Excelsior Correspondent
JAMMU, Jan 1: High Court of Jammu & Kashmir and Ladakh has held that ordinarily relief under Article 226 of the Constitution of India cannot be sought if efficacious alternative remedy is available to any aggrieved person.
Justice Wasim Sadiq Nargal held this while dismissing petition filed by JK Montessori School seeking quashment of action of the respondents in illegally disconnecting the electricity supply to the petitioner-school in flagrant violation to the provisions of the J&K Electricity Act, 2010 and Rules framed thereunder and without providing 15 days notice in writing as per the provisions of Section 50(1) of the J&K Electricity Act, 2010.
After carefully going through the grounds urged in the writ petition and also the arguments advanced by the counsel for the petitioner, Justice Nargal said, “I don’t find it a case, which is covered by the exceptions to the general rules that in the face of alternate and efficacious remedy, the Constitutional Court would entertain the present writ petition under Article 226 of the Constitution of India”.
“The case of the petitioner does not fall within exceptions carved out to the general principle that in the face of alternate and efficacious remedy, the writ petition can be maintained. The writ petition as such, is not maintainable”, High Court said, adding “the law in this regard is well settled that when statutory and equally efficacious remedy is available, writ petition should not be entertained and the party concerned should be relegated to such alternative remedy”.
“There is no whisper in the writ petition which is filed by the petitioner that she has availed alternate and efficacious remedy provided under statute nor any averment that case of the petitioner falls within the exceptional clause to give a right to the petitioner to bypass the alternate efficacious remedy by approaching this court straight way”, High Court said, adding “it is trite law that ordinarily relief under Article 226 of the Constitution of India is not available, if efficacious alternative remedy is available to any aggrieved person. Where statutory remedy is created by law, the writ petition should not be entertained ignoring the statutory dispensation”.
“The respondents have refuted the claim of the petitioner and have tried to justify the imposition of excess load penalty by pleading that the petitioner school is functioning in two premises having one metered connection and another without meter, which fact has never been denied by the petitioner”, Justice Nargal said, adding “the person seeking relief under discretionary writ jurisdiction must come to the court with clean hands. It is a settled principle of law that one who demands equity must do equity. On this count also the writ petition is not maintainable as the petitioner has not pleaded correct facts”.
“However, having regard to the fact that petitioner has been pursuing its claim before this court by filing this writ petition under Article 226 of the Constitution, as such, if the petitioner would wish to avail the remedy of statutory appeal as per the Act, the Appellate Authority shall consider the same without making reference to the period of limitation and, till then, no punitive action/recovery will be taken against/from the petitioner”, Justice Nargal said.
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