Kisanlal Bairudas Jain v. Union of India

In such circumstances, we cannot appreciate the NHAI's stance ofraising the plea that these petitions should not be entertainedbecause the Petitioners have an alternate remedy under Section 37of the Arbitration Act. 9. It is well settled that the rule of exhaustion of alternateremedies is a self-imposed restriction on exercising extraordinaryjurisdiction under Article 226 of the Constitution of India. BeforePage 9 of 14 903-WP.9608.2023 & 904.WP.11052.2024.DOCXapplying this Rule, the court must see whether the alternateremedy is indeed efficacious. There is no point in relegating the Petitioners to the remedy under Section 37 of the Arbitration Act, when the relief they claim cannot be granted under suchproceedings. 10. If we were to relegate the Petitioners to the remedy of Section 37, the Appeal Court, being bound by the decision in Rishabhkumar (supra), would have no option but to dismiss suchappeals by declining to modify the arbitral award.

This would befutile. Such a remedy can hardly be called an efficacious one. Accordingly, we reject the unfortunate contention that thesePetitions should not be entertained because the Petitioners havean alternative remedy under Section 37 of the said Act. 11. In the case of M/s Godrej Sara Lee Ltd Vs The Excise and Taxation officer-cum-Assessing Authority and Ors.3,Civil Appealno.5393 of 2010 decided on 1 February 2023, the Hon'bleSupreme Court interfered with the dismissal of the writ petition bythe High Court because the petitioner had not availed thealternate remedy. The Hon'ble Supreme Court noted that suchdismissal was improper because the High Court failed to examinewhether an exceptional case has been made out. The Hon'bleSupreme Court also noted that mere availability of an alternativeremedy of appeal or revision would not oust the jurisdiction of the High Court and render a writ petition 'not maintainable'.

Wherethe controversy is purely legal one and it does not involve32023 (384) ELT 8 (SC)Page 10 of 14 903-WP.9608.2023 & 904.WP.11052.2024.DOCXdisputed questions of fact but only involves questions of law, thenit should be decided by the High Court instead of dismissing thewrit petition on the ground of an alternative remedy beingavailable. 12. There is no serious dispute regarding the facts or applicablelaw in these matters. The PDJ has held that the Petitioners areentitled to the benefits in terms of Tarsem Singh (Supra). TheNHAI offered such benefits from the date of the judgment. The so-called alternative remedy is ineffective. There is no benefit inrelegating the Petitioners to avail themselves of such analternative remedy, thus depriving them of the benefits to whichthey are entitled. 13. In all these matters, as noted earlier, there is no disputeabout the Petitioners being entitled to the benefits of the solatiumand interest under the decision of the Hon'ble Supreme Court in Tarsem Singh (Supra).

Even the counsel for NHAI who appearedbefore the Principal District Judge, fairly submitted that the NHAIwas willing to pay solatium component, though, from the date ofthe decision in the case of Tarsem Singh (Supra). After all this, toraise the objection based on alternate remedy in this Court, appears to be extremely unfortunate and unfair on the part of theNHAI. The NHAI cannot take diversion stances. Ultimately, theseare statutory benefits. The entitlement is never seriously disputed. Even the Principal District Judge, in terms held that the Petitionerswere entitled to such benefits given the decision in Tarsem Singh(Supra).Page 11 of 14 903-WP.9608.2023 & 904.WP.11052.2024.DOCX14.These are not adversarial proceedings, and we are happy tonote that NHAI did not treat them as adversarial proceedings atleast before the District Court. Even in this Court, Mr. Singh, whoappeared for NHAI in some of the matters, did not raise anobjection based on an alternate remedy.

The objection was onlyraised by Mr. Sambhaji Kharatmol, no doubt, on the instructions ofhis senior, who had appeared yesterday and raised the sameobjection. 15. Though no contention was pressed before us that thebenefits of Tarsem Singh (Supra) should be given only from thedate on which the Hon'ble Supreme Court made such a decision, still, we must add that such a plea was attempted to be raisedbefore the Hon'ble Supreme Court by filing the MiscellaneousApplication. Such a Miscellaneous Application was rejected on 4February 2025. We have taken cognisance of the MiscellaneousApplication filed in Tarsem Singh (Supra) and the orders madethereon in our order dated 8 April 2025, disposing of Writ PetitionNo.11932 of 2019 and connected matters. 16. Even in Rishabhkumar (supra), the Co-ordinate Benchagreed that the appellants were entitled to the benefits in terms of Tarsem Singh (supra). However, the Co-ordinate Bench held thatif the Arbitrator failed to grant such benefits in the arbitral award, the Section 34 Court was not entitled to modify and grant suchmonetary benefits.

The Co-ordinate Bench also held that whateverthe Section 34 Court could not do, even the appeal Court under Section 37 could not do. Accordingly, orders made by the SectionPage 12 of 14 903-WP.9608.2023 & 904.WP.11052.2024.DOCX34 Court granting such statutory benefits were interfered. TheCoordinate Bench clarified that such interference was due to therestricted powers possessed by the Section 34 and Section 37Courts. 17. In fact, in paragraphs 62 and 66, the Co-ordinate Benchheld that though such reliefs could not have been granted bymodifying the awards, the landowners would have to take suchsteps as are permissible in law to seek additional reliefs beyondwhat may have been granted in the award. Since the petitionersonly claim statutory reliefs in terms of the decision of the Hon’bleSupreme Court in the case of Tarsem Singh (supra), we seenothing wrong in their invoking the extraordinary jurisdiction ofthis Court under Article 226 of the Constitution.

18. We also rely upon our reasoning in the order dated 8 April2025, disposing of the Writ Petition No.11932 of 2019 andconnected matters. In this order, the petitioners had directlypetitioned this Court under Article 226 of the Constitution of India. The NHAI’s counsel, Mr. Rakesh Singh, very fairly, acceptedthat the matter was covered by the decision of the Hon’bleSupreme Court in the case of Tarsem Singh (supra). Evenotherwise, we were satisfied that the matter was covered. Accordingly, directions were issued to grant the petitioners thestatutory benefits in terms of the decision of the Hon’ble SupremeCourt in the case of Tarsem Singh (supra). 19. In our order dated 8 April 2025, we referred to Article141 of the Constitution, which provides that the law declared by Page 13 of 14 903-WP.9608.2023 & 904.WP.11052.2024.DOCXthe Supreme Court shall be binding on all Courts within theterritory of India.

We also referred to Article 144 of the Constitution, which provides that all authorities, civil and judicial, in the territory of India shall act to the aid of the Hon'ble SupremeCourt. 20. Accordingly, for all the above reasons, we overrule theobjection to the maintainability of these petitions on grounds ofalternate remedy and allow all these petitions by directing theNHAI to pay to the Petitioners the statutory benefits of solatiumand interest in terms of the decision of the Hon'ble Supreme Courtin Tarsem Singh (supra) within four months from today withoutrequiring the Petitioners to institute any contempt petitions fornon-compliance. 21. The Rule is made absolute in the above terms without anycost order. 22. All concerned must act on the authenticated copy of thisorder. (Jitendra Jain, J) (M.S. Sonak, J)Page 14 of 14