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SUDHIR KUMAR versus STATE OF U.P. THRU' CHIEF SECY. & OTHERS

High Court of Judicature at Allahabad

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Sudhir Kumar v. State Of U.P. Thru' Chief Secy. & Others - WRIT - C No. 22879 of 2004 [2004] RD-AH 630 (24 August 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

        COURT NO.34

"RESERVED"

Civil Misc. Writ Petition No. 22879  of 2004

Sudhir Kumar  ......... Petitioner

Versus

State of U.P. & Ors. .........     Respondents

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

Hon. D.P. Gupta, J.

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

This writ petition has been filed for quashing the orders dated 15.05.2004 (Annex. 22 and 28) passed by respondent no.3 and also for quashing the consequential orders thereof, and further to command the respondents not to interfere with the petitioner's running of the petrol pump at the site in dispute, in pursuance of the Letter of Intent dated 31.01.2004 and No Objection Certificate, hereinafter called the ''NOC' dated 20.05.1980/05.03.2004.

The facts and circumstances giving rise to this case are that the  land in dispute, 166, Kariappa Street, Meerut was purchased in auction by one Sheikh Wahid Uddin Khan Bahadur and Sheikh Bashir Uddin. Subsequently, they transferred the said land to the petitioner's grand- father, late Ram Gopal, vide registered  sale deed dated 20.12.1947. The land in dispute situate in civil area of the Meerut Cantonment. Petitioner proposed to establish a petrol pump on open space of the aforesaid land abetting the Kariappa Street in  1976. The Hindustan Petroleum Corporation Limited, hereinafter called ''the H.P.C.L.'  applied for grant of NOC to the District Magistrate, Meerut vide application dated 28.08.1976, which was granted vide order dated 30.06.1977. However, the name etc. had been changed of the proprietary-ship firm but the fact remained that the petitioner installed underground storage tanks and pipelines etc. but the petrol pump could not be commissioned for the reason that the dealership could not materialize. The District Magistrate, Meerut again issued NOC  on 20.05.1980 in the name of M/s. A.C.E. Motors. As the proprietary-ship firm stood  by the said name and the said NOC  was converted in the name of H.P.C.L.  vide order of the District Magistrate dated 05.03.2004. On the basis of the NOC,  the H.P.C.L. took the approval of the controller  of explosives and also a licence for explosives in his own name for commissioning the petrol pump and a Letter of Intent was issued to the petitioner in consequence thereof on 31.01.2004. The petrol pump was established and commissioned with effect from 11.05.2004. The petrol pump was sealed on 16.05.2004 vide order impugned dated 15.05.2004 and by a separate order of the same date, the NOC issued for commissioning the petrol pump on 20.05.1980  had been cancelled which was obtained without obtaining the permission and NOC  from the Ministry of Defence, Government of India. Hence, this petition.

Shri S.C. Budhwar, learned Sernior Counsel, duly assisted by Shri Dilip Kumar and Pankaj Mittal, Advocates, has submitted that the orders impugned have been passed without giving opportunity of hearing to the petitioner. There is no requirement in law of getting any prior approval/sanction of the Defence Ministry. The Cantonment Act, 1924, hereinafter called ''the Act 1924' is a special and self-contained Code. Section 210 (3)(b) of the Act 1924 does not require any prior sanction or approval of the Defence Ministry/Central Government where a licence for sale or storage of petroleum is required. The Petroleum Act, 1934 provides for a licence and a NOC  under the Act and that is to be given by the District Magistrate and the Defence Ministry has no role in it. Rule  2 (X and XI) of the Petroleum Rules, 2002, hereinafter called ''the Rules 2002'  requires NOC  of the District Magistrate which includes Additional District Magistrate. Rule 144 of the Rules 2002 requires the issuance of the NOC  by the district authorities. The NOC  could be cancelled only on the ground mentioned in Rule 150 of Rules 2002. However, in the instant case, the orders have not been passed under the said Rules. Petitioner has not raised any unauthorized construction. Thus, the provisions of Section 178-A to 181 of the Act 1924 are not attracted. Mere slight changes or replacement of tanks etc. is covered under Section 179 (2) of the Act which specifies the erection or re-erection of the building. Establishing the petrol pump does not fall within the ambit of construction of the building. Notice received under Section 125 of the Act 1924 has been replied and no decision has yet been taken. In view of the above, the orders impugned are liable to be quashed.

On the other hand, Shri Mohd. Isha Khan and Shri Vipin Sinha, learned counsel appearing for the respondents have vehemently opposed the writ petition  raising preliminary objection regarding maintainability of the writ petition on the ground that the petitioner had earlier filed a Suit and as he could not succeed in getting any interim relief from the Civil Court, the writ petition has been filed without withdrawing the Suit and it was at a subsequent stage, i.e. after filing the writ petition, the Suit had been withdrawn. The petitioner cannot be permitted to misuse all the legal forums available to him merely because he can afford to do so. The order impugned, i.e. withdrawal of the NOC is appealable under Rule 152 (2) of the Rule 2002 and as the petitioner has approached this Court without exhausting the statutory remedies, this Court should not grant any indulgence and the petition is liable to be dismissed.

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

Before entering into merit of the case, we would like to consider the preliminary objections raised by Shri Isha Khan and Shri Vipin Sinha, learned counsel for the respondents.

In this case, Suit No. 537 of 2004 was filed challenging the impugned order of cancellation of NOC on 22.5.2004. It was heard on that date. However in the month of May, 2004, notices were issued on 22.5.2004 to the defendants therein. Subsequently an application was filed on 24.5.2004 for interim relief, but the same could not be taken up, rather the orders were passed on 29th May, 2004 and 31st May, 2004, wherein the Court refused to entertain the application under Rule 13 of the General Rules (Civil) to hear the matter in the summer vacation and fixed the date 16th July, 2004. Hence the petitioner filed a revision on 2.6.2004, disclosing the factum of pendency of the suit with stipulation that the suit will be withdrawn and has been withdrawn after reopening the Court, which was rejected. Therefore, the question would arise as to whether in the instant case it has been seriously contested by the respondents that the writ cannot be entertained as the petitioner has already approached the learned  civil court.

In K.R. Rashid & Sons Vs. Income-tax Investigation Commission & ors., AIR 1954 SC 207,  a Constitution Bench of the Hon'ble Supreme Court considered the issue involved herein that when the remedy under Section 8 (5) of the Taxation of Income-tax (Investigation Commission) Act, 1947 has been pending whether the High Court could entertain the writ petition. The Hon'ble Apex Court held that a person may choose/effect where it will proceed with the alternative remedy or with the writ petition, but both cannot be pursued simultaneously.

A similar view has been reiterated by another Constitution Bench in Trilok Chandra Motyi Chandra & ors. Vs. H.B. Munshi AIR 1990 SC 898, however, the Hon'ble Apex Court cautioned that a writ Court should entertain a writ petition in rare cases where the ordinary process of law appears inefficacious that the writ Court interferes even where other remedies are available.

In C.B. Gosain Vs. State of Orissa, (1963) 2 SCR 879, the Hon'ble Supreme Court held that even where an alternative remedy has been exhausted by a party, but that party could pursue any proceeding under Article 226 of the Constitution for the same relief.

A Constitution Bench of the Hon'ble Supreme Court in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani & anr. AIR 1961 SC 1506 held that even where a party has approached the alternative forum, the Court should entertain a writ petition or not, a straight jacket formula cannot be formulated. The Court may examine the facts and circumstances of the case and decide as to whether it was to entertain the petition or not. However, where the petitioner has already approached the alternative forum for appropriate relief, it is not appropriate that the writ petition should be entertained. The rule is based on public policy and motivating factor is that of existence of the parallel jurisdiction in another Court.

In M/s. S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & ors. J.T. 2004 Supp 2 SC 601 the Court held that mere availability of alternative forum for appropriate relief does not impinge upon the jurisdiction of the High Court to deal with the matter. Even if it is not a position to do so on the basis of the affidavits filed, however, if a party has already availed the alternative remedy while invoking the jurisdiction under Article 226 of the Constitution it will not be appropriate to the Court to entertain the writ petition.

In Jai Singh Vs. Union of India & ors., AIR 1977 SC 898 the Hon'ble Supreme Court considered a case wherein the petitioner filed a writ petition which was dismissed in limine. Subsequently, he filed a suit agitating the same subject matter. The Court held that suit was not maintainable as a person cannot be permitted to pursue two parallel remedies in respect of the same subject matter at the same time.

In Bombay Metropolitan Region Development Authority, Bombay Vs Gokak Volkart Ltd & ors., (1995) 1 SCC 642, the petitioner therein had filed a writ petition during the pendency of the appeal before the Statutory Authority. The Hon'ble Apex Court held that such a writ was not maintainable.

Thus, in view of the above, the law can be formulated that the public policy demands that a person has a right to choose the forum for redressal of his grievance, but he cannot be permitted to choose two forums in respect of the same subject matter for the same relief. There may be a case of forum  hunting that a party who filed a suit, may not be able to get the interim relief. It may abandon the remedy before the civil court and approach the remedy of filing the writ petition. Thus, it will amount to abuse of the process of the Court by forum hunting.

In the instant case, the suit was filed, which had been entertained. Notice had been issued to the opposite party-defendants. The only question remained pending that as notice had been issued on the application for interim relief, as well as partially accepting the application of the petitioner under Section 80 (2) C.P.C., we fail to understand how during the pendency of the suit the writ petition could be filed. The petition is liable to be dismissed on this count alone.

Admittedly, the order impugned recalling the NOC dated 15.5.2004 is appealable under Rule 154 (2) of the Rules 2002.

A Constitution Bench of the Hon'ble Supreme Court, in K.S.  Rashid & Sons (Supra), 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 481.

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  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 Seth Chand Ratan Vs. Pandit Durga Prasad, AIR 2003 SCW 3078.

Similar view has been reiterated in Seth Chand Ratan Vs. Pandit Durga Prasad, AIR 2003 SCW 3078 and Avinash Chand Gupta & Anr. Vs. State of U.P. & Anr., (2004) 2 SCC 726.

In Seth Chand Ratan Vs. Pandit Durga Prasad (D) by LRS. & Others, (2003) 5 SCC 399, while considering the similar issue, the Hon'ble Apex Court observed as under:-

"...... It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability,  resort must be had to that particularly statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is utra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief....."

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.

In the instant case, no cogent reason could be given by Shri Budhwar for approaching this Court without exhausting the statutory remedy of appeal nor he could satisfy us that the remedy of appeal provided under the said Rules 2002 is not adequate or efficacious. Petitioner could have filed the appeal and could pray for interim relief which could have been considered and appropriate order could have been passed by the Appellate Authority on the application for interim relief. In such a fact situation, we are not inclined to interfere in the matter.

Petition is dismissed with liberty to file the appeal. In case the statutory period of limitation has expired and petitioner presents the memo of appeal within two weeks from today, we request the Appellate Authority to consider the appeal on merit as petitioner is entitled for the benefit under Section 14 of the Limitation Act. No cost.

August 24, 2004

AHA/AKSI


Copyright

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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