The power of judicial review under Section 226 is a fundamental feature of the Constitution; Cannot be restricted by any law: The High Court of Rajasthan

The High Court of Rajasthan has reiterated that the power of judicial review conferred on the High Courts under Article 226 of the Constitution of India is one of the fundamental features of the Constitution and no legislation can nullify or limit this power.

Judge Pushpendra Bhati further stated that the High Courts, while exercising the power provided for in Section 226, would take note of the legislative intent manifested in the provisions of the Act and exercise their jurisdiction in accordance with the provisions of the Act.

Essentially, the petitioner – LNJ Power Ventures Ltd. had requested to declare the proposal made by the respondent – RERC in its order of 08 May 2019 as ultra vires, under section 2 (8) of the Electricity Act 2003, read with Rule 3 of the Rules on electricity, 2005.

The petitioner further prayed for an ex parte instruction to the respondents restraining them from taking action against the petitioner. In addition to this, the Petitioner has requested that the notice or order, if any, issued by any of the Respondents pursuant to the above-mentioned Order be set aside, pending the pendency of the matter.

The court heard the petitioner’s lawyers on the merits of the case and considered the preliminary objections raised on behalf of the respondents.

The court went on to say that Section 125 of the Electricity Act 2003 allows “any person” aggrieved by a decision of the Tribunal to appeal to the Supreme Court, even if they are not a party to the suit. He added that the present motion, filed in 2019, is now under review and that any further judicial delay in deciding the case would not only be inappropriate, but also contrary to the interests of justice.

The court observed that the respondent-AVVNL had violated the order of 28.05.2019, by which a clear instruction had been given to the respondents to refrain from taking any coercive measures against the applicant, however, the respondents issued the disputed invoice and letter to the applicant. raising a claim of approximately Rs.55,47,354/-.

Resting on Tamil Nadu Power Producers Association Vs. Tamil Nadu Electricity Regulatory Commission and Ors., 2021 SCC Online APTEL 19the court held that the actions of respondent-AVVNL are not only illegal and contrary to the judicial order, but also unreasonable and arbitrary.

By relying more on Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1the court held that it is the Court’s constitutional duty to provide applicants with the opportunity to seek relief in the interests of justice

The court observed that it would be inappropriate to return the case to the Tribunal or to adjudicate the case on the grounds of lack of jurisdiction. He added that the arbitrariness is apparent on the face of it in the action of Respondent #4 in this case.

While rejecting the respondents’ preliminary objections and before ruling definitively on the merits of the case, the court granted the Advocate General a period of time to present his detailed conclusions on the merits of the case.

Furthermore, the court continued several decisions of the Supreme Court and observed that the exercise of the jurisdiction of the High Courts under section 226 is undoubtedly discretionary, but that such discretion must be exercised on the basis of sound judicial principles.

Furthermore, the Court observed that the High Courts, in exercising their jurisdiction under Section 226, are required to consider whether an applicant has an alternative or effective remedy. He added that while the existence of another remedy does not preclude receiving a written petition, the general rule is that the existence of another remedy for the aggrieved person or under the law in question which contains a grievance redress mechanism, still holds ground.

The court also added that the High Courts may entertain written proceedings under section 226, in exceptional cases, particularly where the cases concern a pure question of law or the validity of a law is disputed, and this would be on a case by case basis.

The Court also observed that the interest of the administration of justice would be better served if such cases were heard by the High Courts only when they concerned primary questions of jurisdiction or when they touched on the very root of jurisdiction and that the authorities had acted beyond the provisions of the law.

Counsel for the petitioner, in summary, argued that because of the following, the petitioner is entitled to seek an appeal in writing to the High Court:

  1. Since the applicant was not a party to the TESCO judgment, it cannot appeal and has no effective alternative remedy;
  2. The judgment rendered in Whirlpool Corporation (supra), with respect to the availability of an alternative remedy, allows the claimant to seek redress before the Court.

By contrast, the Advocate-General argued that it was only in the case of a question raised as to the jurisdiction of a court that a written application to the High Court would be admissible, and not otherwise.

In this respect, he relied on Cicily Kallarackal Vs. Vehicle Factory (2012) 8 SCC 524in which the Supreme Court observed that where a statutory appeal procedure is provided for in legislation, it would not be appropriate for the High Courts to then consider written petitions under Section 226 of the Constitution of India , which would circumvent the procedure provided for a statutory appeal.

The case is then scheduled for February 24, 2022 for a final hearing on the merits.

Adv. Parag Tripathi, Adv. Aniket Prasoon and Adv. Falgun Buch appeared on behalf of the petitioners, while Advocate General Sr. Adv. MS Singhvi, assisted by Adv. Akhilesh Rajpurohit appeared on behalf of the Respondents.

Case title: LNJ Power Ventures Ltd. vs. Rajasthan Electricity Regulatory Commission and Ors.

Quote: 2022 LiveLaw (Raj) 17

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