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RAM GOPAL SAHU versus COMMISSIONER, CHITRAKOOT DHAM & OTHERS

High Court of Judicature at Allahabad

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Ram Gopal Sahu v. Commissioner, Chitrakoot Dham & Others - WRIT - C No. 41343 of 1999 [2003] RD-AH 37 (13 March 2003)

 

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. 24

CIVIL MISC. WRIT PETITION NO 41343 Of 1999

Ram Gopal Sahu ----- Petitioner

Versus

The Commissioner, Chitrakoot Dham Mandal,

Banda and others ----- Respondents.

--------------

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

The instant writ petition has been filed against the impugned order dated 23.7.1999 (Annexure ''5'), by which the respondent no. 2 has cancelled the lease of the petitioner in pursuance of the provision of rule 19 of U.P.Minor Mineral (Concession) Rules, 1963 (hereinafter referred to has the U.P.Minor Mineral Rules only).

Shri Nurul Huda, learned Standing Counsel has raised a preliminary objection regarding the maintainability of this writ petition as the petition has been filed without exhausting the statutory remedies as provided under the provisions of rule 78 of the U.P.Minor Mineral Rules.

A constitution Bench of the Hon'ble Supreme Court, in G. Veerappa Pillai vs. Raman & Raman Ltd. AIR 1952 SC 192, held that as the Motor Vehicles Act, 1939 is a self contained code and it provides for appealable/revisable forum, the writ jurisdiction should not be invoked in matters relating to enforcement of its provision.

Similar view has been reiterated in Assistant Collector of Central Excise vs. Dunlop India Ltd., AIR 1985 SC 330; R. Kishore Biswas vs. State of Tripura, (1999) 1 SCC 472; and Shivgovinda Anna Patil vs. State of Maharashtrai, (1999) 3 SCC 5.

In C.A.Ibraham vs. I.T.O., AIR 1961 SC 609 and H.B. Gandhi vs. M/S Gopinath & Sons, 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 restoring to writ jurisdiction.

Another Constitution Bench of the Hon'ble Supreme Court, in K.S.Venkataraman & Co. vs. State of Madras, AIR 1966 SC 1089, considered the Privy Council judgment in Raleigh Investment Co. Ltd. Vs. 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 validity of the provisions of the Act/Rules is under challenge.

In Titaghur Paper Mills Co. Ltd. Vs. State of Orissa & another, 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 Noor, 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. vs. Governor General In Council (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 Newspapers Ltd., 1919 AC 368, and Attorney General of Trinidad & Taboco vs. Gordon Grant & Co., 1935 Appeal Cases 532; and Secretary of State vs. Mask & Co., AIR 1949 PC 105, wherein it had consistently been emphasized that the remedy provided by the statute must be resorted to and writ should not generally be entertained unless the statutory remedies are exhausted.

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 a recent judgment of the Hon'ble Supreme Court in Punjab National Bank vs. O.C.Krishnan and others (2001)6SCC 569, the Hon'ble Supreme Court 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 this case, the preliminary objection raised that in view of the fact that the remedy of revision has been provided under the statute, the writ should not be entertained, is worth upholding as the revisional authority in such a case has a power to examine factual issues also as the revisional power under the said rules is not limited to examine only a pure question of law.

Therefore, in the facts and circumstances of the case, the petition is dismissed with the liberty to the petitioner to approach the revisional authority, and if revision is filed within four weeks from today, the revisional authority is directed to entertain the revision on merit and from the date of filing of a certified copy of this order. For a period of six weeks, the interim order passed by this Court shall remain in operation.

For further interim relief, the petitioner may approach the revisional authority, and if such an application for interim relief is filed, the revisional authority shall decide the same in accordance with law.

A certified copy of this order may be issued to the learned counsel for the petitioner on payment of usual charges within two weeks from today.

With these observations, the writ petition is disposed of finally.  

13.3.2003

AKSI


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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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