Constitution of India – Art.226 – Micro, Small and Medium Enterprises Development Act, 2006 – s.18 – Existence of the statutory remedy and Writ jurisdiction of the High Court: Held: In the opinion of this Court, there is a direct confrontation between the judgment of the two Judges Bench of this Court in Jharkhand Urja Vikas Nigam Limited and Gujarat State Civil Supplies Corporation Limited – A three-Judges Bench of this Court in M/s India Glycols Limited and Another v. Micro and Small Enterprises Facilitation Council, Medchal - Malkajgiri and Others, referring to the judgment in Gujarat State Civil Supplies Corporation Limited, held that a writ petition under Articles 226/227 of the Constitution was not maintainable as Section 18 of the MSMED Act provides for recourse to a statutory remedy for challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996 – This Court have reservations on the dictum in M/s India Glycols Limited – In the light of the various Supreme Court decisions, it is deemed appropriate to refer the following questions raised in the present appeal to a larger Bench of five Judges, namely: (i) Whether the ratio in M/s India Glycols Limited that a writ petition could never be entertained against any order/award of the MSEFC, completely bars or prohibits maintainability of the writ petition before the High Court; (ii) If the bar/prohibition is not absolute, when and under what circumstances will the principle/restriction of adequate alternative remedy not apply; (iii) Whether the members of MSEFC who undertake conciliation proceedings, upon failure, can themselves act as arbitrators of the arbitral tribunal in terms of Section 18 of the MSMED Act read with Section 80 of the A&C Act. [Paras 7, 10, 11, 15, 19]
Constitution of India – Art.226 – Access to the High Courts u/Art.226 of Constitution is a part of basic structure: Held: The access to High Courts by way of a writ petition under Article 226 of the Constitution of India, is not just a constitutional right but also a part of the basic structure – It is available to every citizen whenever there is a violation of their constitutional rights or even statutory rights – This is an inalienable right and the rule of availability of alternative remedy is not an omnibus rule of exclusion of the writ jurisdiction, but a principle applied by the High Courts as a form of judicial restraint and refrain in exercising the jurisdiction – The power to issue prerogative writs under Article
226 of the Constitution is plenary in nature and the same is not limited by any provision of the Constitution and cannot be restricted or circumscribed by a statute – It has been well settled through a legion of judicial pronouncements of this Court that the writ courts, despite the availability of alternative remedies, may exercise writ jurisdiction at least in three contingencies – i) where there is a violation of principles of natural justice or fundamental rights; ii) where an order in a proceeding is wholly without jurisdiction; or iii) where the vires of an Act is challenged. [Para 13]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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