HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION C No 107 of 2008
Shri Dwarika Dhish Ahuja
...Petitioners
VERSUS
1. The State of Chhattisgarh
2. The Collector, District
3. The Tahsildar, Tahsil Bilaspur
...Respondents
! Shri U.N.Awasthy, Senior Advocate with Shri M.K.Sinha
Advocate for the petitioner
^ Shri Bhaskar Payasi, Panel Lawyer for the State/respondents
Honble Shri Satish K Agnihotri J
Dated: 26/02/2009
: Judgement
WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF
INDIA
ORAL ORDER
(Passed on 26th day of February, 2009)
1. This petition impugns the order dated 01.10.2007
(Annexure P/1 and P/2) on the ground that no reasonable
opportunity of hearing was afforded to the petitioner. Shri
Awasthy, learned senior counsel appearing for the petitioner
submits that if he takes recourse to statutory remedy
available under the law, it is not efficacious.
2. The Chhattisgarh Land Revenue Code, 1959 (hereinafter
referred to as `the Code, 1959′) is a self contained. It
provides for grant of relief and other remedies. The Code,
1959 further provides for appeal and appellate authorities
in Chapter V, section 44. This is a case where in normal
course, an appeal is maintainable before the Sub Divisional
Officer against the order of the Tahsildar, then to the
Collector and then to the Board of Revenue.
3. Shri Awasthy further submits that alternative remedy
available to the petitioner is not efficacious. The
contention of learned counsel that the remedy is not
efficacious does not merits acceptance as the statutory
remedy is provided in the court below as more effective and
efficacious remedy then the writ petitions in the High Court
wherein cases of all the nature are pending consideration.
4. On the question of availability of alternative remedy,
the Hon’ble Supreme Court in the matter of State of H.P. and
others v. Gujrat Ambuja Cement and another1 observed as
under:
“17. We shall first deal with the plea
regarding alternative remedy as raised by
the appellant State. Except for a period
when Article 226 was amended by the
Constitution (Forty-second Amendment) Act,
1976, the power relating to alternative
remedy has been considered to be a rule
of self-imposed limitation. It is
essentially a rule of policy, convenience
and discretion and never a rule of law.
Despite the existence of alternative
remedy, it is within the jurisdiction of
description of the High Court to grant
relief under Article 226 of the
Constitution. At the same time, it cannot
be lost sight of that though the matter
relating to an alternative remedy has
nothing to do with the jurisdiction of the
case, normally the High Court should not
interfere if there is an adequate
efficacious alternative remedy. If
somebody approaches the High Court without
availing the alternative remedy provided
the High Court should not ensure that he
has made out a strong case or that there
exists good grounds to invoke the
extraordinary jurisdiction.
21. In G.Verappa Pillai v. Raman & Raman
Ltd., CCE v. Dunlop India Ltd., Ramendra
Kishore Biswas v. State of Tripura, Shiv
Gonda Anna Patil v. State of Maharashtra,
C.A. Abraham v. I.T.O, Titaghur Paper
Mills Co. Ltd. v. State of Orissa,
H.B.Gandhi v. Gopinath & Sons, Whirlpool
Corpn. V. Registrar of Trademarks, Tin
Plate Co. of India Ltd. v. State of Bihar,
Sheela Devi v. Jaspal Singh, and Punjab
National Bank v. O.C.Krishnan, this Court
had held that where hierarchy of appeals
is provided by the statute, party must
exhaust the statutory remedy before
resorting to writ jurisdiction.”
5. Further applying the said ratio in the matter of U.P.
State Spinning Co. Ltd. v. R.S.Pandey and another2, the
Hon’ble Supreme Court observed as under:
“21. In U.P.State Bridge Corpn. Ltd. v.
U.P. Rajya Setu Nigam S. Karmachari Sangh,
it was held that when the dispute relates
to enforcement of a right or obligation
under the statute and specific remedy is,
therefore, provided under the statute, the
High Court should not deviate from the
general view and interfere under Article
226 except when a very strong case is made
out for making a departure. The person who
insists upon such remedy can avail of the
process as provided under the statute. To
the same effect or the decisions in
Premier Automobiles Ltd. v. Kamlekar
Shantaram Wadke, Rajasthan SRTC v. Krishna
Kant, Chandrakant Tukaram Nikam v.
Municipal Corpn. Of Ahmedabad and in
Scooters India v. Vijai E. V. Eldred.”
6. In another latest decision on the concept of
maintainability of writ petition vis–vis availability of
alternative remedy, the Supreme Court in the matter of
Secy., U.P.High School & Intermediate Education, Allahabad &
another v. H.K.Lal3, observed as under:
“4. From the records it is borne out that
the question as to whether the respondent
has a legal right to alter his date of
birth recorded in the certificate granted
by the Board was pending consideration
before the appellate Court. The writ
petition filed by the respondent should,
therefore, not have been entertained
particularly in view of the fact that the
appeal thereagainst was pending. Writ
jurisdiction is discretionary jurisdiction
and should not ordinarily be exercised if
there is an alternative remedy.”
7. This Court, in the matter of Chandrika Prasad Sahu &
Others v. State of Chhattisgarh & Others, in W.P.(S) No.
4597 of 2008, vide order dated observed as under:
“9. A common thread running into the dicta
laid down by the Hon’ble Supreme Court in
the aforementioned cases is that normally
the High Court should not interfere if
there is an adequate efficacious
alternative remedy where hierarch of
appeals is provided by the statute, party
must exhaust the statutory remedy before
resorting to the writ jurisdiction, except
when a very strong case is made out for
making a departure.”
8. Applying the well-settled principles of law on the
issue of availability of alternative remedy to the facts of
the case, this petition is dismissed as not maintainable as
no strong case has been made out for exercise of
extraordinary discretionary jurisdiction in favour of the
petitioner. However, liberty is reserved to the petitioner
to take recourse to alternative statutory remedy available
to them under the provisions of law, if so advised.
JUDGE