Rajasthan High Court - Jaipur
Ravi Prakash Kuchhal S/O Late Shri ... vs State Of Rajasthan on 9 March, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 2780/2022
Ravi Prakash Kuchhal S/o Late Shri Jagdish Prasad Kuchhal,
Resident Of G-5, Vinoba Marg, C-Scheme, Jaipur - 302001.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Urban
Development And Housing Department, Government Of
Rajasthan, Secretariat, Jaipur - 302005 (Rajasthan)
India.
2. Jaipur Development Authority, Jaipur Through Secretary,
Indira Circle, JLN Marg, Jaipur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Anand Sharma with
Mr. Amandeep Singh
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
09/03/2022
This writ petition has been filed assailing the legality and validity of the notice dated 27.10.2021 issued by the respondent- Jaipur Development Authority under Section 72 of the Jaipur Development Authority, 1982 (for brevity, 'the Act of 1982').
Learned counsel for the petitioner contended that land alleged to be under encroachment being part of 200 Ft. wide road on which he has raised construction of Lions Paradise Garden, is his private land as already held by the District Collector, Jaipur vide its judgment dated 07.12.2015 in an appeal under Section 75 of the Rajasthan Land Revenue Act, 1976. He, therefore, prays that the notice impugned dated 27.10.2021 be quashed. (Downloaded on 10/03/2022 at 09:19:39 PM)
(2 of 7) [CW-2780/2022] With regard to maintainability of the writ petition despite having an efficacious and alternative statutory remedy of appeal under Section 83 of the Act of 1982, learned counsel submitted that there is no absolute bar of entertaining the writ petition. He, in this regard, relied upon a judgment of Hon'ble Apex Court in the case of Commissioner of Income Tax & Ors. vs. Chhabil Dass Agarwal: (2014) 1 SCC 603 and a Coordinate bench judgment of this Court in case of Chhotu Ram & Another vs. State of Rajasthan & Others: 2015 (3) WLC (Raj.) 216.
He further submitted that since right to property is still a constitutional right under Article 300A of the Constitution of India, the writ petition is maintainable for enforcement of a constitutional right. He, in this regard, relies upon a judgment of the Hon'ble Apex Court in case of Hari Krishna Mandir Trust vs. State of Maharashtra & Ors.: (2020) 9 Supreme Court Cases
356. He, therefore, prayed that the writ petition be entertained and allowed.
Heard. Considered.
The notice dated 27.10.2021 has been issued by a competent authority wherein it has been alleged that petitioner has encroached upon a part of 200 Ft. wide road by raising construction of Lions Paradise Garden on it. The contention of the learned counsel that the aforesaid land already stands declared by a competent authority to be his private land, does not merit acceptance. A bare perusal of the judgment dated 07.12.2015 passed by District Collector does not establish the land alleged to be encroached upon by the petitioner is part of the same land which was subject matter of appeal under Section 75 of the Act of (Downloaded on 10/03/2022 at 09:19:39 PM) (3 of 7) [CW-2780/2022] 1956. It being disputed question of fact cannot be entertained in the writ jurisdiction.
The petitioner has a statutory efficacious and alternative remedy of appeal under Section 83 of the Act of 1982 against the impugned notice dated 27.10.2021 issued under Section 72 of the Act of 1982. True that not entertaining the writ jurisdiction on account of availability of alternative remedy is a self imposed restriction but, it can only be exercised if any exceptional circumstance warranting interference in writ jurisdiction exists. In the present case, learned counsel utterly failed to point out any such exceptional circumstance. The writ petition is bereft of any such averment that petitioner does not have any alternative remedy or that the alternative remedy available is not efficacious. A Full Bench of the Hon'ble Allahabad High Court has, in case of Chandrama Singh vs. Managing Director, U.P. Cooperative Union, Lucknow & Ors.-1991, (2) UPLBEC 898 while deciding a reference, held as under:
"4. Ordinarily, remedy of reference, envisaged under the Industrial Disputes Act, is an adequate and efficacious remedy available to a person aggrieved by an illegal retrenchment. Of course, the aggrieved person can always prove that, on the facts and circumstances of his case, the remedy is neither adequate nor efficacious. But, unless he discharges the onus of proving that the remedy of reference is either inadequate or inefficacious he should pursue the remedy of reference under the Industrial Disputes Act. At this juncture, it would be pertinent to emphasis that it would not be enough for the person pleading inadequacy or inefficacy of the relief of reference under the Industrial Disputes Acts to make merely a bald statement that remedy of reference is either inadequate or inefficacious. It is imperative for him to clearly plead, demonstrate and prove as to how and in what manner the remedy of reference is inadequate or inefficacious, and in the absence of requisite pleading and material in support (Downloaded on 10/03/2022 at 09:19:39 PM) (4 of 7) [CW-2780/2022] thereof it would not be permissible for him to raise the plea of inadequacy or inefficacy of the remedy of reference under the Industrial Disputes Acts.
5. Now, on the question of discretion of the High Court to decline to entertain a writ petition under Article 226 of the Constitution of India where an appropriate, adequate and efficacious remedy is available to the petitioner. In its decision rendered by a Bench of three Hon'ble Judges, presided by Hon'ble Mr. Justice Krishna Iyer, in K.K. Srivastava v. Bhupendra Kumar Jain, reported in MANU/SC/0207/1977MANU/SC/0207/1977 : AIR 1977 SC 1703, the Hon'ble Supreme Court of India observed thus (at p. 1704 of AIR) :-
"It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hand off .......
Obviously, the Hon'ble Supreme Court has authoritatively and firmly ruled that where appropriate or equally efficacious remedy is available to the petitioner the High Court must not entertain a writ petition under Article 26 of the Constitution of India. No doubt in the said case the Hon'ble Supreme Court pointed out that it did not go to the extent of stating that if there were exceptional or extraordinary circumstances the High Court should still refuse to entertain a writ petition. The Hon'ble Supreme Court purported to carve out an exception to the normal practice observed by the High Courts in relegating the petitioner to the alternative remedy available to him, the exception being existence of exceptional or extraordinary circumstances."
6. Referring to its decision in the case of K.K. Srivastava (supra) the Hon'ble Supreme Court, in its decision, rendered by a Bench of three Hon'ble Judges, in the case of Bar Council of Delhi v. Surjeet Singh, reported in MANU/SC/0286/1980 : AIR 1980 SC 1612, pointed out that "If the alternative remedy fully covers the challenge ..... then that remedy and that remedy alone must be resorted to ......". The Hon'ble Court observed that "if the nature of the grounds of the challenge ...... are such that the alternative remedy is no remedy in the eye of law to cover the challenge, or, in any event, is not (Downloaded on 10/03/2022 at 09:19:39 PM) (5 of 7) [CW-2780/2022] adequate and efficacious remedy, then the remedy of writ petition ..... is still available ...."
7. The principle laid down by the Hon'ble Supreme Court of India that where a statute provides a complete machinery for obtaining a relief against the order passed by the authorities the petitioner should not be permitted to invoke the jurisdiction of High Court under Article 226 of the Constitution of India was noticed by the Hon'ble Supreme Court of India in its decision in the case of Gujarat University v. N.U. Rajguru, reported in MANU/SC/0380/1987 : AIR 1988 SC 66 wherein it referred to and relied upon the case of Sri K.K. Srivastava (supra). Delivering the judgment of the court his Lordship Hon'ble Mr. Justice K.N. Singh observed as follows (at p. 70 of AIR 1988) :-
"We do not consider it necessary to burden the judgment by referring to decisions of this Court laying down the principle that where a statute provides a complete machinery for obtaining relief against the orders passed by the authorities a petitioner cannot be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution ......"
8. Having regard to the above noticed decisions of the Hon'ble Supreme Court of India, it is ruled that where a complete machinery/remedy for obtaining relief is provided in statute and such machinery and remedy fully covers the grievance of the petitioner then, unless extraordinary or exceptional circumstances exist or the machinery/remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be inadequate or inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of India for redresssal of the grievance by the petitioner.
13. On the pleadings contained in the instant petition the petitioner should not be allowed to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner had complained violation of the provision of Section 25-I of the Industrial Disputes Act, 1947 and for redressal of his grievance an adequate and efficacious remedy of reference under the provisions of Section 10 of the said Act itself exists. The petitioner has neither pleaded nor proved the said remedy to be inadequate or inefficacious. He has also not demonstrated the existence of any exceptional on extraordinary circumstances to permit him to bypass the alternative remedy available to (Downloaded on 10/03/2022 at 09:19:39 PM) (6 of 7) [CW-2780/2022] him under the Industrial Disputes Act, 1947. The petition deserves to be dismissed on the ground of availability of alternative remedy to the petitioner."
As already observed, since there is not a whisper of averment in entire writ petition as to why the petitioner has approached this Court in the writ jurisdiction without availing the statutory remedy of appeal, this Court is not inclined to entertain this writ petition.
The judgments relied upon by the learned counsel are of no help to him. In case of Commission of Income Tax & Ors. (supra), their lordships have held as under:
"15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."
At the cost of repetition, it is observed that the learned counsel could not point out existence of any such exceptional circumstance to warrant entertainment of this writ petition despite availability of alternative remedy.
In case of Chhotu Ram & Another Vs. State of Rajasthan & Others-2015(3) WLC (Raj.)216, this Court has assigned (Downloaded on 10/03/2022 at 09:19:39 PM) (7 of 7) [CW-2780/2022] reason for entertaining the writ petition despite availability of alternative remedy of statutory appeal. It was held as under:
"10. In view of the said provision contained in Section 83(8) of the JDA Act, the petitioners being aggrieved by the threatened action of the respondent-JDA was required to approach the Tribunal by referring the dispute to the said Tribunal or by filing the appeal against the issuance of the impugned notices. There being statutory remedy provided under the JDA Act, the court finds substance in the objection raised by the learned counsel for the respondents on the maintainability of the petition. However, it is settled position of law that existence of alternative remedy would itself not be a bar from entertaining petition filed under Article 226 of the Constitution of India. Even otherwise, since the petition has been heard finally at the admission stage, and the learned counsels for the parties have also made their submissions in details on all the issues involved in the petition, the preliminary objection raised on the maintainability of the petition does not survive."
In the present case, the writ petition is at its preliminary stage.
Similarly, the judgment in case of Hari Krishna Mandir Trust Vs. State of Maharashtra & Ors. -(2020) 9 Supreme Court Cases 356 is of no assistance to the learned counsel as he himself has fairly admitted that therein, there was no question of availability of alternative remedy to the petitioner.
The upshot of aforesaid discussion is that the writ petition is dismissed as the petitioner has a statutory alternative and efficacious remedy of statutory appeal under Section 83 of Act of 1982.
(MAHENDAR KUMAR GOYAL),J MADAN/Lakshya/373 (Downloaded on 10/03/2022 at 09:19:39 PM) Powered by TCPDF (www.tcpdf.org)