Bhavik Jain v. State of H.P.

appeal in the High Court and therefore, entertainment of writ petition as such could not be invoked by the litigant whereby the writ petition though dismissed on account of lack of territorial jurisdiction, the liberty had to be given to approach the Court of competent jurisdiction. Relevant portion of the said judgment reads as under:- “30. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by Parliamentary legislation is far too fundamental to be questioned especially after judgment of Constitution Bench of this Court in L. Chandra Kumar 5 ( 2026:HHC:9839) vs. Union of India and others - [(1997) 3 SCC 261]. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre-deposit of penalty by the Appellate Tribunal.

When a statutory forum is created by law for redressal of grievance and that too in a fiscal Statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go bye by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating the aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.”

In Om Prakash Saini Vs. DCM Limited and others (2010) 11 SCC 622, the Apex Court held that once there was a remedy of appeal before the National Consumer Commission, the High Court was not justified in entertaining the writ petition more so, keeping in view the fact that it was a complete code in itself and moreover, it was a special enactment for adjudication of the consumer disputes and had to be treated an effective alternative remedy.

It is a settled principle that once there is an alternate efficacious remedy, the Writ Court would not 6 ( 2026:HHC:9839) entertain the petition and this principle has been laid down by the Hon’ble Apex Court in United Bank of India Vs. Satyawati Tondon and others (2010) 8 SCC 110. In the said case the issue was of “Sarfaesi” proceedings and the alternative remedy was provided under the Act before the Tribunal. It was held that there was no reason why the High Court should entertain the petition. The Apex Court also placed reliance upon the earlier judgment in CCE Vs. Dunlop India Limited (1985) 1 SCC 260 to hold that there should be good and sufficient reasons to bye pass an alternative remedy and that such petitions are filed solely for the purpose of obtaining interim orders and prolong the proceedings and such practice needs to be strongly discouraged.

In such circumstances, we are of considered opinion that the petitioner is not without a remedy inasmuch as Section 43 (5), which reads as under:-

(5) Any person aggrieved by any direction or decision or order made by the authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter. Provided that where a promoter files an appeal with the Appellate Tribunal, is shall not be entertained, without the promoter first having 7 ( 2026:HHC:9839) depositing with the Appellate Tribunal at least thirty percent, of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.

It is not disputed that the Appellate Tribunal has been set-up and is existing, therefore, it does not lie in the mouth of the present appellants to submit that they have been divested of their right to avail the alternative remedy, keeping in view the settled position of law. Rather, a perusal of the writ petition would go on to show that it has been specifically mentioned that there is no alternate efficacious remedy available, which is contrary to the statutory provision.

We are of the considered opinion that the said provision also provides for the deposit of 30% of the penalty filing an appeal, or such higher percentage as determined by the Appellate Tribunal, thus the writ petition has been filed to avoid depositing the penalty in the first instance. Therefore, we are of the considered opinion that once there is an alternate efficacious remedy available in such circumstances, there is no occasion to interfere with the well- 8 reasoned order passed by the learned Single Judge in exercise ( 2026:HHC:9839) of judicial process.

Keeping in view the fact that the issue of limitation would arise, if the appeal is filed within three weeks from today, the Appellate Tribunal shall be expected to decide the matter on merits, rather than, dismissing the appeal on the ground of limitation, since the matter remained pending before the Writ Court.

The appeal is, accordingly, disposed of, along with pending miscellaneous application(s), if any. (G.S. Sandhawalia) Chief Justice (Jiya Lal Bhardwaj) Judge 30th March, 2026 (sushma)