Petition sought directions to expedite an execution case under the Domestic Violence Rules and decide a salary attachment application. The court noted the petitioner had a statutory remedy under Section 529 BNSS and dismissed the petition as withdrawn with liberty to avail that remedy.
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Neutral Citation No. - 2025:AHC-LKO:40501
Court No. - 13
Case :- MATTERS UNDER ARTICLE 227 No. - 4195 of 2025
Petitioner :- Rehana Fatima Respondent :- State Of U.P. Thru. Addl. Chief Secy. Lko. And 3 Others Counsel for Petitioner :- Pal Singh Yadav,Ashish Kumar Singh,Prathama Singh Counsel for Respondent :- G.A.,Ruby Choudhary
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the record.
This petition under Article 227 of the Constitution of India has been filed seeking following main relief (s) :-
"(i) Pass an appropriate order or direction, directing the learned Civil Judge (J.D.)/F.T.C., Court No.50, Lucknow to decide the execution case no.7496 of 2024 under section 6(5) of Domestic Violence Rule, 2006, police Station Gazipur, District Lucknow expeditiously within stipulate time period as directed by this Hon'ble Court, in the interest of justice.
ii. Pass an appropriate order, directing to the learned court of Civil Judge (J.D.) /F.T.C. Court No.50, Lucknow to consider and decide the application of attachment of salary filed by the petitioner dated 11.03.2025 expeditiously as contained in Annexure No.3 to this petition."
Learned A.G.A., at the very outset, raised a preliminary objection stating that the petitioner has a remedy under Section 529 of the B.N.S.S., 2023.
Considered the aforesaid and perused the record.
It is undisputed that the petitioner is having a statutory remedy of filing application under Section 529 of the B.N.S.S., 2023. The law in this regard is well settled, as per which, the writ petitions should not be entertained, if there is a statutory remedy available to the litigant approaching the Court concerned.
The Hon'ble Apex Court in Titaghur Paper Mills Co. Ltd. & another Vs. State of Orrisa and others, (1983) 2 SCC 433, has observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11 of the above report, the Court observed thus:-
"11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton6 in the following passage:
"There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
(emphasis supplied)
In the subsequent decision in Mafatlal Industries Ltd. & others Vs. Union of India & others, (1997) 5SCC 536 , the Hon'ble Apex Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.
In a recent decision in Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771 , the Hon'ble Apex Court observed as under:-
"25. In this background, it becomes necessary for this Court, to dwell on the "rule of alternate remedy" and its judicial exposition. In Whirlpool Corpn. v. Registrar, Trade Marks [Whirlpool Corpn. v. Registrar, Trade Marks, (1998) 8 SCC 1] , a two-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. 9-10, paras 14-15)
'14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the fundamental rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar 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 principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.'
26. Following the dictum of this Court in Whirlpool Corpn. v. Registrar, Trade Marks [Whirlpool Corpn. v. Registrar, Trade Marks, (1998) 8 SCC 1] , in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , this Court noted that : (Harbanslal Sahnia case [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , SCC p. 110, para 7)
'7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar, Trade Marks [Whirlpool Corpn. v. Registrar, Trade Marks, (1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.'
27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
(emphasis in original)
On being confronted, after taking note of the above, learned counsel for the petitioner states that he may be permitted to withdraw the writ petition with liberty to avail the remedy available.
Accordingly, the writ petition is dismissed as withdrawn with the liberty as prayed for.
Office is directed to return the certified copy of the papers, if any, to the learned counsel for the petitioner as per rules.
Order Date :- 16.7.2025
ML/-
Digitally signed by :- MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench
1 issue framed by the court
Whether a writ petition under Article 227 should be entertained when the petitioner has an alternate statutory remedy under Section 529 BNSS for expediting an execution case.
Colour shows how this judgement treated each authority
Titaghur Paper Mills Co. Ltd. & another Vs. State of Orissa and othersRelied on
(1983) 2 SCC 433 · Who else cites this
Mafatlal Industries Ltd. & others Vs. Union of India & othersRelied on
(1997) 5 SCC 536 · Who else cites this
Radha Krishan Industries v. State of H.P.Relied on
(2021) 6 SCC 771 · Who else cites this
Whirlpool Corpn. v. Registrar, Trade MarksReferred
(1998) 8 SCC 1 · Who else cites this
Harbanslal Sahnia v. Indian Oil Corpn. Ltd.Referred
(2003) 2 SCC 107 · Who else cites this
4 provisions across 3 enactments
Rehana Fatima
State of U.P. thru Addl. Chief Secy. Lko.
Ruby Choudhary
Saurabh Lavania
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
