse to upholding the rule of law within its territorial juris- diction, it must necessarily have the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial review under Article 226 is an intrinsic feature of the basic structure of the Constitution”. In the current case, the High Court disposed off the Writ Petition granting liberty to the petitioner to move it to the appellate tribunal which was directed to take up the matter within a week.

Click here to read the judgement.

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