Alternative Remedy Bar in Writ Petitions: When the High Court Division Will Still Intervene in 2026

The alternative remedy bar in writ practice: the 2026 position

The alternative remedy bar in writ practice is the most common reason a Bangladeshi writ petition fails before its merits are ever argued. If a statute gives you an appeal, a revision or a tribunal, the High Court Division will usually send you there first. Yet the bar is not absolute. Writs are still entertained every month against tax demands, administrative orders and regulatory actions that have their own appeal route, because the decision was made without jurisdiction, in bad faith, in breach of natural justice or under a provision that is itself unlawful.

This guide explains where the bar comes from in Article 102, how the Appellate Division and the High Court Division apply it, the exceptions that let a petitioner come straight to the writ court, and how the rule works in income tax, VAT, waqf, vested property and contractual disputes. It ends with a practical framework for deciding whether to file a writ, lodge a statutory appeal, or protect both routes at once.

Summary: Article 102(2) lets the High Court Division issue certiorari, mandamus and prohibition only if satisfied that "no other equally efficacious remedy is provided by law". Where a statute provides an appeal, the court ordinarily refuses the writ. It intervenes directly where fundamental rights are at stake, where the authority acted wholly without jurisdiction or mala fide, where natural justice was denied, where the vires of a law is challenged, or where the statutory remedy is not genuinely efficacious.

Key point: Pleading an exception is not enough. In 2025 the High Court Division warned that almost every petitioner now claims mala fides or lack of jurisdiction to bypass the appeal forum. Identify a concrete jurisdictional defect, keep your appeal deadline alive, and be ready to show why the appeal cannot give you an equal remedy.

At a glance

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Table of Contents

Where the alternative remedy bar in writ jurisdiction comes from

The rule is written into the Constitution. Article 102(2) provides that the High Court Division may, "if satisfied that no other equally efficacious remedy is provided by law", make orders directing a public functionary to do what the law requires or to refrain from what it forbids, or declaring an act done or proceeding taken without lawful authority and of no legal effect.[1] Those are the orders known in practice as mandamus, prohibition and certiorari.

Two features of the text matter. First, the condition attaches to Article 102(2), not to Article 102(1), which empowers the court to enforce fundamental rights against any person or authority without that qualification.[1] Second, the test is not whether some other remedy exists, but whether that remedy is "equally efficacious". An appeal that cannot decide the real question, cannot be reached in time, or cannot stop the harm is not an equal substitute.

Why the courts insist on the statutory route

The policy is straightforward. Parliament designs specialist appeal systems for tax, VAT, customs, waqf, vested property, land and many regulatory regimes, often with expert tribunals, fixed timelines and deposit rules. If every disappointed party could bypass them by filing a writ, the statutory scheme would be emptied out and the High Court Division would become a court of first appeal on facts. The Appellate Division has repeatedly said that in judicial review the High Court Division "does not assume the function of an appellate authority".[5]

How the alternative remedy bar in writ cases is applied

The default position under the alternative remedy bar in writ cases is firm. In Commissioner of Customs, Excise and VAT v Syed Nurul Arefeen, Civil Appeal Nos 11 to 15 of 2008, decided on 19 October 2022 and reported at 29 BLC (AD) 136, the Appellate Division under Hasan Foez Siddique CJ set aside High Court Division judgments that had entertained VAT writs. It observed that the Division "consistently deprecate[s]" filing writ petitions where an alternative remedy is provided by statute and held that, because the statute provided an efficacious remedy and its own mechanism for redress, the petitioners should use it.[4]

The same approach governs outside tax. On 2 December 2025, in Writ Petition No 7220 of 2023, the High Court Division (Sheikh Abdul Awal and S M Iftekhar Uddin Mahamud JJ) discharged a Rule against an eviction notice issued by the Administrator of Waqfs. Section 64(2) of the Waqfs Ordinance gives a person aggrieved by an eviction order an appeal to the District Judge within three months, and the court restated the settled principle that a writ petition is generally not maintainable if the petitioner has not exhausted the alternative, efficacious statutory remedy.[2]

Leave petitions that reverse High Court Division writs

The bar is also enforced on appeal. In Commissioner, Customs, Excise and VAT, Jessore v Perfect Tobacco Company Ltd, Civil Petition for Leave to Appeal No 140 of 2019, decided on 4 April 2022, the Appellate Division set aside a 2016 High Court Division judgment that had quashed a VAT penalty order. Relying on TaeHung Packaging (BD) Ltd v Bangladesh, 18 BLC (AD) 144, it held the writ petition not maintainable without exhausting the statutory appeal under section 42 of the VAT Act 1991.[5] A taxpayer who wins in the High Court Division on a writ that should not have been entertained can therefore lose years later on maintainability alone.

The recognised exceptions

The exceptions to the alternative remedy bar in writ proceedings are as well established as the rule itself. In Syed Nurul Arefeen the Appellate Division adopted the Indian formulation that the High Court may entertain a writ despite an alternative remedy in at least three situations: where the petition seeks enforcement of a fundamental right; where there has been a failure of the principles of natural justice; and where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.[4] The 2013 TaeHung formulation, quoted in Perfect Tobacco, adds the case where the alternative remedy is not efficacious.[5] Mala fides is a further, separate exception.

Enforcement of fundamental rights

Because Article 102(1) is not subject to the efficacious-remedy condition, a petitioner whose fundamental right is directly infringed may come straight to the High Court Division. In Manabendra Chakrabarty v Bangladesh, 3 SCOB [2015] HCD 52, the court relied on Government of Bangladesh v Syed Chand Sultana, 51 DLR (AD) 24, to hold that owners could seek protection of their right to property under Article 42 directly, even though the vested property tribunal was available.[3]

Action wholly without jurisdiction

An authority that acts outside its statutory power cannot insist that the citizen challenge it through the same statute. In Barnali Printers Ltd v Commissioner, Customs, Excise and VAT, Writ Petition No 1710 of 2019, decided on 2 March 2023, the High Court Division (Farah Mahbub and Ahmed Sohel JJ) held a time-barred final VAT demand to be without jurisdiction, so that the appeal forum under section 42 of the 1991 Act "will not operate as a bar" to Article 102.[8] In IIDFC Securities Ltd v NBR, Writ Petition No 11734 of 2022, decided on 24 January 2024, the same reasoning led the court to strike down the part of a demand that fell outside the five-year limitation period.[9]

Mala fides

In Manabendra Chakrabarty the High Court Division described it as a "settled proposition of law" that an aggrieved party may invoke Article 102 straightaway where the impugned action is mala fide, even though an alternative remedy exists. It found that listing the petitioners' Dhaka property in the "Ka" schedule of the 2012 vested property gazette was mala fide and held the petition maintainable.[3] The court also stressed that mala fides requires definite evidence, not mere suspicion.[3]

Breach of natural justice and mandatory procedure

Where a statute requires a show-cause notice and a hearing before a demand, skipping those steps is both a breach of natural justice and a jurisdictional failure. On 18 May 2026, in Jacinth Electronics Ltd v NBR, Writ Petition No 8233 of 2010, the High Court Division (S M Maniruzzaman and Dihider Masum Kabir JJ) made a Rule absolute against a VAT demand issued straight from an audit objection, without the notice and hearing required by section 55 of the 1991 Act, despite the government's argument that an appeal under section 42 was available.[7]

Challenges to the vires of a law

A statutory tribunal applies the statute; it cannot declare the statute or an SRO beyond power. Where the petitioner challenges the vires of a provision, the appeal cannot deliver the remedy, and TaeHung recognises that judicial review is then available.[5] Our guide to judicial review in Bangladesh explains the substantive grounds.

Tax and VAT: the alternative remedy bar in writ practice at its strictest

Tax and VAT are where the alternative remedy bar in writ litigation is most often argued, because the statutory appeal systems are detailed and the sums are large.

Income tax appeals under the Income Tax Act 2023

The Income Tax Act 2023 provides a first appeal to the appellate income tax authority and a second appeal to the Taxes Appellate Tribunal under section 291. An appeal to the Tribunal must be filed within 60 days of the order being communicated, extendable for sufficient cause, and generally requires prior payment of 10 per cent of the difference between the tax determined in the first appeal and the admitted tax liability; the Commissioner may reduce that requirement on application. If the Tribunal does not decide within 180 days from the end of the month of filing, the assessee's appeal is deemed allowed.[10] Those protections are precisely why courts regard the scheme as equally efficacious.

VAT appeals under the VAT and Supplementary Duty Act 2012

Under the 2012 Act, a person aggrieved by an order of a VAT officer below the rank of Commissioner may appeal to the Commissioner (Appeal) within 90 days, paying 10 per cent of the tax excluding penalty; the Commissioner (Appeal) must decide within one year or the appeal is deemed granted. Orders of a Commissioner, Commissioner (Appeal) or Director General go to the Customs, Excise and VAT Appellate Tribunal within 90 days, with a further 60 days for reasonable cause. The 10 per cent deposit applies, but not where the appeal is against a Commissioner (Appeal) order. The Tribunal may stay collection for up to six months, and an appeal undecided for two years is deemed granted.[11]

Seizure and sale orders under section 95, and orders under sections 82 and 98 of the Customs Act, are carved out of both appeal routes.[11] Where no statutory appeal lies, the bar has no work to do.

The 2025 warning against reflexive exceptions

On 26 February 2025, in British American Tobacco Bangladesh Company Ltd v Commissioner, Large Taxpayers Unit, Writ Petition No 642 of 2025, a Division Bench of Md Jahangir Hossain and Yousuf Abdullah Suman JJ summarily rejected a writ against a VAT and duty demand of about Tk 168.77 crore. The court accepted that the Appellate Division has recognised exceptions, but held that they must be used "cautiously and sensibly, but also responsibly", observing that hardly any pleader now fails to assert mala fides, arbitrariness or lack of jurisdiction to avoid the appeal forum. Because the reasoned 19-page order followed a personal hearing, the appeal under section 122 of the 2012 Act was an equally efficacious remedy.[6]

The contrast with Jacinth Electronics is instructive. A demand issued without the statutory notice and hearing is open to direct challenge; a reasoned demand issued after a hearing usually is not, however strongly the taxpayer disputes the merits. See our guides to VAT in Bangladesh and to a VAT writ petition in Bangladesh for the wider practice.

Waqf, vested property and contract disputes

Outside tax, the alternative remedy bar in writ petitions works the same way. In waqf matters, the Waqfs Ordinance provides appeals to the District Judge, and the High Court Division has discharged Rules where petitioners bypassed them.[2] In vested property cases, the Arpita Sampatti Protarpan tribunals are the ordinary route, but Manabendra Chakrabarty shows that mala fide inclusion of property in the gazette can be challenged directly.[3]

Contracts raise a related point. On 27 August 2025, in Writ Petition No 10567 of 2024, the High Court Division discharged a Rule brought by tenants of Dhaka Steel Works Ltd against demands to execute leases at a higher rent. Applying Superintendent Engineer, RHD v Md Emas and Brothers (Pvt) Ltd, 31 BLD (AD) 1, the court found the tenancy private in nature rather than statutory, leaving the tenants to their remedies under the contract and the general law.[12] There, the alternative remedy is an ordinary civil suit rather than a statutory appeal, but the effect is the same.

If the writ is refused: protecting the appeal

The greatest practical risk of the alternative remedy bar in writ litigation is that the statutory appeal period expires while the writ is pending. The courts have softened this in some cases. In Perfect Tobacco the Appellate Division stated that the respondent could still use the statutory appeal under section 42 of the VAT Act by relying on section 14 of the Limitation Act, which excludes time spent prosecuting a proceeding in good faith in a court without jurisdiction.[5] In Syed Nurul Arefeen the court said the petitioners could appeal and seek condonation of delay.[4]

Those are concessions, not guarantees. A tribunal may still question good faith, and condonation is discretionary. Where the exception you rely on is arguable rather than clear, consider filing the statutory appeal, with any required deposit, in parallel, or at least within time, and explain the position to the writ court candidly.

Writ or appeal? A decision framework

Applying the alternative remedy bar in writ cases is a judgement call. We work through the following sequence before advising on whether a challenge belongs in the writ court or in the statutory forum.

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For the procedure once a writ is filed, from motion hearing to Rule and final hearing, see our guide to the writ petition in Bangladesh.

The exceptions at a glance

The table summarises when the alternative remedy bar in writ proceedings is likely to be lifted. On a phone, scroll it sideways.

Common mistakes to avoid

• Treating the exceptions as boilerplate: generic allegations of mala fides or lack of jurisdiction invite summary rejection.
• Arguing the merits as jurisdiction: a wrong assessment of facts or valuation is an appeal point, not a jurisdictional defect.
• Letting the appeal period run: a 60 or 90-day window can expire while a Rule is pending.
• Ignoring deposit rules: a petition that is really about avoiding a 10 per cent deposit will rarely persuade the court that the appeal is inefficacious.
• Forgetting Article 102(1): where a fundamental right is directly infringed, frame the petition expressly under Article 102(1).
• Failing to explain the choice: the petition should state why no equally efficacious remedy exists, not leave the court to infer it.

The alternative remedy bar in writ practice rewards precision. Identify the jurisdictional defect, prove it from the documents and keep the statutory route alive. TRW's constitutional and writ litigation team advises on that choice every week; contact us in Dhaka before the appeal clock runs down.

Frequently asked questions

What is the alternative remedy bar in a writ petition?

It is the rule that the High Court Division will ordinarily refuse certiorari, mandamus or prohibition where the law provides another equally efficacious remedy, such as a statutory appeal, as Article 102(2) requires.[1]

Does the bar apply to fundamental rights petitions?

Not in the same way. Article 102(1) has no efficacious-remedy condition, and the courts have allowed petitioners to come directly for protection of fundamental rights such as the right to property.[1] [3]

When can I file a writ even though an appeal exists?

Typically where the action is wholly without jurisdiction, mala fide, in breach of natural justice, under a provision whose vires you challenge, or where the appeal is not genuinely efficacious.[4] [5]

Is a time-barred tax or VAT demand challengeable by writ?

Often, yes. The High Court Division has treated demands made outside the statutory limitation period as without jurisdiction, so the appeal forum did not bar the writ.[8] [9]

What if the VAT officer issued a demand without a hearing?

Skipping the mandatory notice and hearing has been held to justify a writ despite the appeal route, as in a May 2026 judgment quashing an audit-based VAT demand.[7]

How much must I deposit to appeal a VAT order?

Generally 10 per cent of the tax, excluding penalty, specified in the order. No deposit is required for an appeal to the Appellate Tribunal against a Commissioner (Appeal) order.[11]

How long do I have to appeal to the Taxes Appellate Tribunal?

Sixty days from communication of the first appellate order, extendable for sufficient cause, with a 10 per cent payment requirement that the Commissioner may reduce.[10]

If my writ is rejected, can I still appeal?

Possibly. The Appellate Division has indicated that section 14 of the Limitation Act or condonation of delay may help, but the safer course is to keep the appeal within time.[4] [5]

Does a high deposit make the appeal inefficacious?

Rarely on its own. Deposit rules are part of the statutory scheme, and the statutes allow reductions or exemptions in some cases, so the court will look for a real reason why the appeal is not an equally efficacious route to relief.[10] [11]

Can a writ be used for a private contract dispute?

Usually not. Where the contract is private rather than statutory, the High Court Division leaves the parties to civil remedies under the contract and the general law.[12]