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KRISHNA KUMAR DIVAULIYA & ORS. versus STATE OF U.P. & ANR.

High Court of Judicature at Allahabad

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Krishna Kumar Divauliya & Ors. v. State of U.P. & Anr. - WRIT - A No. 392 of 2005 [2006] RD-AH 434 (6 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

- Alternative/Statutory remedy should be exhausted  COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 392  OF 2005

Krishna Kumar Divauliya & Ors.   -------------    Petitioners              

         Versus.

State of U.P. & Anr.        -------------  Respondents

_________

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

Hon'ble  Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed  for quashing the condition  granted by the Regional Transport Authority, Jhansi of Stage Carriage Permit, vide its resolution dated 5.9.2005,  that petitioners shall not ply a vehicle registered more than 10 years back, i.e., prior to 1.1.1995.

Shri C.K. Rai, learned Standing Counsel, appearing for the respondents has raised a preliminary objection regarding entertaining the writ petition, contending that the impugned order is appealable under Section 89 of the Motor Vehicles Act, 1988 (hereinafter called the Act) and the petitioners must exhaust the remedy of appeal before the State Transport Appellate Tribunal. Thus, the writ petition should not be entertained as it has been filed without exhausting the statutory remedy of appeal.

It is contended by Shri Vivek Shandilya, learned counsel for the petitioners that it is not necessary for the petitioners to approach the Tribunal by filing the appeal or revision as the condition has been imposed in contravention of the provision of Section 59 of the Act which empowers only the Central Government to issue Notification in this regard. Therefore, the preliminary objection raised by Shri Rai should be rejected and writ petition should be entertained.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.

Section 89 (1) (a) of the Act reads as under:-

"89. Appeals.- (1) Any person-

(a) aggrieved by the refusal of the State or a Regional transport Authority to grant a permit, or by any condition attached to a permit granted to him, or..............."

Thus, it is clear from the aforesaid provision that any of the conditions attached to the permit can be challenged by filing the appeal.

It is not the case of the petitioners that the said respondent has not issued any Notification in this regard or the conditions imposed on the Permit is in contravention of any Notification issued by the Central Government. It may also be a good ground for filing the appeal.

The issue of exhausting statutory remedy has been considered time and against by the Hon'ble Supreme Court.

A Constitution Bench of the Hon'ble Supreme Court, in K.S.  Rashid & Sons Vs. Income Tax Investigation Commission & Ors., AIR 1954 SC 207, held  that  Article 226 of the  Constitution confers on  all the High Courts a very wide power in the matter  of issuing writs.  The said power is limited. However, the remedy of writ is  an absolutely  discretionary  remedy  and  the  High Court has  always  the  discretion to  refuse  to grant any  writ  if  it  is  satisfied  that  the aggrieved party can have an adequate or suitable relief elsewhere. Similar view has been reiterated by the Apex Court in Sangram Singh Vs. Election Tribunal, Kotah & anr., AIR 1955 SC 425, holding that the power of issuing writs are purely discretionary and no limit can be placed upon that discretion. However, the power can be exercised alone with recognised line and not arbitrarily and the Court must keep in mind that the power shall not be exercised unless substantial injustice has ensued or is likely to ensue and in other cases the parties must be relegated to the courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense.

Again a Constitution Bench of the Hon'ble Supreme Court,  in  Union  of India Vs. T.R.  Varma,  AIR  1957 SC 882, held that  it  is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be  required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. The Apex Court held that existence of an another remedy does not affect the jurisdiction of the Court to issue  a writ; but  the  existence of an  adequate  legal remedy is  a thing to be taken into consideration in the matter  of  granting writs and where  such remedy is  exhausted, it will be a sound exercise of discretion  to  refuse  to interfere in a petition under  Article 226 of the  Constitution unless there are good grounds therefor.

Yet another Constitution Bench of the Hon'ble Supreme Court, in State of U.P. & ors. Vs. Mohammed Nooh, AIR 1958 SC 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and held that writ would like provided there is no other equally effective remedy. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of fundamental principles of justice.  Therefore, in a proper case, powers of writ can be exercised, but should not be exercised generally where other adequate legal remedy is available though it may not be, per se, a bar to issue a writ of prerogative. The Apex Court   held that the remedy, being discretionary, cannot be asked as a matter of right, even if the order is a nullity, on the ground  that it was passed by disregarding the rules  of natural justice.  The Court held as under:-

".....   save  in exceptional cases,  the courts  will not interfere under  Article 226  until all normal remedies available to a petitioner have been exhausted. The normal  remedies  in a case of this  kind are appeal or revision. It is true that on  a  matter  of jurisdiction  or  on a question  that  goes  to the root of the case, the High Courts can  entertain a petition at an early stage but they  are not bound to do so and a petition  would not  be thrown out because the petitioner had  done  that which the Courts usually ask  him  to do, namely, to  exhaust his normal remedies before invoking an extraordinary  jurisdiction.......  The petitioner  would  have been expected to persue the remedies of appeal or revision and could not have come to the High Court in the ordinary way until he had exhausted them."

In  N.T. Veluswami Thevar Vs. G. Raja Nainar &  ors., AIR 1959 SC 422, the Hon'ble Apex Court held  that  the  jurisdiction of  the  High Court to  issue  writs against the orders of the Tribunal  is  undoubted;   but then, it  is  well settled that   where  there  is  another   remedy provided,  the  Court must properly exercise  its discretion   in  declining  to  interfere   under Article 226 of the Constitution.

Another Constitution Bench of the Hon'ble Supreme Court,  in State of Madhya Pradesh & anr. Vs.  Bhailal  Bhai etc.  etc., AIR 1964 SC  1006, held that   the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief  by  an action in  a  civil  court  or  to  deny  defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in Municipal Council, Khurai & anr. Vs. Kamal Kumar & anr., AIR 1965 SC 1321.

In Siliguri Municipality & ors. Vs. Amalendu Das & ors.,  AIR 1984 SC 653, the Apex Court held that the High court must exercise its power under Article 226   with circumspection and while considering  the matter of recovery of tax  etc., it should not interfere save   under   very exceptional circumstances.

In S.T. Muthusami Vs. K. Natarajan & ors., AIR 1988 SC 616, the Hon'ble Supreme Court held that  the High Court cannot be justified to exercise  the  power in writ jurisdiction  if  an effective alternative remedy is available to the party.

In Kerala State Electricity Board & Anr. Vs. Kurien E. Kalathil & ors., (2000)  6  SCC 293, while  dealing with a similar issue, the Apx Court held that the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy.

In A. Venkatasubbiah Naidu Vs. S. Chellappan & ors., (2000) 7 SCC 695, the Hon'ble Supreme Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. The Court observed as under:-

"Though no hurdle can be put against the exercise of Constitutional powers of the High Court, it is  a  well  recognised principle which      gives judicial recognition  that  the High Court  should direct the party to avail himself of such remedy, one or other, before he resorts to a Constitutional remedy."

Similar  view  has   been  reiterated  in Rajasthan State Road Transport Coprporation   &  anr.  Vs.  Krishna Kant  &  ors., (1995) 5  SCC  75;  L.L.  Sudhakar Reddy  &  ors. Vs.  State of A.P. & ors., (2001) 6 SCC 634;  Shri  Sant Sadguru Janardan Swami (Moingiri Maharaj)  Sahakari Dugdha Utpadak Sanstha &  Anr. Vs.  State  of  Maharashtra & ors., (2001) 8  SCC 509;  G.K.N.   Driveshafts  (India)   Ltd.  Vs. Income Tax  Officer & ors., (2003) 1 SCC 72;  and Pratap Singh  &  Anr.   Vs.   State  of  Haryana, (2002) 7 SCC 484.

In  Harbanslal Sahnia & anr. Vs.   Indian  Oil Corporation  Ltd. & ors., (2003) 2 SCC 107, the Hon'ble Supreme Court held that the rule of exclusion of writ jurisdiction  by availability of alternative remedy is a rule of discretion and not  one  of compulsion and the Court must consider the  pros and cons of the case and then may interfere if it comes to  the  conclusion that the  writ  seeks enforcement  of  any of the fundamental rights; where there is failure of principle of natural justice or where the orders or proceedings are wholly without  jurisdiction  or the vires of an Act is challenged. While deciding the said case, the Apex Court placed reliance upon its earlier judgment in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & ors., (1998) 8 SCC 1.

A Constitution Bench of the Hon'ble Supreme Court, in G. Veerappa Pillai Vs.  Raman  & Raman Ltd. & ors., AIR  1952 SC 192, held that  as  the Motor Vehicles  Act is a self contained code  and itself provides  for appealable/ revisable forum, the writ  jurisdiction should not be invoked generally in matters relating to its provision.

Similar view has   been reiterated in Assistant Collector of Central Exicse, Chandan Nagar, West Bengal  Vs. Dunlop India Ltd. & ors., AIR 1985 SC 330; Ramendra Kishore Biswas Vs. State of Tripura & ors.,  (1999) 1 SCC  472; and Shivgovinda  Anna Patil  & ors. Vs. State of Maharashtra & ors., (1999) 3 SCC 5.

In C.A.  Ibraham Vs.  Income-tax Officer, Kottayam & anr., AIR 1961 SC 609 and H.B. Gandhi, Excise & Taxation Officer-cum-Assessing Authority, Karnal & ors. Vs. M/s Gopinath  &  Sons & ors., 1992 (Suppl.) 2 SCC 312, the Hon'ble Apex court held that  where hierarchy of appeals is provided by the statute,  party must exhaust the statutory remedies before resorting to writ jurisdiction.

The Constitution Bench of the Hon'ble Supreme Court, in M/s. K.S.  Venkataraman & Co.(P) Ltd. Vs. State of Madras, AIR 1966 SC 1089, considered the Privy Council judgment in Raleigh Investment Co. Ltd.  Vs. The Governor-General in Council, AIR 1947 PC 78 and held that the writ court can entertain the petition provided the order is alleged to be without jurisdiction or has been passed in flagrant violation of the principles of natural justice,  or the provisions of the Act/ Rules  is under challenge.

In Titaghur Paper Mills Co. Ltd. & anr. Vs. State of  Orissa  &  Anr., AIR 1983 SC  603,  the Hon'ble Supreme Court refused to extend the ratio of its earlier  judgment  in State of  U.P. Vs. Mohammed  Nooh, AIR 1958 SC 86, wherein the Court had held  that prerogative writ can be issued  to correct the  error of the Court or Tribunal below even if an  appeal is provided under the  statute under certain  circumstances, i.e.  the order  is without jurisdiction,  or  principles of  natural justice have  not been followed, and held that in case of assessment  under the Taxing Statute, the principle  laid  down  by the  Privy  Council  in Raleigh Investment  Co.   Ltd.  (supra) would  be applicable  for  the reason that "the use of  the machinery  provided by the Act, not the result of that use, is the test."

While deciding the said case, the Hon'ble Supreme Court  placed reliance on large number of judgments,  particularly New Water Works Co.  Vs. Hawkes Ford, (1859) 6 CBNS 336; Neville Vs. London "Express" Newspaper Ltd., 1919 AC 368, and Attorney-General of Trinidad & Tabogo Vs. Gordon Grant & Company Ltd., 1935  AC 532; and Secretary of State Vs. Mask & Co., AIR 1949 PC 105, wherein it had consistently been emphasised that the remedy provided by the statute must be followed and writ should not generally be entertained  unless  the statutory  remedies  are exhausted.

In Whirlpool Corporation  (Supra) and  Tin  Plate Co.  of India Ltd.   Vs. State of  Bihar & ors., AIR 1999 SC 74 the Apex Court came to the conclusion  that writ should not generally be entertained  if statute provide for remedy  of appeal and  even if it has been admitted, parties should be relegated to the appellate forum.

In Sheela Devi Vs. Jaspal Singh, (1999) 1 SCC 209, the Hon'ble Apex Court has held that if the statute itself provides for a remedy of revision, writ jurisdiction cannot be invoked.

In Punjab National Bank Vs.  O.  C. Krishnan  and  others,  AIR 2001  SCW  2993, the Hon'ble Supreme Court while considering the issue of alternative remedy observed as under:-

"The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is hierarchy  of appeal provided in the Act, namely,  filing of an appeal under S.20 and  this fast track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Arts. 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even  though  a provision under  an  Act cannot expressly oust the jurisdiction of the Court under Arts. 226 and 227 of the Constitution,   nevertheless when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising its jurisdiction under the    said constitutional provisions. This was  a case  where  the High Court  should  not have  entertained  the   petition under Art. 227 of the Constitution and  should have  directed  the respondent  to  take recourse   to  the  appeal mechanism provided by the Act."

In State of Himachal Pradesh Vs. Raja Mahendra Pal & ors., AIR 1999 SC 1786 while dealing with a similar issue the Hon'ble Apex Court has held as under:-

"It is true that the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature and can be invoked for the enforcement of any fundamental right or legal right-------. The constitutional Court should insist upon the party (to avail of the efficacious alternative remedy) instead of invoking the extraordinary writ jurisdiction of the Court. This does not however debar the court from granting the appropriate relief to a citizen in peculiar and special facts notwithstanding the existence of alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article."

In Govt. of A.P. & ors. Vs. J. Sridevi & ors., AIR 2002 SC 1801, the Apex Court held that where a authority is competent to determine the issue, "the High Court in a writ jurisdiction should have directed the authority only to take an appropriate decision. When the statutory authority is vested with the power to determine the question as to the applicability of the provisions of the Act, it is ordinarily desirable to leave the question to be decided by such authority. The aggrieved party can file appeal against the decision within the framework provided under the statute and the ultimate decision also could be challenged under judicial review, if permitted in law

In the State of Bihar & ors Vs. Jain Plastics & Chemicals Ltd., AIR 2002 SC 206, the Apex Court held that existence of alternative remedy does not affect the jurisdiction of the writ court but it could be a good ground for not entertaining the petition.

In Champalal Binani Vs. The Commissioner of Income-tax, West Bengal & ors., AIR  1970 SC 645, the Court observed as under:-

"Before parting with the case we deem it necessary once more to emphasize that the Income-tax Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities, and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action. The assessee had an adequate remedy under the Income-tax Act which he could have availed of. He however, did not move the Income-tax Appellate Tribunal which was competent to decide all questions of fact and law which the assessee could have raised in the appeal including the grievance that he had not adequate opportunity of making his representation and invoked the extraordinary jurisdiction of the High Court. In our judgment, no adequate ground was made out for entertaining the petition. A writ of certiorari is discretionary; it is not used merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy, the High Court would be slow to entertain a petition challenging an order of a taxing authority which is ex facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner. The present case was one in which the jurisdiction of the High Court could not be invoked."

Similar view has been reiterated in U.P. State Bridge Corporation Ltd. & Ors. Vs. U.P. Rajya Setu Nigam S. Karmchari Sangh, (2004) 4 SCC 268; Bharat Petroleum Corpn. Ltd. & Anr. Vs. N.R. Vairamani & Anr., (2004) 8 SCC 579; Triputi Balaji Developers (P) Ltd. & Ors. Vs. State of Bihar & Ors., (2004) 5 SCC 1.

In U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & Anr., (2005) 8 SCC 264, the Hon'ble Supreme Court re-considered almost all of its earlier judgments on issue and came to the conclusion as under.

In a catena of decisions it has been held that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out. By deciding the said case, the Apex Court placed reliance upon the judgment in R Vs. Hillington, London Borough Council, (1974) 2 All ER 643, wherein it had been held as under.

"It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy.

*                    *                      *                      *

The statutory system of appeals is more effective and more convenient than application for certiorari and the principal reason why it may prove itself more convenient and more effective is that an appeal to (say) the secretary of State can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of these....whereas of course an appeal for certiorari is limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order.

*                    *                      *                      *

An application for certiorari has however this advantage that it is speedier and cheaper than the other methods and in a proper case therefore it may well be right to allow it to be used......I would, however, define a proper case asw being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law."

Similar view has been reiterated in Seth Chand Ratan Vs. Pandit Durga Prasad, AIR 2003 SCW 3078.

Thus, the law can be summarised that rule of exclusion of the writ jurisdiction is not a law but discretion to be exercised by the Court considering the facts and circumstances of the case, and if the case requires any kind of evidence etc. the writ Court may not exercise its extraordinary jurisdiction at all.

The Court must record reasons as what are the exceptional circumstances for which the writ is being entertained without asking the party to exhaust the statutory/alternative remedy. The writ should not generally be entertained when the equally efficacious remedy is available under the Statute which had provided the appellate/revisional forum.

In view of the above, we are not inclined to entertain the writ petition and it is accordingly dismissed. Petitioners are at liberty to approach the appellate forum. In case the appeal is filed, we request the learned Tribunal to grant relaxation in limitation under Section 14 of the Limitation Act to the extent the petition remained pending before this Court. The petition was filed on 20.12.2005 and disposed of today, the 6th January, 2006.

6.1.2006

AKSI


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