SC: Rule of alternative remedy is rule of discretion & not rule of jurisdiction

The Hon’ble Supreme Court, on 9th January 2020, in the matter of Balkrishna Ram v. Union Of India and Anr. pronounced that the rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction.

Question before the Hon’ble Supreme Court

Whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court.

Court’s Observation(s)

The High Court can exercise its writ jurisdiction even in respect of orders passed by the Armed Forces Tribunal. True it is, that since an appeal lies to the Supreme Court against an order of the AFT, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. (Para 10)

In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court. (Para 10)

The principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. (Para 14)

The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. (Para 14)

It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. (Para 14)

It is true that proceedings on the original side even in exercise of writ jurisdiction are to be transferred to the tribunal for decision by the AFT because the original jurisdiction now vests with the AFT. This however, does not mean that the AFT can exercise all the powers of the High Court. (Para 15)

Copy of judgement: Judgement_09-Jan-2020

-Adv. Tushar Kaushik

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