ORDER
B.A. Khan, J.
1. Even landmark judgments sometimes generate avoidable debate. The celebrated judgment in L. Chandra Kumar v. Union of India [AIR 1997 SC1125], which rendered the decisions/judgments of Tribunals set up under Articles 323A and [323B] of the Constitution, amenable to judicial scrutiny of a Division Bench of High Court under Articles 226/227 of the Constitution, is no exception.
2. The present controversy is all about the fall-out of this judgment and arises from two writ petitions wherein petitioners are resisting payment of excise duty and are aggrieved of the orders passed by the Customs, Excise and Gold (Control) Appellate Tribunal (for short CEGAT). The petitions are opposed by Respondents on the priliminary objection that this Court had no jurisdiction to test the validity of the CEGAT order/ decision in the face of judgment supra as the Tribunal was not the creature of Article 323B. In other words it is sought to be projected that the direction contained in the judgment supra reviving the power of the High Courts to judicially review the decisions of Tribunal was limited to such Tribunals only as were established under Articles 323A and 323B and since the CEGAT was created under the Customs Act and the Central Excise Act, this Court was not competent to examine the validity of its orders/decisions on the strength of directions contained in Chandra Kumar's case. Alternatively it is submitted that even if it was conceded that the Supreme Court judgment was attracted to it still this Court was helpless in the matter as it fell outside the Court's territorial jurisdiction. Lastly it was urged that the two writ petitions were not entertainable as the petitioners had failed to exhaust the alternative statutory remedy provided under Section 35L of the Excise Act.
3. Following issues were thrown up for consideration in this backdrop :-
(i) Whether the Supreme Court judgment covered the CEGAT also.
(ii) Whether this Court was incompetent to judicially review the orders passed by the CEGAT at Delhi?
(iii) Whether the two writ petitions were liable to be rejected because of the availability of alternate statutory remedy under Section 35L of the Excise Act?
4. Curiously, both sides derived their sustenance from the Apex Court judgment and placed reliance on it to prove their point. Learned Counsel for Respondents Mr. Nema read through some portions of the judgment to show that the Supreme Court was only engaged in testing the constitutional validity of Articles 323A and 323B and some provisions of the Administrative Tribunal Act and consequently its directions were applicable to the Central Administrative Tribunal and other Tribunals created under Article 323B. He particularly referred to para 36 of the judgment wherein Supreme Court was informed that only four Tribunals were set up under this Article by the legislatures of three States. He asserted that since CEGAT was not created under this Article but was a product of Customs Act and Central Excise Act, it could not be treated to fall within the ambit of the directions passed by the Supreme Court. He also referred to para 90 of the judgment to indicate that even if CEGAT decisions were deemed amenable to the High Court jurisdiction under Article 226/227, still only Delhi High Court could assume jurisdiction in the matter as the Tri- bunal located at Delhi fell within its territorial jurisdiction. According to him the Apex Court had made it clear that the Tribunal must fall within the territorial jurisdiction of the Court. He finally contended that the writ petitions were liable to be rejected for petitioners' failure to exhaust the alternate remedy under the Central Excise Act. He cited AIR 1987 SC 386 (Sampat Kumar); AIR 1990 SC 2263; 1993 (4) SCC 120 (R.K. Jain's case); 1983 SCC (sic); and AIR 1985 SC 330 in support.
5. Learned Counsel for petitioners M/s. Mathur and Kohli read out extensively from paras 76 to 79, 90, 91 to 94 of the judgment to point out that once the Supreme Court had declared the power of judicial review of the High Court under Articles 226 to only 227 (sic) to form the part of the basic structure of the Constitution which could not be excluded by any Act of the Parliament or any amendment to the Constitution, it was exercisable in case of orders/ decisions passed by all Tribunals set up prior to and after the enactment of Articles 323A and 323B of the Constitution. They claimed that the Supreme Court judgment had laid down so loud and clear in paras 91 and 92 and had left no scope for any doubt or ambiguity in this regard. The Counsel also repelled the contention that CEGAT was amenable to the jurisdiction of Delhi High Court only because its headquarters was located at New Delhi. According to them this plea if accepted would contravene the mandate of the Supreme Court judgment and that of Article 226(2) also. They pointed out alternatively that CEGAT Notification No. 5/95, dated 31-5-1995, itself provided that its Benches could hold their sitting at their headquarter or such places as may be considered expedient. Since Madhya Pradesh fell within the territorial jurisdiction of the Northern Zonal Bench, the CEGAT was free to hold its sittings in this State also and thus should be deemed to fall within the territorial jurisdiction of the M.P. High Court. As regards plea of alternative remedy, it was submitted that the Supreme Court had as good as excluded a direct appeal to it under Section 35L of the Central Excise Act and had provided for an appeal by special leave under Article 136 against the orders passed by the Division Bench of the High Court.
6. Before dealing with the rival contentions it would be appropriate to make a passing reference to the historical background leading to the passing of judgment in Chandra Kumar's case. It may be recalled that taking in regard the hue and cry over the ever increasing backlog of various High Courts, it was deemed necessary to take recourse to alternative institutional mechanism. Consequently, Part XIV of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act, 1976 from 1st March, 1977. It contained two provisions Articles 323A and 323B. The first Article empowered the Parliament to create Administrative Tribunals for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts and the other Article 323B envisaged setting up of Tribunals for adjudication or trial of any disputes, complaints or offences with respect to all or any of the matters specified in its clause (2). Both provisions carried exclusion clauses whereby jurisdiction of all Courts except that of Supreme Court under Article 136 of the Constitution was taken away.
7. Pursuant thereto Parliament enacted the Administrative Tribunal Act under Article 323A and Section 28 of this also excluded jurisdiction of all Courts except the Supreme Court. Resultantly the Central Administrative Tribunal (CAT) was established on 1-11-1985. However, before this Tribunal could find its feet several petitions were filed in High Court and in Supreme Court assailing the constitutional validity of Article 323A of the Constitution and also some provisions of the Administrative Tribunal Act. The issue was first considered in Sampat Kumar's case [AIR 1987 SC 386] wherein the Supreme Court affirmed that judicial review was a basic feature of the Constitution but at the same time approved the vesting of this power in alternative institutional mechanism like the Tribunals after taking it away from the High Courts. The Court did not touch or assess the impact of the exclusion of the jurisdiction of the High Courts and the Supreme Court under Articles 323A and 323B.
8. Subsequently the Apex Court was confronted with the contention that Tribunals established under Article 323A of the Constitution were substitutes of the High Courts and should be equated so in Muzumdar's case (AIR 1990 SC 2263). Even as it overruled the plea, it came across complaints of lacunae in alternative institutional mechanism more particularly malfunctioning of the CEGAT. The Court accordingly expressed its concerned in R.K. Jain's case [1993 (4) SCC120] and asked for an extensive study of the matter by the Law Commission. Eventually the issue was finally clinched in Chandra Kumar's case [AIR 1997 SC 1125].
9. This judgment broadly holds that the power of judicial review vested in the High Courts under Article 226/227 and the Supreme Court under Article 32 was an integral and essential feature of the Constitution, forming part of its basic structure and that this power could not be excluded by any Act of Parliament or amendment to the Constitution. It further affirms the power of judicial superintendence of the High Courts over the decisions of Tribunals, whether or not created under Article 323A or Article 323B of the Constitution and makes these subject to judicial scrutiny before a Division Bench of the High Court. It additionally provides that such Tribunals would be competent to test the constitutional validity of the statutory provisions and the Rules other than their parent statute. Lastly, it virtually eliminates a direct appeal to the Supreme Court from the decision/orders of these Tribunals but saves a special leave under Article 136 against the orders/judgments of the Division Bench of the High Courts.
10. The all important portion of the judgment contained in paras 91 and 92 requires to be extracted to set at rest any doubts or misconceptions in this regard.
'Having regard to both the afore-stated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.
In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.' (Emphasis supplied)
11. This should have cleared all cobwebs but the irony is that varying interpretations are placed on the dictum of the Apex Court. Therefore, it requires to be underscored by way of illucidation that once the power of judicial review vested in the Supreme Court and the High Courts under Articles 32, 226 and 227 formed a basic feature of the Constitution and constituted a part of its basic structure, it required no further aid to show that this power was exercisable over the decisions and orders of all existing Tribunals, whether or not created under Articles 323A and 323B. The power was not liable to be exercised selectively to strike at the decisions of some and save those of others. Any view to the contrary would be grossly untenable and would fly in the face of the mandate of the relevant constitutional provisions. Therefore, even as the Supreme Court was primarily examining the vires of the exclusion clauses in Articles 323A and 323B and the provisions of the Central Administrative Tribunal Act, it was at the same time engaged in delineating the extent of its own power of judicial review and that of the High Courts. It cannot thus be logically suggested that its dictum was limited to the CAT and the four Tribunals created post Article 323B. The judgment of the Court when read between the lines leaves no scope for doubt in this regard. As such once it was settled that the power of judicial review possessed by the High Courts formed a basic feature of the Constitution, its flow of exercise would cover all Tribunals irrespective of any classification.
12. The other stand of the respondents that only Delhi High Court was competent to review the orders/decisions of the CEGAT because of its location at Delhi was equally misconceived and fallacious. It must be made clear at the outset that the Supreme Court had nowhere laid down so in Chandra Kumar's case. The word 'Territorial Jurisdiction' occurring in paras 90 and 91 was not to be interpreted literally but in the context of mandate of Article 226(1) and (2). Besides 'the Court direction was to be gathered in para 99 which specifically provides that all decisions of these Tribunals would be subject to scrutiny before 'a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls'. That makes it clear that a Tribunal should fall within the jurisdiction of the High Court as vested in it under Article 226(1) and (2). It is elementary that Article 226 of the Constitution empowers the High Courts to issue writs to any person or authority or any Government within its territorial limits. Prior to the insertion of clause (1a) now renumbered as clause (2) the writs issued by the High Court would not run beyond its territorial limits and the person, authority or the Govt. was required to be resident or located within such limits. But after the 42nd amendment this position had undergone a sea change leading to the widening of jurisdictional limits of the High Court. Now the position is that the High Court enjoys jurisdiction to issue writs to any person, authority or the Govt. who may not be resident or located within its territorial limits, provided the cause of action wholly or in part arises within such limits and notwithstanding whether the State or the authority or person was resident or not within those territories over which it was exercising its jurisdiction. It is well settled by now that if the cause of action was available, discernible wholly or in part in one particular place which was within the territorial limits of the High Court, it would assume the power to exercise all the powers under Article 226, irrespective of whether the authority whose act had created the cause of action was located outside its territorial limits. It would all depend upon the impact of the action of the authority or the person on the aggrieved party.
13. Even otherwise if the expression 'territorial jurisdiction' occurring in paras 90 and 91 of the judgment was to be construed technically, still the CEGAT should be deemed to fall within the territorial jurisdiction of M.P. High Court. This is so because its Notification No. 5/95, dated 31-5-1995 placed the State of Madhya Pradesh within the territorial jurisdiction of its Northern Bench with headquarter at Delhi which could hold sittings either at headquarter or at such other place within the respective jurisdiction including Madhya Pradesh. Thus, once a Bench of the CEGAT was free and competent to sit anywhere in M.P., the CEGAT would naturally fall or should be deemed to fall within the territorial limits of the M.P. High Court notwithstanding that it was headquartered at New Delhi at the time of the passing of the impugned order.
14. Coming to respondent's plea of alternative statutory remedy, it deserves to be rejected on the very threshold. It is well settled that rule of exhaustion of available statutory remedy is only a rule of policy. It neither bars nor prohibits jurisdiction of the Court and the entertaining or otherwise of a petition falls squarely within the discretion of the Court. It is also well recognised that where the Tribunal or a Court acts outside its jurisdiction or in excess of it or under a law which is ultra vires or places a erroneous interpretation on a statute or conducts proceedings in a manner contrary to rules of natural justice and accepted rules of procedure, the plea of alternative statutory remedy becomes irrelevant.
15. It is true that an appeal is provided against the order of the CEGAT under Section 35L of the Central Excise Act to the Supreme Court but the Apex Court itself had made it redundant by providing that no appeal would directly lie to it against any decision of the Tribunal save otherwise under Article 136 by special leave from the decision or the judgment of the Division Bench of the High Court.
16. Moreover the remedy of appeal provided in Section 35L is restrictive in nature and character and thus could not be treated as efficacious to oust the exercise of the writ jurisdiction [See 1964 SC 1419, AIR 1985 SC 330, AIR 1994 SC 2377].
17. In the ultimate analysis and all things considered we overrule the preliminary objection taken by the respondents and hold that CEGAT is as much amenable to the writ jurisdiction and supervisory jurisdiction of the Division Bench of the High Court under Article 226/227 of the Constitution in terms of the Supreme Court judgment in Chandra Kumar's case as any other Tribunal and that this High Court was competent to entertain a writ petition against any order/decision of the Tribunal even though passed at its New Delhi headquarter. It is further held that alternative statutory remedy of appeal to Supreme Court provided in Section 35L of the Central Excise Act against the order of the CEGAT would not operate as a bar to the maintainability of such petition.
18. Registry is directed to post the writ petitions for further proceedings before an appropriate Bench.