Rikhab Chand Jain vs. Union Of India

REPORTABLE
2025 INSC 1337

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6719 OF 2012

RIKHAB CHAND JAIN APPELLANT


VERSUS


UNION OF INDIA & ORS. RESPONDENTS


J U D G M E N T

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1. This civil appeal, by special leave granted on 17 September, 2012,
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impugns the judgment and order dated 14 March, 2011 of the High
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Court of Judicature for Rajasthan, Bench at Jaipur , whereby the
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appellant’s writ petition came to be dismissed on the ground of omission
of the appellant to pursue the alternative remedy of appeal provided by
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the Customs Act, 1962 as well as on merits.
2. The facts leading to presentation of the writ petition before the High
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Court are not in dispute. On 27 September, 1992, alleged smuggled
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silver weighing 252.177 kgs came to be seized. By an order dated 7
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May, 1996, the respondent no. 3 ordered confiscation of the seized silver
and levied penalty of Rs.50,000/- on the appellant. The said order was

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carried in appeal by the appellant before the CEGAT under Section
129A(1) of the 1962 Act. The CEGAT effectively dismissed the appeal by
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an order dated 23 June, 2000. While it did not interfere with the order of
confiscation, the amount of penalty was reduced to Rs.30,000/-.
3. Despite availability of a further appeal to the High Court under Section
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130 of the Customs Act, the order dated 23 June, 2000 of dismissal of
the appeal by the CEGAT was not challenged by the appellant within the
prescribed period of limitation, i.e., 180 days. Instead, the appellant
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approached the High Court in its writ jurisdiction as late as on 18 March,
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2003. Therein, he laid a challenge to the order dated 7 May, 1996 of the
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respondent no.3 and the order dated 23 June, 2000 of the CEGAT.
4. Perusal of the impugned order reveals that the High Court did not
examine the order of confiscation on its merits forming a view that such
an order had not been challenged by the appellant before the CEGAT. The
High Court held that since the appellant did not challenge the confiscation
order before the CEGAT (but only challenged the order of penalty), the
order of the CEGAT had attained finality. Therefore, the only remedy
available to the appellant was to file an appeal under Section 130A of the
Act, which he did not pursue. Thus, the High Court declined to invoke its
writ jurisdiction under Article 226 of the Constitution. One other reason
was assigned by the High Court for holding that the appellant did not
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deserve relief. The High Court noted that the order dated 14 May, 2003
of the criminal revisional court (the court of the Additional Sessions

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Appeal No. C/225/96 NB
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Customs, Excise and Gold (Control) Appellate Tribunal

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Judge), which set aside the Special Magistrate’s direction contained in an
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order dated 12 February, 2002 to return the seized silver, was never
challenged by the appellant. In effect, when there was no order directing
return of silver, the appellant could not have asked for the relief in a writ
petition.
5. We have heard Ms. Chitrangda Rastravara, learned counsel for the
appellant and Mr. Raghavendra P. Shankar, learned Additional Solicitor
General for the respondents at some length.
6. Since the appellant has been told off at the gates by the High Court on
the ground that he did not pursue the alternative remedy of appeal before
the High Court under Section 130 of the 1962 Act, what is central to our
consideration is whether the High Court was justified in refusing to
entertain the writ petition of the appellant seeking a writ of certiorari.
7. Decisions of this Court are legion from which guidance can aptly be drawn
as to when a writ petition ought to be entertained despite the party
approaching the high court not exhausting the alternative statutory
remedy available to him/her/it. Insistence by the courts – both this Court
and the high courts – of exhaustion of a statutory remedy provided by an
enactment before invoking the writ jurisdiction of a high court under
Article 226 of the Constitution can be traced to one of several self-
imposed restrictions, laid down by judicial precedents of this Court.
Unless, of course, any of the exceptions [challenge to an act/order
grounded on (i) breach of a Fundamental Right; (ii) violation of natural
justice principles; (iii) lack of jurisdiction; and (iv) unconstitutionality of a
statute] is satisfied, that a writ court may refuse to entertain a writ

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petition does not admit of any doubt. This Court relying on a host of
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decisions including State of Uttar Pradesh v. Md. Nooh and Titaghur
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Paper Mills v. State of Orissa has, in Godrej Sarah Lee v. Excise
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and Taxation Officer-cum-Assessing Authority , reiterated that
availability of an alternative statutory remedy does not oust the
jurisdiction of a writ court. It was also explained how “entertainability of a
writ petition” is a concept distinct from the concept of “maintainability of
a writ petition”.
8. However, this particular appeal unfolds a fact situation which requires
consideration of the issue from a different perspective. We wish to justify
our conclusions by referring to two old-era Constitution Bench decisions
of high authority, which have seemingly faded into obscurity but the
significance and impact whereof have continued relevance even in
present times.
9. While deciding whether to entertain a petition under Article 226 bearing
in mind the precedents in the field, a writ court ought to additionally
notice the forum designated by the statute for the litigant to approach.
This is necessary because the alternative forum that is provided by the
statute has to be one which can dispense speedy and efficacious relief.
However, as in the present case, if the statutorily designated alternative
forum happens to be the high court itself whose jurisdiction under Article
226 is invoked and not any ordinary statutory functionary/tribunal,
refusal to entertain the petition should be the rule and entertaining it an

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AIR 1958 SC 86
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(1983) 2 SCC 433
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2023 SCC OnLine SC 95

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exception.
10. We may profitably refer, in this context, to the Constitution Bench
decision in Thansingh Nathmal v. A. Mazid , Superintendent of
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Taxes . In Thansingh Nathmal (supra), this Court had the occasion to
lay down a principle of law which is salutary and not to be found in any
other previous decision rendered by it. The principle, plainly, is that, if a
remedy is available to a party before the high court in another
jurisdiction, the writ jurisdiction should not normally be exercised on a
petition under Article 226, for, that would allow the machinery set up by
the concerned statute to be bye-passed. The relevant passage from the
decision reads as follows :
"The jurisdiction of the High Court under article 226 of the Constitution is
couched in wide terms and the exercise thereof is not subject to any
restrictions except the territorial restrictions which are expressly provided
in the article. But the exercise of the jurisdiction is discretionary; it is not
exercised merely because it is lawful to do so. The very amplitude of the
jurisdiction demands that it will ordinarily be exercised subject to certain
self-imposed limitations. Resort to that jurisdiction is not intended as an
alternative remedy for relief which may be obtained in a suit or other
mode prescribed by statute. Ordinarily the court will not entertain a
petition for a writ under article 226, where the petitioner has an
alternative remedy, which, without being unduly onerous, provides an
equally efficacious remedy. Again the High Court does not generally enter
upon a determination of questions which demand an elaborate
examination of evidence to establish the right to enforce which the writ is
claimed. The High Court does not therefore act as a court of appeal
against the decision of a court or tribunal, to correct errors of fact, and
does not by assuming jurisdiction under article 226 trench upon an
alternative remedy provided by statute for obtaining relief. Where it is
open to the aggrieved petitioner to move another tribunal, or even itself in
another jurisdiction for obtaining redress in the manner provided by a
statute, the High Court normally will not permit, by entertaining a petition
under article 226 of the Constitution, the machinery created under the
statute to be by-passed, and will leave the party applying to it to seek
resort to the machinery so set up."
(emphasis ours)

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AIR 1964 SC 1419

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11. Since the appellant had a remedy by way of a reference before the High
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Court against the order dated 23 June, 2000 of the CEGAT, we do not
consider refusal to exercise discretion in favour of the appellant to be so
fundamentally incorrect that interference is warranted.
12. That apart, the majority view in a previous Constitution Bench in A. V
Venkateswaran, Collector of Customs, Bombay v. Ramchand
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Sobhraj Wadhwani reads thus:

“14. ..., we must express our dissent from the reasoning by which the
learned Judges of the High Court held that the writ petitioner was
absolved from the normal obligation to exhaust his statutory remedies
before invoking the jurisdiction of the High Court under Article 226 of the
Constitution. If a petitioner has disabled himself from availing himself of
the statutory remedy by his own fault in not doing so within the
prescribed time, he cannot certainly be permitted to urge that as a ground
for the Court dealing with his petition under Article 226 to exercise its
discretion in his favour. Indeed, the second passage extracted from the
judgment of the learned C.J. in Mohammed Nooh case with its reference
to the right to appeal being lost ‘through no fault of his own’ emphasizes
this aspect of the Rule.”
(emphasis ours)

In essence, this Court was of the opinion that once a petitioner has due to
his own fault disabled himself from availing a statutory remedy, the
discretionary remedy under Article 226 may not be available.
13. Although there is no period of limitation for invoking the writ jurisdiction
of a High Court under Article 226, all that the courts insist is invocation of
its jurisdiction with utmost expedition and, at any rate, within a
“reasonable period”. What would constitute “reasonable period” cannot be
put in a straight-jacket, and it must invariably depend on the facts and
circumstances of each particular case. Nonetheless, the period of
limitation prescribed by an enactment for availing the alternative remedy

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AIR 1961 SC 1506

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provided thereunder in certain cases does provide indication as to what
should be the “reasonable period” within which the writ jurisdiction has to
be invoked.
14. In the present case, the order of the CEGAT was subjected to challenge
by the appellant well after the prescribed period of limitation for seeking a
reference by making an application under Section 130A of the 1962 Act
(as it then existed). Although, an explanation was sought to be given by
the appellant why the writ jurisdiction could not be invoked earlier, we
are not impressed. The belated invocation of the writ jurisdiction of the
High Court could not have been justified by the appellant by taking the
plea of pursuing remedy elsewhere. Even otherwise, such an explanation
could well have been offered in an application seeking condonation of
delay in presentation of the application under Section 130A of the 1962
Act before the High Court. We have not found any provision in the 1962
Act which either expressly or by necessary implication excluded the
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provisions of Sections 4 to 24 of the Limitation Act, 1963 . As such, in
terms of Section 29(2) of the 1963 Act, the High Court in its reference
jurisdiction could have well been approached with a request to condone
the delay in presentation of the application under Section 130A of the
1962 Act.
15. In our considered opinion, the appellant having had a remedy before the
High Court in a separate jurisdiction which was equally efficacious, he
indulged in the (mis)adventure of invoking its writ jurisdiction which was
rightly not entertained.

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1963 Act

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16. We have also noticed that the High Court dismissed the writ petition as
one being devoid of merits. It was noted by the High Court that the
CEGAT reduced the quantum of penalty, while observing that the
confiscation was not under challenge before it. Ms. Rastravara invites our
attention to the memo of appeal that came to be filed before the CEGAT
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against the order of confiscation dated 7 May, 1996 to buttress her
contention that the order of confiscation was also under challenge. She is
right; the confiscation order indeed was under challenge in the appeal
before the CEGAT. However, we do not find appropriate pleadings in the
writ petition to the effect that the point of invalidity in confiscating the
seized silver was duly raised before the CEGAT but had not been
considered by it. Merely urging a ground, under the heading ‘GROUNDS’,
which is in the nature of a submission before the High Court without
anyone (having full knowledge of the proceedings before the CEGAT and
knowing precisely the points raised) taking responsibility of making a
statement on oath by verifying it as true to his knowledge that a point
was raised but not dealt with, would not be sufficient to persuade us to
entertain any grievance on this score. Drawing from our judicial
experience, we may observe that not all points raised or grounds urged in
a petition are advanced in course of hearing. In order to have the court
examine the objection of non-consideration raised as well as to succeed,
there has to be a direct challenge that the authority whose order is being
questioned did not deal with the point/ground much to the detriment of
the party raising it. The writ petition lacked the basic pleadings and
hence, the High Court did not fall in error in dismissing it even on merits.

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17. We, therefore, uphold the impugned order of the High Court and dismiss
the appeal.


……….............................J.
[DIPANKAR DATTA]




……….............................J.
[ARAVIND KUMAR]
New Delhi;
November 12, 2025.