HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION (S) No. 3097 of 2008
1. Manish Kumar Agrawal
2. Avinash Sharma
3. Ku. Shanti Aged
4. Shankar Lal Rawate
5. Smt. Swati Trivedi
6. Smt. Jini George
...Petitioners
VERSUS
1. State of Chhattisgarh
2. Director, Directorate, Panchayat
3. Collector
4. Chief Executive Officer
...Respondents
! Shri Jitendra Pali, Advocate for the petitioner.
^ Shri Arun Sao, Government Advocate for the
State/respondents 1 to 3.
SB: Hon'ble Shri Satish K. Agnihotri, J.
Dated:19/08/2008
: Judgement
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
ORAL ORDER
(Passed on 19th day of August, 2008)
1. Learned counsel appearing for the petitioner submits
that the respondent-authorities have failed to understand
the purport of the order wherein, before passing the
impugned orders dated 23.05.2008 (Annexure P/3 colly.),
principles of natural justice was required to be complied
with. It is further contended that show cause notice was
issued on one ground and the impugned orders dated
23.05.2008 (Annexure P/3 colly.) were passed on different
ground. No show-cause-notice or opportunity of hearing was
afforded to the petitioner in respect of the ground, which
was taken for passing the impugned order.
2. Be that as it may, since it involves question of facts
which can be considered only by the appellate authority,
thus, this case is not one of the case wherein departure
from normal rule of resorting to statutory forum, be
allowed.
3. On the question of availability of alternative remedy,
the Hon’ble Supreme Court in the matter of State of H.P. and
others v. Gujarat 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 an
alternative remedy, it is within the
jurisdiction of discretion 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 ensure that he
has made out a strong case or that there
exist good grounds to invoke the
extraordinary jurisdiction.
21. In G.Veerappa Pilla v. Raman & Raman
Ltd.; CCE v. Dunlop India Ltd.; Ramendra
Kishore Biswas v. State of Tripura, Shivgonda
Anna Patil v. State of Maharashtra;
C.A.Abraham v. ITO, Titaghur Paper Mills Co.
Ltd v. State of Orissa; H.B.Gandhi v. Gopi
Nath and Sons; Whirlpool Corpn. v. Registrar
of Trade Marks; 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 held that where
hierarchy of appeals is provided by the
statute, party must exhaust the statutory
remedies before resorting to writ
jurisdiction. ”
4. Further, applying the said ratio in the matter of
U.P.State Spinning Co. Ltd. v. R.S.Pandey and another2, the
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 are 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. ”
5. In another 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 asto 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.”
6. A common thread running into the dicta laid down by the
Supreme Court in the aforementioned cases is that, normally
the High Court should not interfere if there is an adequate
efficacious alternative remedy where hierarchy of appeals is
provided by the statute, party must exhaust the statutory
remedy before resorting to writ jurisdiction, except when a
very strong case is made out for making a departure.
7. Applying the well-settled dicta laid down by the
Supreme Court 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 petitioners. However, liberty is reserved to
the petitioners to take recourse to alternative statutory
forum, raising all the grounds, available to the
petitioners, if so advised. No order asto costs.
JUDGE