Whether Writ Is Maintainable With An Appeal?

 An Interesting Question Which Often Boggles Mind Of The Myriad Legal Professionals Is That What Is The Status Of The Time Limit Of Statutory Appeal When A Writ Is Preferred Before The High Court Or Supreme Court? This Article Will Try To Put Quell On This Dilemma.

INTRODUCTION:

The Law Is Dynamic And Intricate, What Is Today May Not Be Tomorrow. But, There Is Certainty To Some Extent When It Comes To Procedure Followed By The Court. These Procedures Are Steps In Achieving Justice. Any Lapse In Such Procedure May Make Notion Of Justice A Distant Object. Therefore, It Is Important To Strictly Stick To And Adhered To Procedural Laws And Procedure Enumerated Under The Statute.

In General, Law Provides For A Limitation Period For Filing Appeal Against Any Order. The Limitation Period For Filing An Appeal May Vary From Statute To Statute But Ostensibly Speaking It Remains Immutable And Invariable. Now, Because Statute Provides For Appeal Therefore Such Appeal Is Moniker As “Statutory Appeal”. If Within This Time Frame An Appeal Is Not Filed Then The Order Passed By The Lower Authority Will Be Struck By The Doctrine Of Finality And Any Such Order Will Become Absolute, Unchallengeable, Binding And Final.

Sometimes, Law Can Be Very Cumbersome And Technical To Decipher. This Is A Fact That An Appeal Which Is A Creature Of Statute Cannot Be Claimed As A Matter Of Right. Any Rules And Procedures Which Are Stipulated With An Appeal Need To Comply With.

On One Hand Statute Provides For An Appeal And On The Other Hand The Constitution Of India, 1950 Provides For Writs.  Art. 226 And Art. 32 Of The Constitution Encompass Most Powerful Weapons Which Exist In The Indian Legal Arsenal. The Writ Jurisdiction Of The Hon’ble Courts Provides For A Free Pass To Approach The Hon’ble Courts, By Not Following The Procedure Provided Under The Statute. But There Is A Catch I.E. Not All Cases Can Be Brought Before The Hon’ble Court Under The Garb Of The Writ Jurisdiction. The Writ Jurisdiction Is A Prerogative I.E. It Is A Privilege Conferred By The Court.

Difference Between An Appeal And Writ:-

It Is Quintessence To Decipher Basic Dichotomy Between An Appeal And Writ. An Appeal Is A Formal Request Made To A Superior Court To Review A Judgment, Order, Or Decision. An Appeal Lies Only Once Case Is Completed. It Is Not A New Trial Or Suit. Whereas, A Writ Is A Special Power Emanating From Constitution. A Writ Is Some Ways Is A “Last Resort” When It Comes To Legal Proceeding. The Writ Jurisdiction Of Court Become Effective When There Is No Legal Recourse Or A Delay Of Waiting For An Appeal Will Cause Severe Hardship.

Rule Of Exhaustion:

The Writ Jurisdiction Of The Court Can Only Be Invoked When All Other Remedy Available Has Been Exhausted. This Is Known As The Rule Of Exhaustion Of Remedies. The Court Has Justified The Same In The Case Of Union Of India V. T.R. Varma AIR 1957 SC 882 And Held That Petitions Under Art. 226 Of The Constitution Should Not Generally Be Entertained By The High Courts Where An Alternative And Equally Efficacious Remedy Is Available.  It Is Not The Practice Of Courts To Decide In A Writ Petition Disputed Questions Which Cannot Be Satisfactorily Decided Without Taking Evidence. The Rule Of Exhaustion Exists So That A Person Is Not Allowed To Circumvent Existing Statutory Proceedings By Approaching The High Court Under Article 226.

In The Case Of Punjab National Bank V. O.C. Krishnan, (2001) 6 SCC 569), The Hon’ble Supreme Court Held That There Is Hierarchy Of Appeal Provided In The Act, Namely, Filing Of An Appeal Under Section 20 And This Last Track Procedure Cannot Be Allowed To Be Derailed Either By Taking Recourse To Proceedings Under Articles 226 And 227 Of The Constitution Or By Filing A Civil Suit, Which Is Expressly Barred. Even Though A Provision Under Articles 226 And 227 Of The Constitution Is Available, Nevertheless When There Is An Alternative Remedy Available Judicial Prudence Demands That The Court Refrains From Exercising Its Jurisdiction Under The Said Constitutional Provisions.

 

Exception To The Rule Of Exhaustion:

But There Are Certain Grounds On Which The Court May Issue Writs Even If There Are Other Remedies Available. It Is Well Settled Law That An Alternative Statutory Remedy Does Not Operate As A Bar To Maintainability Of A Writ Petition In At Least Three Contingencies, Namely, Where The Writ Petition Has Been Filed For The Enforcement Of Any Of The Fundamental Rights Or Where There Has Been A Violation Of The Principles Of Natural Justice Or Where The Order Or Notice Or Proceedings Are Wholly Without Jurisdiction Or The Vires Of An Act Is Challenged.[Whirlpool Corporation Vs. Registrar Of Trade Marks, Mumbai And Others, (1998)8 SCC 1].

What If Alternative Remedy Is Not Effective?

Now, If The Alternative Remedy Is Not Effective And There Is A Fundamental Breach Of The Principle Of Natural Justice In That Case The Effective Remedy Will Be To Reinstate The Case Before The Person Who Has Breached Such Principle Of Natural Justice.

Now, A Statute Provides For An Appeal And Writ Is Also Effectively Available, But In An Appeal The Commissioner Is Not Having Power To Remand The Case. If The Appeal Is Availed Then This Will Lead To Wastage Of A Statutory Appeal In Putting Forth And Contesting A Maiden Case, And Further, The Defect Of Breach Of Principle Of Natural Justice Is Not Cured. Therefore, If An Appeal Is Preferred, Then Under Such Situation Whether An Aggrieved Person Can Deem That The Time Which He Has Invested Before The High Court For The Writ Will Be Excluded For Calculating Limitation Period For Filing Statutory Appeal.

Whether Condonation Of Delay Can Be Availed Under Limitation Act?

The First And Foremost Question Arises Is Whether The Limitation Act Is Applicable On Statutory Authority Which Is Not A Court By The Statutory Scheme Of Special Or Local Law. The Hon’ble Supreme Court In The Case Of The Ganesan V. The Commissioner, The Tamil Nadu Hindu Religious And Charitable Endowments Board And Others (Decided On May 3, 2019), While Noticing The Provisions Of Hindu Religious Endowment Charitable Act, 1959 As To Whether The Scheme Under The Hindu Religious Endowment Charitable Act, 1959 Shows That Enactment Intended To Apply Section 5 Of The Limitation Act, Held That Section 5 Of The Limitation Act Is Not Applicable As Per The Scheme Of Hindu Religious Endowment Charitable Act, 1959 .

The Hon’ble Supreme Court In Case Of Ganesan (Supra) Categorically Held That The Limitation Act Will Not Be Applicable On All The Cases. The Applicability Of Limitation Act, 1963 Is On The Case Of Suits, Petition, Appeals And Applications Filed Before The Courts, And It Is Not Applicable To Suits, Petition, Appeals Or Applications Filed Before Any Statutory Authority Or Tribunals.

Whether One Can Invoke Writ Jurisdiction In Case Of Expiration Of Statutory Time Limit For Filing Appeal?

The Law Of Limitation Is Found Upon Maxims Such As “Interest Reipublicae Ut Sit FinisLitium” Which Means That Litigation Must Come To An End In The Interest Of Society As A Whole, And “Vigilantibus Non Dormientibus Jura Subveniunt” Which Means That The Law Assists Those That Are Vigilant With Their Rights, And Not Those That Sleep Thereupon.If Limitation Act Is Not Applicable And Time Period For Filing Appeal Is Expired Then What Is The Next Remedy Available. If It Is Assumed And Presumed That The Right Of Appeal Has Expired Then There Remains No Other Statutory Remedy Which Needs To Be Exhausted Before Approaching Hon’ble High Court Under Writ Jurisdiction. This Proposition Is No More Res-Integra As There Is Catena Of Judgments Which States That When The Statutory Remedy Available To The Petitioner Under Law Is Barred By Law Of Limitation, His Remedy Has Come To An End Just Like In The Case Of A Time Barred Suit And He Cannot Resurrect His Unenforceable Cause Of Action. Reliance Is Placed On Kerala Motor Transport W.W.F.Board V. Government Of Kerala (2001 (1) KLT 608) And Krishnan T. And Another V. State Of Kerala And Others (ILR (2007(1) Ker. 233).

Whether A Writ And An Appeal Can Be Availed Simultaneously?

The Court Has Made It Categorical That If The Statutory Limit Of Appeal Has Expired Then One Cannot Approach Before Hon’ble Court Under Writ Jurisdiction. Further, The Question That Arises For Consideration Would Be If A Person Invokes The Remedy Under Article 226 Of The Constitution, Even At A Time When Statutory Remedy Is Not Barred, The Point To Be Examined Then Would Be As To Whether There Was Exigencies Pointed Out By The Apex Court (Whirlpool Corporation(Supra)) Namely Whether There Is Any Statutory Violation Or Whether The Order Impugned Is Against The Principles Of Natural Justice Or There Arises An Infringement Of Constitutional Right Or Whether The Very Provision Is Impugned As Ultra Vires Of The Provision Of The Constitution Etc. So, If A Writ Petition Is Field On Any Of The Above Grounds And Found Sustainable Certainly Alternate Remedy By Way Of An Appeal Will Not Be A Bar For Entertaining A Writ Petition Under Article 226 Of The Constitution.

This Manifest That A Writ And Appeal Both Can Be Preferred At The Same Time But Not Exactly On The Same Points. If There Is Some Fundamental Breach Of Principle Of Natural Justice, Constitutional Right Or Constitution Is Contravened Under Such Situation Only An Appeal And Writ Both Are Maintainable, Because Appeal Is Not An Effective Right Under Such Situations.

It Is Whittled Down Thus Far That Statutory Appeal And Writ Can Stand Parallelly. A Person Who Is In Writ Assailing An Order Or Judgment Will Have An Expectation That The Statutory Time Limit Shall Be Put On Hold For Filing Appeal. The Raison De’tre Behind Such Expectation Is That An Effective Remedy Is Being Persuaded Before A Competitive Court. Albeit, There Is A Statutory Appeal Available.

This Indispensable Impediment Needs To Be Surmounted In Order To Scout Any Further. The Writ Is Sui-Generis; Whereas An Appeal Is Creature Of Law. Both The Rights Are Independent Of Each Other. Both Rights Are Pleaded And Argued Before Different Courts Or Foras. Further, The Relief Sought Is Generally Different. Ergo, The Right Of Writ And Appeal Cannot Be Blended And Presented As Miscellany.

Whether A Writ Is Maintainable Once An Appeal Becomes Time Barred?

A Three Judge Bench Decision Of Apex Court In ITC Ltd. &Anr. Vs. Union Of India (1998) 8 SCC 610, Wherein The High  Court Had Dismissed The Writ Petition On The Ground That The Petitioner Therein Had An Adequate Alternative Remedy By Way Of An Appeal Under Section 35 Of The Central Excise Act.  Concededly, This Court Was Pleased To Uphold That Opinion   Of   The   High   Court.     However,   Whilst   Considering   The Difficulty Expressed By The Petitioner Therein That The Statutory Remedy   Of   Appeal   Had   Now   Become   Time   Barred   During   The Pendency Of The Proceedings Before The High Court And Before This Court, The Court Permitted The Petitioner Therein To Resort To Remedy Of Statutory Appeal And Directed The Appellate Authority To Decide The Appeal On Merits. In That Case, It Appears That The Writ Petition Was Filed Within Statutory Period And Legal Remedy Was Being Pursued In Good Faith By The Assessee.

It Is Stated That This Case Can Be Termed Exceptional Case As The Court Appreciating The Extraordinary Situation Of The Case That The Petitioner Was Unaware Of Appeal Provision Approached The Court Under Writ Jurisdiction. The Petitioner Invoked The Writ Jurisdiction In The Good Faith And Within The Statutory Time Limit Of Filing Appeal And Therefore, The Court Gave The Liberty To The Petitioner To File A Belated Appeal.

Time For Filing A Statutory Appeal Once Gone Is Gone.

The Hon’ble Supreme Court In The Case Of Assistant Commissioner (CT) LTU, Kakinada &Ors. V. M/S. Glaxo Smith Kline ConsumerHealth Care Limited, CIVIL APPEAL NO. 2413/2020, Where The Question Before The Court Was Whether The High Court In Exercise Of Its Writ Jurisdiction Under Article 226 Of The Constitution Ought To Entertain A Challenge To The Assessment Order On The Sole Ground That The Statutory Remedy Of Appeal Against That Order Stood Foreclosed By The Law Of Limitation.The Court Observed That If The Appeal Is Presented By The Assessee Beyond The Extended Statutory Limitation Period Of 60 Days In Terms Of Section 31 Of The 2005 Act And Is, Therefore, Not Entertained, It Is Incomprehensible As To How It Would Become A Case Of Violation Of Fundamental Right, Much Less Statutory Or Legal Right As Such.

The Court Further Observed That Be It Noted, When There   Is A Statutory Command By The Legislation As Regards Limitation And There Is The Postulate   That   Delay   Can   Be   Condoned   For   A   Further Period Not Exceeding Sixty Days, Needless To Say, It Is Based   On   Certain   Underlined,   Fundamental,   General Issues   Of   Public   Policy As   Has Been   Held   In Union Carbide   Corpn.   Case [Union   Carbide   Corpn. V. Union   Of India,   (1991)   4   SCC   584].

 

The Court Further Observed That To   Put   It   In   A   Different   Way,   The Prescription Of Limitation In A Case Of Present Nature, When   The   Statute   Commands   That   This   Court   May Condone   The   Further   Delay   Not   Beyond   60   Days,   It Would   Come   Within   The   Ambit   And   Sweep   Of   The Provisions And Policy Of Legislation. It Is Equivalent To Section   3   Of   The   Limitation   Act.   Therefore,   It   Is Uncondonable   And   It   Cannot   Be   Condoned   Taking Recourse To Article 142 Of The Constitution.

The Court In M/S Glaxo Smith Kline (Supra) Has Expressed Its View That The Assessee May Approach The High Court Before The Statutory Period Of Appeal Expires To Challenge The Assessment Order By Way Of Writ Petition On The Ground That The Same Is Without Jurisdiction Or Passed In Excess Of Jurisdictionby Overstepping Or Crossing The Limits Of Jurisdiction Including In Flagrant Disregard Of Law And Rules Of Procedure Or In Violation Of Principles Of Natural Justice, Where No Procedure Is Specified.The High Court May Accede To Such A Challenge And Can Also Non Suit The Petitioner On The Ground That Alternative Efficacious Remedy Is Available And That Be Invoked By The Writ Petitioner. However, If The Writ Petitioner Choses To Approach The High Court After Expiry Of The Maximum Limitation Period Of 60 Days Prescribed Under Section 31 Of The 2005 Act, The   High   Court   Cannot   Disregard   The   Statutory   Period   For Redressal Of The Grievance And Entertain The Writ Petition Of Such A Party As A Matter Of Course.

CONCLUSION:

There Is No Provision Specifically Provided Under Any Statute Or Under Constitution Which Bars The Preference Of Appeal And Writ Simultaneously. But, It Is Also Made Clear That There Is No Provision Which Provides For The Same. So, This Point Falls In A Grey Area. The Ratio Of Judicial Precedent (Whirlpool Corporation (Supra)) Manifests That Appeal And Writ Can Be Preferred Simultaneously. But, The Court Has Cautioned In Galaxy Of The Rulings That Such Entertainment Of Writ Be Not Used Casually And Further, The Writ Shall Only Be Entertained In The Exigencies As Provided By The Hon’ble Apex Court.

An Appeal Is Not Preferred And Writ Is Filed Then Such Writ Need To Be Filed Within The Time Of Statutory Time Limit Of Filing An Appeal. If Such A Writ Is Not Filed Within The Statutory Time Limit Then Such Writ Shall Not Be Entertained By The Court As Ruled By The M/S Galxo Smith (Supra). Therefore, Once A Time Period And An Opportunity Of Filing Appeal Is Expired Then No Writ Can Be Entertained By The Hon’ble Court.

It Is To Bear In Mind That The Limbs Of The Democracy Work In Parallel And Not In Contradiction. Intention Of The Legislature Is Clear From The Wording Of The Statute And Therefore Until Or Unless There Is Ambiguity In The Language Of The Statute There Shall Be No Interference From The Side Of The Judiciary.