Point of Law : Under phraseology of Article 226, High Court can issue writ to any person, but person against whom writ will be issued must have some statutory or public duty to perform.

JUDGMENT :

Tarlok Singh Chauhan, J.

CMP (M) No. 241/2023

For the reasons stated in the application, delay of 57 days in filing of the appeal is ordered to be condoned. The application stands disposed of.

LPA No.114/2023

Be registered.

2. The appellant is the writ petitioner, who, aggrieved by dismissal of her writ petition, has filed the instant appeal.

3. The appellant approached the learned writ court for grant of following substantive relief:-

“that a writ in the nature of mandamus may very kindly be issued thereby directing respondent No.1 to respondent No.3 to oust respondent No.4 from the house of petitioner.”

4. In the writ petition, the appellant arrayed the State authorities as respondents No. 1 to 3, whereas her daughter-in-law as respondent No.4.

5. Learned writ court confronted the appellant with the issue of maintainability of the writ petition in terms of prayer made therein and the appellant in turn relied upon provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, the Act).

6. Learned writ court came to the conclusion that since the Act had not been made applicable to the State of Himachal Pradesh by issuance of necessary notification in the official gazette, therefore, the writ petition was not maintainable.

7. Learned counsel for the appellant would contend that the findings of the learned writ court were erroneous inasmuch as provisions of Article 21 of the Constitution of India have not been at all taken into consideration by the learned writ court.

8. We have heard the learned counsel for the appellant and the learned Advocate General.

9. It is more than settled law that the High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution of India, if an effective and efficacious alternative remedy is available, however existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This issue has been considered, in detail, by Three-Judge Bench of the Hon’ble Supreme Court in M/s Magadh Sugar & Energy Ltd. vs. The State of Bihar, 2021 (11) SCALE 350. It shall be apt to reproduce necessary observations as contained in paras 19 and 20 of the judgment, which reads as under:-

19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai and Harbanslal Sahni v. Indian Oil Corporation Ltd. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors. a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:

“28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a wr