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KAUSHLIYA NANDAN SHUKLA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Kaushliya Nandan Shukla v. State Of U.P. And Others - WRIT - C No. 640 of 2006 [2006] RD-AH 325 (5 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No.640 of 2006

Kaushilya Nandan Shukla

Versus

State of U.P. & Ors

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

This writ petition has been filed challenging the impugned show cause notice dated 21/10/2005 issued under Section 47A/33 of the Stamp Act and  raising the grievance that the impugned show cause notice dated 21/10/2005 has been served upon the petitioner by the statutory authority under the Stamp Act and it is liable to be quashed for the reason that the sale deed in respect of which the show notice has been issued is itself under challenge in civil suit pending before the civil court.

Learned Standing Counsel has raised the preliminary objection regarding the maintainability of the writ petition contending that writ does not lie against the show cause notice unless it is established that the notice has been issued by the authority having any jurisdiction and, therefore, it is submitted that the petition be dismissed as not maintainable for the reason that petitioner has not contended that the notice has been issued by the authority not having competence to issue the same.

We have considered the rival submissions made by learned counsel for the parties and have perused the record. Whatever may be the fate of the civil suit, admittedly it is not the case of the petitioner that the notice has been issued by the authority having no such competence.  

It is settled legal proposition that a show cause notice cannot be challenged in the writ jurisdiction unless the authority, which has issued it, is found to be having no jurisdiction in the matter, as held by the Constitution Bench of the Hon'ble Supreme Court in Calcutta Discount Co. Ltd. Vs. Income Tax Officer, AIR 1961 SC 372, wherein the Court observed as under:-

"It is well settled, however, that though the writ of prohibition or certiorari will not be issued against an executive authority, the High Courts have power to issue, in a fit case, an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority, acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court, it is well settled, will issue appropriate orders or directions to prevent such consequences."

A similar view has subsequently been reiterated by the Hon'ble Apex Court in M.P. Industries Ltd. Vs. Income Tax Officer & Ors., (1965) 57 ITR 637; State of Madras Vs. Madurai Mills Co. Ltd., AIR 1967 SC 681; M/s. S.B. Gurbaksh Singh Vs. Union of India & Ors., AIR 1976 SC 1115; Titaghur Paper Mills Co. Ltd. Vs. State of Orissa, AIR 1983 SC 603; Chief of Army Staff & Ors. Vs. Maj. Dharam Pal Kukrety, AIR 1985 SC 703; Union of India Vs. Brij Fertilizers (P) Ltd., (1993) 3 SCC 564; Union of India & Ors Vs. Upendra Singh (1994) 3 SCC 357; Ex. En. Bihar State Housing Board Vs. Ramesh Kumar Singh, AIR 1996 SC 691; Union of India Vs. Metal Box Co. of India Ltd., (1996) 11 SCC 122; and Whirlpool Corporation Vs. Registrar of Trade Marks & Ors., (1998) 8 SC 1.

While dealing with a similar issue in State of U.P. Vs. Brahm Datt Sharma & Anr., (1987) 2 SCC 179, the Hon'ble Supreme Court observed as under:-  

"When a show cause notice is issued to a Government servant under the statutory provision seeking upon him to show cause ordinarily the Government servant must place his case before the Authority concerned by showing cause and the Court should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued pulpably without any authority of law. An order violating fundamental principles of law and causing substantial injustice to a party may also be examined in a writ jurisdiction."

Thus, in view of the above, there can be no dispute to the settled legal proposition that if an authority purports to take any action which is prima facie shown to be null and void and devoid of any jurisdiction, the show cause notice can also be challenged in writ jurisdiction and the proceedings can be quashed even at the stage of show cause notice.

In the instant case, it is not the case of the petitioner that the Authority, which issued the order, had no competence. Nor it is a case of violation of fundamental principles of law.

In view of the above, we are not in a position to entertain the petition.

The writ petition is dismissed as not maintainable.

05/1/2006

SB


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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